CONSTITUTION OF THE COMMONWEALTH OF MASSACHUSETTS

[KMaurer]

I don't have a background or education in law but I wish I did. I'm sorry but I still do not understand why the federal constitution says that I have a right but the state can say that I do not.

The key to understanding this is to read the text carefully. Neither constitution says that you have a particular right. Rights are things that exist prior to any government. If a government can grant a "right", then it can take that "right" away just as easily. What the constitutions do is to recognize the existence of particular rights and explicitly prohibit the government established and limited by that constitution from violating those rights. The state doesn't say that you don't have a right (which would be totally meaningless), but that it's constitution doesn't protect that right.

Ken

 

[jcr]

If SCOTUS rules in the Heller case that the individual has the right to keep and bear arms because of the 2A, then how can that help us here in MA where we don't have the right to keep and bear arms under our state's constitution?

Last part first. I wouldn't word it that way.

Surely, if we could ask John Adams, he would say that the MA Constitution protects the RKBA. It is the Supreme Judicial Court that says it won't protect the RKBA, and that means you get convicted if you violate a law that you and I know is contrary to the RKBA.

Regarding Heller and what comes next.

The question in Heller is whether a federal law, banning handguns in DC, violates the US 2nd Amendment RKBA. The consensus is that the court will declare the 2nd Amendment RKBA to refer to individuals. But, as the Solicitor General argued, the court could decide that the "arms" in question are only long guns, and that handguns can be banned.

We don't know how far the court will take this, but it is unlikely that they will go beyond federal law in its decision because state law is not at issue in this case.

Let's assume the most favorable ruling saying that the Fed can't ban handguns in the home. Interestingly, from what I understand, nobody will be able to get a handgun for their home because DC has no FFL dealers -- and you can't buy a handgun across state lines.

We don't know if the court will even mention "carry". Some states have constitutions that have been interpreted "bear" to mean carry, and they generally allow open carry (but restrict concealed carry).

What ought to happen is that someone from an otherwise gun-friendly state but one that, say, disallows open carry (perhaps TX) could make a test case by getting arrested for open carry, and appealing to the Federal Courts requesting them to overturn the conviction on 2ndA gournds. If the court hears this case, and it'll take a couple years, and if the court (after new Dem appointees?) they might then "incorporate" the 2ndA.

Only then and if (and there is a lot of "then" and a lot of "if") could the MA laws be successfully challenged.

 

[BOBKATT]

Thanks for the information. I'm starting to understand some of this. I have a feeling that I'll be long gone from MA before anything will even come close to being changed around here. Too many Antis in power who don't have respect for human rights and too many people who are willing to sacrafice their rights and vote for them.

 

[BOBKATT]

So basically when I get around to relocating to a free state, I need to look into that states constitution to make sure that their constitution protects the RTKBA because the protection that the Federal Constitution grants only forces the feds to acknowledge that right?

 

[WayneWong]

I believe that if the SCOTUS determines that the second amendment refers to an individual right and it applies to the states, that the unlimited discretion given to local authorities in Mass could be found unconstitutional.

My point is that if the 2nd amendment is an individual right which can not be infringed, than everybody in the state must have equal rights. In other words, a restricted license would by definition be an infringement if another person is issued an unrestricted license.

 

[WayneWong]

So basically when I get around to relocating to a free state, I need to look into that states constitution to make sure that their constitution protects the RTKBA because the protection that the Federal Constitution grants only forces the feds to acknowledge that right?

I suspect that if you have a grievance against Loserchusetts you will have standing and a better chance by filing a civil rights case in federal court.

 

[Baystatesuks]

I wuold be very surprised if SCOTUS says much other than a total and outright ban on all guns is unconstitutional. As usual, they won't provide much guidance as to what IS consitutional. So, additional court cases are sure to follow.

But at least that opens the door for some people/groups.

 

[BOBKATT]

I would like to see SCOTUS go a little farther and say that every American's 2A rights are protected by the 14th amendment, regardless of what the states constitution protects or fails to protect.

 

[Baystatesuks]

I would like to see SCOTUS go a little farther and say that every American's 2A rights are protected by the 14th amendment, regardless of what the states constitution protects or fails to protect.

I agree, this would be great. SCOTUS is usually reserved though because of the wide sweeping effect of its rulings.

 

[BOBKATT]

I agree, this would be great. SCOTUS is usually reserved though because of the wide sweeping effect of its rulings.

That is what the 14th amendment was originally intended for right? Obviously not just for the 2A but for all the rights that the BOR included and those rights that they beleived to be God-given rights so that the states had to also protect those rights as well, is this correct?

