Will the SCotUS incorporate the 2nd amendement against the states?

winston53660 said:

The saying the pen is mighter than the sword comes to mind for me. By the printing press/mass media is where revolutions against tyranical governments happen not guns and bullets.

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There are several thousand years of history which belie that statement.

Yes, there are examples of non-violent resistance being effective, but they are few and as against nations (such as Britain) which were far from tyrannical.

Besides, why would you want to preclude a bulwark against tyranny?

winston53660 said:

The saying the pen is mighter than the sword comes to mind for me. By the printing press/mass media is where revolutions against tyranical governments happen not guns and bullets.

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THis is, to a degree, true - the American revolution was over before the first shots were fired at Lexington and Concorde.

However, without that ability to exert force agianst that tyranical government, all the print in the world is meaningless.

One way or another, when people disagree, the resolution always boils down to the ability to exert force.

I voted it won't be incorporated.

From what I can gather, we only incorporate privileges and immunities that progressives are interested in incorporating.

Original intent matters. In this case, the intent of the 14th was to word it in such a bizarre fashion dealing with privileges and immunities because we were too racist to allow free slaves to own guns.

The individuals right to bear arms is sacrosanct. No court will ever try to take those rights away.

Catman said:

The individuals right to bear arms is sacrosanct. No court will ever try to take those rights away.

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they don't have to take it away. Legislature is actively being pursued that stops government from protecting this right, and historically, the courts have been quite silent while they do so.

Catman said:

The individuals right to bear arms is sacrosanct. No court will ever try to take those rights away.

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Until Heller, almost every Circuit Court of Appeals did exactly that. A few of them changed their minds along the way.

Just like the ban on guns in DC this ban will fail.

The SCOTUS is duty bound to throw it out. The court that upheld the ban will be made a mockery of.

Harshaw said:

Until Heller, almost every Circuit Court of Appeals did exactly that. A few of them changed their minds along the way.

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This is why the SCOTUS will eventually overturn the ban.

SCOTUS has to hear the case. Chicago will win. They have a case by case account of 1000's of handgun and assault rifle deaths to back up the ban. They court may allow shotguns and rifles for sport but guns made for killing people I think they will draw the line. Get ready to them them over or do the time Chicago. A good law for a severe problem.

Inferno said:

They have a case by case account of 1000's of handgun and assault rifle deaths to back up the ban.

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Crime is already illegal. None of that crime story emotional appeal is even a consideration to the issue at hand, which is a Constitutional right being violated by a MUNICIPALITY ?? The code's violation of the Constitution is what is at issue, and crime stats, high or low, are simply superflous to the discussion. There is no magic number of crimes that turns the Constitution off.

Voidwar said:

Crime is already illegal. None of that crime story emotional appeal is even a consideration to the issue at hand, which is a Constitutional right being violated by a MUNICIPALITY ?? The code's violation of the Constitution is what is at issue, and crime stats, high or low, are simply superflous to the discussion. There is no magic number of crimes that turns the Constitution off.

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The City of Chicago will win. I believe that Scotus will hear the case and decide in favor of the City. If they don't hear the case the City has already one. Pack up the guns in Chicago they are gone gone gone.

Inferno said:

SCOTUS has to hear the case. Chicago will win. They have a case by case account of 1000's of handgun and assault rifle deaths to back up the ban. They court may allow shotguns and rifles for sport but guns made for killing people I think they will draw the line. Get ready to them them over or do the time Chicago. A good law for a severe problem.

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In 2003, Chicago, a city with 2,898,374 people, had 598 homicides, for a rate of one homicide per 4,846 inhabitants.

In 2007, Washington DC, a city with 563,384 people, had 248 homicides, for a rate of one homicide per 2,271 inhabitants.

Despite a homicide rate double the rate of Chicago's, Washington's handgun ban was overturned in the Heller decision.

Your thesis seems somewhat less than persuasive.

