Question about 2nd Amendment and Massachusetts

[cmfrost]

Hey guys, had a question about the 2nd and Massachusetts. When I took the safety class for my LTC the instructor said something along the lines of that the 2nd amendment doesn't apply in MA according to state law or the courts or something.

Does anyone know what he is talking about? That doesn't seem to make sense to me since its in the constitution but I didn't bother to ask I just wanted to get the class over as fast as possible.

 

[atmay]

As far as the state gov and courts are concerned, 2A does not apply to MA. It's straight hogwash, for sure, but that's their take on it.

Perhaps, with the right legal challenge in a post-McDonald world, that can be changed, but until then, it is what it is.

 

[BradM]

The Ma Supreme court says that the 2A doesn't apply to individuals, only the collective. The SCOTUS decisions of late will hopefully help change that eventually

 

[cmfrost]

Ok thanks for clearing that up. It just doesn't make sense that they can get away with that. Can't wait to leave MA.

 

[Rob Boudrie]

That doesn't seem to make sense to me since its in the constitution

Didn't you get the memo - the constitution is void where prohibited by law. Wittness the new concept of "secret trials" in the federal court system, and the totally unchecked ability of the feds to wiretap anyone at any time.

 

[38supermatt]

Seriously, the majority in MA are not worthy of benefiting from the very freedoms that were fought for and died for in this very state.

 

[cekim]

IIRC, the cases in question are Commonwealth v. Davis (1976) - which ruled that MA "right to keep and bear arms" in the state Constitution was a "collective right only" as well as Runyan (2010) which explicitly found that the 2nd Amendment (specifically Heller) was not incorporated and did not apply.

Both are now invalid per the finding of MacDonald, but no case has yet gone to SCOTUS and been remanded or reversed to MA to affirm this reality. It will come though...

Until then, the SJC persists in saying treasonous things like "the MA SJC does not follow the jurisprudence of the Supreme Court" (Powell - close paraphrase) for which they should be removed from the bench for failing to uphold their oath to protect and defend the Constitution.

 

[maee]

When I took the safety class for my LTC the instructor said something along the lines of that the 2nd amendment doesn't apply in MA according to state law or the courts or something.

Your instructor is correct. The first or tenth amendments don't really apply here either.

EDIT: I stand corrected, the 2A applies "in theory" to MA as of last week. But it will take some time to filter down to all courts, and probably never will make its way to the legislature and only very slowly to many police departments.

 

[terraformer]

IIRC, the cases in question are Commonwealth v. Davis (1976) - which ruled that MA "right to keep and bear arms" in the state Constitution was a "collective right only" as well as Runyan (2010) which explicitly found that the 2nd Amendment (specifically Heller) was not incorporated and did not apply.

Both are now invalid per the finding of MacDonald, but no case has yet gone to SCOTUS and been remanded or reversed to MA to affirm this reality. It will come though...

That case has already came. Comm v. Loadholt was appealed to SCOTUS direct from the SJC and last week was reversed and remanded based on the court's erroneous incorporation logic. As of last week, the 2A has been officially applied to the Commonwealth as an individual fundamental right.

 

[jcr]

Read it and weep:
Commonwealth v. Davis 369 Mass. 886, 343 N.E.2nd 847 (1976)

It's not long.

The SJC insisted on taking this case of an unsympathetic defendant because there was a Handgun Ban referendum later in the year. They wanted to announce before voting day, that if the ban passed there'd be no challenge to it that they would sustain. The ban failed miserably (here!), and GOAL was born.

It is now clearly wrong because the Supreme Court negated its assertion that the 2nd Amendment is not incorporated under the 14th to protect us from state law (McDonald).

--jcr

 

[terraformer]

BTW: The scary thing about Loadholt is 10 court of appeals cases in MA have mistakenly cited and gained rulings based on loadholt despite the fact that it was under appeal at the time and was eventually reversed and remanded. The state of justice in the commonwealth is appalling.

http://scholar.google.com/scholar?q=Comm+v.+Loadholt&hl=en&as_sdt=2&as_vis=1&oi=scholart

 

[cekim]

BTW: The scary thing about Loadholt is 10 court of appeals cases in MA have mistakenly cited and gained rulings based on loadholt despite the fact that it was under appeal at the time and was eventually reversed and remanded. The state of justice in the commonwealth is appalling.

http://scholar.google.com/scholar?q=Comm+v.+Loadholt&hl=en&as_sdt=2&as_vis=1&oi=scholart

Time to clear the bench...

Sadly, we will find no friends in the legislature to do what should be done here. Blatant miscarriage of justice...

 

[Kamal Jain]

Scholars and lawyers will argue about this in perpetuity. There is a reasonable case to be made that the Constitution of the United States does not apply to the governments of the states or subordinate jurisdictions (counties, municipalities, etc.).

