Incorporation - too late?

[usmarine0352_2005]

After being discussed on here it seems that if we get a favorable ruling on Heller, the pro-2nd Amendment forces will be attempting to work on incorporation in the courts, however, it will take 4-8 years before we get a shot at Incorporation at the SCOTUS level.


By 4-8 years we will definitely have a different make up of the US Supreme Court. Depending on who's the president (Obama/Hilary or McCain) we could be in big trouble.


If the Supreme Court goes against us in it's make up, might we want to keep an Incorporation case away from them until we get a friendlier court?

 

[ConstitutionCowboy]

We don't need "incorporation". All we need is for Congress to act upon its power granted in Section 5 of the amendment.

Woody

 

[usmarine0352_2005]

We don't need "incorporation". All we need is for Congress to act upon its power granted in Section 5 of the amendment.

Woody

Which is?

How will will this happen? Through the courts?

If not the courts, if it's Congress or whomever, does it matter if it's a republican or democratic held congress or whatnot?

 

[Standing Wolf]

All we need is for Congress to act upon its power granted in Section 5 of the amendment.

Our elected misrepresentatives have a large number of far more important things to do, starting with raising taxes, getting reelected, looting the treasury, and staying out of prison.

 

[ConstitutionCowboy]

Oh, sorry. Section 5 of the Fourteenth Amendment gives Congress power to enforce the provisions of the Fourteenth Amendment with appropriate legislation.

Woody

 

[usmarine0352_2005]

Oh, sorry. Section 5 of the Fourteenth Amendment gives Congress power to enforce the provisions of the Fourteenth Amendment with appropriate legislation.

Woody

What's the chance of this happening?

When would it happen?

If someone tried to bring an incorporation case before SCOTUS, might they just jump to the Section 5 and avoid the SCOTUS case?

 

[usmarine0352_2005]

to the top

 

[geekWithA.45]

Somewhere along the line, we're going to have to decide that 80 years of waiting is enough.

 

[Gordon Fink]

“Not until we elect more Republicans.”

~G. Fink

 

[brighamr]

can someone explain incorporation in the lawyer sense? I'm still confused with that use of the word.

 

[usmarine0352_2005]

Incorporation of the Bill of Rights is the American legal doctrine by which portions of the Bill of Rights are applied to the states through the Due Process Clause of the Fourteenth Amendment.


(thanks Wikipedia)

 

[Gunsby_Blazen]

Good one Wolf.

 

[brighamr]

so basically, we have the constitution and bill of rights... but to actually excersize any of those rights, they must be incorporated first?

That's pretty screwy. thanks for the definition!

 

[usmarine0352_2005]

Yeap. Only some of the BOR (Bill of Rights) are incorporated. It would seem obvious, no?

Don't ask me why, because I don't know.

 

[mblat]

Because prior to ratification of 14th amendment entire BOR applied to Feds only?

 

[Gordon Fink]

No, but enough people thought so or at least argued for that incorrect interpretation. They’re still doing it today in fact.

~G. Fink

 

[aloharover]

Just so it's clear in my head.

What people are thinking is that where the 14th says "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States", then if a State (like CA, MA, NY, etc) turns around and implements a law which limits and individuals rights, say the RKBA, then the US Congress must pass a Federal level law that overides a State's law?

 

[ArmedBear]

Seems to me that the 14th just overrides words like "Congress shall make no law" in the First Amendment, turning it into "Congress nor any State government shall make no law".

The remainder of the Bill of Rights says nothing about Congress. It merely says things like "shall not be infringed", "No Soldier shall", "shall not be violated", "No person shall be held", etc.

I'm with Gordon Fink, here. What about the Bill of Rights so much as appears to apply only to the Federal Government, with the exception of the First Amendment? If the words of the Bill of Rights are meaningful, only the First Amendment would need any official incorporation to be enforced against a State. The remainder would certainly appear to apply to anyone, anywhere in the United States, and to any government entity.

The reality, though, is that justices seem to change philosophies in accordance with their policy preferences. Note how the habeas decision fell. The justices that lean "originalist" suddenly turned "living document", and vice versa.

