# US vs. State Constitution **URL:** \ **Category:** Factual Questions\ **Created:** [August 5, 2006, 2:34pm UTC](https://boards.straightdope.com/t/us-vs-state-constitution/367458 "2006-08-05T14:34:52Z")\ **Posts on this page:** 20\ **Page:** 2
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [August 5, 2006, 11:05pm UTC](https://boards.straightdope.com/t/us-vs-state-constitution/367458/21 "2006-08-05T23:05:49Z")
> [@Diogenes the Cynic](#): > > This is an opinion, not a fact. You’re calling state gun-control laws based on your own interpretation of the 2nd Amendment, not on any settled law. SCOTUS has never ruled that the 2nd Amendment guarantees the right to bear arms to invidual citizens rather than militias. If SCOTUS ever _were_ to deliver a decisive ruling that the 2nd Amendment applied to private citizens, all of those so-called “abridgements” by the states would go out the window. In point of fact, ALL Constitutional Amendments are binding on ALL states. No, you are **absolutely and unequivacably** wrong on that point. Especially the part I underlined. ---
**Author:** ![Diogenes\_the\_Cynic](https://avatars.discourse-cdn.com/v4/letter/d/e99b99/32.png) [@Diogenes\_the\_Cynic](https://boards.straightdope.com/u/Diogenes_the_Cynic)\ **Post date:** [August 5, 2006, 11:18pm UTC](https://boards.straightdope.com/t/us-vs-state-constitution/367458/22 "2006-08-05T23:18:21Z")
> [@John Mace](#): > > No, you are **absolutely and unequivacably** wrong on that point. Especially the part I underlined. Cite? Name a single piece of state legislation which has ever been permitted to override a Constitutional Amendment. ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [August 5, 2006, 11:34pm UTC](https://boards.straightdope.com/t/us-vs-state-constitution/367458/23 "2006-08-05T23:34:31Z")
Cornell Law School disagrees with you, **Dio**. Emphasis added: > [@](#): > > [Cornell Law Schoon annotated constitution](http://www.law.cornell.edu/anncon/html/amdt2_user.html#amdt2_hd2) > > In spite of extensive recent discussion and much legislative action with respect to regulation of the purchase, possession, and transportation of firearms, as well as proposals to substantially curtail ownership of firearms, there is no definitive resolution by the courts of just what right the Second Amendment protects. The opposing theories, perhaps oversimplified, are an “individual rights” thesis whereby individuals are protected in ownership, possession, and transportation, and a “states’ rights” thesis whereby it is said the purpose of the clause is to protect the States in their authority to maintain formal, organized militia units. Whatever the Amendment may mean, it is a bar only to federal action, not extending to state or private restraints. > [@](#): > > [Cornell Law School annoted constitution](http://www.law.cornell.edu/anncon/html/amdt7frag1_user.html#amdt7_hd10) > > Courts in Which the Guarantee Applies.—The [7th] Amendment governs only courts which sit under the authority of the United States,16 including courts in the territories and the District of Columbia, and does not apply generally to state courts. ---
**Author:** ![Polycarp](https://avatars.discourse-cdn.com/v4/letter/p/82dd89/32.png) [@Polycarp](https://boards.straightdope.com/u/Polycarp)\ **Post date:** [August 5, 2006, 11:35pm UTC](https://boards.straightdope.com/t/us-vs-state-constitution/367458/24 "2006-08-05T23:35:34Z")
I think I see where the problem is. The guarantees of the Constitution fall into two groups: those which purposively bound the Federal government unless they specified the states as well, and those which guaranteed a right after 1867, which automatically were understood to bind the states. In other words, no state can decide that the legislature and not the electorate will choose its Senators, can deny the vote to women or raise the voting age to 21; those were guarantees written with the intent of binding both Federal and state governments. Parts of the original Constitution specified powers prohibited to the states, and others granted exclusively to the Federal government and therefore reasonably understood to have preempted state authority. In between, there are a bunch of important guarantees spelled out before 1867, to which Section One of the Fourteenth Amendment arguably applies. But it’s very clear that it is incorporated piecemeal and in principle rather than to the letter. For example, freedom of speech, of free exercise of religion, from compulsory self-incrimination, from unreasonable search and seizure are specified as binding on the states. But the right to a jury trial, to a grand jury indictment before being tried for a felony, and a few other things, mandatory in Federal proceedings, are concentrated into a concept that a defendant is entitled to a fair trial with due process of law, and a state which chooses to substitute other means that equally guarantee a fair trial and due process is free to do so. The underlying principle is the substantive guarantee incorporated by the Fourteenth. ---
