Although I am a strong States' rights proponent, it must be noted that the rights of the states must be in line with the guiding principles of the U.S. Constitution. Now personally I believe that the Federal level has become too powerful, to the extent of making the Tenth Amendment almost meaningless, but I believe that the Bill of Rights is what united us as a Nation of States, so I am not in favor of eliminating any of these rights as codified in the Constitution. I believe that these "inalienable" rights mean just that: inalienable.
The Constitution provides a basic template for the States, and a constraint on what an individual state can or cannot do, with some differentiation allowed via State and local law. Allowing States to decide on whether or not to support the Second Amendment would be like allowing individual States to allow freedom of speech (First Amendment) or allowing the States to pick and choose other parts of the Constitution they wish to observe at the State level.
Letting the States make their own decisions on the Second Amendment has already been decided in the Supreme Court decision of McDonald v. Chicago (2010). The case revolved around the ban of handguns in Chicago.
http://en.wikipedia....nald_v._ChicagoIn the earlier decision of Washington DC. v. Heller, the majority decided that the Second Amendment is a guarantee of individual rights (vs. a collective right only used by members of a militia). This was a key decision, with DC v. Heller laying some of the groundwork for the McDonald v. Chicago ruling in 2010. Since DC was not a "State", then the question arose as to whether an individual State could pass laws that significantly infringed on the Second Amendment. The decision was based on the "Due Process" clause of the 14th Amendment.
http://www.law.corne...on/amendmentxivAmendment XIV
...snip...
No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
...snip...
here is the text of McDonald v. Chicago (2010):
http://www.supremeco...pdf/08-1521.pdfAs I mentioned in the sugar-water (soda pop) thread for New York: "an individual state cannot just do as it pleases if found in violation of the overarching Constitutional guidelines". That principle applies to local government in the same way that it applies to state governments. For example, a city cannot decide on its own to place unreasonable restrictions on freedom of speech or religion without risking a "smackdown" by the highest court.
The DC v. Heller decision essentially defined gun ownership as an individual right, which then led to issues with the Due Process Clause of the Fourteenth Amendment since an individual Constitutional right was denied to individuals by local law, and "without due process of law" applied to those individuals who were denied their rights. In McDonald v. Chicago we find that Chicago was denying individuals, without due process, a right guaranteed in Heller at the Federal level (recall this was for DC) a few years prior. The McDonald v. Chicago decision, with the majority opinion written by Justice Alito, then turned towards issues of whether this individual right was in some sense a "fundamental" right that would be protected by the Due Process Clause, and therefore could not be infringed upon by the States. The majority found that it was fundamental, and the decision is an *excellent* read on the history of various types of rights and protections of same. The Seventh Circuit Court decision was then reversed by the Supreme Court.
As suggested, we could call a Constitutional Convention and do a major rewrite, but then we would be at further risk of degeneration into a "dis-United States" as one state decides to ban religion, another bans guns, and still another decides to toss out the double jeopardy provision of the Constitution because they didn't like a recent court ruling. This would in turn lead to serious problems with the "Equal Protection Clause" of the Fourteenth Amendment, where fundamental rights given to citizens in one state are not observed in another, making fundamental rights no longer fundamental - in turn leading to disunification of our Union.
Here are a few comments from the majority opinion of McDonald v. Chicago written by Justice Alito. Page numbers refer to actual PDF page numbers, not page numbers printed in the document (makes it easier to jump to PDF pages directly):
The Court clarified that the governing standard is whether a particular Bill of Rights protection is fundamental to our Nation’s particular scheme of ordered liberty and system of justice. Duncan, supra, at 149, n. 14. The Court eventually held that almost all of the Bill of Rights’ guarantees met the requirements for protection under the Due Process Clause. The Court also held that Bill of Rights protections must “all . . . be enforced against the States under the Fourteenth Amendment according to the same standards that protect those personal rights against federal encroachment.” Malloy v. Hogan, 378 U. S. 1, 10. Under this approach, the Court overruled earlier decisions holding that particular Bill of Rights guarantees or remedies did not apply to the States. (PDF page 3)
The Court must decide whether that right is fundamental to the Nation’s scheme of ordered liberty, Duncan v. Louisiana, 391 U. S. 145, 149, or, as the Court has said in a related context, whether it is “deeply rooted in this Nation’s history and tradition,” Washington v. Glucksberg, 521 U. S. 702, 721. Heller points unmistakably to the answer. Self-defense is a basic right, recognized by many legal systems from ancient times to the present, and the Heller Court held that individual self-defense is “the central component” of the Second Amendment right. (PDF page 3-4)
U. S. ___ (2008), we held that the Second Amendment protects the right to keep and bear arms for the purpose of self-defense, and we struck down a District of Columbia law that banned the possession of handguns in the home.The city of Chicago (City) and the village of Oak Park, a Chicago suburb, have laws that are similar to the District of Columbia’s, but Chicago and Oak Park argue that their laws are constitutional because the Second Amendment has no application to the States. (PDF page 7)
In sum, it is clear that the Framers and ratifiers of the Fourteenth Amendment counted the right to keep and bear arms among those fundamental rights necessary to our system of ordered liberty. (PDF page 37)
Municipal respondents’ remaining arguments are at war with our central holding in Heller: that the Second Amendment protects a personal right to keep and bear arms for lawful purposes, most notably for self-defense within the home. Municipal respondents, in effect, ask us to treat the right recognized in Heller as a second-class right, subject to an entirely different body of rules than the other Bill of Rights guarantees that we have held to be incorporated into the Due Process Clause. (PDF page 39)
According to municipal respondents, if it is possible to imagine any civilized legal system that does not recognize a particular right, then the Due Process Clause does not make that right binding on the States (PDF page 39)
We likewise reject municipal respondents’ argument that we should depart from our established incorporation methodology on the ground that making the Second Amendment binding on the States and their subdivisions is inconsistent with principles of federalism and will stifle experimentation. (PDF page 42)
Under our precedents, if a Bill of Rights guarantee is fundamental from an American perspective, then, unless stare decisis counsels otherwise,30 that guarantee is fully binding on the States and thus limits (but by no means eliminates) their ability to devise solutions to social problems that suit local needs and values. (PDF page 43)
Note that this federalist view of the Second Amendment offered by the municipal respondents (second to last paragraph in quote) is the same as the suggested view of letting the states decide - and was rejected by the Supreme Court. I do not believe that the amendment process was designed to tear down the major supporting beams of the overall legal architecture of the country by eliminating fundamental rights recognized in the Bill of Rights.
Edited by npcomplete, 13 April 2013 - 10:43 PM.
