Lose the 2nd Amendment Incorporation Battle

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usmarine0352_2005

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Many peoples are of the opinion that Incorporation is the most pressing issue now and that Heller vs. D.C. has been ruled on.


What happens if all of the cities/states that are capable of having a great case for Incorporation decide not to challenge the 2nd Amendment anymore thus there will be no case to take to the Supreme Court?



I know, I know, people will say we've won. But what's better is a good solid legal ruling saying the 2nd Amendment is Incorporated the same as other amendments.



.
 
Unless the make-up of the SCOTUS changes between now and the time this case got there, or would be threatening to get there, incorporation would be in the bag.
 
I have a hunch that the "new rules" will still be so onerous as to warrant a real case for incorporation. All we need is one city or state and it'll be over. It's funny watching them belatedly realize how crushing their defeat really was about 45 days too late, but they aren't all going to get it completely through their head in time to head off the incorporation battle.

New York City
Chicago
San Francisco
The State of New Jersy
Most of the rest of New England

They're not all going to clean up in time to prevent something from working its way to SCOTUS, precicely because they still believe that some of what they were doing was ok, and of all those laws that they're going to try to keep, something is going to make it there, and will probably be ruled in our favor if it gets there with the current makeup of justices.

If anything, we it'll be better to have rules that could pass low level judicial scrutiny, since as far as I can tell the only reason we don't have strict scrutiny already is because DC's laws couldn't pass even that, so there was no need to rule on how strictly to subject 2A to judicial review.

I'm not a lawyer or poli-sci guru. But I still have two cents. It's not over yet. I'm still disappointed I didn't get to watch Daley get Fenty'd, so I feel you there.

Reid
 
The real question is not whether incorporation will occur. The real question is how watered down will the 2nd become as the future cases are heard by SCOTUS. Heller was a victory, but it was a battle not the war. I am old enough to remember when the 4th amendment protected the individual right against being searched much more than it does today. No one would have stood by and allowed the 4th to be appealed but we have all, in the name of security and law enforcement, allowed the protection to be slowly chipped away to the point that defense attorneys I know are saying the 4th is dead. I can only hope and pray that years from now my children won't be saying "remember when the 2nd amendment meant something?'
 
Of course this is all just speculation since we don't know what Chicago is going to do yet. But my gut feeling is that there is a case somewhere that will test incorporation sooner rather than later. There was another posting on another thread here about a California case where the Appeals court had held off making a final ruling on standing until after Heller although they had issued a preliminary ruling on standing based on pre-Heller 9th circuit precedent (IE, collective right therefore no standing which is no longer valid precedent). This case will be back in front of the same appeals court panel in a few months and the panel appears to be ready to rule in favor of incorporation.

I also suspect that these big city mayors are getting a lot of pressure from the Brady bunch and friends to not let the case go to court. They now know they have more to lose than they could possibly gain. One of the things they can do is to fight a delaying action. Change their laws just enough that they can stand in front of a judge and say "this law suit is about a law that we repealed and it is moot" and have a judge dismiss it. Then the clock is reset and new law suits will need to be filed based on the new laws. They can only go for so long before they will either have to fight it out or totally give up but I suspect that they could delay things for perhaps 5 or 6 years before it came to that.

(edited to correct speeling)
 
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If nothing else, I think that Daley is too much of an egomaniacal bucket head to back down. Even if he SEEMED to back down, he'd just pull a Fenty and end up in court, where incorporation would finally take place.

The antis are like the Japanese in the spring of 1945. It's just a question of how BAD of a whipping they need before they quit. Knowing Daley, he'll find some way not just to get the individual right incorporated, but shall issue CCW as well. He thinks that the rest of the world is as stupid as the ninnies who vote for him (the live ones anyway). Boy is he ever going to find out different...
 
The bottom line is this: assuming that other amendments of the BoR are "incorporated", and given the history of RKBA among freed slaves vis-a-vis the Reconstruction Amendments, nobody who has any intellectual honesty could find that the 1st is incorporated but not the 2nd.

However, 4 of 9 justices lacked this intellectual honesty in the Heller decision.
 
Dunno...the court ruled that 2nd Amendment infringements are fine. I guess they forgot the "...shall not be infringed." part.
 
Dunno...the court ruled that 2nd Amendment infringements are fine.
Click to expand...

