Lose the 2nd Amendment Incorporation Battle

[Frank Ettin]

...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.

But the Court in Heller also specifically noted that Rawle was, "...writing before our decision in Barron ex rel. Tiernan v. Mayor of Baltimore, 7 Pet. 243 (1833),..." Noting that may explain why Rawle was mistaken, as it turned out, about the 2nd Amendment applying to the states. He wrote that before the Supreme Court ruled otherwise (by ruling that the Bill of Rights did not apply to the states).

 

[yokel]

Dunno...the court ruled that 2nd Amendment infringements are fine. I guess they forgot the "...shall not be infringed." part.

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.

Over the past few decades "shall not be infringed" has been reduced to the punchline of a bad joke.

Why even bother seriously bringing it up and debating it?

The court decided that the so-called right to keep and bear arms is subject to a broad scope of local and state level regulations, thus preserving most (if not all) of the current restrictions we know.

The Second Amendment becomes so inconvenient and/or pricey that most people decide it's not worth the trouble.

 

[Frank Ettin]

Over the past few decades "shall not be infringed" has been reduced to the punchline of a bad joke.

Why even bother seriously bringing it up and debating it?

The court decided that the so-called right to keep and bear arms is subject to a broad scope of local and state level regulations, thus preserving most (if not all) of the current restrictions we know...

It's far too early to write the 2nd Amendment off like that.

Yes, for a long time the courts have permitted some regulation of rights protected by the Constitution. BUT such regulation has been subject to strict scrutiny and must satisfy some fairly difficult standards. The First Amendment rights of free speech, association and assembly have been subject to some regulation for some time, and it doesn't seem to be slowing anyone down much. (In fact, given the ready availability of pornography and the rampant irresponsibility of the media, there are some who might like to see more effective regulation under the First Amendment -- but that's not likely to happen.)

Yes, much current regulation of the RKBA will probably survive. Much regulation, and the most onerous, probably will not.

Heller was not, and could not be, a free pass magically wiping away all gun laws. As an express statement that the Second Amendment speaks of an individual right, and an express rejection of the the collective right nonsense that has been floating around for a while, it is a powerful tool to now challenge the most egregious laws antagonistic to the RKBA and to fight future proposals.


Heller is only the beginning.

 

[yokel]

Heller was not, and could not be, a free pass magically wiping away all gun laws.

I, for one, had no illusions or delusions with respect to that.

How difficult do you reckon it will be to find statist judges to gladly sign off on “reasonable” restrictions intended to impair, weaken, or defeat piecemeal (as through a series of small incursions) the Second Amendment?

We know what a slippery slope is created anytime the word “reasonable” is used as pertaining to laws. In this debate, many advocate for “reasonable” restrictions on guns yet nowhere is this reasonableness defined.

 

[Frank Ettin]

How difficult do you reckon it will be to find statist judges to gladly sign off on “reasonable” restrictions intended to impair, weaken, or defeat piecemeal ...the Second Amendment?

First, fortunately, it's not a matter of a judge "signing off" a restriction. Courts decide cases; they don't give advice to legislatures or approve laws ahead of time. So the way this works, it becomes up to our side to challenge laws that restrict the RKBA.

Now here's where having wise, experienced and skilled lawyers becomes important. We need to pick our fights. We need to find the right fact situations, with the right kinds of plaintiffs in jurisdictions in which we will have access to decent judges. And we need to challenge laws we believe that we will have a good chance of successfully challenging -- laws that are vulnerable to attack on constitutional principles understood by the courts.

So, for example, I think that we'd have a very hard time successfully challenging a "shall issue" CCW law. A court would most likely conclude that such laws present too minor an impediment to the exercise of the RKBA. However, we could reasonably expect to be able to successfully challenge discretionary CCW laws or gun permit laws. It's well established and accepted by courts that it is improper to subject the exercise of a Constitutionally protected right to the discretion of a public official.

And we want to pick our fights carefully so that we have a good chance of winning them. We want favorable opinions and good precedent.

Judges are trained, and it's the culture of the judiciary and the law in general, to take precedent seriously. Judges with agendas may try to weasel around precedent, but they are so conditioned that only the most craven of them will dodge following precedent when it is "on point" and their backs are to the wall. So we want to make good law (i. e., good precedent) where we have the best opportunities to do so.

Going through this exercise successfully will take patience (so we wait for the good cases in the right places), skillful lawyers with good judgment, time and money -- lots of money. So we need to support and fund organizations like the NRA that have the resources to support this type of litigation.

