SCOTUS - 2 incorporation cases on the docket!

[MisterMike]

All but a few states have RTKBA in their state level constitutions. This makes winning incorporation of the second a lower priority than poking the reasonableness boundaries of Heller itself.

I disagree. You only need to look as far as the Illinois Constitution to understand that we need to fight for the right to keep and bear arms at every level of government:

SECTION 22. RIGHT TO ARMS
Subject only to the police power, the right of the individual citizen to keep and bear arms shall not be infringed.

That supposedly fundamantal right in our state has been beaten and altered by statutes and ordinances to the point of being meaningless.

 

[Phatty]

SECTION 22. RIGHT TO ARMS
Subject only to the police power, the right of the individual citizen to keep and bear arms shall not be infringed.

That supposedly fundamantal right in our state has been beaten and altered by statutes and ordinances to the point of being meaningless.

Our state supreme court has interpreted that provision of the Illinois constitution to be effectively meaningless. Perhaps that was the intent of the drafters of the Illinois constitution. The provision plays lip service to the right to keep and bear arms, so normal, everyday citizens would believe that they were voting for a constitution that protected that right. The enormous catch in the provision is the first part: "Subject only to the police power" which completely swallows up the right. Again, the normal citizen would interpret that to mean that the police would be able to disarm a citizen they arrest that has committed a crime, or something similar to that which is reasonable. What most people don't know is that a state's "police power" has nothing to do with the police. Legally speaking, it means the state's inherent power to pass laws regulating its citizens and the conduct that occurs in the state. It is an extremely broad and expansive power that is the basis for practically every law enacted by a state. Thus, any law regulating firearms in Illinois is within its police power and thus an exception to the right to keep and bear arms.

 

[Ragnar Danneskjold]

My question is, would incorporation nullify individual state rules against NFA weapons, like SBR/SBS and suppressors, as they are legal at the Federal level?

 

[IllHunter]

Read the opinion of the Appeals court...

the 7th circuit affirmation of the lower courts verdict in NRA v Chicago was nothing but relying onthe USSC and Heller to overturn their own mess made re the nations first handgun ban in Morton Grove in the 80's. I beleive it was Nordyke (sp?). They saw Heller and still refused to make a change, even though the 9th found for incorporation. Sotomayor and the 2nd found against so if USSC sees the conflict, it must decide and hopefully the Heller majority will win out. Even if they do favor incorporation, getting prince Daley to obey may require tactics reminiscent of the national guard in Selma. It took congress some mighty arm twisting to get Fenty etal to heed (almost) Heller. What will it take to bring Obama's politica umbilical to obey that law? I can see his appoplexy just thinking of the permenance of the case monniker "NRA v Chicago" !!!!!!

 

[kludge]

This selective incorporation crap, er, I mean "doctrine" has been slowly undone since the end of the civil war, it's a real shame that it's taking so long to reverse all of the bad decisions that were based on racism.

I hope the Court will see the error of their (former) ways.

 

[Zoogster]

In regard to the Illinois Constitution Phatty:

Subject only to the police power, the right of the individual citizen to keep and bear arms shall not be infringed.

Well then they might as well have just not said it at all.

Constitutional rights are limits on government power, but if you say the government can infringe on them at thier discretion, then you just wasted ink.
X cannot infringe on your right to do Y, unless X says otherwise!
What a concept, I wonder if they got a legal education to come up with that "right".

Reminds me of the Mexican Constitution and thier Right to Keep and Bear arms (where only a few thousand out of a population of over one hundred million possess limited types of legal private arms.)

Article 10
Citizens of the republic may, for their protection, own guns and arms in their homes. Only arms sanctioned by the Army may be owned, and federal law will state the manner in which they can be used

Hmm the "right" to do only what the government says you can do or limits you to doing any time in the future. Well that was certainly a right worthy of stating! :banghead:

Next up, the right to free speech, unless someone does not like what you have to say.

 

[Yellowfin]

The bare minimum would be the court remanding the cases for the lower judges to determine whether the regulations at issue violate the 2A. That scenario is actually quite likely to happen.

