A little history on RKBA and the Constitution


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bigalexe
October 12, 2009, 02:57 PM
I had a discussion with my PS101 teacher today regarding RKBA in reference to some questions I had about the Bill of Rights and Incorporation. Included in this is the 2nd amendment and that is why I am posting here. I am going to give a rundown here of the discussion and why, in the end, it looks like our RKBA should be expanding in short order. The discussion started with me asking him about the decision in (Barron v. Baltimore, 1833) which ruled that the Bill of Rights does not apply to state laws. To me, discovering that this had ever been ruled was very disturbing even though later in (Gitlow v. New York, 1925) that decision was partially overturned.

What my teacher stated was that in 1833 when the United States was very young what people feared was the federal government. It was assumed at the time that we the people needed protection from the federal government and also it was assumed that the state governments weren't as powerful and as likely to infringe on the liberties of the individual citizen. So at the time, the ruling was logical. Later in the Gitlow case which was after the 14th Amendment it was decided that in fact the Bill of Rights did in fact partially apply to state laws. This was because the 14th Amendment added the Due Process Clause and thus the idea of Incorporation was born. The Gitlow case however was not about RKBA specifically and so the 2nd Amendment was not included in the decision, so its importance is only in precedent. Precedent however is important because our American Legal system relies on Precedents and in many cases the judge's decision is based solely or majorly on what has been decided before.

Also of importance besides the general decisions regarding application of the Bill of Rights is the definition of the 2nd Amendment itself. In 1886 Presser V. Illinois it was determined for the first time that the 2nd Amendment did in fact apply to individual rights. Furthermore in (District of Columbia V. Heller, 2008) the same decision was upheld when the court struck down the Handgun Ban in Washington D.C.

So between the idea of the 2nd Amendment applying to individuals as demonstrated in (D.C. v. Heller) and the idea that the Bill of Rights applies to states such as in (Gitlow v. New York, 1925) I would find the groundwork is well laid for a rapid expansion of RKBA.

I am not sure if this is the proper place but I guessed that it would be useful to lay this all out somewhere for discussion.

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hso
October 13, 2009, 02:11 PM
http://thehighroad.org/showthread.php?t=270671

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