 

[matt1956]

The bottom line is, that even when (if) the SCOTUS rules on the case and PROPERLY. Before anything in MA can/will change, someone (GOAL for example) would need to challenge MA on the connstitutionality of their laws.

this is where the 14th and the second would need to be applied.

 

[Baystatesuks]

The bottom line is, that even when (if) the SCOTUS rules on the case and PROPERLY. Before anything in MA can/will change, someone (GOAL for example) would need to challenge MA on the connstitutionality of their laws.

this is where the 14th and the second would need to be applied.

The 14th amendment was used by SCOTUS to rule that the BOR did apply to the states and not just the federal government.

The issue here is are our 2A rights being infringed? MA AG will argue that you can have a gun for protection and to exercise your 2A right. But not any gun that you want. What is all this 2A infringement business about? Please dismiss case judge.

If SCOTUS said something along the lines of "an individual has the right to choose any firearm they want under 2A," then our chances would go up as we cannot choose any firearm we want. I don't see that happening though, as MGs, maybe grenade launchers, etc. would become available.

I am first in line to get a 20mm grenade launcher. Damn varmints are pissing me off.

 

[BOBKATT]

The 14th amendment was used by SCOTUS to rule that the BOR did apply to the states and not just the federal government.

The issue here is are our 2A rights being infringed? MA AG will argue that you can have a gun for protection and to exercise your 2A right. But not any gun that you want. What is all this 2A infringement business about? Please dismiss case judge.

If SCOTUS said something along the lines of "an individual has the right to choose any firearm they want under 2A," then our chances would go up as we cannot choose any firearm we want. I don't see that happening though, as MGs, maybe grenade launchers, etc. would become available.

I am first in line to get a 20mm grenade launcher. Damn varmints are pissing me off.

HAHA, I hear you. Obviously it is disgusting that they tell us what guns we can and can't own. Another example of the liberals knowing whats best for you because you don't. But, I would like MA to be "Shall Issue" for ALP, and if not then I would say that the right actually is being infringed.

 

[Baystatesuks]

Not sure that will be addressed (CCW versus right to own a gun in general) The question presented to the court in Heller was:

Whether the following provisions, D.C. Code §§ 7-2502.02(a)(4), 22-4504(a), and 7-2507.02, violate the Second Amendment rights of individuals who are not affiliated with any state-regulated militia, but who wish to keep handguns and other firearms for private use in their homes?

I believe they will answer affirmatively, but it won't directly address the laws in our wonderful state.

Note in the question it is directed to an outright ban rather than regulation.

 

[BOBKATT]

Here's what I don't get:

MA Constitution protects your right to own guns for the common defence.

Don't they think that the common defence ought to be defended by "Assault Weapons"?

 

[Baystatesuks]

Here's what I don't get:

MA Constitution protects your right to own guns for the common defence.

Don't they think that the common defence ought to be defended by "Assault Weapons"?

Interesting. Don't know the answer, but if put on the spot most legislators would probably say hot coffee from Dunkin and some sharp rocks or sticks would be good enough.

There is a disconnect between many states recognizing the police need for semi-auto and fully auto weapons to provide public protection and individuals needing those same guns to provide protection to themselves.

The underlying issue is legislators are unwilling to try and target a specific group of people (gangs, etc.) who improperly use guns. They make us all pay to avoid appearing discriminatory.

Legislators could also say that police provide common defence and are permitted to have assault weapons. We are too low on the societal hierarchy to participate in the common defence.

 

[BOBKATT]

Legislators could also say that police provide common defence and are permitted to have assault weapons.

Who will guard the guards?

 

[Baystatesuks]

Who will guard the guards?

Such trained people wouldn't need it and would never betray the public trust.

^

 

[jcr]

MA Constitution protects your right to own guns for the common defence.

Not quite. The MA SJC says that the protection in the MA Const is for the (collective) people to have guns for the common defense. They say that the "people" was the militia, but now the protection is for the National Guard.

These "robes" don't have to make sense -- they made the law back in 1976. And those on the SJC now are more than happy to agree with that ruling.

Don't they think that the common defence ought to be defended by "Assault Weapons"?

Oh yeah. The National Guard has better than "assault weapons." They have real machine guns.

Read the decision. It is not long -- the "meat" is only five paragraphs.
http://mysite.verizon.net/vze1prt1/davis.htm

 

[Baystatesuks]

Not quite. The MA SJC says that the protection in the MA Const is for the (collective) people to have guns for the common defense. They say that the "people" was the militia, but now the protection is for the National Guard.

These "robes" don't have to make sense -- they made the law back in 1976. And those on the SJC now are more than happy to agree with that ruling.



Oh yeah. The National Guard has better than "assault weapons." They have real machine guns.

