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Brian, I'm not a scholar on constitutional law by any means. The Constitution is the deciding authority of what is constitutional. It is explicit in it's text that ANY rights not afforded to the United States by the Constitution are left to to the states. 10th Amendment:The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.Notice the "or to the people".I will utilize the ongoing national debate on firearms. The United States government does not have a right to make ANY laws against the Second Amendment for law abiding citizens, (I will cover what I mean by the last sentence in a moment). The Second Amendment is clear in stating "shall not be infringed". We both know the Constitution only applies to the federal government. At the time the Constitution was written, States had their own constitutions. That is why States can make laws pertaining to firearms and can also nullify federal gun laws. The Supremacy Clause ONLY pertains to laws that the federal government can establish by rights of the Constitution. Any laws that infringe on the Second Amendment, established by federal law, are unconstitutional; States can choose to follow or not follow these laws. For example the "Brady Act of 1993" NICS checks is a good example of the Supremacy Clause. The 5th Amendment gives the Unties States the right to take constitutional rights from individuals: "nor be deprived of life, liberty, or property, without due process of law". If you are a law abiding citizen, then a NICS background check is not infringing on your rights because you can obtain a firearm. The ongoing debate about the NICS checks is not about infringing on the rights of law abiding citizens, it is about infringing on the rights of people who were once criminals and have served their debt to society. Just because "We The People" have allowed politicians to bastardize our rights through compromise, does not mean those rights don't exist. We have the right to authorize, however, have the right to revoke that authorization at any time.
2 years ago on Who’s Supreme? The Supremacy Clause Smackdown