The Constitution was designed to be a contract between the states, approved by the people, establishing a federal/republican government. It is a negating force stating clearly what the Federal government may do.

In the past, the Massachusetts SJC has asserted that because the Massachusetts Constitution predates the Federal one anyway, it takes precedence.

I think it's actually reasonable to say that the Constitution, and rights protected by it (as with the 2nd Amendment), do not apply to any states. It prevents the Federal government from infringing on those rights. Where the Constitution can come into play in making judgments on state laws and such is when it involves interstate commerce. This line of thinking is consistent with Federalism.

That may not be what you guys want to hear -- and I am neither a lawyer nor someone with the authority to affect this, so what I say has little bearing on the outcome -- but it is my take on the fundamental nature of our republic.

The point of the Constitution was to create a fairly loose confederacy of independent states which were each allowed to function as they wanted to. Each state would compete for citizens (taxpayers), and of course the citizens of those states would have influence over how each state was governed to that end. Each state was to be unique, and America was essentially a 13-member confederacy where each state was its own experiment/proving-ground on what worked and what didn't; what appealed to people and what didn't; etc.

Just my Monday morning thought with only one cup of coffee in me.

- K

 

[scouter-rick]

Scholars and lawyers will argue about this in perpetuity. There is a reasonable case to be made that the Constitution of the United States does not apply to the governments of the states or subordinate jurisdictions (counties, municipalities, etc.).

The Constitution was designed to be a contract between the states, approved by the people, establishing a federal/republican government. It is a negating force stating clearly what the Federal government may do.

In the past, the Massachusetts SJC has asserted that because the Massachusetts Constitution predates the Federal one anyway, it takes precedence.

I think it's actually reasonable to say that the Constitution, and rights protected by it (as with the 2nd Amendment), do not apply to any states. It prevents the Federal government from infringing on those rights. Where the Constitution can come into play in making judgments on state laws and such is when it involves interstate commerce. This line of thinking is consistent with Federalism.

That may not be what you guys want to hear -- and am neither a lawyer nor someone with the authority to affect this -- but it is my take on the fundamental nature of our republic. The point was to create a fairly loose confederacy of independent states which were each allowed to function as they wanted to. Each state would compete for citizens (taxpayers), and of course the citizens of those states would have influence over how each state was governed to that end.

Just my Monday morning thought with only one cup of coffee in me.

- K

Remember that when the Constitution was complete it was then sent to the States to be ratified. In so doing the States in my opinion accepted the Constitution as the basis of law. To rethink history and revise it according to what you want the facts to support is the basis of why we are in such trouble.

The irony is that Massachusetts was one of the States that would not initially Ratify the U.S. Constitution until guarantees were put in place that certain Amendments be added to guarantee certain rights. Those rights became the "Bill of Rights" and so the first 10 Amendments may not exist if not for the wisdom of the Massachusetts delegation.

How's that for history!

 

[terraformer]

I think it's actually reasonable to say that the Constitution, and rights protected by it (as with the 2nd Amendment), do not apply to any states. It prevents the Federal government from infringing on those rights. Where the Constitution can come into play in making judgments on state laws and such is when it involves interstate commerce. This line of thinking is consistent with Federalism.

Until the 14th amendment, this was a reasonable argument. Since then it is not applicable in the least. Federalism was created in the assumption the federal government was more dangerous and more likely to go rogue, most likely because of it's size and scope. MA is proof that the individual states are as much an affront to liberty as the federal government. Applying the constitution to both wrt individual rights works just fine for me.

 

[Bob P]

Until the 14th amendment, this was a reasonable argument. Since then it is not applicable in the least. Federalism was created in the assumption the federal government was more dangerous and more likely to go rogue, most likely because of it's size and scope. MA is proof that the individual states are as much an affront to liberty as the federal government. Applying the constitution to both wrt individual rights works just fine for me.

This. Read the whole document, you can't pick and choose what to apply. The 14th applies all the provisions of the Constitution to the states.

 

[Kamal Jain]

Remember that when the Constitution was complete it was then sent to the States to be ratified. In so doing the States in my opinion accepted the Constitution as the basis of law. To rethink history and revise it according to what you want the facts to support is the basis of why we are in such trouble.

Rick, you just asserted your opinion and suggested that was somehow different from rethinking history. I disagree that I was doing any rethinking at all. My opinion/position is based on having studied the Constitution and the path it took to become the law of the land. The states were operating under the Articles of Confederation and Perpetual Union until New Hampshire became the 9th state to ratify. Massachusetts was the 6th to do so.

