Ideal 2A/14A case?


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Langenator
December 30, 2003, 11:20 AM
A hypothetical here, that I started thinking about as a result of this thread (http://www.thehighroad.org/showthread.php?s=&threadid=56258) .

Since the 2A has not been applied to the states via the 14A in the manner of the rest of the BoR, despite what research suggests was the intent of the Congress that wrote it, what would be an ideal hypothetical case (with a hypothetical SCOTUS that is capable of reading the Constitution, precedent, and the debates on the 2nd and 14th Amendments)?

My idealized case would be this: a member of the military (active duty) who owns one or more firearms that are legal in other states but are banned in another (ie, CA). All of these firearms purchased legally, while the servicemember was stationed in locations where said firearms are legal. Servicemember is then ordered to a duty station in a state, like CA, where one or more of his firearms are outlawed. File suit based on two areas: (1) 2A guarantees the right of individuals to own firearms, and (2) the state's laws violate the equal protection guarantees of the 14A.

I chose a member of the military as my ideal plaintiff because, unlike civilian citizens, servicemembers have no choice in where they live, thus denying the state the ability to use the "he chose to come here, knowing full well what our laws are" line of reasoning. It's also a personal thing, since I am in the Army and do own a couple or weapons that are considered naughty in the PRK.

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Jim March
December 30, 2003, 12:03 PM
You're not the first one to mention that :).

Something the Federal 9th Circuit missed in Hickman v. Block though: the California constitution has a clause specifically naming the US const. as supreme. A very strong case could be made for incorporation via THIS in addition to the 14A. A properly constructed case would cite both forms of incorporation but that would give the court an "out": they could decide incorporation based on the Calif const. and leave the 14A issues for another day. This would cause a win in Calif but not be applicable elsewhere except for the couple of other states that specifically incorporate the Fed const.

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