Sunday, August 24, 2014

the 64 Million Dollar question!

If the right to keep and bear arms is so important: why didn't Maryland, New York, and New Jersey from the original 13 colonies adopt these provisions in their constitutions?  Indeed, why do only 44 states have such provisions.
California, Iowa, Maryland, Minnesota, New Jersey, and New York do not have "right to keep and bear arms" provisions in their state constitutions.

I would add that one of the original colonies also added this provisions to its constitutions in recent time (Delaware).

Here's a sampling:
  • Connecticut:  Every citizen has a right to bear arms in defense of himself and the state.  Art. I, § 15 (enacted 1818, art. I, § 17).  The original 1818 text came from the Mississippi Constitution of 1817.
  • Delaware:  A person has the right to keep and bear arms for the defense of self, family, home and State, and for hunting and recreational use.  Art. I, § 20 (enacted 1987). 
  •  Massachusetts:  The people have a right to keep and to bear arms for the common defence.  And as, in time of peace, armies are dangerous to liberty, they ought not to be maintained without the consent of the legislature; and the military power shall always be held in an exact subordination to the civil authority, and be governed by it.  Pt. 1, art. 17 (enacted 1780).
  • New Hampshire:  All persons have the right to keep and bear arms in defense of themselves, their families, their property and the state.  Pt. 1, art. 2-a (enacted 1982).
  • Pennsylvania:  That the people have a right to bear arms for the defence of themselves and the state; and as standing armies in the time of peace are dangerous to liberty, they ought not to be kept up; And that the military should be kept under strict subordination, to, and governed by, the civil power.  Declaration of Rights, cl. XIII, 1776.  
  • Virginia:  That a well regulated militia, composed of the body of the people, trained to arms, is the proper, natural, and safe defense of a free state, therefore, the right of the people to keep and bear arms shall not be infringed; that standing armies, in time of peace, should be avoided as dangerous to liberty; and that in all cases the military should be under strict subordination to, and governed by, the civil power.  Art. I, § 13 (enacted 1776 without explicit right to keep and bear arms; "therefore, the right to keep and bear arms shall not be infringed" added in 1971).
  • Rhode Island:  The right of the people to keep and bear arms shall not be infringed.  Art. I, § 22 (enacted 1842). 
Of these, I find that Massachusetts provision relates only to arms for the common defence and mentions the standing army issue.  In fact, I see that the standing army issue is mentioned in a few of the other original colonies' provisions.

As I said, if this was such an important issue and personal guns were so important: why aren't they mentioned?

Seriously, wouldn't this be top on the list of everybody, the way pro-gunners like telling us how important this "right" happens to be?  Also, why the mentions of the common defence and standing armies if this is about a "personal" right to arms outside that context?

As I said, if you look hard, the pro-gun arguments start to fall apart.

Footnote to this, I didn't add some of the Southern States since the provisions I found appear to be from after the Civil War.

Additionally, this was not an exhaustive study of this topic.

Sources:
State Constitutional Right to Keep and Bear Arms Provisions
NRA-ILA | Guarantees Of The Right To Arms In State constitutions

10 comments:

  1. "As I said, if this was such an important issue and personal guns were so important: why aren't they mentioned?" -- Laci

    None of those states, in their constitutions, mention a right of the people to drink water. Why? Those states believe that the right to drink water is so universally understood that they did not need to declare and protect that right in their constitutions. Perhaps those states also believe that the right to keep and bear arms for defense of self and state is so universally understood that they did not need to declare and protect that right in their constitutions.

    -- TruthBeTold

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    1. The founders did not think the right to own and bear arms was so universally accepted, or a natural right that they did not have to put it in writing, so they did put it in writing. Urinating is a more natural right than owning a gun, so is eating, but they didn't bother to put those in writing. Why not?

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    2. TBT, stop embarrassing yourself with the right to drink water nonsense.

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  2. An attempt was made in Minnesota in 2011 to amend the state constitution to protect the right to bear arms. It didn't make it through both houses as required to be included on the ballot for a vote.
    Not long after that an attempt was made to enact universal background checks and to ban assault weapons. They didn't make it either.

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    1. Laci provided us with a very interesting post here. I have often heard from the gun nuts about the PA state constitution, but naturally they failed to mention those of NY, NJ and MA.

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  3. Laci - if a right is enumerated in the Federal Constitution, do the States have the ability to contradict said right in their Constitutions or laws? For instance, can a state pass a law or constitutional amendment that removes the right of white men to vote? What does it matter whether or not States specifically enumerate the right that is already contained in the 2nd Amendment of the Federal Constitution?

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    1. Federal vs State is settled law. Any territory that joins the union as a new State agrees to abide by Federal law. The Civil War was an answer to that question. If gay marriage were to be protected under federal law, then all States would have to abide by that law. The answer to your 1st question is no.

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    2. States have the ability to broaden the scope of protection for a right, they do not have the ability to offer a lesser level of protection.

      So, yes, it does matter whether they specifically mention something since that is what guarantees a right.

      Are you sure you understand what is going on here?

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    3. Ah, then by your own statement, states cannot restrict or lesson the rights of the individual afforded to them in the Bill of Rights like what has been done in New Jersey and other like states for example. They are in violation of the Bill of Rights.

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    4. If the right is guaranteed in the Federal Constitution - such as the right of the people to keep and bear arms, then it does not matter if any State Constitution mentions it or not. The States cannot override the rights enumerated at the Federal level. Studying this is like studying whether or not States allow slavery in their constitutions.

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