A Professor makes a point.

P

pittspilot

New member
Hi all

In a lecture in class, one of my professors made an interesting claim about the Second Amendment. He stated, and I think this is true, that the Second Amendment has not been incorporated vis a vis the Fourteenth Amendment by any Court decision. If the Fourteenth Amendment then does not apply to the Second, then the only protection provided by the Constitution is against Federal Gun Laws.

Question. Why has the NRA et al. not attempted to take a State Gun Law all the way to the Supreme court in order to make precedent for incorporation. Also, who thinks that the above is not true, and why.

This is not to flame anyone, and any return flames will be ignored
 
I

Indy Steve

New member
IMHO,

The NRA is not the pro Second Amendment organization that it once may have been.

I became a life member a few years ago but have not sent them a cent since. I do let them know why from time to time. Just like I let Levis know just how good my new Wranglers fit.
 
R

RickD

Moderator
The real question is on what grounds has the Supreme Court(s) not incorporated the 2A via the 14A? Considering that the framers of the 14A argued specifically that they were trying to protect the rights of the newly freed slaves to not be infringed by the states, it seems the SC has some
'splainin' to do, Lucy. (See Congressional Globe, 1866, Senator Jacob Howard ... or is it Howard Jacobs? From the Tennesse Law Review, Spring 1995).

Rick
 
I

iso1

New member
Since when does a natural human Right (which is merely expressed before the world in a 200+ year old document) need to be "incorporated"?

Yeah, I know. Since about 1934, right? NFA, and all....
 
B

buzz_knox

New member
There are two schools of thought concerning the 14th amend.: selective incorporation and general incorporation. The SC follows selective incorp., bringing constitutional protections into the 14th Amend. on a case by case basis. This is, of course, completely bogus and allows them to pick and choose the protections they wish to allow.

By the way, during the debates over the 14th Amend., the one point that kept coming up as a justification was the fact that ex-slaves were not offered the protection of the law, because their harassers usually had law enforcement on their side. So, the slaves' rights to protect themselves through use of arms had to be protected. The 14th Amend. was largely designed to protect the 2nd for slaves. Funny, huh? Now the 2nd is being attacked and we are the slaves.
 
J

Jeff Thomas

New member
Stephen Halbrook does a good job of discussing this in 'That Every Man Be Armed' ... get it if you haven't read it yet. Very much worth the time.

And, my understanding is that the US Supreme Court hasn't granted cert on an RKBA case for some time. You can't force them to take a case. We'll see what happens with Emerson ... I'm beginning to think we should send out a search party for the 5th Circuit Court of Appeals ... ;)

Regards from AZ
 
V

Valdez

Moderator
Yes, the Second as with all the Bill of Rights was originally intended only as a Constraint on the Federal Government. The idea that the Federal Government is the protector of rights is historically a recent invention.

Secondly, in many, many states there is no need for incorporation as many state Constitutions admit a right to keep and bear arms. I know Virginia does, I know California doesn't.

A major win would be just to get the Supreme Court to apply the second amendment to the Federal Govt! By the way almost all gun control is defended by Congress under the preposterous ruse of "commerce clause" powers.

Valdez
 
B

bookkie

New member
First off your Professor is correct. The 2nd has not been incorporated into the 14th. Fact is that the SC has refused to hear a 2nd amendment issue since Miller in 39?. I believe that they fear the consequences of any decision that would fit their ?Living Constitution? criteria. I for one would consider this an act of treason and the nullification of the social contract. So they sit there refusing to address the issue, letting the lower federal courts to do their dirty work.

I would suggest reading all the court cases yourself. You can find them at http://www.2ndlawlib.com. What I found interesting is how the meaning changed over the years. First few cases ruled that the 2nd was absolute?. Then on to ?well concealed carry did not infringe because an honorable man would carry it in plain sight?? Finally to Hickman vs. Block, wherein it only protects the rights of the states to maintain a militia. Reading these court cases one can plainly see the bias of the judges making the rulings. Sad that they cannot rule based upon the plain language.
 
D

Dennis Olson

New member
The 14th Amendment doesn't matter here. Look at the 10th instead...

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.

Clearly, the 10th Amendment PROHIBITS the states from infringing on rights specified by the Constitution. Since the 2nd falls in that category, the 10th applies...
 