They mentioned none explicitly except, in passing (i.e. without a case or controversy in front of them, so it is dicta) for felons, mental incompetants, etc., and a restriction on carrying in government buildings and schools.

While I'm less than 100% thrilled with Heller, it is a foot in the door. The civil rights movement used a foot in the door to get started, and gradually pried the door all the way open and off its hinges. We'd be wise to emulate this, instead of going for everything in one shot (because we'll never get it). We lost much of the ability to freely exercise our RKBA one salami slice at a time, and that's how we'll get it back.
 
As I pointed out in another thread, it may not be necessary to "incorporate" the Second Amendment through the Fourteenth. It's on the mind of at least five justices that it applies as is:

In DC v. Heller ,at 34, Justice Scalia quoted William Rawle's analysis of the Second Amendment:
“The first [principle] is a declaration that a well
regulated militia is necessary to the security of a free
state; a proposition from which few will dissent. . . .

“The corollary, from the first position is, that the
right of the people to keep and bear arms shall not be
infringed.

“The prohibition is general. No clause in the constitution
could by any rule of construction be conceived
to give to congress a power to disarm the people. Such
a flagitious attempt could only be made under some
general pretence by a state legislature. But if in any
blind pursuit of inordinate power, either should attempt
it, this amendment may be appealed to as a restraint
on both.” Rawle 121–122.20

20 Rawle, writing before our decision in Barron ex rel. Tiernan v.
Mayor of Baltimore, 7 Pet. 243 (1833), believed that the Second
Amendment could be applied against the States. Such a belief would of
course be nonsensical on petitioners’ view that it protected only a right
to possess and carry arms when conscripted by the State itself into
militia service.​
Click to expand...

Woody
 
ConstitutionCowboy said:
As I pointed out in another thread, it may not be necessary to "incorporate" the Second Amendment through the Fourteenth. It's on the mind of at least five justices that it applies as is:...
Click to expand...
The problem is that if the Supreme Court is inclined to abandon Barron and apply the 2nd Amendment directly to the states without the use of the 14th Amendment, only the Supreme Court could do that.

Barron was a Supreme Court ruling that the Bill of Rights did not apply to the states. That is binding on the lower courts. Only the Supreme Court could overrule Barron so that the 2nd Amendment could be applied to the states. So in order to get the 2nd Amendment applied directly to the states, we would need to wait for a case to wind itself though the system up to the Supreme Court.

On the other hand, since there is no Supreme Court precedent conflicting, it would be within the aurhority of a lower court to apply the 2nd Amendment directly to the states through the 14th Amendment. This could happen long before a case gets to the Supreme Court.

While an incorporation case may ultimately get to the Supreme Court, some early lower court decsions applying the 2nd Amendment to the states through the 14th Amendment would be tactically desirable for our side and help keep our momentum up after Heller.

But also if you read the quote from Heller carefully, it appears that the Court is quoting Rawle less for the proposition that the 2nd Amendment applies directly to the states than as further evidence that the 2nd Amendment has long been considered an individual right. ("Such a belief would of course be nonsensical on petitioners’ view that it protected only a right to possess and carry arms when conscripted by the State itself into militia service.")

incorporation in any event remains our quickest route to applying the 2nd Amendment, and Heller, to the states.
 
Many of the states have the right to keep and bear arms in their own constitutions. In New York State its word for word the same as in the Federal constitution. NYC isnt exempt from the NY state constitution contrary to what they may think.

So Couldnt a state court rule NYC laws unconstitutional in light of the Heller ruling, and thus never make it up the federal ladder at all??
 
MasterBlaster said:
Many of the states have the right to keep and bear arms in their own constitutions. In New York State its word for word the same as in the Federal constitution. NYC isnt exempt from the NY state constitution contrary to what they may think.

So Couldnt a state court rule NYC laws unconstitutional in light of the Heller ruling, and thus never make it up the federal ladder at all??
Click to expand...

According to this site ( http://www.law.ucla.edu/volokh/beararms/statecon.htm ) New York, New Jersey, and California have no RKBA provision in their state constitutions, and Illinois' is "Subject only to the police power, the right of the individual citizen to keep and bear arms shall not be infringed" and the first part of that gives them an easy out. If SCOTUS or a Federal Circuit court clarifies Heller adding to what is explicitly covered as a right (for example, open carry) there might be some states that would be immediately affected without necessitating incorporation, but I suspect we'll get incorporation before we get RKBA "clarification" making it moot.
 