Why in the heck would they do that? The Chicago judges have proven without fail that they are totally untrustworthy with the 2nd Amendment, as with those in the 2nd Circuit in New York. Of course they're going to say the Chicago laws don't violate the 2nd Amendment--according to them nothing does!

 

[usmarine0352_2005]

.

The bare minimum would be the court remanding the cases for the lower judges to determine whether the regulations at issue violate the 2A. That scenario is actually quite likely to happen.

What's the chance of this?

.

 

[RP88]

because we have the Heller 5 on our side.

No, we have the Heller 4, and we are hoping that Kennedy votes for incorporation. Keep in mind that he is the swing vote, or at least was when the vote came down for Heller.

 

[kdstrick]

No, we have the Heller 4, and we are hoping that Kennedy votes for incorporation. Keep in mind that he is the swing vote, or at least was when the vote came down for Heller.

In agreeing with the majority on Heller, which went farther than some thought it may, or that some thought Kennedy would go along with I should say. Do you guys think the NRA would push this if they were not confident of a victory?

It seems, at the very least that Kennedy is intellectually honest and in supporting Heller, agrees that the Second Amendment applies in these cases as well.

I'm fascinated by these cases, thanks in advance for everyone's thoughts on the issue.

 

[Phatty]

Keep in mind that [Kennedy] is the swing vote, or at least was when the vote came down for Heller.

And how exactly do you know this?

In agreeing with the majority on Heller, which went farther than some thought it may, or that some thought Kennedy would go along with I should say. Do you guys think the NRA would push this if they were not confident of a victory?

It seems, at the very least that Kennedy is intellectually honest and in supporting Heller, agrees that the Second Amendment applies in these cases as well.

Why does everyone think Kennedy is so shaky on 2A rights?? I would love for somebody just once to point to something Kennedy has said or written to cast doubt on his support for gun rights. My guess is that because Kennedy is a swing vote on other issues, people just naively believe he is the swing vote on this issue. What most people don't seem to understand is that the reason Kennedy is so often a swing vote is because he is more likely than Justices Thomas, Alito, Roberts and Scalia to restrict the powers of government and protect people's rights, which is exactly what we want here.

 

[LickitySplit]

No, we have the Heller 4, and we are hoping that Kennedy votes for incorporation. Keep in mind that he is the swing vote, or at least was when the vote came down for Heller.

What about Scalia? From what little I know about him, he has a strong opinion in favor of states rights.

Can he be counted on to side in favor of incorporation?

Personally... I would be shocked if he sided with the 4 dissenters in the Heller case this time around.

 

[Zoogster]

What about Scalia? From what little I know about him, he has a strong opinion in favor of states rights.

Can he be counted on to side in favor of incorporation?

Personally... I would be shocked if he sided with the 4 dissenters in the Heller case this time around.

Some of these same justices are justices who have ruled in favor of some of the largest increases in federal government jurisdiction and power ever.

For that reason, I highly expect they would rule to bring most things under the jurisdiction of the federal government unless it clearly is an extremely large stretch, and even then only if they don't want to.
A portion of the Bill of Rights under federal jurisdiction is not a large stretch at all, and considering most of it is already incorporated, doing so with the 2nd seems like an almost assured result.

Scalia in particular for example lead the ruling in Gonzales vs Raich, which puts almost anything and everything under federal authority even if it is not involved in Interstate Commerce whatsoever, just by alluding it in some way several times removed and indirectly could effect it and is therefor "necessary and proper". No longer does anyone even need to show jurisdiction is valid under the commerce clause.
Even just the fact that it could change how people feel might "effect the economy" and is "necessary and proper" under that ruling.

All they need to say is any law is felt to be "necessary and proper" since the day of that ruling, and anything is under federal authority. So state's rights practically ceased to exist at the moment of that ruling. (And it is in fact that very ruling that now means most federal gun laws will be upheld, even for firearms never intended to be involved in commerce, cross state lines or otherwise fall directly under the commerce clause.)
So I certainly wouldn't call him a "state's rights" person.

 

[green-grizzly]

Scalia in the past has written that the second amendment should not apply to the states, but his opinion in Heller sounds like he has now seen the light. The Heller opinion makes it pretty clear that the one of the purposes of the 14th amendment, if not the primary purpose, was to protect the RKBA from state infringement.