...many advocate for “reasonable” restrictions on guns yet nowhere is this reasonableness defined.

Fortunately, reasonableness isn't the actual, legal standard. The term is suitable for sound bites, but has nothing to do with the standards thus far generally applied to the evaluation of regulation of a Constitutionally protected right.

In general, thus far, courts have subjected regulation of Constitutionally protected rights to strict scrutiny. So arguments that such regulations are permissible will be reviewer closely and harshly.

And, subject to strict scrutiny a regulation of a Constitutionally protected right must:

[1] Serve a compelling state interest -- it wouldn't be enough that it might be a good idea in the eye of the government, it must serve an interest that is very important, basic and essential;

[2] actually serve that interest or at least be well calculated to -- so the state has a burden to demonstrate that it really needs to do this and it really need to do it this way;

[3] be no broader than necessary to serve the compelling state interest; and

[4] not completely obliterate the right -- but still permit its meaningful exercise limited only to the extent necessary to serve the compelling state interest.

So just being "reasonable" isn't enough.

 

[yokel]

Alas, methinks that you underestimate just how defiant and brazen(and plentiful) these gun-hating tyrants in robes will prove to be.

Do you earnestly expect to ever see any significant relief within your home state in the wake of Heller?

 

[Frank Ettin]

Alas, methinks that you underestimate just how defiant and brazen(and plentiful) these gun-hating tyrants in robes will prove to be.

I don't think I do. After over 30 years practicing law in California, I think that I have a pretty good idea. But some judges will still follow the law and precedent. I've seen devote Catholic judges hand down pro-choice decisions because they felt compelled to do so by precedent. And when they don't -- that's what courts of appeal are for. Remember that Heller lost at the trial court level.

It's difficult of course. But as I wrote, we must pick the cases the times and the places carefully. Once we start getting more favorable decisions, other favorable decisions will follow, and then more and more. etc. But certainly it won't happen overnight.

 

[yokel]

Left-leaning judges who usually try to read individual rights as broadly as possible strain mightily to read the Second Amendment narrowly, eh?

And, subject to strict scrutiny a regulation of a Constitutionally protected right must:

[1] Serve a compelling state interest -- it wouldn't be enough that it might be a good idea in the eye of the government, it must serve an interest that is very important, basic and essential;

[2] actually serve that interest or at least be well calculated to -- so the state has a burden to demonstrate that it really needs to do this and it really need to do it this way;

[3] be no broader than necessary to serve the compelling state interest; and

[4] not completely obliterate the right -- but still permit its meaningful exercise limited only to the extent necessary to serve the compelling state interest.

How does one "weigh" this sort of right against the government interests? Does it make sense to talk about, for instance, "strict scrutiny" when the most obvious compelling government interest seems so directly in conflict with the very essence of the right?

 

[Frank Ettin]

yokel, the fact is that the courts have been doing this for a while, and the government doesn't always win. And this is what we have to work with. The challenge will be how to use it to the best effect.

 

[ConstitutionCowboy]

followed by ME in redAnd, subject to strict scrutiny a regulation of a Constitutionally protected right must:

[1] Serve a compelling state interest -- it wouldn't be enough that it might be a good idea in the eye of the government, it must serve an interest that is very important, basic and essential; (like preserving the readiness and effectiveness of the people should they be called to service for militia duty by not interfering with the right of the people to keep and bear arms.)

[2] actually serve that interest or at least be well calculated to -- so the state has a burden to demonstrate that it really needs to do this and it really need to do it this way;(Like keeping violent felons locked up instead of releasing them and forcing law abiding citizens to prove they are not a violent felon when they wish to buy a gun. That's as compelling a state interest as I can find. With the state out of the way of the people arming themselves in their own defense, the burden no longer rests upon the state to defend the people - which it can't do anyway!)

[3] be no broader than necessary to serve the compelling state interest;(Shouldn't be a problem what with all the gun owners out there already voluntarily banging away and practicing their aim and good tactics.) and

[4] not completely obliterate the right -- but still permit its meaningful exercise limited only to the extent necessary to serve the compelling state interest.Hell, the necessary and/or compelling state interest will be served if the state simply abides the Second Amendment and steps out of the way. There'd be no burden upon the right at that point!)

One must remember that the enumerated rights in the Constitution have already taken into account any compelling state(government) interests.

The limitation on assembly - that it must be peaceful - is all the interest a state could have in an assembly of the people.

