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

[ArmedBear]

My reaction to this opposition to "incorporation"...

I just don't "get" why and how trying to make sure that states can trample on fundamental individual liberties is something worth fighting for.

 

[Henry Bowman]

I just don't "get" why and how trying to make sure that states can trample on fundamental individual liberties is something worth fighting for.

Nor how these few express fundamental rights of the people limit any legitimate function of the sovereign states.

 

[deanf]

Your poll is flawed. I voted for all three choices.

 

[hugh damright]

I just don't "get" why and how trying to make sure that states can trample on fundamental individual liberties is something worth fighting for.
....
Nor how these few express fundamental rights of the people limit any legitimate function of the sovereign states.

Suppose that I said that the Vermont BOR wasn't binding upon Virginia ... would anyone ask why Virginia should be free to trample liberties, and ask how the few express fundamental rights in the Vermont BOR would limit any legitimate function of Virginia?? Would that be the point?? Or would the point be that Vermont has no right to rule over Virginians and tell us what our "rights" are. It's not a question of rights, it's a question of sovereignty. That is what y'all don't get.

 

[El Tejon]

It's not a question of rights, it's a question of sovereignty. That is what y'all don't get.

No, we get it.

States are not free to brutalize their citizens and the federal government is to ensure that they do not. We settled that question when Bobby Lee threw in the towel in April of 1865 and then later told his church that we lost and let it be settled. It is settled law according to the United States Supreme Court.

 

[Frank Ettin]

Hugh, I get sovereignty. But a basic thread that winds itself through the development of the English Common Law and then our Constitution and Federal Republic, is that there are limits to sovereignty vis a vis personal rights. Of course, what those limits are and how they are to be set is the great and significant challenge.

 

[hugh damright]

the references that the Framers made were as to the Southern States, thus the motive of the States was to combat state-sponsored Southern terrorism.
...
And the Framers said what about Northern States?

Yet again I must point out the bigotry of sitting in Indiana, which had the most severe black code, and blaming it all on the South.

And yet again I must point out that the 39th Congress was biased. Of course they blamed it all on the South. But the Northern black codes, such as the severe black code in Indiana, were also targetted by the 14th. And no, you won't find a quote by Bingham saying this, that is my point. The 39th Congress is playing somebody here for a fool. Their account is biased, it was all intended to make people blame the South and vote for the North. It's completely biased, and somebody here acts like the 39th Congress was the fountain of truth. LOL.

On Feb 27th 1866 in the House, a Mr. Hale asserted that the 14th was intended to apply only to the South, as far as any practical benefit, and offered Mr. Bingham a chance to correct him ... Mr. Bingham said that it applied to every State that was violating (his view of) the Constitution ... Mr. Rogers asked Bingham if he meant Indiana, and Bingham said he didn't know about Indiana, but that the 14th applied to Oregon. I understand this to be a reference to the black code in the Oregon Constitution which prohibited free negroes from entering the State.

My impression is that when Mr. Rogers asked Mr. Bingham if the 14th was intended to apply to Indiana, and Bingham replied that he didn't know, that he was not being genuine. Bingham was from Ohio, which is right next to Indiana, so he knew damn well about their black codes. And Rogers had brought it up the previous day so Bingham knew. And back in 1857 Bingham had complained about Oregon coming on board with a Constitution which had black codes, and Rogers told him then that Indiana (and Illinois) had these same black codes. I see no doubt about it - Bingham knew that the 14th was needed to address the black codes in Indiana, but he lied and said that he did not know, and I think that demonstrates a bias and a lack of integrity.

 

[El Tejon]

Yet again I must point out the bigotry of sitting in Indiana, which had the most severe black code, and blaming it all on the South.

The murder, terror, arsons, inter alia complained of in the Congressional Record by the Framers referenced the South, not the North. If Northern states were or are now oppressing its citizens (e.g. Chicago's gun ban), then they must be stopped as well.

 

[Henry Bowman]

The 39th Congress is playing somebody here for a fool. Their account is biased, it was all intended to make people blame the South and vote for the North. It's completely biased, and somebody here acts like the 39th Congress was the fountain of truth.

The Framers may have been biased in their intent, but that does not mean the statements do not accurately reflect the Framers' intent.

 

[El Tejon]

That the Framers were biased is self-evident. They wanted the privations and terror against Blacks to stop. Hugh, is that not a noble and righteous motive?

 

[Gray Peterson]

El Tejon,

You're not going to get an straight answer from Hugh at all on that subject. To him the 14th amendment was not legitimately ratified so it's a theoretical construct, and should not exist.

I went around and around and around on this subject with certain persons on this forum about nationwide concealed carry reciprocity, with uses the basic backbone that was done by the Firearms Owners Protection Act Transportation provisions (18USC926A), which is a notwithstanding clause. I made the following challenge: If you oppose this bill on "federalism" grounds, then you also support New York arresting persons for transporting pistols across that state on their way from PA to NH, in a pistol case in the trunk.