M

madison46

New member
14th

Dennis,

The 10th is a good one to look at as is the 9th IMHO; however, I believe the Morton Grove case was a 14th/2nd Case. It was ruled that the SC had NOT ruled the 2nd an individual right therefore it could not be incorporated under the 14th. I believe that case also addressed the 9th. The court stated that the SCOTUS had not found some defense right in the 9th and therefor none existed. AMAZING. I believe Federalist #84 was written to explain why no bill of rights were needed. Basicly, if it isn't in the Consittution, the Federal Gov't can't do it. Now we have to prove we have a right and are at the whim of whether the SC says we have any outside the first 8 Amendments.

If you ask me, we are no longer a nation of limited gov't and broad individual rights, we only have the rights expresed in the first 8 Amendments...and IMHO the 2nd and 4th take big hits every couple of years....Anyway, the SCOTUS did not hear the Morton Grove case and let the decision stand.

The Senator who introduced the 14th in the Senate read off the first 8 Amendments as to what it, the 14th, was suppose to protect at the state level. Can't be much clearer to me what the 'Founders' of that Amendment meant. (S. Halbrook has that information in his book)
 
J

Jim March

New member
There's two separate issues here...

The question that has to be settled FIRST is "is the second an individual right to bear personal arms, or the right of the states to form state militias?".

The NRA is working furiously to decide this question FIRST over the "incorporation" issue. The issue above is in play in the Emerson case; the NRA went to great lengths to ensure they'd have input into BOTH sides, the government's via Ashcroft and the defense side through Halbrook.

So bashing the NRA for not doing anything is just idiocy.

The second issue, incorporation via the 14th, is actually an issue in MY Federal lawsuit in California over CCW. Admittedly, it's a "sideshow issue", we're focusing on "rule of law" and "equal protection" as the "main show". But we'll also be using the Halbrook arguments for incorporation as noted previously in this thread; there's a review of "That Every Man Be Armed" written by yours truly here:

http://www.bladeforums.com/ubb/Forum11/HTML/000794.html

Now, normally you can't ask a Federal judge in the 9th circuit to overturn the 9th's appellate court. One of the few ways you CAN do that (as we're doing) is when there's new scholarly research available since the last higher-court review of the subject. The 9th Circuit visited this stuff in 1995, Hickman vs. Block. Halbrook wrote "That Every Man..." in 1984, but was ignored because he's a "gunnie lawyer" (and law professor since then).

Well in 1998, flaming liberal law professor Akhil Reed Amar of Yale wrote "The Bill Of Rights", and in his chapter on the 14th amendment, independently discovered the same things Halbrook had found. He probably didn't know about Halbrook's work at all. Like Halbrook, he found that preserving minority access to arms was a key purpose, probably the MAIN purpose, behind the 14th rendering the incorporation argument moot. Amar went so far as to advise the NRA to abandon the Minuteman as their primary historical symbol and switch to a Carolina freeman of 1867 holding off Klansmen with revolver and musket.

We'll see what Judge William Alsup thinks of this. But the fact that Amar's scholarship is so new gives Alsup an excuse to rule our way if he's so inclined and given this particular judge's track record, I'm really looking forward to this part of the fight, especially since Alsup writes really excellent opinions.

If we win at the district court level on THAT, it'll probably shock the hell out of the NRA. Then we'll get to see if they're willing to help take it on up the chain.

For info on Alsup, see the bottom-most section of this page, including a link to one of his decisions:
http://www.ninehundred.com/~equalccw/trial2

There's also a table of other RKBA law review papers in a new "Blue Table" towards the bottom of my main page:
http://www.ninehundred.com/~equalccw/

Jim
 
D

Dennis

Staff Emeritus
Jim March, "So bashing the NRA for not doing anything is just idiocy."

Strong words, Jim. Too strong to suit me as an NRA Life Member.

If unconstitutional gun laws were being nullified and abolished rather than increasing at an increasing rate, I might agree with you. However, if all the NRA is doing is "slowing" our descent into subservience, you can not expect our loyalty to be as slavish as yours.

Quit whining about the labor pains. Show us the baby.
 
J

Jim March

New member
Strong words? Maybe. Then again, you're talking about 4.5million people in the NRA, out of 80million gun owners.

Something's wrong there. If every gunnie did their share, there wouldn't be the need for this current "stealth gameplan".