There is no right to free speech. What we have is a prohibition upon government to abridge what we may freely say, but we can still be held liable for what we might say. Were it a right to free speech, we could say what ever we wished without consequence. There'd be no such thing as perjury, or libel and slander, or inciting to riot. There'd be no seven dirty words you can't say on TV. Any compelling government interest is already allowed for in the amendment protecting the freedom of speech, religion, and the right to peaceably to assemble and petition government for redress of grievances.

Our right to be secure from searches and seizures is already tempered in the Constitution to accommodate the state interest of investigating and prosecuting crime with the requirement that all searches and seizures must be reasonable, and to that end, no warrants shall issue without probable cause supported by oath or affirmation.

We have a right to life, liberty, and property but the "compelling state interest" to prosecute and punish crime(provide for domestic tranquility) is allowed for by due process of law.

All this(and more) compelling state interest is already provided for in the Constitution. The Right to Keep and Bear Arms - being completely benign and innocuous - has no provision for a compelling government interest. We the People being armed IS of compelling government interest.

Woody

 

[Frank Ettin]

Woody,

I'm not going to play this game with you. I'm trying to explain how the courts will actually deal with these issues. You are spinning yarns and indulging your "what if" and "if only" and "I wish" fantasies.

Have fun.

 

[ConstitutionCowboy]

This is not a game nor is it a fantasy. I'll say it like I did in another thread:

It's that the system you so staunchly support has brought us circumstances wherein 30 students can be gunned down execution style with out resistance. It's brought us scenarios wherein 4 airliners can be hi-jacked by box-cutter-wielding terrorists - three flown into buildings and one crashed into a field - resulting in nearly 3,000 people killed, two of the largest buildings in the world collapsed into rubble, our own military headquarters attacked, and our economy thrown into a bit of a tizzy - all for the lack of no less than 5 armed citizens. That's only Virginia Tech, and 09/11/01. All this made possible by infringements upon one of our most basic human rights, made possible by the bastardization of our system of government by the majority of the people in positions of power - people in positions that could have halted these bastardizations and prevented the disarming of the passengers on those planes, or the students in those classes, or the teachers and administration of our other schools where such terror was exacted, some churches, at some courts ...

Get the picture?

How many more are you willing to sacrifice before you look at that big picture and get on the band wagon to support the Constitution as it was meant to be abided?​

Woody

 

[Frank Ettin]

Woody,

[1] You are playing a game and indulging yourself in a fantasy, In fact, it's basically the same game and fantasy as the Liberals. Think of all the Obama supporters chanting "CHANGE." You may want the end result of your change to be different from theirs, but it's still essentially the same idea: All the evil in the world is a result of the current system, so it must be radically changed.

[2] Bad things happen in any system. Even if every honest person were armed, bad things would happen.

[3] How are you going to bring about your change? By electing people who think they way you do? Among other things, where are you going to get the candidates? You need enough candidates who think your way to fill most elected offices, and they need to be electable -- they need a broad enough base of support to be able to win. So far Conservatives and Constitutionalists have not been having much success in finding candidates who fill that bill -- especially for national public office.

[4] Perhaps you envision some kind of non-violent revolution. If so, how do you hope to bring that about? In any case, that sounds like a fairly standard Utopian vision, and like all Utopian visions before, going back to Thomas More, will come to naught. (Do you know who Thomas More was?)

[5] If neither of the above courses are what you intend, what does it mean to, "...support the Constitution as it was meant to be abided"? My just sitting here in my mind and heart supporting your idea of how the Constitution was meant to be abided isn't going to do anything for anybody. Do you have some other idea about how to bring about your vision?

[6] Of course, even if you could bring about your vision, it's not going to happen overnight. We will still have to deal with things as they actually are now until you can get everything fixed.

[7] Yes, I want to see the Constitution properly applied to limit government intrusion into personal freedoms. I don't like to see judges stretching things to making things work out in ways more consistent with their personal visions of the way things should be (in contrast to your personal vision of the way things should be). And so I want to see and support well thought out litigation brought by good plaintiffs and able lawyers (like Dick Heller and his legal team) that can help produce court decisions more properly applying the Constitution.

[8] And yes, I want to support candidates who can win public office who will help bring more discipline, conservative thinking back into government, who support the Constitution as written, who believe in fiscal and personal responsibility. I'm sorry that we've had so much trouble finding candidates like that who also have the charisma to inspire the electorate and get themselves elected.

[9] Even if you do manage to fix things, until that gets done, we need to work with what we have.

