maestro pistolero
New member
What is that about?
Guess who filed an amicus brief favorable to the 2A being incorporated?
- Thread starter ilbob
- Start date
I'm no lawyer, but....
Could someone please explain why the 14th amendment is even needed to uphold the right inumerated by the 2nd amendment, "the right of the people to keep and bear Arms, shall not be infringed.", to the states?
The 1st amendment only specifically states that "Congress shall make no law respecting ... , or prohibiting the... , or abridging the..... , or the right of the.... , and to petition the Government for....". I understand the need for the 14th here because 1A only prohibits congressional action (although the court has allowed congress, in many ways, to do what is prohibited by the 1st amendment.
Not so with 2A. 2A does not limit to only federal authority but instead gauantees that a "right of the people.. shall not be infringed". It is the right of the people and not a whim of the government. You can argue about the exact meaning of the front part of 2A, but how many ways can you read "shall not be infringed"?
The same thing, "right of the people...", holds true for 4A, 5A, and 6A. 8A also does not limit to only the Federal government, but does not state "right of the people...."
3A has the "but in a manner to be prescribed by law" out and 7A has a similar " than according to the rules of the common law" out. But neither of these give any out to any specific government entity.
So, as far as the first 8 amends go, only 1A should need the 14th to compel state compliance.
I realize that I am ignorant and naive. What am I missing?
Could someone please explain why the 14th amendment is even needed to uphold the right inumerated by the 2nd amendment, "the right of the people to keep and bear Arms, shall not be infringed.", to the states?
The 1st amendment only specifically states that "Congress shall make no law respecting ... , or prohibiting the... , or abridging the..... , or the right of the.... , and to petition the Government for....". I understand the need for the 14th here because 1A only prohibits congressional action (although the court has allowed congress, in many ways, to do what is prohibited by the 1st amendment.
Not so with 2A. 2A does not limit to only federal authority but instead gauantees that a "right of the people.. shall not be infringed". It is the right of the people and not a whim of the government. You can argue about the exact meaning of the front part of 2A, but how many ways can you read "shall not be infringed"?
The same thing, "right of the people...", holds true for 4A, 5A, and 6A. 8A also does not limit to only the Federal government, but does not state "right of the people...."
3A has the "but in a manner to be prescribed by law" out and 7A has a similar " than according to the rules of the common law" out. But neither of these give any out to any specific government entity.
So, as far as the first 8 amends go, only 1A should need the 14th to compel state compliance.
I realize that I am ignorant and naive. What am I missing?
rampage841512
New member
Until the passage of the 14th Amendment the Bill of Rights was considered only to limit federal power. Over the last hundred years or so the court has used that amendments due process clause to make most of the bill of rights apply to state and local government as well.
That's it briefly. Best I can do from an iPhone. I suggest taking a closer look at the history of incorporation.
That's it briefly. Best I can do from an iPhone. I suggest taking a closer look at the history of incorporation.
johnwilliamson062
Moderator
Not just the bill of rights, but the entire constitution was limited to the "federal government." It was probably not intended by the framers to pertain to the states. One of the few times Federal power was increased and I think we can all agree it was a good thing. Many many states have their own BOR modeled after the US BOR and some are even broader the the US Constitutions.
azredhawk44
Moderator
^^This.
Think about what the FedGov is, and how it was created. It was incorporated by a group of free men entering into a binding agreement with one another. The Constitution was simply the operating charter and was a limitation on the powers to be given to this FedGov.
Other free forms of association exist for men to participate in, and the FedGov was never intended to abridge the right to freely associate.
Hence, the ability of States, Municipalities, private Corporations and private property owners to establish their own rules and contracts for free association of men.
The FedGov was never supposed to be an overarching arbiter of all civic morality... that was supposed to come from individual communities.
While Chicago/DC/California certainly hold amoral views regarding firearms ownership rights in my (and probably your) view, I worry about the potential for yet more FedGov power grab as a result of this ruling.
After all, if the FedGov can ADD an implied right to a State Constitution, what's to say it can't eliminate one as well? Or extend 1A rights for the non-paying public to a private gathering?
