The Case against Incorporation

[usmarine0352_2005]

.

Now that SCOTUS has decided to hear McDonald vs. Chicago on Incorporation:




1.) What is the anti's argument against Incorporation?




2.) How solid is the case against Incorporation?




3.) What is the chance of us winning this?





4.) When will the decision most likely be?




5.) Is this the best case out of the of the 4 Incorporation cases available?




6.) What is the chance of SCOTUS sending this case back down to the lower courts?




7.) What is the chance of SCOTUS striking down Chicago's law, but leaving Incorporation un-answered?




8.) Is this case too big, bringing in stuff that doesn't pertain as much to the 2nd Amendment as this states?: (See below quote)

In addition to claiming the 2nd amendment should be incorporated through the selective incorporation process, McDonald is unique among post-Heller gun cases in that it is asking the court to overturn the 1873 Slaughter-House Cases. Slaughterhouse determined that the 14th Amendment's Privileges or Immunities Clause did not apply the Bill of Rights to the actions of states (and by extension, local governments). If overturned, the Selective Incorporation process would be moot and unnecessary, as the entire Bill of Rights, including the 2nd Amendment, would be applied against the states.

In attempting to overturn Slaughterhouse, this case has garnered the attention and support of liberal legal scholars interested in its potential application in areas outside of firearms law.[9] [10] If Slaughterhouse is overturned, it is likely that constitutional guarantees such as the right to a jury in civil cases, right to a grand jury in felony cases, and other parts of the Bill of Rights, as well as future court rulings, not universally guaranteed in actions by the states would be applied against the states automatically.

I know there is a thread on the fact that Incorporation was on the docket, but this is a different topic.

.

 

[Colonel]

4. Before the end of their term next June.

 

[damien]

1) What is the anti's argument against Incorporation?

Not all people against incorporation are antis. Many people who believe in state's rights AND the individual right to keep and bear arms have a problem with this one because these two rights are in conflict when it comes to the question of incorporation. Gun rights are good, but incorporation is an affront to states rights. So is the cure worth the medicine?

Personally, I think the right call is for the Supreme Court to rule that all gun laws at the Federal level are unconstitutional and at the state level are constitutional. Then, if they wanted to do so, Montana could allow the sale of full auto silenced MAC-10s in vending machines and New Jersey could outlaw all guns all the time. If you disagree with your state, you can move. We'd really get to see how well gun control works. I would bet my fortune that Montana's crime rate would still be less than half of New Jersey's.

However, since the Antis don't usually care that much about state's rights, they don't frame it that way anyway. They just say that gun control works to prevent crime (wrong, but many believe it) and thus is a reasonable application of the state's police powers and is in the interest of the citizens.

2) How solid is the case against Incorporation?

Not very solid. The Supreme Court has been incorporating the individual amendments to the Constitution for the last 100 years. They will probably incorporate the 2nd as well.

3.) What is the chance of us winning this?

If incorporation means "winning" then the chances are good, see above. Probably 5-4 just like the last case, though.

 

[legaleagle_45]

1.) What is the anti's argument against Incorporation?

1.) They will try to employ this language from Heller:

The Antifederalists feared that the Federal Government would disarm the people in order to disable this citizens’ militia, enabling a politicized standing army or a select militia to rule. The response was to deny Congress power to abridge the ancient right of individuals to keep and bear arms, so that the ideal of a citizens’ militia would be preserved....But the threat that the new Federal Government would destroy the citizens’ militia by taking away their arms was the reason that right—unlike some other English rights—was codified in a written Constitution.

They will argue that the 2nd is thus different from all other portions of the BoR and has a militia centric purpose. Therefore, and since militias are an entity of the state, the incorporation of the 2nd as being applicable to the states is nonsensical.

2.) How solid is the case against Incorporation?

2.) Not very solid. The argument depends upon smoke and mirrors. Even then, there is an excellant chance that the court will overrule the Slaughterhouse cases which would render the argument moot.

3.) What is the chance of us winning this?

3.) 75%

4.) When will the decision most likely be?

It will probably be announced as the very last decision on the very last day of the term, such as they did for Heller, cuz SCOTUS likes to see us suffer for as long as possible.

 

[ArmedBear]

damien, it is not the case that states have "rights" to restrict the rights of individuals within their borders past a certain threshold. The language is abundantly plain and clear: "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States".

The 14th Amendment established quite clearly that states' rights do not allow those states free reign to limit individual rights.

That doesn't even address the "shall not be infringed" language of the 2nd vs. the "Congress shall make no law" language of the 1st, BTW. The 2nd Amendment was ratified by the states, and binds the states (whatever it means).

The arguments are only about "does the 14th Amendment threshold include RKBA?", and "how does RKBA apply?".

There is a good argument against ANY Federal gun regulation, except perhaps interstate trade of guns, based on the plain language of the 2nd Amendment and the Commerce Clause. That does not imply, in any way, shape or form, that there's a good argument for the unrestricted "right" of states to strip citizens of fundamental rights within their borders.

