How bad if SCOTUS rules against Incorporation?


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usmarine0352_2005
June 25, 2009, 02:08 PM
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Basically, how bad would it be if SCOTUS ruled against Incorporation for the 2nd Amendment?



In reality, most states protect the 2nd Amendment in their own state constitutions, right?
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Carl N. Brown
June 25, 2009, 02:14 PM
Tennessee Constitution is pretty good. There is the "regulate with a view to prevent crime" limit. State supreme court rulings and attorney general opinions have either protection of or no bar to all common lawful uses of guns, from defending self, to defending livestock, to hunting, etc. An regulation must have a crime prevention purpose without infringing on lawful uses. The TN gun laws also tend to focus on use and intent of user, not on silly definitions of "shoulder things that go up" like other state gun laws.

Carl N. Brown
June 25, 2009, 02:20 PM
On opening thread:

My question is, would failure to incorporate 2nd Amendment under 14th Amemndment really change anything? The real change would be incorporation, since as of now 2nd has not been incorporated. It might take a while or take a very good case with impeccable standing.

eye5600
June 25, 2009, 02:41 PM
There is the potential to change the laws in some big cities and some of the most restrictive states (Can you hear me in NJ?), pretty much the same as Heller freed up DC some. Loss of incorporation would be a matter of losing a tool to roll back gun laws, since a lot of states are proceeding along the lines of non-incorporation now.

ArmedBear
June 25, 2009, 02:44 PM
As with Kelo vs. New London, there could be multiple, contradictory, consequences.

Chicago suburbs might ban handguns again, since they won't fear a Federal lawsuit.

OTOH, other states might add RKBA to their Constitutions or statutes, as some did with restrictions on property takings after Kelo.

And of course, most states have RKBA in their constitutions already. Some ignore the provision.

everallm
June 25, 2009, 02:45 PM
If the SC denies cert for the Chicago gun case OR if it grants cert but passes on incorporation then there is still a net positive change for 2A rights since this time last year (tomorrow being the first anniversary of Heller being decided),

DC has and continues to be beaten like a junk yard dog whenever they come up with a "creative" interpretation of the law. (I do not advocate, condone or encourage beating any dog).

The 9th Circuit has already stated that 2A is naturally incorporated in their region.

32 state AG's have publicly and visibly supported 2A, getting any 4 to move in the same direction on one issue is close to a miracle.

As with any cause of worth, expect high point, low points and extended battle. This was always only the first mile in a marathon. Actually it reminds me more of the Nijmegen march in full kit........

Phatty
June 25, 2009, 05:31 PM
For people living in most states, whether the 2nd is incorporated or not will make little to no difference to them, because their state already protects the right just as much as or even more than the 2nd does.

Incorporation really only affects the handful of anti-gun states.

Even without incorporation, Heller still provides us with protection from all federal laws, which in my opinion had posed the greatest threat to RKBA.

GlockFan1954
June 25, 2009, 06:00 PM
You have to remember - we're already protected against the biggest threat - the federal government - violating our rights. Something like 48 states have constitutional provisions protecting that right and the federal government cannot interfere with that.

It would only make a difference if you were living in one of the very few states that really restricts gun ownership, like Wisconsin and Illinois (I think those are the only two).

For most of us it wouldn't make any difference whatsoever since we get MORE protections from our state than the court would ever read into the 2cd amendment. For instance, even if the 2cd were incorporated, it wouldn't protect concealed handgun rights more than likely (maaaaybe open carry of certain weapons in certain areas). It would just say a state or city cannot put unreasonable restrictions on handguns for home protection.

damien
June 25, 2009, 06:00 PM
I am more worried about how strongly the follow-up SCOTUS cases will be than the incorporation question. If SCOTUS lets the states do their own thing, I don't think that is the worst outcome ever. The worst outcome is SCOTUS saying that the 2nd Amendment is a "right" at the federal level, but constraining it by allowing a semi-automatic ban and all sorts of regulation that would never be allowed for free speech rights or abortion "rights". That would be a disaster, and it is still a possibility.

Frankly, when I think this whole thing out using my federalist-tinted sunglasses, a decent outcome would be to let the states do what they want but throw out the entire body of federal law including the NFA and GCA. Then New Jersey could ban handguns if they wanted. Of course, North Dakota might allow 14 year old girls to buy full auto Mac-10s with silencers at the Circle K and conceal carry them. I bet North Dakota would still come out ahead in the crime statistics.

Matt-J2
June 25, 2009, 06:08 PM
It would only make a difference if you were living in one of the very few states that really restricts gun ownership, like Wisconsin and Illinois (I think those are the only two).

No, we're pretty good on ownership here in WI. It's carry we suck hard on.
Plenty of states restrictive on ownership, though.

justice4all
June 25, 2009, 08:53 PM
If the Second were incorporated, then there would be a certain degree of protection against infringement anywhere in the country, but states would be free to provide greater protections under their own laws.

Dr. Tad Hussein Winslow
June 25, 2009, 10:12 PM
The answer is very VERY bad.

Colt Smith
June 25, 2009, 10:37 PM
An excerpt from the July 2009 issue of American Rifleman:

"On April 20, the U.S. Court of Appeals for the Ninth Circuit marked a milestone in Second Amendment history by ruling, in the case of Nordyke v. King, that the Second Amendment applies to the states through the due process clause of the Fourteenth Amendment to the U.S. Constitution."

Rmeju
June 26, 2009, 12:02 AM
I think it would be terrible for two reasons:

1. The states already egregiously in violation of 2A (NY, CA, NJ, IL, HI, MD, and probably MA, along with half of the rest of New England) would not be forced to mend their ways, and would probably take it as a "mandate" to further restrict or even maybe constructively elminate private gun ownership.

2. Other places not particularly for or against gun rights, might get "creative" with their 2A restrictions, knowing that they would never have to worry about the threat of incorporation.

That said, I think if the issue wasn't so important, I would say the thought of the SCOTUS not incorporating after Heller is almost laughable. It's the level of judicial scrutiny state and local firarms laws will be subjected to that worries me far more.

Birdmang
June 26, 2009, 01:30 AM
"1. The states already egregiously in violation of 2A (NY, CA, NJ, IL, HI, MD, and probably MA, along with half of the rest of New England) would not be forced to mend their ways, and would probably take it as a "mandate" to further restrict or even maybe constructively elminate private gun ownership."

Rmeju, amendments that are not incorporated to the states do not apply to the states.

If you looked at previous cases on many big issues over the past 100 years, the majority writes opinions from no where while totally disregarding precedent, sometimes between 2 or 3 almost similar cases, on the SAME DAY by the SAME NINE PEOPLE.

RDak
June 26, 2009, 08:13 AM
Michigan constitution is great and we are a very gun friendly State but........who knows with the wacked out anti's in the Obama corral throughout the States??!!

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