Realllllllly. Let's see some (any?) of these documented cases of "assault rifle deaths."

Inferno said:

The City of Chicago will win. I believe that Scotus will hear the case and decide in favor of the City. If they don't hear the case the City has already one. Pack up the guns in Chicago they are gone gone gone.

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Why was my post quoted, yet not addressed at all ?

Scarecrow Akhbar said:

No, less accurate, (that means more wrong, less correct, not as right, wronger, etc, if you need synonymous concepts)

If you've ever read the Second Amendment, you probably noticed that it says "right of the people", not "the right of the several states".

That means the people get the guns, not the states. The only reason people pretend the Second Amendment means "states" where it says "people" is that they can't tell the truth to themselves and continue supporting the positions they do.

Heller re-affirmed the correct notion that the Second Amendment grants gun ownership as an individual right, not some kind of state preserve to be doled out as the local yokels desire.

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I agree that it's an individual right, but it's an individual right as against the federal government, not the states.

Harshaw said:

No. The Constitution says "the States" when it means "the States" and "the People" when it means "the People." There is no other provision of the Constitution where "the People" is taken to mean "the States." None. In fact, the Ninth Amendment differentiates between the two in the same sentence.

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Are you arguing that the 2nd Amendment was applicable to the states even before the 14th Amendment? It's pretty well settled law that that's not the case.

Inferno said:

SCOTUS has to hear the case. Chicago will win. They have a case by case account of 1000's of handgun and assault rifle deaths to back up the ban. They court may allow shotguns and rifles for sport but guns made for killing people I think they will draw the line. Get ready to them them over or do the time Chicago. A good law for a severe problem.

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My dear Inferno, you are in error in so many ways in this post it is difficult to know where to begin.

Chicago already has draconian gun control, yet it has among the highest violent crime rates in the USA. Gun control doesn't work, dear. Criminals do not obey the law. They don't buy guns in gunstores, they buy them the same place they get their crack and meth.

Lawful gun owners are not the problem. The myth of lawful gun owners "snapping" and killing someone in any significant percentage is just that, a myth. It happens very rarely.

Criminals are the problem. We need criminal control, not gun control.

Gun control increases crime. It's been shown over and over; when the law-abiding are disarmed, criminals (who get weapons anyway, illegally, on the black market) are made bolder because they have less fear that their victims will be armed. I've known lots of criminals... two things they fear are big aggressive dogs and citizens with guns (both related to defensive force). They don't fear words written on paper (laws). Many of them don't fear the cops or prison. They fear being shot dead in the act by an armed victim.


Given the current court and the Heller decision, it seems probable that the court will rule against Chicago. I sincerely hope that it is so. I treasure the Second Amendment just as much as I do the First Amendment.

Tell you what, you don't step on my rights, I won't step on yours. I'll trade you nation-wide gay marriage for a nationwide unrestricted right to keep and carry arms. (Oops, there's the Libertarian in me coming out again :2wave


G.

Inferno said:

SCOTUS has to hear the case.
The City of Chicago will win.

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Not that I think you can, but please DO explain how/why the SCotUS will overturn its own very recent Heller decision, which ruled that a handgun ban in DC violates the Constitution.

RightinNYC said:

I agree that it's an individual right, but it's an individual right as against the federal government, not the states.

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Only because it hasnt yet been incorporated.
Why do you think that wont happen?

Goobieman said:

Only because it hasnt yet been incorporated.
Why do you think that wont happen?

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Honestly? Policy reasons. The right to be free of handgun bans doesn't carry the same cachet as the right to free speech or the right to practice religion.

That being said, I have no idea how they will come out.

Is Chicago preventing people from forming a militia and failing to regulate them?

RightinNYC said:

I agree that it's an individual right, but it's an individual right as against the federal government, not the states.