Read the decision. It is not long -- the "meat" is only five paragraphs.
http://mysite.verizon.net/vze1prt1/davis.htm

Not sure Commonwealth v. Davis will be consistent with the Heller decision, but we will have to wait and see.

SJC reads 2A as follows:

"The Second Amendment to the Constitution of the United States declares: "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed." This was adopted to quiet the fears of those who thought that the Congressional powers under article I, sec. 8, clauses 15 and 16, with regard to the State militias [8] might have the effect of enervating or destroying those forces. The amendment is to be read as an assurance that the national government shall not so reduce the militias. See United States v. Miller, 307 U.S. 174, 178 (1939); Feller & Gotting, supra at 62; Levin, supra at 159. Decisions of the courts have not retreated from the view that the amendment inhibits only the national government, not the States. See Miller v. Texas, 153 U.S. 535, 538 (1894); Presser v. Illinois, 116 U.S. 252, 264 (1886); United States v. Cruickshank[sic], 92 U.S. 542, 553 (1875). So the amendment is irrelevant to the present case. The chances appear remote that this amendment will ultimately be read to control the States, for unlike some other provisions of the Bill of Rights, this is not directed to guaranteeing the rights of individuals, but rather, as we have said, to assuring some freedom of State forces from national interference. Apart from such interference, Congress is not inhibited by the amendment from regulating firearms by exercise of its interstate commerce or other powers, and it has done so on a considerable scale with judicial approval. United States v. Miller, 307 U.S. 174, 177-178 (1939). [9] Cases v. United States, 131 F.2d 916, 921-923 (1st Cir. 1942), cert. denied sub nom. Velazquez v. United States, 319 U.S. 770 (1943). United States v. Tot, 131 F.2d 261, 266-267 (3d Cir. 1942), rev'd on other grounds, 319 U.S. 463 (1943). United States v. Johnson, 497 F.2d 548, 550 (4th Cir. 1974). United States v. Day, 476 F.2d 562, 568 (6th Cir. 1973). United States v. Synnes, 438 F.2d 764, 772 (8th Cir. 1971), vacated on other grounds, 404 U.S. 1009 (1972). Should the amendment perchance be held in the future to restrain the States in some fashion, one would suppose that the States' regulatory authority would remain."

So if SCOTUS states it is an individual right, Commonwealth v. Davis will be crap - though again, will need case saying it applies to states throgh 14th amendment.

 

[B & K Sales LLC]

The judges should look at the original intent of why there was a militia and how the militia was transformed into what is now the National Guard. Members of the National Guard (Air and Army) are members of either the US Army Reserve/US Air Force Reserve and are directed/funded by Congress and the Department of Defense. They are in effect members of the "Standing Army" that the original founders were against. Ask any members of todays National Guard, especially those that are/have been deployed, if they are members of the militia or a standing military force.

 

[jcr]

The judges [of the MA SJC] should look at the original intent of why there was a militia and how the militia was transformed into what is now the National Guard.

You're correct, but you're missing the point.

That is what the judges should do to reach a correct result. That is not what they wanted to do.

The SJC wanted to allow the MA legislature (and the 1976 handgun ban referendum) to be able to pass all kinds of restrictive gun laws. Those on the SJC then and now "know" that guns are bad things and want to control them.

With that result in mind, they wrote the arguments in a way to lead to that end.

 

[Baystatesuks]

You're correct, but you're missing the point.

That is what the judges should do to reach a correct result. That is not what they wanted to do.

The SJC wanted to allow the MA legislature (and the 1976 handgun ban referendum) to be able to pass all kinds of restrictive gun laws. Those on the SJC then and now "know" that guns are bad things and want to control them.

With that result in mind, they wrote the arguments in a way to lead to that end.

If you read enough decisions from any state or circuit, you will quickly conclude that most judges are result oriented. In other words, the judge decides how a case should come out and then works backwards to try and justify that result.

That isn't the analysis that is supposed to be performed, but that is what happens. I have had this confirmed by clerks who have worked for state and federal judges.

So, don't be surprised that even if Heller says 2A is an individual right and applies to the states through the 14th amendment, the SJC will somehow say it still doesn't apply to us "citizens" in MA and the laws are good.

 

[BOBKATT]

Screw them then, I know whats right in my heart as a man and as an American, and our forefathers would agree. I will do what is right morally and constitutionally regardless of what these cowards say, and let the chips fall where they may.

 

[WayneWong]

Don't forget, my friends, we are not alone in this. We'll see all kinds challenges originating from California, Iowa, Illinois, Wisconsin, New York. There will be arguments posed that we have not even begun to consider. I hope and pray that these laws fall like dominoes. Even the shit stains in the legislature will eventually have to fold to a federal mandate.

 

[Coyote33]

Bump!