**Author:** ![Diogenes\_the\_Cynic](https://avatars.discourse-cdn.com/v4/letter/d/e99b99/32.png) [@Diogenes\_the\_Cynic](https://boards.straightdope.com/u/Diogenes_the_Cynic)\ **Post date:** [August 5, 2006, 11:51pm UTC](https://boards.straightdope.com/t/us-vs-state-constitution/367458/25 "2006-08-05T23:51:01Z")
> [@John Mace](#): > > Cornell Law School disagrees with you, **Dio**. Emphasis added: your Cornel thesis is only a _theory_, not settled law. It would only hold true if SCOTUS decided that this particular interpretation of the 2nd Amendment was the correct one. Like I said, if SCOTUS were to rule that the amendment applied to private citizens, states would not be allowed to abridge it. Your second cite leaves out this part: > [@](#): > > But when a state court is enforcing a federally created right, of which the right to trial by jury is a substantial part, the States may not eliminate trial by jury as to one or more elements. Also on preview, what **Polycarp** said. Let me put this another way, _no rights granted to citizens_\* by the US Constitution may be abridged by the states. The 2nd Amendment example doesn’t fly because it has never been determined that it grants any right to private citizens. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [August 6, 2006, 12:23am UTC](https://boards.straightdope.com/t/us-vs-state-constitution/367458/26 "2006-08-06T00:23:27Z")
> [@Diogenes the Cynic](#): > > Cite? Name a single piece of state legislation which has ever been permitted to override a Constitutional Amendment. Grand juries. Required by the federal constitution. Not required in many states. ---
**Author:** ![ElvisL1ves](https://avatars.discourse-cdn.com/v4/letter/e/5daacb/32.png) [@ElvisL1ves](https://boards.straightdope.com/u/ElvisL1ves)\ **Post date:** [August 6, 2006, 12:30am UTC](https://boards.straightdope.com/t/us-vs-state-constitution/367458/27 "2006-08-06T00:30:47Z")
> [@John Mace](#): > > Uhm, I don’t know what part of my post you’re objecting to I \*quoted \* it. Scroll up. Sheesh. > [@](#): > > The states and localities can and have passed restrictions on gun ownership that the federal government could not get away with. False. The feds can pass the same laws that states can. There can be no abridgment of a right that does not exist. _As I already explained._ ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [August 6, 2006, 12:31am UTC](https://boards.straightdope.com/t/us-vs-state-constitution/367458/28 "2006-08-06T00:31:21Z")
> [@Bricker](#): > > Grand juries. Required by the federal constitution. Not required in many states. I would provide a cite for this statement, by the way, but modesty forbids me. Aw, [heck](http://www.straightdope.com/mailbag/mgrandjury.html). ---
**Author:** ![Diogenes\_the\_Cynic](https://avatars.discourse-cdn.com/v4/letter/d/e99b99/32.png) [@Diogenes\_the\_Cynic](https://boards.straightdope.com/u/Diogenes_the_Cynic)\ **Post date:** [August 6, 2006, 12:37am UTC](https://boards.straightdope.com/t/us-vs-state-constitution/367458/29 "2006-08-06T00:37:24Z")
> [@Bricker](#): > > Grand juries. Required by the federal constitution. Not required in many states. Grand juries are not something guranteed to invidual citizens as a right, so there’s no conflict there. The states are not _overriding_ anything. If an Amendment were passed tomorrow which staed that no citizen could be indicted for a felony without a grand jury then the states would have to abide by it. Once more, I was trying to say that states cannot abridge _individual rights granted to citizens_ by the Constitution. If state law is _contrary_ to the Constutution then the Constitution wins. ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [August 6, 2006, 12:39am UTC](https://boards.straightdope.com/t/us-vs-state-constitution/367458/30 "2006-08-06T00:39:45Z")
