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Thread: Chicago Law Banning Handguns in City Upheld by Court

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    Re: Chicago Law Banning Handguns in City Upheld by Court

    Incorporation (Bill of Rights)

    Incorporation (of the Bill of Rights) is the American legal doctrine by which portions of the Bill of Rights are applied to the states through the Due Process Clause of the Fourteenth Amendment, although some have suggested that the Privileges or Immunities Clause would be a more appropriate textual basis. Prior to the ratification of the Fourteenth Amendment and the development of the incorporation doctrine, in 1833 the Supreme Court held in Barron v. Baltimore that the Bill of Rights applied only to the Federal, but not any State, government. Even years after the ratification of the Fourteenth Amendment the Supreme Court in United States v. Cruikshank, still held that the First and Second Amendment did not apply to state governments. However, beginning in the 1890s, a series of United States Supreme Court decisions interpreted the Fourteenth Amendment to "incorporate" most portions of the Bill of Rights, making these portions, for the first time, enforceable against the state governments.

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    Re: Chicago Law Banning Handguns in City Upheld by Court

    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. -- 14th Amendment
    Privileges or Immunities Clause: "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States..."

    Due Process Clause: "...nor shall any State deprive any person of life, liberty, or property, without due process of law..."

    Equal Protection Clause: "No state shall ... deny to any person within its jurisdiction the equal protection of the laws."

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    Re: Chicago Law Banning Handguns in City Upheld by Court

    Quote Originally Posted by rhinefire View Post
    The weekend of May 30-31, 2009 there were seven gun homicides in one twenty-four hour period in the city of Chicago. Nuff said for preventing law abiding citizens from "gun owners".
    Oh, this is going to result in more people getting killed and raped.
    Thugs will know the people will be unarmed.
    The weakest, most vulnerable will suffer most.

    .
    The Clintons are what happens...
    when you have NO MORAL COMPASS.

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    Re: Chicago Law Banning Handguns in City Upheld by Court

    Quote Originally Posted by zimmer View Post
    Oh, this is going to result in more people getting killed and raped.
    Thugs will know the people will be unarmed.
    The weakest, most vulnerable will suffer most.

    .
    Get a shotgun.

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    Re: Chicago Law Banning Handguns in City Upheld by Court

    Quote Originally Posted by RightinNYC View Post
    How do you conclude that a unanimous panel decision against incorporation (featuring two of the three most brilliant conservatives in the nation) is a path to incorporation?
    Because it will be appealed to the SCotUS, on the grounds that the 2nd amendment, like all of the others that have been incorporated, applies to actions by the states...?

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    Re: Chicago Law Banning Handguns in City Upheld by Court

    Quote Originally Posted by Wessexman View Post
    But it was not protected in said constitution until the 14th amendment, presumably. Any such rights were between the individuals and their states.
    Note that several states included similar protections into their constitutions.

    And, until the 14th amendment, NONE of the bill of rghts could be applied to the states.

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    Re: Chicago Law Banning Handguns in City Upheld by Court

    Quote Originally Posted by RightinNYC View Post
    The only three cases ever to address the question of whether the PI Clause incorporates the 2nd amendment against the states all agreed that it doesn't.

    The PIC argument seems like a loser, from my perspective. I think the better argument is under the due process clause, but even there, I'm not sure it's convincing.
    If it was convincing for the other amendments that have been incoroprated, why not for the 2nd?

    Whats the argument that the 2nd should not be incoroprated against the states?

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    Re: Chicago Law Banning Handguns in City Upheld by Court

    Quote Originally Posted by Inferno View Post
    There is so much gun violence in the city that they are trying anything.
    And how has that gun ban been woking for them?
    Note that 'things are so bad' argument does not create an exception to the Constitution.

    The NRA can go to hell on this one. You don't need handguns and assault weapons in this city.
    You arent in a position to judge what others "need", your judgements to that effect do nmot trump the rights of the people, and any such determination by you run contrary to current holdings of the SCotUS.

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    Re: Chicago Law Banning Handguns in City Upheld by Court

    Quote Originally Posted by Goobieman View Post
    Because it will be appealed to the SCotUS, on the grounds that the 2nd amendment, like all of the others that have been incorporated, applies to actions by the states...?
    In rereading the decision this morning, having had the benefit of some sleep, I am somewhat curious if appeal to the Supreme Court was not the intent of this ruling.

    Two municipalities in Illinois ban the possession of most handguns. After the Supreme Court held in District of Columbia v. Heller, 128 S. Ct. 2783 (2008), that the second amendment entitles people to keep 2 Nos. 08-4241, 08-4243 & 08-4244 handguns at home for self-protection, several suits were filed against Chicago and Oak Park. All were dismissed on the ground that Heller dealt with a law enacted under the authority of the national government, while Chicago and Oak Park are subordinate bodies of a state. The Supreme Court has rebuffed requests to apply the second amendment to the states. See United States v. Cruikshank, 92 U.S. 542 (1876); Presser v. Illinois, 116 U.S. 252 (1886); Miller v. Texas, 153 U.S. 535 (1894). The district judge thought that only the Supreme Court may change course. 2008 U.S. Dist. LEXIS 98134 (N.D. Ill. Dec. 4, 2008).
    Repeatedly, in decisions that no one thinks fossilized, the Justices have directed trial and appellate judges to implement the Supreme Court’s holdings even if the reasoning in later opinions has undermined their rationale.
    And, finally, the concluding sentence:
    How arguments of this kind will affect proposals to “incorporate” the second amendment are for the Justices rather than a court of appeals.
    Easterbrook's reasoning may be fairly summarized as "The Supreme Court has not extended Heller to the states, so we leave it to them to make that decision." The language of his ruling repeatedly defers to the Supreme Court in charting a course for the Federal Judiciary, and does so in a fashion which seems to my mind to almost invite certiorari.

    Personally, I think Easterbrook was too timid; Cruikshank gives ample room for using Heller to incorporate the Second Amendment at the state level, and thus does not need to be set aside or disregarded as a legal "fossil"--the theory apparently advanced in Nordyke. However, as he seems to have a different reading of Cruikshank than I do, responding to Nordyke's call to set aside Cruikshank as "fosselized", on that basis his reasoning is understandable. It is not for the appellate circuits to overturn a Supreme Court ruling.

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    Re: Chicago Law Banning Handguns in City Upheld by Court

    Quote Originally Posted by RightinNYC View Post
    The only three cases ever to address the question of whether the PI Clause incorporates the 2nd amendment against the states all agreed that it doesn't.

    The PIC argument seems like a loser, from my perspective. I think the better argument is under the due process clause, but even there, I'm not sure it's convincing.
    I'm curious. Why do you feel the PIC argument is a loser? From my readings on the matter, even under the doctrine of selective incorporation, the Heller ruling makes incorporation almost inevitable.

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