BowStreetRunner
Member
....ok guys and gals, we know the 2nd Amendment was put in the Constitution to confer and individual right, a right that existed even before that great document back through English common law and basic human freedom
but right now invoking the 2A in court is about as effective as the devil made me do it defense, it has no teeth (with a few exceptions - Emerson namely) because it hasnt been incorporated to the states like the rest of the bill of rights and it wont be incorporated to the states until the SCOTUS rules that it DOES in fact confer and individual right. I believe that the Supreme Court will rule that, I dont know when, but I'm going to keep the faith that they will.
i believe that the pro-gun, pro-freedom movement is gaining ground, as evidenced by the huge number of states with concealed carry reform recently. as the legislative climate turns, so will the judicial one (hopefully)
until the SC rules that the 2A means what we know it means, there do exist alternate means of protecting the RKBA. In Stewart v. US, the 9th circuit (with a brave opinion by our pal judge kozinki, who wrote a great dissent in Sylveira v. Lockyer)) ruled that the Federal Commerce Power stemming from the Constitution (the source of vst police and regulatory power) DID NOT give the fed.gov the power to prohibit home-made manufacture of machine guns that did not travel in interstate commerce because such machine guns did not effect interstate commerce (please DONT test that and go build one everyone out in the 9th circuit). In US v Lopez, the SC struck down a federal law banning guns from school zones. Keeping guns out of schools is a good thing, but the court said it is the states job, not the feds, because the Commerce Power did not extend that far.
So we have 2 cases of courts striking down federal gun laws based on overstepping the power of the Commerce Clause
I think that the same legal logic could be applied to other laws as well (remember i am not advocating breaking the law)
then we have the equal protection argument
equal protection is the provision every disadvantaged group loves to invoke to effect change. in cities with handgun bans, disabled persons unable to use longarms are denied self-defense. such laws could be challenged on the equal protection basis i believe. the same is true in states with may issue concealed carry, the poor do not recieve permits and the rich do, perhaps another equal protection violation???
im sure someone has thought of these ideas before, but what do you guys and gals think about the possibilities of using the commerce clause and equal protection to challenge gun laws?
I did read that the man in the Chicago suburb who shot the intruder was going to challenge the handgun ban in that city with a claim of violation of privacy. while a good idea i think any judge who wants to will have no problem defeating such an argument since the government can regulate a lot of things in your home: drug use, child porn, etc.
im going to try and incorporate these ideas into a paper im writing on the 2A, what do you guys think?
BSR
but right now invoking the 2A in court is about as effective as the devil made me do it defense, it has no teeth (with a few exceptions - Emerson namely) because it hasnt been incorporated to the states like the rest of the bill of rights and it wont be incorporated to the states until the SCOTUS rules that it DOES in fact confer and individual right. I believe that the Supreme Court will rule that, I dont know when, but I'm going to keep the faith that they will.
i believe that the pro-gun, pro-freedom movement is gaining ground, as evidenced by the huge number of states with concealed carry reform recently. as the legislative climate turns, so will the judicial one (hopefully)
until the SC rules that the 2A means what we know it means, there do exist alternate means of protecting the RKBA. In Stewart v. US, the 9th circuit (with a brave opinion by our pal judge kozinki, who wrote a great dissent in Sylveira v. Lockyer)) ruled that the Federal Commerce Power stemming from the Constitution (the source of vst police and regulatory power) DID NOT give the fed.gov the power to prohibit home-made manufacture of machine guns that did not travel in interstate commerce because such machine guns did not effect interstate commerce (please DONT test that and go build one everyone out in the 9th circuit). In US v Lopez, the SC struck down a federal law banning guns from school zones. Keeping guns out of schools is a good thing, but the court said it is the states job, not the feds, because the Commerce Power did not extend that far.
So we have 2 cases of courts striking down federal gun laws based on overstepping the power of the Commerce Clause
I think that the same legal logic could be applied to other laws as well (remember i am not advocating breaking the law)
then we have the equal protection argument
equal protection is the provision every disadvantaged group loves to invoke to effect change. in cities with handgun bans, disabled persons unable to use longarms are denied self-defense. such laws could be challenged on the equal protection basis i believe. the same is true in states with may issue concealed carry, the poor do not recieve permits and the rich do, perhaps another equal protection violation???
im sure someone has thought of these ideas before, but what do you guys and gals think about the possibilities of using the commerce clause and equal protection to challenge gun laws?
I did read that the man in the Chicago suburb who shot the intruder was going to challenge the handgun ban in that city with a claim of violation of privacy. while a good idea i think any judge who wants to will have no problem defeating such an argument since the government can regulate a lot of things in your home: drug use, child porn, etc.
im going to try and incorporate these ideas into a paper im writing on the 2A, what do you guys think?
BSR