That aside, the "stealth plan" is the best current game going, in my opinion, under these rotten circumstances. I don't say that out of "slavish loyalty", it's my honest opinion.

Now, as to "show us the baby", I agree that it's a lot easier to fight if you know you can win. At least 300 gunnies in my county (probably a lot more than that) know what I'm up to, especially after the briefings I've given the two local NRA Member's Council chapters...yet even with the lawyer's bills all pre-paid by a grant, so far I've got two co-plaintiffs.

Not good. Still, it's barely adequate - between the three of us, we've got most of the issues covered.

You want to see a win? I'm working on one, Halbrook is cooking up another.

We agree that serious wins are badly, desperately needed...it's a lot easier to jump on a winning team than fight without knowing if victory is possible or not.

Like I've been doing since February of '99.

Jim
 
M

moa

New member
Last I read, 43 states have a RKBA provision.

Regarding your opinions on the NRA, just take a look at the opinions of its adversarise. That is, the Clintons, Gores, Schumers, Kennedy's, Washington Post, etc., who refer to it as "extremist", or "out of the mainstream" of American public opinion. They apparently hate the NRA and wish it would just go away.

That tells a lot about the NRA and what kind of force it is.

As the old saying goes, you can often tell as much about somebody by who their enemies are,as well by who their friends are.
 
D

Dennis

Staff Emeritus
Great, Jim. A stealth plan. Here's hoping it is someday a winner.

But from my view in the "idiocy" ranks, all I see is the NRA caving in over and over - getting absolutely NOTHING in return - except a smaller loss than demanded by the socialists.

When you give up something and gain nothing in return, that is NOT a compromise.

But, gee, Jim. I'm only an idiot. So educate me.

Starting at 1930 or so, show us who's winning.

Give us a list of restrictive or burdensome federal laws, regulations, interpretations or "rules" of any kind which have been eliminated in the last seventy years or so (and not replaced by some other "rule").

Many of us idiots are not aware of ANY victories!
Oh we have rejoiced time and time again that our defeats have been somewhat lessened or delayed - but a defeat is still a defeat!

Show me victories ... ANY victories!

Show me how the millions of dollars spent solely for the prestige, comfort and entertainment of the NRA hierarchy over the last 71 years is some sort of a "wonderful investment". I don't ask the big wheels to serve voluntarily, WE do that. And we donate and spend our families' funds as well. But show me a return on our investment involving Rights won back rather than merely Rights lost less quickly.

Until you can do that, remember that the NRA is using OUR money and begging us for more and more. We have every right to question and debate the use of our funds as the NRA loses our Right to Keep and Bear Arms.

That's not "idiocy!" And the attempt of some NRA advocates to assume some form of supposed superior intelligence or worth by degrading other NRA Members will draw quick and hot flames from me.

We have every Right to question and demand answers when our families' money buys only defeat after defeat - "minimized" defeats or not!
 
M

madison46

New member
14th/2nd

Jim Marsh,
Where in CA are you? I'm in Sacramento area. Good luck.

I think the Morton Grove case was in 1992; therefore, Amar's research should really help out. Halbrook quotes the Senator who introduced the 14th and that Senator couldn't be clearer;however, that Senator was not a 'Founder' from 1789. The SC could say his 1866 interpertation was wrong in thinking the 2nd an individual right. Personally I think you have to win that one first. Pray for Emerson

Dennis,
Victories? Not many, but I sure would hate to see where we would be without some resistance. We'd probably have Fienstien's gun laws everywhere. If I remember correctly the SC ruled FEDERAL gun free zones Unconstitutional and forced background checks unconsitutional (Halbrook I think was involved). These were 10th Amendment cases.
 
A

AnotherPundit

New member
speaking of emerson -- when, exactly, should we start seeing results on that? It certainly seems like it's been long enough. Perhaps I'm ignorant of how long this sort of thing generally takes, though -- do we have any sort of even roughly-estimated ETA?

----------------
http://www.AnotherPundit.com
 
D

Dennis

Staff Emeritus
moa, "As the old saying goes, you can often tell as much about somebody by who their enemies are,as well by who their friends are."

That can be a dangerous assumption.

Just as the Republicans and Democrats are closer to each other than to the American people, I worry that our NRA leaders may become more interested in their careers, prestige, and benefits than being true warriors for the Second Amendment.

I prefer to watch people closely when they're running on my money. ;)
 
You must log in or register to reply here.
Top