2nd Amendment Incorporation via...


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Birdmang
July 13, 2009, 10:29 AM
*I searched and found nothing on due process clause vs. P and I clause*

Incorporation of the 1st, 4th, 5th, 6th, 7th, and 8th amendments was done by way of the due process clause thanks to Gitlow v. New York and Justice Hugo Black. As most of you know, these were successfully incorporated under the due process clause of the 14th amendment which states:

"nor shall any State deprive any person of life, liberty, or property, without due process of law"

Because of precedent and a great way of getting at incorporation, the due process clause has always been used.

Other Justices have stated that amendments should be incorporated under the privileges and immunities clause of the 14th Amendment which states:

"No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States"

With a Second Amendment case sure to be on the docket of the Supreme Court in the near future, a big question is the way of incorporation and what avenue it will be achieved by. I believe that it will be incorporated under the due process clause, but I believe that some of the justices will want it incorporated under the P and I clause. I believe that this is important for how strong the ruling will be and how the decision will stand the test of time. I believe it is easier to reason (whenever you find reason on the SC) overturning a case incorporated by itself under one clause, than it would be to overturn one incorporated under the same clause as the other incorporated amendments.

So THR, what do you think 2A will be incorporated under, due process clause or privileges and immunities clause?

*Sotomayor aside, the SC will vote the same way with Kennedy holding all of the cards, so lets not talk about her at all in here and lets keep this on track, please.*

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glockman19
July 13, 2009, 11:13 AM
The 9th Circut court of appeals incorporated the 2A by way of the 14th in Nordyke v King.

Now it's on to the SCOTUS

husbandofaromanian
July 13, 2009, 11:14 AM
Due process. I know nothing about Constitutional Law but I figure I've got a 50/50 shot with this answer.

everallm
July 13, 2009, 11:19 AM
Does it have to be one OR the other?

Cannot 2A be incorporated under the reach of both?

14th is the more appropriate and direct, 9th might be the easier be tie to 2A.

TexasRifleman
July 13, 2009, 12:43 PM
Does it have to be one OR the other?

Cannot 2A be incorporated under the reach of both?

That isn't how you get to ask the Supreme Court a question though.

They will be asked a very narrow and specific question based on the case that is being appealed, Nordyke.

The question will be very narrow and specific to that one case, it's only then that you can apply their answer to other things.

Phatty
July 13, 2009, 02:03 PM
They will be asked a very narrow and specific question based on the case that is being appealed, Nordyke.
Nordyke hasn't even been appealed yet. Of the cases that have been appealed to the Supreme Court (7th Circuit cases and the 2nd Circuit case), the parties have specifically asked the Supreme Court to incorporate the 2nd Amendment through either the due process clause or the priviliges and immunities clause. Thus, both avenues are properly before the Court and it can decide to incorporate via either of those or not incorporate at all.

The Court is being pushed pretty hard to resurrect the privileges and immunities clause, and I think they would do it in a heartbeat if it wasn't for the practical considerations (that those amendments previously held not to be incorporated via the due process clause such as a right to a jury trial in civil cases would likely be incorporated via the privileges and immunities clause). Because of these ramifications, in my opinion, I think that the Court will stick with the due process clause incorporation.

Happiness Is A Warm Gun
July 14, 2009, 01:37 AM
That isn't how you get to ask the Supreme Court a question though.

Sure about that? It looks like that is exactly what they did in McDonald v. Chicago.

QUESTION PRESENTED
Whether the Second Amendment right to keep and bear arms is incorporated as against the States by the Fourteenth Amendment’s Privileges or Immunities or Due Process Clauses.

http://www.chicagoguncase.com/wp-content/uploads/2009/06/mcdonald_cert_petition1.pdf

Why eliminate one possible avenue of victory by phrasing the question too narrow? You try from DP but some members of the court don't like the DP route favoring PI instead of vice versa.

Go with both and be ready to argue either side. Alan Gura is a skilled lawyer and likely is ready to win on DU clause, PI clause or both.

TexasRifleman
July 14, 2009, 08:49 AM
Sure about that? It looks like that is exactly what they did in McDonald v. Chicago.

McDonald did so in the original case, so it can continue to the Supremes.

Nordyke did not. You can't introduce new things into the question.

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