Gun control laws

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Joe Republic:
I was just wondering if the following bill could be considered constitutional or not:

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With this article on the 2nd Amendment in mind, is this bill constitutional in terms of states' rights?

Emsworth:
Two provisions of the Fourteenth Amendment are implicated by this bill: Section 1 and Section 5. Section 1 states, "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States." Section 5 states, "The Congress shall have power to enforce, by appropriate legislation, the provisions of this article."

The right to bear arms--like every other freedom guaranteed in the Bill of Rights--is considered one of the "privileges or immunities of citizens of the United States." Therefore, the right to bear arms is applicalbe not only at the federal level, but also at the state level. Under Section 5, Congress has the power to "enforce" this guarantee "by appropriate legislation."

At first glance, it looks as if this bill merely exercises the power to "enforce" the guarantee of the right to bear arms. However, this is not really the case. There is a difference between the power to enforce a constitutional provision, and the power to interpret a constitutional provision. The power to enforce means the power to provide a remedy in case of non-compliance. The power to interpret means the power to determine if non-compliance exists in the first place.

This bill seeks to interpret the Constitution; this is obvious from the text of Article II clause A. Therefore, it usurps the power of the judiciary, and is unconstitutional. This is not a states' rights issue, but a separation of powers issue.

A18:
This is unconstitutional under Boerne v. Flores. The only time Congress really gets to "interpret" the Civil War amendments is when it's dealing with race.

Emsworth:
Quote from: A18 on January 08, 2006, 01:51:37 PM

The only time Congress really gets to "interpret" the Civil War amendments is when it's dealing with race.


That exception is quite illogical, although it does have to have an historical basis.

A18:
The race exception is entirely arbitrary, and I can't defend it. I was only pointing out that it exists--that is, in modern Supreme Court jurisprudence.

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