Until the 14th amendment, this was a reasonable argument. Since then it is not applicable in the least. Federalism was created in the assumption the federal government was more dangerous and more likely to go rogue, most likely because of it's size and scope. MA is proof that the individual states are as much an affront to liberty as the federal government. Applying the constitution to both wrt individual rights works just fine for me.

Terraformer, I'll accept your argument on the 14th Amendment, which has clearly proven to be a mixed blessing for our republic. It unfortunately helped to usher-in tremendous power at the Federal level, at the expense of the states. The next nails in the coffin -- hopefully we can still fix things -- were the 16th and 17th Amendments, and the Federal Reserve Act.

I'm with you in my desire to see the Constitution and other laws used as negative forces against government at ALL levels to prevent infringement of my natural rights, but as I've mentioned elsewhere on the forum...I'm not counting on the SCOTUS ruling in favor of the people all the time, not even a majority of the time.

So the bigger question is do we, the people, allow government to decide what rights we shall and shan't have?

 

[scouter-rick]

Rick, you just asserted your opinion and suggested that was somehow different from rethinking history. I disagree that I was doing any rethinking at all. My opinion/position is based on having studied the Constitution and the path it took to become the law of the land. The states were operating under the Articles of Confederation and Perpetual Union until New Hampshire became the 9th state to ratify. Massachusetts was the 6th to do so.

Just a clarification: I was not using the word "you" as referring to you specifically. My thought was the collective "you". Massachusetts was the 6th State to ratify as you correctly assert but that ratification was based on what was known then as the "Massachusetts Compromise" which was expecting Amendments that eventually became the "Bill of Rights". It was my position that Massachusetts, now asserting that 2nd does not apply to them, was the irony.

 

[Kamal Jain]

Just a clarification: I was not using the word "you" as referring to you specifically. My thought was the collective "you". Massachusetts was the 6th State to ratify as you correctly assert but that ratification was based on what was known then as the "Massachusetts Compromise" which was expecting Amendments that eventually became the "Bill of Rights". It was my position that Massachusetts, now asserting that 2nd does not apply to them, was the irony.

Rick, I understood what you meant, but was just pointing out that speculation regarding people's mindsets, intentions, etc. from 222 years ago is all just that -- speculation, opinion, etc. Terraformer's position was grounded in black-letter law (the 14th Amendment).

A lot of states expressed concern about a lack of a Bill of Rights at the time the Constitution itself was out for ratification. The argument against putting one in was that it was "clear" the Constitution set aside certain enumerated powers for the Federal government and the rest remained with the people and the states. Obviously the 9th 10th Amendments were put in to reinforce that position, but the Bill of Rights seemed redundant to many people based on the clear language of the Constitution itself. The compromise worked both ways.

Having said that, I now want to recant -- or at least clarify -- my earlier position about states being bound by the Constitution and its Amendments.

Indeed, the Supremacy clause in Article VI would seem to indicate, prior to the 14th Amendment, that the states were bound by the Constitution:

Article VI - Debts, Supremacy, Oaths

All Debts contracted and Engagements entered into, before the Adoption of this Constitution, shall be as valid against the United States under this Constitution, as under the Confederation.

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.

 

[Bob P]

Rick, you just asserted your opinion and suggested that was somehow different from rethinking history. I disagree that I was doing any rethinking at all. My opinion/position is based on having studied the Constitution and the path it took to become the law of the land. The states were operating under the Articles of Confederation and Perpetual Union until New Hampshire became the 9th state to ratify. Massachusetts was the 6th to do so.



Terraformer, I'll accept your argument on the 14th Amendment, which has clearly proven to be a mixed blessing for our republic. It unfortunately helped to usher-in tremendous power at the Federal level, at the expense of the states. The next nails in the coffin -- hopefully we can still fix things -- were the 16th and 17th Amendments, and the Federal Reserve Act.

I'm with you in my desire to see the Constitution and other laws used as negative forces against government at ALL levels to prevent infringement of my natural rights, but as I've mentioned elsewhere on the forum...I'm not counting on the SCOTUS ruling in favor of the people all the time, not even a majority of the time.

So the bigger question is do we, the people, allow government to decide what rights we shall and shan't have?

Ah! I see where you're coming from now!

 

[scouter-rick]

Kamal,

I think we are on the same page.

What my comments were supposed to convey and it seems did so poorly was that the U.S. Constitution stands on the black and white of it's content and that those who would presume to be revisionist or attempt to rethink the thoughts of our founding fathers have no context in which to base such.

 

[MichaelJR]

So based on what happened last week....

what does this mean for us?

What does it POTENTIALLY mean for us?

When will we see any changes?

Will it be enforced?