> [@Diogenes the Cynic](#): > > your Cornel thesis is only a _theory_, not settled law. It would only hold true if SCOTUS decided that this particular interpretation of the 2nd Amendment was the correct one. Like I said, if SCOTUS were to rule that the amendment applied to private citizens, states would not be allowed to abridge it. If the SCOTUS rules that a particular state gun control law is unconstitutional, then it will incorporate that amendment. Until and unless it does so, that amendment applies only to the federal government, not to the states. There is no settled law incorporating the 2nd amendment. Period. If you can point me to such a SCOTUS case, I’ll stand corrected. But the SCOTUS has never ruled that the entire Bill of Rights is incorporated. Each amendment that has been incorporated has been incorporated by a seperate ruling. Perhaps you are getting hung up on by use of the word “abridge”. I don’t mean to imply that the states have voided a right-- I meant that the right never existed (on a state level). > [@](#): > > Your second cite leaves out this part: So what? It wasn’t relavent to the fact that it doesn’t apply to all state courts. > [@](#): > > Let me put this another way, **no rights granted to citizens** by the US Constitution may be abridged by the states. The 2nd Amendment example doesn’t fly because it has never been determined that it grants any right to private citizens. But it is a prohibition against certain acts by Congress, and is not a prohibition against certain acts by the state legislatures. ---
**Author:** ![Diogenes\_the\_Cynic](https://avatars.discourse-cdn.com/v4/letter/d/e99b99/32.png) [@Diogenes\_the\_Cynic](https://boards.straightdope.com/u/Diogenes_the_Cynic)\ **Post date:** [August 6, 2006, 12:42am UTC](https://boards.straightdope.com/t/us-vs-state-constitution/367458/31 "2006-08-06T00:42:13Z")
> [@ElvisL1ves](#): > > False. The feds can pass the same laws that states can. There can be no abridgment of a right that does not exist. Exactly. Grand juries and gun ownership are not constitutional rights (or at least in the latter case, SCOTUS has never _ruled_ it to be a Constitutional right), so it’s false to say that states have abridged them. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [August 6, 2006, 12:54am UTC](https://boards.straightdope.com/t/us-vs-state-constitution/367458/32 "2006-08-06T00:54:23Z")
> [@Diogenes the Cynic](#): > > Grand juries are not something guranteed to invidual citizens as a right, so there’s no conflict there. The states are not _overriding_ anything. If an Amendment were passed tomorrow which staed that no citizen could be indicted for a felony without a grand jury then the states would have to abide by it. > > Once more, I was trying to say that states cannot abridge _individual rights granted to citizens_ by the Constitution. If state law is _contrary_ to the Constutution then the Constitution wins. What? The Constitution says: > [@Fifth Amendment](#): > > No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury… Yet Connecticut can hold me to answer for a capital crime without a grand jury. ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [August 6, 2006, 12:57am UTC](https://boards.straightdope.com/t/us-vs-state-constitution/367458/33 "2006-08-06T00:57:06Z")
> [@Diogenes the Cynic](#): > > Grand juries are not something guranteed to invidual citizens as a right, so there’s no conflict there. The states are not _overriding_ anything. If an Amendment were passed tomorrow which staed that no citizen could be indicted for a felony without a grand jury then the states would have to abide by it. > > Once more, I was trying to say that states cannot abridge _individual rights granted to citizens_ by the Constitution. If state law is _contrary_ to the Constutution then the Constitution wins. Funny, the drafters of the constitution sure considered it a right (emphasis added): > [@](#): > > In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise reexamined in any court of the United States, than according to the rules of the common law. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [August 6, 2006, 12:59am UTC](https://boards.straightdope.com/t/us-vs-state-constitution/367458/34 "2006-08-06T00:59:35Z")
Look, you understand that the federal government cannot hold me to answer for a crime unless I’m indicted by a grand jury, right? That’s my right, as an individual. A grand jury MUST indict me before the federal government can try me. That’s because the Fifth Amendment guarantees me that right. Yet that guarantee is not binding on the states, and there are a number of states that don’t use or require grand juries before bringing someone to trial. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [August 6, 2006, 1:08am UTC](https://boards.straightdope.com/t/us-vs-state-constitution/367458/35 "2006-08-06T01:08:29Z")