It seems like the opinion in Heller, with its 'presumptively constitutional' BS, was watered down to keep one or more justices on board. I don't see any reason to think it was Kennedy rather than Roberts, Alito and/or Scalia, all of whom have bouts of statism. At oral argument, Kennedy seemed very suppotive of the RKBA. I am pretty sure Thomas was not the weak link; he is very literal in his reading of phrases such as "shall not be infringed." I also have a good feeling about "Machinegun Sammy" Alito. I worry about Roberts more than Kennedy.

 

[everallm]

For me, the incorporation of 2A is probably as about a close to a lock as we will see in this generation.

My concern was couple of throw away lines both in the majority and minority opinions of Heller that intimated that for 2A, the classic Strict Scrutiny stance might be revisited.

If the SC state that 2A IS incorporated but with a new and lower level of scrutiny that would be of concern and would leave the Chicago's, NY, NYC, NJ etc out in the cold.

 

[Phatty]

I worry about Roberts more than Kennedy.

I agree with you. I think Roberts and Scalia are the two weakest links in the Heller five. Everyone says that Scalia made concessions in the opinion for one of the other members of the majority, but the opinion tracked very closely with comments made by Scalia during oral argument. So, if anything, Scalia put the concessions in the opinion because he wanted them.

As far as incorporation goes, I'm not worrying about any of the Heller five. My concern is for later issues when the court determines the scope of the 2A right.

 

[Yellowfin]

Exactly what is the point of calling any right a right with anything less than strict scrutiny? What right is a right at all if it can be screwed with at will?

 

[everallm]

It's the how many angels can dance on the head of a pin argument.

If 2A is incorporated AND unabashed strict scrutiny is applied then almost all firearms control laws are potentially thrown into limbo.

So the argument is that, just as with the First Amendment, there are certain bounds and limits that are legitimate, slander and libel are the first two that come to mind.

How to define the appropriate bounds so that they meet the spirit as well as letter of constitutional law is were it must be causing ulcer growth.......

 

[Phatty]

If 2A is incorporated AND unabashed strict scrutiny is applied then almost all firearms control laws are potentially thrown into limbo.

Standards are completely worthless, because any judge can come to his desired result using any standard. If strict scrutiny is to be applied in 2A cases, the judges can simply find that there is a compelling need for every gun regulation.

 

[everallm]

Which is why I said POTENTIALLY and LIMBO not thrown out and invalidated

 

[gc70]

I will go out on a limb and guess that the incorporation case might include affirmative votes by some of the liberal Justices. Denying incorporation would require new concepts for denying a fundamental individual right. Such concepts would be a potential minefield for future cases involving other fundamental individual rights that the liberal Justices adore.

 

[Bruno2]

Well , Kennedy is not going to be voting this time . So now who is going to be the swing vote ?

 

[gc70]

Well , Kennedy is not going to be voting this time . So now who is going to be the swing vote ?

Supreme Court Associate Justice Anthony Kennedy is doing fine according to recent news reports. OTOH, Massachusetts Senator Ted Kennedy did die this week.

 

[Yellowfin]

So the argument is that, just as with the First Amendment, there are certain bounds and limits that are legitimate, slander and libel are the first two that come to mind.

Yes and those are issues where actual harm has been committed, not mere potential. That's basically like discharge of firearms within city limits or brandishing. There is no defensible cause of a law prohibiting you from opening your mouth or having a pencil and paper or a laptop in certain places because you might write something libelous or slander someone.

 

[everallm]

Libel and slander were simply the first two examples of how a constitutional "right" (First Amendment) is not inherently unlimited but does have defined boundaries.

How the SC may or may not define 2A boundaries is the issue we await with bated breath.

As for the laptop/paper analogy not a particularly good one.

For example, lets us surmise that accidentally or inadvertantly, I come across and copy some highly classified information either by hand or electronically.

Even if I have no intent, demonstrable at that time, of doing anything with that information I can and people have be held on criminal charges for simple possesion and 1A has nothing I can do about it. Boundaries and limitations in this case around an applicable strict scrutiny standard on the POTENTIAL risk.