What Does Incorporation Mean to You?

[Hugh Damright]

Which best describes your view of incorporation?

 

[ilbob]

I think it will be meaningless at the federal level and potentially meaningful at the state level. Even if incorporated, the 2A won't mean a whole lot anywhere unless a reasonable level of scrutiny (strict scrutiny being the obvious choice) is applied, and that case is a few years away.

 

[Bartholomew Roberts]

Incorporation has nothing to do with federal powers. Federal powers are already limited by the Bill of Rights whether or not those same rights are incorporated against the States.

 

[miboso]

Incorporation will not "make" the Second Amendment do anything. It already limits federal and government control powers, in its words and meaning.
What incorporation "may" do is allow the individual states to violate the amendment in the exact same method as the federal government.

 

[wuluf]

What I hope it will do is to require California to issue carry permits.

What I think it will do is generate litigtion for years, if not decades to come.

 

[Tom Servo]

What I think it will do is generate litigtion for years, if not decades to come.

Yes, but that's how the ball gets rolling. After a few successful suits, state and municipal governments will think twice before passing new restrictions.

 

[Brian Pfleuger]

What I think it will do is generate litigtion for years, if not decades to come.

Generate? Hasn't it already been going on for decades?

 

[raimius]

I think incorporation will allow for limited restrictions, no matter what level of scrutiny is applied. The real question is what the level of scrutiny will be, and what restrictions are deemed reasonable. Hopefully, it will be strict scrutiny, and only a few "gun control" measures will be allowed.

I think it will take decades to decide, any way it goes.

 

[Hugh Damright]

When we say that it will limit federal gun control powers, are we talking about federal gun control powers within federal districts, or are we talking about federal gun control powers within the States?

 

[GHF]

Incorporation Impact

The Second Amendment - per Heller - only applies to the Federal Government.

McDonald v The City of Chicago is designed to do 2 things.

1. Have the Second Amendment apply to the States via the 14th Amendment.
2. By the clause in Section 1 of the 14th Amendment,
   
   Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
   
   either use the Equal Protection Clause now used in 1st, 4th, 5th, and 6th Amendment incorporation, or overturn the 1873 Slaughter House cases which killed the Privileges and Immunities Clause.

Keep in mind that the 14th Amendment was geared to overturn the 1857 Scott (AKA Dred Scott) v Sandford, which said black people could not be citizens, and used as an example of that not be a citizen the ability to carry firearms.

Read Tandy's decision in the case - http://www.pbs.org/wgbh/aia/part4/4h2933t.html - and throw up.

 

[publius42]

Incorporation has nothing to do with federal powers. Federal powers are already limited by the Bill of Rights whether or not those same rights are incorporated against the States.

That's true, and Hugh's poll questions made no sense to me because of that fact. However, on thinking about it, application to the states will create more case law (for better or worse) and that case law will affect how the 2nd applies to the feds as well as to other states.

 

[Hugh Damright]

Keep in mind that the 14th Amendment was geared to overturn the 1857 Scott (AKA Dred Scott) v Sandford, which said black people could not be citizens, and used as an example of that not be a citizen the ability to carry firearms.

But also keep in mind that the preceding Freedmens Bureau Bill and Civil Rights Act addressed this by saying that laws regarding protection of person and property must result in equal benefit and protection, and this equal protection clause carried over to the 14th. I believe the intent was a federal power over discriminatory gun laws, not a federal power over gun laws in general.

Read Tandy's decision ... and throw up.

I think Taney was correct ... what was he to do, rule that negroes were citizens and that every State in the Union was in violation of the Constitution and always had been?

Incorporation has nothing to do with federal powers.

Some people seem to think the idea is to level the governments, to have the Second Amendment bind the feds and the States to the same degree ... which seems to lead to a vision of the feds having gun control powers just as the States do.

 

[GHF]

What Should Have Tandy Done

I think Taney was correct ... what was he to do, rule that negroes were citizens and that every State in the Union was in violation of the Constitution and always had been?

He should have, at worst, made a very narrow technical decision. The sweep of his decision created no middle ground, and did not end the slavery discussion.

If he would have ruled more broadly for Scott, he would have laid out the start of a legal process that would have ended slavery without a Civil War.

 

[KSFreeman]

Incorporation means bringing the Bill of Rights to the states to prevent the states from denying the civil rights of its citizens as per the original intent of the Framers of the Fourteenth Amendment.