In a lot of ways, I'd just as soon let residents of California/DC/Chi-town fix their own laws. At least it won't affect me adversely.
green-grizzly
New member
Here is another brief: Arms Keepers.
The brief is kind of strange. The group was formed this year.
It was never perfectly clear that the the bill of rights did not apply to the states. In fact, some early state cases held that they did. The Supreme Court finally held that the BORs did not apply to the states in 1833 (Barron v. Baltimore).
There are some restrictions on the states in the federal constitution, mostly found in Article 1, Section 10, and Article 4.
The brief is kind of strange. The group was formed this year.
It was never perfectly clear that the the bill of rights did not apply to the states. In fact, some early state cases held that they did. The Supreme Court finally held that the BORs did not apply to the states in 1833 (Barron v. Baltimore).
There are some restrictions on the states in the federal constitution, mostly found in Article 1, Section 10, and Article 4.
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So Far The Best Of The 2010 Gubernatorial Candidates
Keep in mind that Jerry wants to be governor again. His competition are Diane Feinstein, Gavin Newsom, and two anti-Second Amendment "Republicans". He's been making noises about being not an anti for a couple of years. Even pointing out that he still owns an old 38 that he got from his dad. He needs supporters and he knows that the loony left are behind Newsom and Feinstein so he's reaching out to gun owners. He's deliberately avoided closing any AWB "loopholes" and destaffed the department in charge of harassing gun owners, and 2nd Amendment supporters are starting to tentatively line up behind him.
If you look at what he's done in that brief you'll see that he's come out on our side on incorporation, while just giving himself a fig leaf to protect himself from the anti-gun media. He's crazy but not dumb. He know that most of California's "common sense" gun control laws will fall when the 2nd is incorporated - he just can't say that and still be viable for the Governor's race.
Jerry is very liberal when it comes to the environment and civil rights and we can count on him to go off the deep end on environmental regulation/legislation but he's actually the most trust worthy of the 5 candidates when it comes to guns. That doesn't mean that he's trust worthy just that he's better than anybody else from either party.
Keep in mind that Jerry wants to be governor again. His competition are Diane Feinstein, Gavin Newsom, and two anti-Second Amendment "Republicans". He's been making noises about being not an anti for a couple of years. Even pointing out that he still owns an old 38 that he got from his dad. He needs supporters and he knows that the loony left are behind Newsom and Feinstein so he's reaching out to gun owners. He's deliberately avoided closing any AWB "loopholes" and destaffed the department in charge of harassing gun owners, and 2nd Amendment supporters are starting to tentatively line up behind him.
If you look at what he's done in that brief you'll see that he's come out on our side on incorporation, while just giving himself a fig leaf to protect himself from the anti-gun media. He's crazy but not dumb. He know that most of California's "common sense" gun control laws will fall when the 2nd is incorporated - he just can't say that and still be viable for the Governor's race.
Jerry is very liberal when it comes to the environment and civil rights and we can count on him to go off the deep end on environmental regulation/legislation but he's actually the most trust worthy of the 5 candidates when it comes to guns. That doesn't mean that he's trust worthy just that he's better than anybody else from either party.
maestro pistolero
New member
That may have to be good enough for now. Since he likes to work with cover, let's hope the courts give him plenty of it in the near term.
Brian Pfleuger
Moderator Emeritus
*SIGH* When was the last time that wasn't true for almost any candidate, for either party, national, state, probably local?
:barf:
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maestro pistolero
New member
If this had been the electoral college . . .
The vote would have been 332-206. 332 being the the electoral vote value of the states that signed vs the states that didn't sign (206).
If there had been an actual vote, I think the number of states that favored incorporation would have been higher.
The vote would have been 332-206. 332 being the the electoral vote value of the states that signed vs the states that didn't sign (206).
If there had been an actual vote, I think the number of states that favored incorporation would have been higher.
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Thanks for the link Al.
ETA: I'll return the favor (i.e., new suit filed by Gura):
http://www.washingtontimes.com/news/2009/aug/07/lawsuit-seeks-right-to-carry-guns-in-public/
ETA: I'll return the favor (i.e., new suit filed by Gura):
http://www.washingtontimes.com/news/2009/aug/07/lawsuit-seeks-right-to-carry-guns-in-public/
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