How binding are state constitutions?

Factual Questions
1

And how much respect do the get from the feds?
With all the debate about the meaning of the U.S. Constitutions 2nd Amendment, I’d like to know how much muscle state constitutions would have if the Supreme Court were to rule that the 2nd gives no individual right to guns what so ever.
Wisconsins Constitution (article 1, section 25) reads:

“The people have the right to keep and bear arms for security, defense, hunting, recreation, or any other lawful purpose”.

This makes gun ownership clearily an individual right. If the 2nd were denied (or repealed), how much protection would this state document give to gun owners?

2

The US Const. would have no bearing on the state const. If the right to keep arms is not guaranteed by the US const, a state can ensure it for its citizens, unless it violated a provision in the US Const.

3

The original intent was to have strong State governments and a relatively weak Federal one, and for the natural state of affairs to err on the side of liberty. In fact, Amendments 9 and 10 specifically state that all rights and powers not explicitly granted to the Federal government belong to the People and the States.

Recently we have moved diametrically away from that and the governmental trend du jour is to centralize all political power (In the US the federal government has become unreasonably powerful-the people who set it up would probably be appalled to see what it has become. worldwide, everybody is trying to move to a single world-governing power).

So my guess is that rather than the default being freedom & liberty, as was originally meant, the less-free option would take precedence. In other words, if one document doesn’t acknowledge a right and another grants or protects it, the one that could be interpreted more restrictively would win.

4

I would disagree with <b>Joe_Cool</b> to a certain extent.

Women were granted suffrage in many states before the 19th Amendment was adopted. So it was possible for states to extend the franchise despite the fact that the Federal Government hadn’t yet given its blessing.

Abortion was also legal in several states before Roe v. Wade.

I think that in the above situations, the changes were made by statute and not amendment to any state consitution.

The U.S. Constitution always takes precedence over a state consitution. In addition to the 9th and 10th Amendments, I think that the Full Faith and Credit clause and The Equal Protection Clause of the 14th amendment may come into play.

Can anyone cite a situation where the Supreme Court has narrowed a right guaranteed to people of a particular state? There are numerous instances when rights have broadened to people in particular states, most notably in abortion cases.

5

A few notes on the previous posts…

Increasing federal power is definitely not “du jour” unless your “jour” is pretty long. Federal power increased dramatically in the 1930s under Franklin Roosevelt as a response to the New Deal. Lately, the present Supreme Court has taken some steps, albeit baby steps, toward returning power to the states. While it is clear that the present allocation of power between the federal government and the states is not that contemplated by the founding fathers, that hasn’t been true for a very long time. In fact, now that I think about it, the first dramatic change in the balance of power resulted from the Civil War, Reconstruction, etc. Given a choice between being divided into 50 separate states (using the term in its political science sense) or 50 parts of a single state, I suspect that most of the founding fathers would prefer a single united country, as evidenced by the federalist papers and the debate over the Articles of Confederation. But that’s just IMHO.

In many instances, state constitutions grant more rights than the federal constitution. For example, some states’ constitutions (I do not recall which states and could probably look it up if anyone really cares) grant greater rights with respect to the 4th Amendment and search and seizure law. In those states, the state police are more restrained than in the states where their equivalent constitutional guarantees have been determined to be equivalent to the federal guarantees.

The basic structure is that the Federal Constitution preserves certain rights nationally, sets out the limited powers of the federal government, and leaves everything else to the states. Where the federal constitution and Congress has not preserved something as a right or legislated against it, it’s up to the states. That’s why some states could allow abortion before Roe v. Wade and some could prohibit it. Of course, once the Court found that the federal constitution preserved the right to an abortion, the matter was taken from the states’ hands.

In response to BobT, the Supreme Court would not be able to narrow state-granted rights, unless they conflicted with existing federal constitutional guarantees or Acts of Congress. The only way state laws or constitutional rights get restricted is through preemption.

Returning to the OP, if the federal constitution were either amended to remove the 2nd Amendment, or it were somehow read out of existence by a Supreme Court decision, then the issue would be up to the states.

Where it becomes sticky is where Congress acts in a way incompatible with the state constitution. I ** think ** (but do not recall for sure) that an Act of Congress would preempt a contrary state constitutional provision. So, if the federal government created a national gun registry, I ** think ** that the federal statute would prevail over a contrary state constitutional provision.

6

Thanks Squooshed. That was a cogent explanation of the issue.

