Conflicts Between US and State Constitutions

[asterion]

Well, over in GD, there is a thread on guns. In it, I posted

Have I made my point yet? Simply annuling the Second Amendment of the US Constitution will not have an impact on the States. Not only will you have to get the US Constitution changed, but basically 50 individual state constitutions as well. Unless you can get the courts to rule that the Feds have complete jurisdiction over firearms, overruling the States, or something similar so that you are completely in the clear to take the sort of action you are advocating, simply annuling the Second Amendment and passing Federal laws will not do it. Witness the battle between the Feds and the States that have decriminalized marijuana, and increase that by a huge amount. That’s what you’ll get if you simply annul the Second Amendment.

Now, if you pull a combination Eighteenth Amendment and Twenty-First Amendment, you might be able to get somewhere. Though I would hope that history has taught us that changing the Constitution for trivial and frivious matters is a bad idea.

Now, am I anywhere close to right? As I understand it, the states cannot give less protection than the fed does, but they can give more. So, just because an amendment in the US constitution is annulled, it does not mean that the State constitutions do not hold, at least at the state’s jurisdicitional level or below, correct? So, what if another version of the 18th amendment (prohibition) is passed, but in this case is a combination of annulling the 2nd amendment and banning all private gun ownership in the United States? Would this completely annul all State constitutions, or would we be looking at a jurisdictional and court battle that, in my opinion, would make the current fight over marijuana laws insignificant? Has there been any discussion or thought of the matter by Constitutional scholars?

[BrotherCadfael]

If the second amendment were annulled, the various state constitutions that contain some sort of protection for gun ownership would still apply.

If a constitutional amendment banning gun ownership were to pass, then the state constitutions would be superseded by the new amendment.

In fact, if the second amendment were annulled and a federal statute banning guns were to pass, that would also supersede the state constitutional provisions.

[Reeder]

You’ve got it backwards. The state constitution can do less but it can’t do more.

[David_Simmons]

@BrotherCadfael

In fact, if the second amendment were annulled and a federal statute banning guns were to pass, that would also supersede the state constitutional provisions.

I’m not a lawyer but I’m not sure that a federal law banning firearms within a state would be constitutional.

The powers of Congress are:

@US Constitution

The Congress shall have power to lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defense and general welfare of the United States; but all duties, imposts and excises shall be uniform throughout the United States;

To borrow money on the credit of the United States;

To regulate commerce with foreign nations, and among the several states, and with the Indian tribes;

To establish a uniform rule of naturalization, and uniform laws on the subject of bankruptcies throughout the United States;

To coin money, regulate the value thereof, and of foreign coin, and fix the standard of weights and measures;

To provide for the punishment of counterfeiting the securities and current coin of the United States;

To establish post offices and post roads;

To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries;

To constitute tribunals inferior to the Supreme Court;

To define and punish piracies and felonies committed on the high seas, and offenses against the law of nations;

To declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water;

To raise and support armies, but no appropriation of money to that use shall be for a longer term than two years;

To provide and maintain a navy;

To make rules for the government and regulation of the land and naval forces;

To provide for calling forth the militia to execute the laws of the union, suppress insurrections and repel invasions;

To provide for organizing, arming, and disciplining, the militia, and for governing such part of them as may be employed in the service of the United States, reserving to the states respectively, the appointment of the officers, and the authority of training the militia according to the discipline prescribed by Congress;

To exercise exclusive legislation in all cases whatsoever, over such District (not exceeding ten miles square) as may, by cession of particular states, and the acceptance of Congress, become the seat of the government of the United States, and to exercise like authority over all places purchased by the consent of the legislature of the state in which the same shall be, for the erection of forts, magazines, arsenals, dockyards, and other needful buildings;–And

To make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof.

The Congress could, I guess, prohibit shipment of weapons in interstate commerce. Maybe the the powers could be stretched so it would be ruled “necessary and proper” to pass a federal law banning guns everywhere to “provide for the common devense and general welfare.”

I don’t see anything else in the powers of Congress that would cover such a law.

[Schnitte]

@Reeder

You’ve got it backwards. The state constitution can do less but it can’t do more.

If a state constitution grants less rights than the federal does, then the citizen of this state can derive their right directly from the federal constitutíon, because it applies to every US citizen no matter which state they’re in; if a state constitution grants more rights than the federal does, then the state citizens can derive those rights from their state constitution without having to resort to the federal one. In effect this does mean that no US citizen can have less rights than provided for in the federal constitution, but they can have more if provided so in the particular state constitution.
Of course this does not apply if federal laws explicitly ban something; the state laws or constitutions cannot allow something that’s prohibited by applicable federal laws. Problem is that the feds need jurisdiction over that particular matter, or else the federal lw would be unconstitutional.

[Crafter_Man]

@Schnitte

If a state constitution grants less rights…

[minor nitpick]
According to the beliefs of our Founding Fathers, a constitution cannot grant or give rights. It can only promise to ***protect *** rights the people were born with.
[/minor nitpick]