> [@Diogenes the Cynic](#): > > If an Amendment were passed tomorrow which staed that no citizen could be indicted for a felony without a grand jury then the states would have to abide by it. You have read the Fifth Amendment, right? ---
**Author:** ![Diogenes\_the\_Cynic](https://avatars.discourse-cdn.com/v4/letter/d/e99b99/32.png) [@Diogenes\_the\_Cynic](https://boards.straightdope.com/u/Diogenes_the_Cynic)\ **Post date:** [August 6, 2006, 2:03am UTC](https://boards.straightdope.com/t/us-vs-state-constitution/367458/36 "2006-08-06T02:03:28Z")
> [@Bricker](#): > > What? > > The Constitution says: > > Yet Connecticut can hold me to answer for a capital crime without a grand jury. The Grand Jury clause does not apply to states but only to how people must be treated in federal courts. It has not been ruled to be an applicable under the 14th Amendment as long as some other means of equal protection can be applied. Citizens only have a right to a grand jury when they are tried in _Federal courts_. ---
**Author:** ![Diogenes\_the\_Cynic](https://avatars.discourse-cdn.com/v4/letter/d/e99b99/32.png) [@Diogenes\_the\_Cynic](https://boards.straightdope.com/u/Diogenes_the_Cynic)\ **Post date:** [August 6, 2006, 2:05am UTC](https://boards.straightdope.com/t/us-vs-state-constitution/367458/37 "2006-08-06T02:05:25Z")
> [@Bricker](#): > > Look, you understand that the federal government cannot hold me to answer for a crime unless I’m indicted by a grand jury, right? That’s my right, as an individual. A grand jury MUST indict me before the federal government can try me. That’s because the Fifth Amendment guarantees me that right. > > Yet that guarantee is not binding on the states, and there are a number of states that don’t use or require grand juries before bringing someone to trial. Exactly. It’s not a civil right, it’s mandate for how federal courts have to proceed. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [August 6, 2006, 2:09am UTC](https://boards.straightdope.com/t/us-vs-state-constitution/367458/38 "2006-08-06T02:09:37Z")
> [@Diogenes the Cynic](#): > > The Grand Jury clause does not apply to states but only to how people must be treated in federal courts. It has not been ruled to be an applicable under the 14th Amendment as long as some other means of equal protection can be applied. Citizens only have a right to a grand jury when they are tried in _Federal courts_. Yes, that’s exactly right. But then what did you mean when you said, “In point of fact, ALL Constitutional Amendments are binding on ALL states.” and “If an Amendment were passed tomorrow which staed that no citizen could be indicted for a felony without a grand jury then the states would have to abide by it.” ---
**Author:** ![Diogenes\_the\_Cynic](https://avatars.discourse-cdn.com/v4/letter/d/e99b99/32.png) [@Diogenes\_the\_Cynic](https://boards.straightdope.com/u/Diogenes_the_Cynic)\ **Post date:** [August 6, 2006, 2:18am UTC](https://boards.straightdope.com/t/us-vs-state-constitution/367458/39 "2006-08-06T02:18:56Z")
> [@John Mace](#): > > Funny, the drafters of the constitution sure considered it a right (emphasis added): Huh? States can’t abridge the right to jury trials or double jeapordy. ---
**Author:** ![Diogenes\_the\_Cynic](https://avatars.discourse-cdn.com/v4/letter/d/e99b99/32.png) [@Diogenes\_the\_Cynic](https://boards.straightdope.com/u/Diogenes_the_Cynic)\ **Post date:** [August 6, 2006, 2:26am UTC](https://boards.straightdope.com/t/us-vs-state-constitution/367458/40 "2006-08-06T02:26:01Z")
> [@Bricker](#): > > Yes, that’s exactly right. > > But then what did you mean when you said, “In point of fact, ALL Constitutional Amendments are binding on ALL states.” and “If an Amendment were passed tomorrow which staed that no citizen could be indicted for a felony without a grand jury then the states would have to abide by it.” The latter statement is true, is it not? My initial statement was sloppy. I was trying to say that stae law is always subordinate to the Constution in the case of a conflict. States can’t abridge rights guaranteed by the Constitution or overrule Constitutional authority if there is a direct conflict. Grand juries, apparently have not been ruled to be a civil right_per se_, but a procedural mandate for federal courts so there _is no conflict_. State law is not _overriding_ the Constitution it’s just not _addressed_ by it. [Previous page](https://boards.straightdope.com/t/us-vs-state-constitution/367458.md?page=1) [Next page](https://boards.straightdope.com/t/us-vs-state-constitution/367458.md?page=3)