[10] In any case, I'm not going to get on your bandwagon, because you haven't demonstrated to me that you know what you are doing.

 

[akodo]

lets say someone invents a raygun

Which would be better?

A. for no city or state to make any law ever that restricted rayguns, so that there would never be a court case defining if they are covered by the 2nd amendment.

B. A law written barring us from having ray guns, which we could take to the supreme court and have struck down theirby verifying that rayguns are in fact legal.

I guess I'd rather have A

 

[Frank Ettin]

akodo,

I agree that A would probably be better. But, it also may not be an option. We need to work with what is and with what we have.

 

[ConstitutionCowboy]

[1] You are playing a game and indulging yourself in a fantasy, In fact, it's basically the same game and fantasy as the Liberals. Think of all the Obama supporters chanting "CHANGE." You may want the end result of your change to be different from theirs, but it's still essentially the same idea: All the evil in the world is a result of the current system, so it must be radically changed

Naw, it ain't change I'm after. It'd be more properly labeled reversion. There is nothing basically wrong with the system, either. The problem lies with some of the people in, or who have been in, the system and what they've done.

[2] Bad things happen in any system. Even if every honest person were armed, bad things would happen.

That's right. But, every honest person would have the power to fight back.

[3] How are you going to bring about your change? By electing people who think they way you do? Among other things, where are you going to get the candidates? You need enough candidates who think your way to fill most elected offices, and they need to be electable -- they need a broad enough base of support to be able to win. So far Conservatives and Constitutionalists have not been having much success in finding candidates who fill that bill -- especially for national public office.

I want reversion back to abiding the Constitution, not some gawd awful change like what's happened to this country since the end of the Nineteenth Century.

[4] Perhaps you envision some kind of non-violent revolution. If so, how do you hope to bring that about? In any case, that sounds like a fairly standard Utopian vision, and like all Utopian visions before, going back to Thomas More, will come to naught. (Do you know who Thomas More was?)

No, not any kind of revolution. If you want Utopian visions, take a look at what the liberals have in store for us. Yeah, I know a little about Thomas More.

[5] If neither of the above courses are what you intend, what does it mean to, "...support the Constitution as it was meant to be abided"? My just sitting here in my mind and heart supporting your idea of how the Constitution was meant to be abided isn't going to do anything for anybody. Do you have some other idea about how to bring about your vision?

Yeah. Vote and espouse.

[6] Of course, even if you could bring about your vision, it's not going to happen overnight. We will still have to deal with things as they actually are now until you can get everything fixed.

Dealing with things as they are now by adhering to the strict construction of the Constitution WILL get things fixed.

[7] Yes, I want to see the Constitution properly applied to limit government intrusion into personal freedoms. I don't like to see judges stretching things to making things work out in ways more consistent with their personal visions of the way things should be (in contrast to your personal vision of the way things should be). And so I want to see and support well thought out litigation brought by good plaintiffs and able lawyers (like Dick Heller and his legal team) that can help produce court decisions more properly applying the Constitution.

Hallelujah Brother! I'd throw in a good measure of corrective legislation from Congress to repeal government intrusions, usurpations, and infringements; and some legislation to rein in the errant state laws as well.

[8] And yes, I want to support candidates who can win public office who will help bring more discipline, conservative thinking back into government, who support the Constitution as written, who believe in fiscal and personal responsibility. I'm sorry that we've had so much trouble finding candidates like that who also have the charisma to inspire the electorate and get themselves elected.

Hallelujah some more.

[9] Even if you do manage to fix things, until that gets done, we need to work with what we have.

Working with what we have leaves what we have in place. Just start abiding the Constitution and it'll all self heal.

[10] In any case, I'm not going to get on your bandwagon, because you haven't demonstrated to me that you know what you are doing.

No problem. Do what I do: Follow our Founding Father's lead. I'm on their band wagon.

Woody

Thomas Jefferson worried that the Courts would overstep their authority and instead of interpreting the law would begin making law....an oligarchy...the rule of few over many.

"The basis of our political systems is the right of the people to make and to alter their constitutions of government. But the Constitution which at any time exists, 'till changed by an explicit and authentic act of the whole of the People, is sacredly obligatory upon all."

George Washington, Farewell Address, September 19, 1796.

 

[Frank Ettin]

Have fun Woody. I'm going to be attending to real business.

 

[Ivy Mike]

if we lose the second amendment incorporation battle, we will be in the exact same position we are now.
With an unincorporated 2A.

/thread