I didn't get a good answer out of anyone. Just a lot of blustering and sputtering but they would not directly support New York's draconian laws.

 

[Ivy Mike]

am I the only one who thinks incorporation doesn't apply in this case?

The 2nd Amendment clearly states that the right to keep and bear arms belongs to the people. The Heller decision upheld this idea.

Why do the people need to ask the federal government or the state government to approve a right which the people already hold?

This is what happens when you create 51 separate governments. Instead of having a 50 single strong states and a federal government for dispute resolution, you end up with 51 power hungry houses full of bureaucrats.
The great experiment has failed.

 

[hugh damright]

You're not going to get an straight answer from Hugh at all on that subject

If I don't seem to be answering El Tonjohn's posts it is because I have not bothered to read them. I assume he is having a hissy fit, all about slavery and lost causers, because I caught his idol Bingham in a lie ... and because I busted him again on his bigotted attitude and his nonsensical pretense that racism is a Southern phenomena. I may read his posts later, and if I do, I will likely give a straight answer like I always do.

If you oppose [national reciprocity] on "federalism" grounds, then you also support New York arresting persons for transporting pistols across that state on their way from PA to NH, in a pistol case in the trunk.

I do oppose national reciprocity on federalism grounds. I do not support arresting people for interstate transportation of firearms. I find your assertion to be ridiculous.

 

[El Tejon]

If I don't seem to be answering El Tonjohn's posts it is because I have not bothered to read them.

Not listening to me? What are you, an ex-girlfriend?

I assume he is having a hissy fit, all about slavery and lost causers,

The people having hissy fits about the treatment of ex-slaves by the Lost Causers were the Framers of the Fourteenth Amendment.

because I caught his idol Bingham in a lie

Bingham is not my idol, however he is one of the Framers of the Fourteenth Amendment that the Supreme Court will look to in deciding incorporation.

and because I busted him again on his bigotted attitude and his nonsensical pretense that racism is a Southern phenomena.

I know you want to make it about me (and I appreciate your attention, but rather than talk about me, let's talk about the framing of the Fourteenth which I thought was the purpose of the thread), but the Congressional Record during the framing of the Fourteenth Amendment is very clear that the concern was the Southern state-sponsored terrorism toward Blacks immediately after the Civil War.

Yes, Blacks were denied hotel rooms in Indiana or thrown out of theaters in New York City, but they sued for redress in those cases. I remember no complaints of Blacks being denied a seat in a Northern restaurant from the Congressional Record. Meanwhile, in the South, Blacks were subject to Murder, Arson, Intimidation, Rape, inter alia all directed by Southern governments which is why the Fourteenth Amendment exists.

 

[ilbob]

To him the 14th amendment was not legitimately ratified so it's a theoretical construct, and should not exist.

If you look at the history of the ratification of the 14th amendment you might understand why a fair number of people think it never was legitimately ratified, and for good reason. OTOH, the south lost the war and the way things work is when you lose a war, the winner gets to decide how things are going to be.

 

[Master Blaster]

Hugh,

Two Damwrongs, do not make a Damright.

 

[Frank Ettin]

...am I the only one who thinks incorporation doesn't apply in this case?...

The problem is that the courts would not agree with you. In 1833, in the case of Barron v. Baltimore, the Supreme Court ruled that the Bill of Rights applied only to the federal government and not to any state. That decision has not been overruled and remains the law.

However, beginning in the 1890s the Supreme Court began interpreting the 14th Amendment to incorporate portions of the Bill of Rights, thus making those portions applicable to the states. This has all been done on a piecemeal basis.

So right now, a state would have a good argument that, based on Barron, the Second Amendment (and therefore the ruling in Heller) doesn't apply to the state or its regulation of guns. In order to overcome that argument, the court will have to rule that the Second Amendment is also incorporated in the 14th Amendment and thus applicable to the states through the 14th Amendment.

All the discussions of how the language of the Second Amendment should be interpreted to make it applicable to the states without incorporation, all the arguments that the Second Amendment should logically apply to the states in any event and all the protests that incorporation isn't (or shouldn't) be necessary are really beside the point. Courts will follow precedent. The precedent here, Barron, is that the Seocnd Amendment would not apply. That precedent may be overruled only by the Supreme Court. So the only way a court could invalidate a state gun law based on the Second Amendment would be by finding the Second Amendment incorporated in the 14th Amendment and thus applicable to the states.

The good news is that there are hints in the Court's opinion in Heller that the Second Amendment should be found to be incorporated. The further good news is that a lower court could indeed rule that the Second Amendment is incorporated in the 14th Amendment; and we could thus get a favorable ruling, to start, without going all the way up to the Supreme Court. (Remember that Barron is a Supreme Court decision, so only the Supreme Court would have the authority to overrule it and apply the Second Amendment to the states without incorporation.)