 

[drgrant]

The bottom line is nothing will happen until a federal judge threatens to incarcerate public officials in MA, (say, for example, a corrupt red town CLEO) or something similarly "huge". Basically the incorporation of Heller/MacDonald still has to be effectively rammed down the throat of the MA legal system. Otherwise the state will just continue to ignore the legal validity of the 2nd amendment.

-Mike

 

[terraformer]

So based on what happened last week....

what does this mean for us?

What does it POTENTIALLY mean for us?

When will we see any changes?

Will it be enforced?

If you are talking about Comm v. Loadholt then nothing. It was a fun smackdown of the SJC and an accounting reconciliation. Heller and McDonald are the important ones. Loadholt simply gives no room for anti moonbat judges to delay the inevitable. It will force them to address the next question down the list of questions that need to be addressed. Hence why it kind of came and went. It wasn't a huge public deal.

 

[60 buckscash]

Call me simplistic but I would like the 2nd to be read as a pre-emptive clause to the states based on the 10th. IOW the Federal Gov. will make sure these freedoms are not harrassed and the states will handle the rest.

 

[MichaelJR]

If you are talking about Comm v. Loadholt then nothing. It was a fun smackdown of the SJC and an accounting reconciliation. Heller and McDonald are the important ones. Loadholt simply gives no room for anti moonbat judges to delay the inevitable. It will force them to address the next question down the list of questions that need to be addressed. Hence why it kind of came and went. It wasn't a huge public deal.

I mean what it paves the way for. How long before a big case hits here? Is it in the works?

 

[terraformer]

I mean what it paves the way for. How long before a big case hits here? Is it in the works?

Yes.

ETA: I am not trying to be a prick, but if we turn around and say we are about to do X, this allows the other side to play games with us before we ever get there. Once we file something offensive, their ability to toy with us generally decreases. I say generally as this is not a hard and fast rule.

We have also been working with defense attorneys around the state on things and we are not about to shine a light on those cases until they are well along because frankly, for us a lot of this is theoretical but for them, their freedom, their fortunes and their futures are on the line. But when all involved feel it is an appropriate time to publicize these efforts, you can bet NES will be the first place we go.

 

[MichaelJR]

Yes. View attachment 13887

ETA: I am not trying to be a prick, but if we turn around and say we are about to do X, this allows the other side to play games with us before we ever get there. Once we file something offensive, their ability to toy with us generally decreases. I say generally as this is not a hard and fast rule.

We have also been working with defense attorneys around the state on things and we are not about to shine a light on those cases until they are well along because frankly, for us a lot of this is theoretical but for them, their freedom, their fortunes and their futures are on the line. But when all involved feel it is an appropriate time to publicize these efforts, you can bet NES will be the first place we go.

That's what I like to hear. Keep fighting the good fight.

 

[Knuckle Dragger]

I'll just expand on terraformer's comments.

Yes, we had 34 years of case law going back to Comm v Davis that says that the second amendment does NOT guarantee and individual right. McDonald and Loadholt have basically given the courts a clean slate with which to work. This is where we have to be very, very careful. Case law usually goes in one direction and if the wrong people bring the wrong 2nd amendment claims and lose, they may be very difficult to undo in the near term.

We've seen a very clear pattern by the state of activity trying to write this new case law to their liking. The SJC has been actively seeking to control how this case law is re-written post-Heller by reaching into the lower courts sua sponte and grabbing any case with even a whiff of a 2nd Amendment claim. They got slapped down with Loadholt so it will be interesting to see how they re-write that decision and what they do with Powell.

In them meantime we're actually working very hard to keep our sights on several cases that have the potential to swing case law our way and help where we can. There's some really good stuff our there folks. Just remember that your 2A rights were taken from you bits at a time. And that's the way you're going to get them back.

 

[cekim]

Until the 14th amendment, this was a reasonable argument.

This...

Moreover, in terms of "predating", that matters not as the Constitution was ratified. If they did not like that it limited the rights of the states, then they did not have to ratify it. It was a compact between the states which ultimately limited the state's power in various ways even before the 14th amendment, but also spelled out the "inalienable rights" that the states implicitly accepted as "inalienable" by ratifying it.

Also the "supremacy" of the Supreme Court's jurisprudence has never been a viable subject for debate. It IS the highest court of the land and it is a violation of oath at a minimum and treason at most to act otherwise for a sitting judge. They can argue all they like that SCOTUS is wrong, but its decisions can only be challenged by the legislature within the confines of the Constitution and impeachment.

So, for those reasons, the "Federal only" argument falls down. I must say WRT to the first amendment, it does say "Congress Shall make no law", but the 2nd amendment says "shall not be infringed." Particularly in the context of the legislative intent of the 2nd amendment clarifying the right of the people to keep and bear arms to defend against the state, I read this wording to be a specific expression of that intention.