Should the 2nd Am. Be Incorporated Under the Due Process Clause of the 14th Am.

[Solo Flyer]

The Supreme Court has finally and definitively ruled that the 2nd Amendment protects an individual right to possess a firearm unconnected with service in a militia,and to use that arm for traditionally lawful purposes,such as self defense within the home(it felt good just writing that).
Should we now hope that the SCOTUS takes the next step and incorporates the 2nd?
To explain incorporation in laymans terms(and I am certainly one)as succinctly as possible ,I'm attaching a link which attempts to outline this complex,controversial Amendment.

http://www.answers.com/topic/fourteenth-amendment-to-the-united-states-constitution

Basically if incorporation occurs the Court will end up saying that the Second Amendment governs the states.
We have many fine legal minds on this forum.If any mistakes have been made in phrasing the question please let me know.

 

[Aguila Blanca]

Since poll choice #1 says "Almost" all positives, that means you must think there are some potential negatives associated with having the 2A incorporated.

Care to elaborate?

 

[mp510]

I believe that the second ammendment should be applied to the states, not through the 14th ammendment, but rather through the common defense being a federal, not state, responsibility.

 

[Solo Flyer]

Aquila Blanca,there are no almost's for me.I thought there might be, for some potential voters ,regarding the states rights factor .But almost no one is surfacing on a Friday night!Thank you for your appearance.

 

[Grump]

I'm all for incorporation by virtue of the 14th Amendment. The "legislative intent" of the Amendment was very clear when passed but conveniently glossed over by the Roosevelt-stacked SCOTUS and their progeny.

When being taught about "selective" incorporation in law school, I kept pausing in my readings of all the so-called reasons to NOT incorporate the whole Bill of Rights through the 14th, and kept asking "why the H*** NOT?!?!?

The reasons seemed mostly made-up excuses by authoritarian types who were reluctant to restrain local governments in having almost free reign to oppress folks, or who were looking for an excuse to NOT have the feds step in where there was a very good reason to enforce the "supreme law of the land".

The only right secured or protected by the Bill of Rights that really, truly fits the "reasons" for selective incorporation is the right to grand jury indictment for felonies. Before the 14th, each state had already established its own variation and sorta "local flavor", including the less-formal "felony information" means of bringing charges against a defendant. When given in writing to those who read, and read to those who can't, and made a public record, there's no meaningful restriction on liberty in not having grand juries of your peers (who are often led by the nose by prosecutors anyway) be the only way to bring the huge resources of the State to bear against an individual. The judiciary does a good enough job of tossing the bogus ones at the prelim hearing stage anyway.

 

[wacki]

Will those who said "undecided" or "no" please explain why?

thx

 

[Jim March]

The only guy I know for sure would vote "no" is Hugh Damright.

His position is that states need more power vs. the Feds, and in general hates the 14th Amendment.

My view is that state-level violations of the Bill Of Rights in general (let alone gun rights) need to be controlled by Fed authority. His view is that it makes the Feds too powerful.

I think that concern isn't totally unfounded, however the states acting together in case of a REALLY serious problem at the Fed level still have enough power if they work in concert. There has to be some authority over any one state that goes totally rogue against the Constitution and basic rule of law.

 

[230RN]

I don't pretend to have assimilated the whole issue, but just as a native English speaker, most of Justice Scalia's words and references were in respect to individuals involved in individual cases.

Does this not "automatically" incorporate the Bill of Rights?

And, in the Preamble to the Bill of Rights, we have the following words:

RESOLVED by the Senate and House of Representatives of the United States of America, in Congress assembled, two thirds of both Houses concurring, that the following Articles be proposed to the Legislatures of the several States, as amendments to the Constitution of the United States, all, or any of which Articles, when ratified by three fourths of the said Legislatures, to be valid to all intents and purposes, as part of the said Constitution; viz...

I note all the historical chicanery over "incorporation" by various interests, but to me, again as a native English speaker, that underlined portion ought to have settled it.

The Bill of rights was "incorporated" by those words.

To me.

As a native English speaker.

Otherwise, the entire Constitution must be "incorporated" into itself --a logical absurdity, like the fictional character who disappeared by swallowing his own tail.

But what do I know? I'm just a citizen.

 

[TAB]

Yes and no.

I feel strongly that people should be allowed to have guns, use guns and be able to carry guns with training.( CCW) I also feel very strongly that if a population votes( directly or indirectly) to restrict something, they should have the right to do so.