The majority decision was a pretty good one, from an originalist perspective: Congress didn't declare war, the men in question were not captured on the battlefield, these aren't POW's in any Constitutional sense, and the habeas corpus has not been suspended as the Constitution does allow under limited circumstances (in Article 1, Section 9: "The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion, the public safety may require it.")

Abraham Lincoln suspended habeas corpus. George Bush did not. Guantanamo Bay has been an attempt to "get around" the law by a technicality. Therefore these prisoners have that right. They can be convicted in court and sentenced to death, to, but they can't be held indefinitely.

Now a lot of people, who ordinarily would be judicial conservatives, i.e. originalist-leaning, have criticized the ruling based on policy problems -- this includes CJ Roberts.

My point is just that judges seem to change their stripes when there's a pet policy at stake. That suggests that Gordon's other post, “Not until we elect more Republicans.” has some validity beyond his sarcasm. I.e., I think he might be incorrect in mocking the notion, even if he finds it distasteful.

I mean, sure, when Ron Paul is President, he'll select some really great libertarian justices, and through his powers of persuasion, he'll get them all past the Senate. Or maybe Bob Barr. Maybe we should wait for that to happen? barf

 

[gc70]

The problem is in the definition of "privileges or immunities." The people who wrote the 14th Amendment apparently thought the term pointed to the Bill of Rights. The Supreme Court initially thought differently, but subsequently began including individual sections of the Bill of Rights under the scope of the 14th.

 

[gc70]

What about the Bill of Rights so much as appears to apply only to the Federal Government, with the exception of the First Amendment?

The Preamble to The Bill of Rights.

Congress of the United States
begun and held at the City of New-York, on
Wednesday the fourth of March, one thousand seven hundred and eighty nine.

THE Conventions of a number of the States, having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added: And as extending the ground of public confidence in the Government, will best ensure the beneficent ends of its institution.

The states insisted on a Bill of Rights to further restrict the federal government from misconstruing or abusing the powers it had been granted in the Constitution.

If the states had wanted to limit state powers, the Bill of Rights would not have only used restrictive language, but would have granted additional powers to the federal government to limit or control the states.

 

[ConstitutionCowboy]

If the states had wanted to limit state powers, the Bill of Rights would not have only used restrictive language, but would have granted additional powers to the federal government to limit or control the states.

If one were to believe that the Founding Fathers didn't intend for the Bill of Rights to apply to state government, the Fourteenth Amendment remedied that situation. Congress has been granted the additional power to limit or control the states vis-a-vis the Bill of Rights via the afore mentioned Section 5 of the Fourteenth Amendment.

Woody

 

[gc70]

If one were to believe that the Founding Fathers didn't intend for the Bill of Rights to apply to state government, the Fourteenth Amendment remedied that situation.

If one were to believe that the Founding Fathers intended for the Bill of Rights to apply to state government, the Fourteenth Amendment would have been totally unnecessary and redundant.

 

[ConstitutionCowboy]

gc70

Yup! Well, except for the grant of power to Congress to uphold and enforce the Bill of Rights with legislation.

Woody

 

[ArmedBear]

If one were to believe that the Founding Fathers intended for the Bill of Rights to apply to state government, the Fourteenth Amendment would have been totally unnecessary and redundant.

The First Amendment clearly does not apply to state government, though, and there's nothing wrong with clearing up any question about the meaning of the rest.

Once upon a time, when there was such a question, Congress might actually act and amend the Constitution. Now it seems that everyone is just trying to shoehorn in a justice or two to decide that the Constitution means something different from what others think.

Now I have no particular problem with some "interpretation" if, when there's legitimate doubt about the meaning, the court defaults to the decision that favors individual liberty. However, this is certainly not always the case. I don't even mind the idea of "emanations and penumbras". What I mind is that they are pulled out of justices' asses. The "emanations and penumbras" of the Second Amendment would suggest that gun control is unconstitutional, Congress can only regulate interstate commerce, and that eminent domain actually has to be for public use. Oh wait -- those words are actually IN THE CONSTITUTION.

 

[gc70]

Once upon a time, when there was such a question, Congress might actually act and amend the Constitution. Now it seems that everyone is just trying to shoehorn in a justice or two to decide that the Constitution means something different from what others think.

This is the best nugget of wisdom that I have read in quite a while.