What happens if all of the cities/states that are capable of having a great case for Incorporation decide not to challenge the 2nd Amendment anymore thus there will be no case to take to the Supreme Court?

Here in lies the fun of it....

The Fat Controllers have 2 choices, Fight or Flight

If they directly fight the 2A and Heller we get case law clarifying the Heller decision woolyness and move ever closer to incorporation.

If they indirectly fight via excessive or onerous regulation we get case law defining and overturning the restrictions and laying out what a state cannot do. Eventually someone with more ego than sense tries to dig their heels in and we get more steps to incorporation.

If they don't fight we eventually get, in effect de-facto incorporation.

It's all about the Law of Unintended Consequences.....

For example, DC's (a federal enclave) asinine classification of (almost) all semi-automatic pistols as "machine guns".

This is going to be thrown out of the bus, AND a lawyer worth his salt can leverage that to say that the ATF's chasing of innocent folks who's semi-automatic's firearm accidentally slam fired once is inherently in violation of federal law as it cannot be a machine gun based upon federal case law defining what is an MG via DC.

I await a lot of wailing and gnashing of teeth from various of the firearms control folks over the next couple of years with a certain relish.

Schaudenfreud....it's a b**ch.....:evil:
 
If they indirectly fight via excessive or onerous regulation we get case law defining and overturning the restrictions and laying out what a state cannot do. Eventually someone with more ego than sense tries to dig their heels in and we get more steps to incorporation.

If they don't fight we eventually get, in effect de-facto incorporation.
Click to expand...


True, we get de-facto Incorporation.



But what if their just waiting to see how the choice of new Supreme Court Justices goes and once re-establish their former laws which will then be challenged and brought up with a SCOTUS with a better chance of their side winning?

.
 
But what if their just waiting to see how the choice of new Supreme Court Justices goes and once re-establish their former laws which will then be challenged and brought up with a SCOTUS with a better chance of their side winning?

This doesn't worry me too much for a couple of reasons.

1. As a general principle the SC is always very reluctant to overturn, reverse or greatly modify a ruling unless they can point to a fundamental or substantial change in the legal environment. This is particularly difficult if they try and do this a very recent ruling.

This is for conservative (small C) legal reasons, as well as to stop people wondering what has happened to the wisdom and infallibility of the court....:rolleyes:

2. Even if there was an apparent change, to do this would require a majority in the court which means at least 2 of the current supporters would have to leave/retire and be replaced by 2 nay sayers.
Looking at the current age and makeup of the SC, Stevens and Ginsburg, the oldest two at 88 and 75 are the more likely to go and if replaced like for like, no change in overall voting. There has also been gossip that Stevens would like to retire as the oldest SC, older than Oliver Wendell Holmes which means hanging in until 2011......:eek:

3. As a whole, SC justices have regularly tended to confound folks when they do get appointed. They are appointed for life, don't have to kowtow to anyone for any reason and frequently take stances that no one ever saw coming. A classic example was Earl Warren, appointed by Eisenhower who drove a set of sweeping changes in segregation, civil rights etc.

Changes are probable but unlikely except in the medium to long term IMHO for what it's worth....:evil:
 
Let's bait Daley. He's such a knucklehead, he'll bite, I'm sure of it. Taunt him. Dare him to challenge the Supreme Court. Tell him he's powerless, that he'll lose the fight. Tell him that HE is in fact, a loser. With his personality, I'm telling you, that's all it will take to get him to shoot himself in the foot.
 
Master Blaster said:
Igloodude, apparently the folks at UCLA have missed this completely:

http://public.leginfo.state.ny.us/me...MMONQUERY=LAWS

Click on section 4 article 2, New york civil rights:

http://public.leginfo.state.ny.us/me...MMONQUERY=LAWS

§ 4. Right to keep and bear arms. A well regulated militia being
necessary to the security of a free state, the right of the people to
keep and bear arms cannot be infringed.

Like I said an exact word for word copy of the 2nd amendment.
Click to expand...

I see what you're pointing to, but when I search New York State's constitution (link here: http://www.dos.state.ny.us/info/constitution.htm ) it doesn't match the results your link gives - in fact the ordering of the articles is different. :confused:
 
Yes NYS websites suck, and are confusing and hard to find stuff on.
But none the less the right is part of the constitution of NYS.