 

[dalepres]

I feel strongly that people should be allowed to have guns, use guns and be able to carry guns with training.( CCW) I also feel very strongly that if a population votes( directly or indirectly) to restrict something, they should have the right to do so.

Did I miss the word training in the Constitution? While training is a great idea, and I highly recommend it, it is not the law.

And the great thing about the Constitution, when applied as intended, is that it does exactly the opposite of what you suggest. It ensures that the majority, directly and especially indirectly (through, for instance, Congress) can NOT deprive the minority of their rights - including those granted by the Constitution and those God-given rights protected by the Constitution.

I'm getting the idea you're just a troll.

 

[Aguila Blanca]

I feel strongly that people should be allowed to have guns, use guns and be able to carry guns with training.( CCW) I also feel very strongly that if a population votes( directly or indirectly) to restrict something, they should have the right to do so.

Restrict = Infringe

"... the right of the People to keep and bear arms shall not be infringed."

Any questions?

 

[jakemccoy]

..............

 

[Solo Flyer]

Quote:
Originally posted by TAB
I feel strongly that people should be allowed to have guns, use guns and be able to carry guns with training.( CCW) I also feel very strongly that if a population votes( directly or indirectly) to restrict something, they should have the right to do so.

Originally posted by Aquila Blanca
Restrict = Infringe

"... the right of the People to keep and bear arms shall not be infringed."

Any questions?

NONE.

 

[hugh damright]

I voted "no". I think the incorporation doctrine, or any other doctrine which makes the USBOR binding against the States, is an aberration. A limited federal government cannot have such a broad and general power as "protector of rights". I see it as an attempt to subvert our frame of government from federal to national.

On the other hand, if we could drop this pretense about substantive due process and incorporation, and still pretend that the 14th was ratified ... perhaps the privileges and immunities of citizens of the US might extend to, for instance, the right to keep an operable firearm in the home, while leaving other aspects of the RKBA as coming under the P&I of State citizenship.

 

[ConstitutionCowboy]

I won't vote. This pole has no choice for the fact that the Second Amendment stands alone and is applicable across the board. All government is prohibited to infringe upon the right. There is precedent in the Federalist Papers indicating the authors of the Second Amendment intended the prohibition in the Amendment to apply to the several states as well as the Union.

There is a boat load of logic that supports that as well.

The Fourteenth Amendment added power to Congress for Congress to make law to force the several states or any of them to comply with the Second Amendment or any of the other protections of the rights of the people, and the only protections the Fourteenth Amendment "incorporated" as being applicable to the several states is those enumerated in the First Amendment. The First Amendment, prior to the Fourteenth Amendment, was only applicable to Congress(the Union).


Woody

 

[Telperion]

... and still pretend that the 14th was ratified ...

This argument, like that of tax protesters who contest the ratification of the 16th amendment, always amuses me. Suppose you could somehow realize your bizarre dream of seeing the 14th amendment struck down. Unfortunately for you, 2/3 of both houses of Congress and 3/4 of the state legislatures would probably re-ratify it within a fortnight, because, be it a shock to you, an overwhelming majority of people in this country believe that "no State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws" is a pretty good idea.

 

[ConstitutionCowboy]

I feel strongly that people should be allowed to have guns, use guns and be able to carry guns with training.( CCW) I also feel very strongly that if a population votes( directly or indirectly) to restrict something, they should have the right to do so.

If you wish the people to have such power, you must first amend the Constitution to allow such power to circumvent something else in the Constitution. See Article V of the Constitution. That amendment process is actually the avenue - the vote - you feel the people should have to "vote" in some restrictions you feel the people want.

I believe you've got a tough row to hoe.

Woody

 

[Solo Flyer]

I won't vote.

I am perplexed ,Woody.Before I put out this poll I was considering asking your advice on the phrasing.
What is your answer?
Is this an imponderable Catch-22 in your mind?

 

[Frank Ettin]

...This pole has no choice for the fact that the Second Amendment stands alone and is applicable across the board. All government is prohibited to infringe upon the right. There is precedent in the Federalist Papers indicating the authors of the Second Amendment intended the prohibition in the Amendment to apply to the several states as well as the Union.

There is a boat load of logic that supports that as well....

But not a single court decision.

What the courts do trumps all our blather in cyberspace. The application of the law and Constitution by the courts affects the lives and property, and rights and responsibilities, of real people in real life. That's what counts.

The Constitution is not a poem or story meant to be interpreted and understood in a vacuum. It is law, and like all law is intended to be a tool to resolve real world questions and disputes. Its meaning is derived from its application by courts for that purpose.

