Read the whole thing . . . Friedman first struck me as an opponent of gun rights, dismayed at the idea of concealed carry, but after speaking with him privately I think he's more of an agnostic. As a legal exercise, he predicts incorporation, but he's not convinced that it will be good to eliminate any local restrictions. He was very cagey with me when I wanted him to make some predictions about the effects of incorporation on various states' concealed carry laws (Illinois, Wisconsin, Hawaii . . . ) which is perfectly understandable . . . . but he did tell Fredericka Whitfield on CNN that "we're looking at Dodge City all across the country."
Legal Expert Avery Friedman sees little hope for Chicago at Supreme Court
- Thread starter Don Gwinn
- Start date
Read the whole thing . . . Friedman first struck me as an opponent of gun rights, dismayed at the idea of concealed carry, but after speaking with him privately I think he's more of an agnostic. As a legal exercise, he predicts incorporation, but he's not convinced that it will be good to eliminate any local restrictions. He was very cagey with me when I wanted him to make some predictions about the effects of incorporation on various states' concealed carry laws (Illinois, Wisconsin, Hawaii . . . ) which is perfectly understandable . . . . but he did tell Fredericka Whitfield on CNN that "we're looking at Dodge City all across the country."
Bartholomew Roberts
Moderator
A couple of nitpicks:
1. The website headline is missing the "at" in "see little hope for Chicago at Supreme Court" which makes for a confusing headline.
2. The article states the Circuit Courts are not in conflict; but there is some conflict there. All of the Circuit courts arrived at their decision using different analysis. More importantly, the two courts that did not find the Second protected under the 14th Amendment, did not even conduct a typical due process analysis. Instead they relied on precedent predating selective incorporation through due process to skip over that question entirely.
The one court that did apply the doctrine of selective incorporation through due process, found that the Second Amendment was incorporated. The decision was revisted en banc and they vacated it temporarily... in effect saying "We'll wait to see what the Supreme Court says."
Depending on the audience, the second point may be a bit more "inside baseball" than most people want to read; but there were definitely important questions raised by the way the circuit courts arrived at their decision, even if the result was uniform.
As far as Friedman's analysis, I think he is right. I think that if the Justices use any of the previously established tests for selective incorporation through due process, that the Second Amendment meets all of those easily.
I'll be interested in reading the opinions saying the Second Amendment is not incorporated just on the basis that it should be entertaining to see Justices who pushed the 14th to cover all kinds of implied rights try and argue that the same tests don't apply in protecting an explicitly granted right.
1. The website headline is missing the "at" in "see little hope for Chicago at Supreme Court" which makes for a confusing headline.
2. The article states the Circuit Courts are not in conflict; but there is some conflict there. All of the Circuit courts arrived at their decision using different analysis. More importantly, the two courts that did not find the Second protected under the 14th Amendment, did not even conduct a typical due process analysis. Instead they relied on precedent predating selective incorporation through due process to skip over that question entirely.
The one court that did apply the doctrine of selective incorporation through due process, found that the Second Amendment was incorporated. The decision was revisted en banc and they vacated it temporarily... in effect saying "We'll wait to see what the Supreme Court says."
Depending on the audience, the second point may be a bit more "inside baseball" than most people want to read; but there were definitely important questions raised by the way the circuit courts arrived at their decision, even if the result was uniform.
As far as Friedman's analysis, I think he is right. I think that if the Justices use any of the previously established tests for selective incorporation through due process, that the Second Amendment meets all of those easily.
I'll be interested in reading the opinions saying the Second Amendment is not incorporated just on the basis that it should be entertaining to see Justices who pushed the 14th to cover all kinds of implied rights try and argue that the same tests don't apply in protecting an explicitly granted right.
Bart, you bring up a good point. You're right, Examiner tries to keep things short and I try to walk the fine line between informing the people who are really following all this and holding the interest of people who are just starting to think about gun rights. It's always a judgment call as to what gets included.
In this case, I've found the different "avenues" to incorporation confusing myself, so I figured it would be better to give those arguments their own article. I call that a "Can of Worms" article, a term I blatantly stole from the "Writing Excuses" podcast.
In this case, I've found the different "avenues" to incorporation confusing myself, so I figured it would be better to give those arguments their own article. I call that a "Can of Worms" article, a term I blatantly stole from the "Writing Excuses" podcast.
AirForceShooter
New member
Then we get to the argument of "reasonable restriction"
That will keep lawyers employed for years.
I know of one law school that has added the Second to the Constitutional curriculum.
AFS
That will keep lawyers employed for years.
I know of one law school that has added the Second to the Constitutional curriculum.
AFS
Bartholomew Roberts
Moderator
I'd be surprised if revisiting the P&I clause has enough support to win a majority; but it might win a plurality opinion. In any case, this definitely has the potential to affect a lot more than just firearms.