Note the site you are looking on is the NY Department of State which is involved in enforcing some laws.

The site I got my info from:

http://public.leginfo.state.ny.us/menuf.cgi

ARTICLE 2
Bill of Rights

Section 2. Supreme sovereignty in the people.
3. Levying taxes and charges.
4. Right to keep and bear arms.
5. Military service by citizens.
6. Exemption from military service.
7. Quartering soldiers.
8. Right of search and seizure.
9. Freedom of elections.
10. Justice to be administered without favor and speedily.
11. Fines must be reasonable and imposed only for cause.
12. Rights of persons accused of crime.
13. Right to serve on juries.
14. Jurors not to be questioned for verdicts.
15. Right of appeal not to be denied.


is the Ny State Legislature which has a complete index of the constitution and all of the laws of NYS since they are the guys who make the laws I would suspect they have a more complete listing.
 
I think I've figured out the discrepancy - this website (tangentially) explains it:

description said:
Smart New York practitioners turn to New York Consolidated Laws Service (CLS) for their statutory research. The CLS is a complete New York annotated statute service. It contains all the Consolidated Laws of New York, following the official arrangement, as well as the Constitutions of the United States and New York State, selected Unconsolidated Laws, and the major Court Acts and Rules.
Click to expand...

(bolding mine)

There's a NYS constitution, and NYS "Consolidated Laws", and what you're finding is in the "Civil Rights" section of the Consolidated Laws (which are organized and phrased a lot like a constitution). If in that legislative law search engine you link to you enter 'constitution' as the search keyword you get a bunch of articles and sections that add up to the same version I linked to, which is to say minus an RKBA provision. Assuming I'm correct, the RKBA provision you've found is just another NYS law and not a constitutional imperative.
 
New York City
Chicago
San Francisco
The State of New Jersy
Most of the rest of New England
Click to expand...
NYC and Chicago are bad. SF can pass any kind of gun law it wants, but the state of CA has a preemption law so they are meaningless.

NJ and CA have many real issues that need to be addressed.

Much of NE is not that bad.

VT, NH, and Maine are gun friendly.

CT is virtually shall issue CCP, and reportedly is pretty NFA friendly, although it is not as friendly to non-residents.

DE is also virtually shall issue, and even accepts a few out of state permits.

NYS and MA big problems and need lots of work.
 
As a general principle the SC is always very reluctant to overturn, reverse or greatly modify a ruling unless they can point to a fundamental or substantial change in the legal environment. This is particularly difficult if they try and do this a very recent ruling.

This is for conservative (small C) legal reasons, as well as to stop people wondering what has happened to the wisdom and infallibility of the court....
Click to expand...

Stare decisis, meaning 'to stand by things decided' is very important at the Supreme Court level.
The entire legal system would come to a grinding halt (even more than it seems to be now) if decided issues could be brought forward again.
The usual method to try and get something reconsidered is to create a case that can be made to be different than already decided cases.
This is when cases get very narrow decisions in many cases.
They do not want to directly overturn a previous case, but may desire to 'clarify' the ruling by citing new circumstances.


There are many older rulings that while still standing have been 'worked around.'
The ruling that refused to apply the BOR to the states is one.
What the court did was use the 14th amendment to extend portions of the BOR to the states, thus not having to directly overrule the previous decision.
 
Dunno...the court ruled that 2nd Amendment infringements are fine. I guess they forgot the "...shall not be infringed." part.
Click to expand...

As another poster stated, they did mention some specific instances where the right could be "infringed" but didn't they also make a statement to the effect that the Second Ammendment should be afforded that same level of scrutiny as any other enumerated right? If that is the case, it means that every instance of infringement would need to be challenged to see if it were narrowly constructed to afford the least amount of restriction necessary to effect the stated purpose.

IANAL, so please let me know if I am misinterpreting this.
 
fiddletown said:
But also if you read the quote from Heller carefully, it appears that the Court is quoting Rawle less for the proposition that the 2nd Amendment applies directly to the states than as further evidence that the 2nd Amendment has long been considered an individual right. ("Such a belief would of course be nonsensical on petitioners’ view that it protected only a right to possess and carry arms when conscripted by the State itself into militia service.")
Click to expand...
Yes, I got that. But it also received rather "special prominence", being displayed as it was along with the notation of the applicability of the Second Amendment against the states in the footnote.

Woody
 
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