9th Circuit Incorporates 2nd Amendment

[Doodler]

http://themoderatevoice.com/29505/9th-circuit-incorporates-2nd-amendment/

In what is almost certainly going to result in a showdown at the US Supreme Court, the 9th Circuit Court Of Appeals has incorporated the 2nd amendment into the 14th amendment. In simple terms this is the first time that the 2nd amendment has been applied to limit the actions of an individual state, in this case the county of Alameda in the state of California.

Without getting too complicated in legal mumbo jumbo, the Bill of Rights was originally considered to only apply to limit the actions of the federal government. When the 14th amendment was passed there was debate as to how much it incorporated, or extended the provisions of the BoR to the individual states.

Over the 150 years or so since the 14th was passed, a number of provisions, mostly the 1st, 4th and 5th amendments have been applied to the states, but not the 2nd. This could be a problem for many gun control laws and follows in the basic pattern of the Heller decision last year which applied the law to the District of Columbia.

Clearly this is going to be appealed. I’m somewhat surprised at the lack of media coverage so far (which explains the lack of a link to a major news source). It is worth noting that the three judge panel which issued the ruling consisted of a Carter, Clinton and Reagan appointee, so in theory 2 of them were Democrats.

The ruling can be found at http://www.ca9.uscourts.gov/datastore/opinions/2009/04/20/0715763.pdf

http://www.ca9.uscourts.gov/datastore/opinions/2009/04/20/0715763.pdf
Can any lawyers/attorneys out there explain this to us a little better? In laymans terms please. The way Lou Dobbs described it, this is a victory for us. Thank you in advance.

 

[230RN]

Post 47 by Radagast, over in legal, at

http://thehighroad.org/showthread.php?t=444641

is a fair start on it from a non-technical standpoint. It's on page three, the way I've got my browser set up --YMMV.

A very rough summary (others can nit pick it) is that the Bill of Rights was held for many years to only restrict the federal government.

The 14th amendment was introduced to make clear that the rights enumerated under the Bill of Rights were also restrictions on the States.

Unfortunately racist decisions by the Supreme Court in the 19th century basically said that the 14th amendment did not restrict the States.

Through the 20th century the Supreme Court has slowly reversed itself by taking on cases that addressed one amendment at a time and declaring that it was a restriction on the states. This was known as selective incorporation, selecting one right at a time but not all of them.

The second amendment in the 20th Century was never addressed as an individual right restricting the federal government (excepting the Miller case, which can best be described as a set up - no one appeared apart from the government attorneys). Heller addressed the individual right aspect of the 2nd amendment and held it to be a right. Because Heller was a lawsuit in afederal enclave (Washington DC) the Supreme Court has not addressed wether it is Incorporated (applies) against the States.

Because one Circuit Court has now ruled it is incorporated and one has now ruled it isn't, the Supreme Court will have to address the issue at some stage, although that is probably a few years off - Heller took 5 years to reach the Supreme Court.

When it does, if the result is in favor of incorporation then a lot of state legislation will be open to challenge. I foresee a lot of well paid lawyers over the next decade.

(Quoted from Radagast 's post)

Terry, 230RN

 

[Jeff White]

Already under discussion here:

http://www.thehighroad.org/showthread.php?t=444641