 

[hugh damright]

This argument, like that of tax protesters who contest the ratification of the 16th amendment, always amuses me. Suppose you could somehow realize your bizarre dream of seeing the 14th amendment struck down. Unfortunately for you, 2/3 of both houses of Congress and 3/4 of the state legislatures would probably re-ratify it within a fortnight, because, be it a shock to you, an overwhelming majority of people in this country believe that "no State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws" is a pretty good idea.

What argument? I said that if we stop pretending that "due process" means "substantive due process", while still pretending that the 14th was ratified, then I can see how the P&I might possibly embrace certain aspects of the RKBA. I think you're having a hissy fit because I pointed out that the 14th failed. You do know that if failed, don't you?

 

[Telperion]

You've made the argument elsewhere in the past. I acknowledge the original vision of of the 14th failed due to the Reconstruction-era court. There is hope that some of the post-Heller cases may force a re-visiting of the P&I clause. Jim has done an excellent writeup on this very subject.

 

[hugh damright]

I acknowledge the original vision of of the 14th failed due to the Reconstruction-era court.

The way I understand it, the 14th failed the amendment process and force was resorted to. Further, I believe that only a radical minority had any idea that the 14th would make the USBOR binding against the States. So no, I am not saying that the 14th was properly ratified with the intent of making the USBOR binding upon the States and then the SCOTUS caused the intent to fail. I am saying that the 14th failed the amendment process, and further it was not intended to make the USBOR binding against the States.

 

[Gray Peterson]

So no, I am not saying that the 14th was properly ratified with the intent of making the USBOR binding upon the States and then the SCOTUS caused the intent to fail. I am saying that the 14th failed the amendment process, and further it was not intended to make the USBOR binding against the States.

The bolded statement above is definitely a patent falsehood.

"[M]any instances of State injustice and oppression have already occurred in the State legislation of this Union, of flagrant violations of the guarantied privileges of citizens of the United States, for which the national Government furnished and could furnish by law no remedy whatever. Contrary to the express letter of your Constitution, 'cruel and unusual punishments' have been inflicted under State laws within this Union upon citizens, not only for crimes committed, but for sacred duty done, for which and against which the Government of the United States had provided no remedy and could provide none. It was an opprobrium to the Republic that for fidelity to the United States they could not by national law be protected against the degrading punishment inflicted on slaves and felons by State law. That great want of the citizen and stranger, protection by national law from unconstitutional State enactments, is supplied by the first section of this amendment."

Rep. John Bingham (R-OH), author of the 14th Article of Amendment to the United States Constitution. It was definitely the framers intent to apply the bill of rights to the 14th amendment.

Despite Bingham's intention that the 14th Amendment apply the first eight Amendments of the Bill of Rights to the States, the U.S. Supreme Court subsequently declined to interpret it that way. In the 1947 case of Adamson v. California, Supreme Court Justice Hugo Black argued in his dissent that the framers' intent should control the Court's interpretation of the 14th Amendment, and he attached a lengthy appendix that quoted extensively from Bingham's congressional testimony.[4] Though the Adamson Court declined to adopt Black's interpretation, the Court during the following twenty-five years employed a doctrine of selective incorporation that succeeded in extending to the States almost of all of the protections in the Bill of Rights, as well as other, unenumerated rights. The 14th Amendment has vastly expanded civil rights protections and is cited in more litigation than any other amendment to the U.S. Constitution.[5]

-From the wikipedia article on the 14th amendment, citations located within the article.

 

[TAB]

If you wish the people to have such power, you must first amend the Constitution to allow such power to circumvent something else in the Constitution. See Article V of the Constitution. That amendment process is actually the avenue - the vote - you feel the people should have to "vote" in some restrictions you feel the people want.

I believe you've got a tough row to hoe.

Woody

See thats what is great about the US cons... If enough people wish to change it, We can.

 

[Ivy Mike]

I believe the entire idea of incorporation to be a violation of the 10th amendment which lays out who gets what power.

By my way of thinking, the 2nd amendment was incorporated against the federal and state governments the instant the right was recognized as belonging to the people.

Incorporation is irrelevant in this case except for that little group of people called the supreme court who somehow think it should apply.
However, I am almost anarchist in my stance on individual rights so the court, being a branch of government, is unlikely to ever agree with me.

I did vote yes simply because that is the closest to my way of thinking. More power for the people is always a good thing.