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There's no logical way you can include any of the other "rights of the people" protected by the Bill of Rights among the privileges and immunities of citizens of the United States as contemplated by the 14th Amendment and NOT include the "right of the people" protected by the 2nd Amendment. It would be a completely arbitrary exclusion.

Are you arguing that the 2nd Amendment was applicable to the states even before the 14th Amendment? It's pretty well settled law that that's not the case.

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How do you get that from what I said?

Besides, it's "pretty settled law" that none of the other rights in the Bill of Rights were applicable to the states before the 14th Amendment, so I don't know what this has to do with anything.

Gardener said:

Is Chicago preventing people from forming a militia and failing to regulate them?

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By preventing the keeping and bearing of arms, sure.

Harshaw said:

There's no logical way you can include any of the other "rights of the people" protected by the Bill of Rights among the privileges and immunities of citizens of the United States as contemplated by the 14th Amendment and NOT include the "right of the people" protected by the 2nd Amendment. It would be a completely arbitrary exclusion.

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I'm not arguing for that conclusion in that post, I'm pointing out what the law is. As it was drafted and as it is currently applied, it applies against the federal government only.

How do you get that from what I said?

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You said:

No. The Constitution says "the States" when it means "the States" and "the People" when it means "the People." There is no other provision of the Constitution where "the People" is taken to mean "the States." None. In fact, the Ninth Amendment differentiates between the two in the same sentence.

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Unless I'm misreading this, you're arguing that the 2nd Amendment is different from other amendments, because the fact that it uses "the people" means that it applies of its own force against the states and not just the federal government. I don't think that's the case, nor do I think anyone's even arguing that.

Besides, it's "pretty settled law" that none of the other rights in the Bill of Rights were applicable to the states before the 14th Amendment, so I don't know what this has to do with anything.

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And none of them were, until the Court explicitly declared so. That's my point.

RightinNYC said:

I'm not arguing for that conclusion in that post, I'm pointing out what the law is. As it was drafted and as it is currently applied, it applies against the federal government only.

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The same as any other provision of the Bill of Rights, sure. Until they were.

Unless I'm misreading this, you're arguing that the 2nd Amendment is different from other amendments, because the fact that it uses "the people" means that it applies of its own force against the states and not just the federal government. I don't think that's the case, nor do I think anyone's even arguing that.

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You're misreading it. My argument was whether or not it's an individual right as opposed to a "state's" right.

And none of them were, until the Court explicitly declared so. That's my point.

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Never said otherwise.

In this vein, I'm only saying that as an individual right, if the question comes up (which I can't imagine it will), there's no logical argument for excluding it from incorporation when all the other "rights of the people" are.

While personally I don't believe that the Second Amendment applies to regular citizens being able to own guns, I think that the 2nd Amendment will be incorporated.

The reason I don't believe that the 2nd Amendment applies to regular citizens is this:

Consider, for example, the Second Amendment, which reads: "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed." Unique among the provisions of the Constitution, the Second Amendment comes with its own mini-preamble, setting forth its purpose to foster a "well regulated Militia." This purpose has little to do with individuals possessing weapons to be used against their neighbors.

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However, the Supreme Court has interpreted this Amendment differently. In Presser v. Illinois the Court ruled that the Second Amendment right was a right of individuals.

"We think it clear that there are no sections under consideration, which only forbid bodies of men to associate together as military organizations, or to drill or parade with arms in cities and towns unless authorized by law, do not infringe the right of the people to keep and bear arms."

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Although Presser v. Illinois and United States v. Cruikshank both affirmed that the 2nd Amendment applies only to the Federal government and not the states, I think that the current Supreme Court will affirm otherwise.
The Court has determined that the Fourteenth Amendment's due process clause incorporates most of the Bill of Rights. Most of the amendments have already been incorporated including the 1st, 3rd, 4th, most of the 5th, and the 6th. The 2nd Amendment has also already been incorporated by the 9th Circuit Court of Appeals. Personally, I think the Supreme Court will do the same.