7

It’s worth pointing out that, often, state courts will hold that the protections granted by a state constitution are coextensive with those granted by the federal constitution - this means that federal decisional law, for example, can be used in analyzing state law. So if a state constitution forbids unreasonable search and seizure, and the Supreme Court rules that it’s reasonable to search the area immediately surrounding an arrestee, the issue of reasonables under the state constitution need not be re-litigated.

Obviously, if the US Constitution were to remove the Fourth Amendment entirely, the residents of our hypothetical state would still enjoy the protections of their state constitution.

8

Uh, no. The federal constitution was set up to ensure a strong federal government as opposed to the bickering states we had under the Articles of Confederation. You can argue that the federal government was never intended to have some of the powers that it has today, but you can’t argue that the Federal Constitution was meant to ensure a weak federal government.

9

Just to add a small anecdote to Squooshed’s and Bricker’s cogent analyses . . .

When I clerked for my state’s Supreme Court, the justices were always careful, when analyzing constitutional issues (and if possible under the facts), to set out that the Court’s analysis was pursuant to BOTH the state and Federal constitutions.

For example, if a question regarding a right to privacy were raised, the Court would reach a conclusion but make it clear the bases for that conclusion were the rights to privacy in the state constitution as well as the Federal constitution, and that the state constitution was an independent basis for the decision.

This immunized the decision from being overturned on appeal to the U.S. Supreme Court, because even if the U.S.S.C. decided the analysis under the Federal constitution was flawed, the ultimate authority on the state constitution is the supreme court of the state – not the Fed (assuming again that the decision does not actively conflict with a right guaranteed by the U.S. constitution).

By the way, the right to privacy in my state is much more expansive than the right granted in the U.S. constitution, and our state supreme court has ruled that procedures considered okay as a means of investigation in other jurisdictions (i.e., the use of infrared imaging of a private home,) are not okay in this jurisdiction. Just as a “for example.”

10

If I remember my US History correctly, in the 1850’s the Fugitive Slave Law- established by Act of Congress- was deemed to supercede Personal Liberty Clauses in various free State constitutions.

11

Agree, assuming that the Act of Congress was within an area delegated to Congress by the Federal Constitution.

12

Which raises up a whole other dust storm on whether you can declare virtually anything to “affect interstate commerce” and impose Federal authority.

A State Constitution cannot allow anything that the Federal Constitution expressly forbids (or that SCOTUS has interpreted the Constitution as forbidding). Since the pre-1920 US Constitution said nothing about women’s suffrage, some states granted it before – what happens after the amendment is that no state may outlaw it any longer.

13

When Missouri became a state in 1820, it attempted to insert a clause into its constitution that would have denied Missouri citizenship to any emancipated slave. In other words, if you were an African-American in Missouri, you were a slave.
This was deemed to be in conflict with the Full Faith and Credit Clause of the Constitution and Congress denied Missouri statehood until the mess was sorted out. I believe that Missouri had to withdraw the clause as part of the Missouri Compromises. (There was more than one piece of legislation to make Missouri a state.)

14

The Supreme Court reviews state laws only when a Federal issue is involved. As others have said, it’s easy enough to invoke interstate commerce or the like to make almost any issue a federal issue, if the court so decides.

The SC has struck down over 1000 state laws and over 100 federal laws. I do not know of any state constitutional provision directly struck down by the SC, but that’s not the whole story. My memory is a little hazy, but I seem to recall that New Hampshire’s constitution contains a provision that all voters must be literate. The SC of the US has ruled that such provisions can’t be enforced, but it’s still there in the constitution of NH. I also recall hazily that Alabama has or had a constitutional provision that voters can’t be Communists. This is also unenforceable. What have been struck down by the SC are not the constitutional provisions themselves, but the state statutes intended to enforce the constitutional provisions.

15

Ok, how about getting less technical and a bit less, um, scattered in our analysis.

The OP hypothesizes the removal from the US Constitution of the Second Amendment (presumably by further amendment repealing it). What effect, it is asked, would this have on a state’s constitutional provision guaranteeing the right to have a gun?

If the state constitutional provision violates a US Constitutional provision, it is invalid. Thus, you can’t require literacy to vote; voting is a federal constitutional right guaranteed to the citizens of all states, and literacy requirements were viewed like poll taxes as impediments to voting by blacks. Since there is no provision of the US Constitution forbidding gun ownership, this would not apply.

If the federal government passes a law regulating gun ownership, AND that law is constitutionally valid (within Congress’ powers enumerated by the US Constitution), THEN the state provision would be meaningless. In a similar vein, California’s attempt to legalize marijuana use in cases of prescribed medical usage have run afoul of federal law criminalizing marijuana possession.

Otherwise, it would not be a federal question, and the state constitution provision would rule the state court determination.