 

[wahsben]

Some words from Thomas Jefferson 1820 "You seem...to consider judges as the ultimate arbiters of all constitutional questions; a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy...The Constitution has erected no such single tribunal."

The RKBA being an inalienable right that belongs to the people needs no approval by any government.

 

[Frank Ettin]

Some words from Thomas Jefferson 1820 "You seem...to consider judges as the ultimate arbiters of all constitutional questions; a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy...The Constitution has erected no such single tribunal."...

Now, in the real world, what counts is the way the courts have interpreted and applied the Constitution. What the courts do is real life. They affect the lives and property, and rights and responsibilities, of real people in the real world.

Under the Constitution, "The judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish...." (Article III, Section 1). And, "The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States,...." (Article III, Section 2).

The Constitution is part of the law, "This Constitution, and the laws of the United States which shall be made in pursuance thereof; ... shall be the supreme law of the land;..." (Article VI). Thus the Framers understood the Constitution to be part of the law, and as such would be applied, as is law in general, by courts in the resolution of cases and controversies. Its meaning is derived from its application by courts for that purpose.

The meaning of the Constitution as applied to real life events and actual situations is found in the decisions of the various federal courts exercising the judicial power of the United States in cases arising under the Constitution. And, as is generally the way things work in the law, argument concerning how a court should rule in a new case is based in large part on prior rulings as to similar matters.

Analyzing the Constitution in a vacuum is a generally fruitless way to try to understand how the Constitution may be applied to real life matters that affect us. To understand the real world application on the Constitution, one must become familiar with the past ruling of the courts and the rich literature of judicial decisions.

...The RKBA being an inalienable right that belongs to the people needs no approval by any government.

That's a pretty saying; but in the real world if your particular exercise of your RKBA violates a law (that is finally upheld by a court), you will be chanting that mantra from a jail cell. If that's okay with you, it's okay with me.

 

[Sam Adams]

am I the only one who thinks incorporation doesn't apply in this case?

The 2nd Amendment clearly states that the right to keep and bear arms belongs to the people. The Heller decision upheld this idea.

I was going to post an answer to this, until I saw Fiddletown's Post #67. It is absolutely SPOT ON.

Yes, theoretically the 2nd applies to the states and all of their subdivisions without the help of the 14th. It does NOT have limiting language like the 1st Amendment's "Congress shall make no law...." However, Barron's idiocy gets in the way. I'd love to see it overturned, but I'm not holding my breath.

Incorporation, like it or not in a theoretical sense, is required by practice and precedent.

 

[hugh damright]

theoretically the 2nd applies to the states and all of their subdivisions without the help of the 14th

That is not theory it is ignorance. Under constitutional theory, the USBOR was not intended to bind the States.

 

[ArmedBear]

Suppose that I said that the Vermont BOR wasn't binding upon Virginia ... would anyone ask why Virginia should be free to trample liberties, and ask how the few express fundamental rights in the Vermont BOR would limit any legitimate function of Virginia??

I'd say that you were posting irrelevant nonsense to avoid addressing my post which you quoted -- the rhetorical equivalent of RADAR chaff.

Virginia did not ratify or in any way agree to live under Vermont's BOR, nor vice versa.

Furthermore, nobody is suggesting this, so even if it were not utter bunkum, it would be a straw man.

 

[wahsben]

Fiddletown, that is because in reality too many people kowtow to the authority instead of standing up for their rights. There are too many gun owners that believe in so called reasonable restrictions even though there is substancial evidence that shows it only enables the criminals and tyrants.
If the somewhere around 80 million gun owners stood up and said no more of this unconstitutinal BS we would not be where we are today.

 

[El Tejon]

That is not theory it is ignorance. Under constitutional theory, the USBOR was not intended to bind the States.

Ummm, but many scholars at or near the time of the BoR disagreed with this. Probably the most famous in gunnyland is Professor Rawle.

Indeed, under the constitutional theory of many state courts, the Second Amendment applied to the states, including the beloved, I say, I say, honored, suhr, South. Antebellum courts in such diverse places as Tejas, North Cackalacky and Joejuh all applied the Second Amendment to the states.

Hugh, you do not find it unusual that the Southern states were holding before the Civil War that the BoR applied to them but after the Civil War, I say, I say, the Wahr Between Them Thar States, that the BoR did not apply to them? Wonder why the South had such a change of heart?

 

[Ivy Mike]

fiddletown

Of course the court would disagree with me. They would never approve of the idea that they don't have any real say over a right that so clearly is outside of their purview. Being a branch of the government, they aren't likely to give up such power any time soon and there is no one who can make them.

Like I said before, I think incorporation is ridiculous concept that doesn't pass a single logical test when applied to the second amendment.