 

[spartywrx]

Not very solid. The argument depends upon smoke and mirrors. Even then, there is an excellant chance that the court will overrule the Slaughterhouse cases which would render the argument moot.

So we would get grand juries and jury trials in civil suits automatically if that is overruled? I have a feeling (due to my GED in law) that they picked this case over the NRA one because the NRA wasn't asking for the Slaughterhouse cases to be over ruled.

Maloney v Rice is a whole can of worms that would best be dealt with if McDonald succeeds.

 

[legaleagle_45]

So we would get grand juries and jury trials in civil suits automatically if that is overruled? I have a feeling (due to my GED in law) that they picked this case over the NRA one because the NRA wasn't asking for the Slaughterhouse cases to be over ruled.

That is very good speculation. Scalia, for one, is not a fan of selective incorporation using the Due Process clause. We might get a 5-4 in favor of incorporation, but the 5 in favor of incorporation may employ different methods to find incorporation.

Maloney v Rice is a whole can of worms that would best be dealt with if McDonald succeeds.

Agreed. Heller did not overrule Miller. The issue then would arise as to whether nunchakas are militia useful weapons under the Miller ruling. McDonald is much cleaner. It is basically a rerun of Heller but with the city of Chicago taking the place of DC... we need only focus on the incorporation issue and not be distracted by any other issues whatsoever.

 

[Yellowfin]

However, since the Antis don't usually care that much about state's rights, they don't frame it that way anyway. They just say that gun control works to prevent crime (wrong, but many believe it) and thus is a reasonable application of the state's police powers and is in the interest of the citizens.

If they try that, our side will absolutely obliterate them with statistical facts that show that to be completely and utterly ludicrous. Gun control has failed everywhere it has been tried almost 100% without exception.

The reason we want P&I incorporation is that it directly tears down disparate treatment in licensing like NYC, NJ, urban CA, and MD who readily give out CCW's to the rich and politically connected but prohibit virtually everyone else from obtaining one. Without it, we have to take a few extra steps to get that accomplished. Slaughterhouse was precisely about that issue, where licensing was controlled directly by the city and could be handed out to exactly who they wanted to have it and no one else. The ruling basically legalized corruption and insider benefits which is what we have in anti gun states and carry rights.

 

[Chunkychuck]

What's the chances that the court decides against incorporation on the grounds of the legal quandary and procedures the states would be in to have to rewrite all their firearm laws? And would incorporation make 923c moot?

 

[everallm]

Unlikely or else they would simply have denied cert.

 

[Phatty]

Also extremely unlikely based on the fact that incorporation in the McDonald case will not affect a single state law (only a minute handful of city laws). As far as I know, no state has a total ban on handgun possession in the home.

The Supreme Court inferred in Heller that the vast majority of current gun laws are probably constitutional. Incorporation really will have almost no affect to the majority of U.S. citizens and states. Only the handful of states and municipalities with harsh gun laws will be affected.

 

[spartywrx]

probably constitutional.

I thought the term used was "presumptively constitutional." My understanding is that this means a law is constitutional until proved otherwise. Those laws were not challenged in Heller. I think it was a cop-out for ruling on those laws later if they are challenged. The court likes to make very narrow decisions.

 

[Phatty]

spartywrx,

You are correct as to the term actually used by the Court. That is why I said "inferred" because when its opinion in Heller is taken as a whole, it is pretty clear that the Court thinks most laws are just fine. Also, every lower court decision has interpreted the Heller opinion in that fashion.

 

[usmarine0352_2005]

.
Why is there an excellent chance that SCOTUS will over-turn the Slaughterhouse decision?




Isn't choosing a case that has the Slaughterhouse decision opening a can of worms that takes away from the 2nd Amendment issue and could cause us problems?

.

 

[spartywrx]

I guess we're just going to have to wait and see what the outcome of McDonald is and what scrutiny they apply to the 2nd. I could see things like unlicensed ccw not passing muster but handgun rosters failing. Hopefully the SCOTUS treats gun ownership like free speech.

 

[Phatty]

and what scrutiny they apply to the 2nd

We won't get anything out of McDonald except incorporation. The same total ban on handguns in the home is at issue as it was in the Heller case. Thus, the court will again skirt the scrutiny issue by holding that no matter what level of scrutiny is applied, a total ban on handguns in the home is not permitted.

 

[spartywrx]

the court will again skirt the scrutiny issue

So what kind of case will get the court to take up the scrutiny issue, and is there a case in the pipeline that addresses this issue?

 

[Dr.Zubrato]

what could this mean in the way of ccw for illinois, now or sometime in the future?

 

[Phatty]

what could this mean in the way of ccw for illinois, now or sometime in the future?

Some time in the future the Supreme Court will probably hear a case about a person's right to possess a handgun for self-defense outside of the home. That would be the natural progression from the current state of the law. Assuming the court rules that people have a right to possess a handgun for self-defense outside of the home as long as they are not in "sensitive" places (schools, courthouse, airport, etc.), the laws in Illinois regarding firearm possession outside the home would be unconstitutional. Rather than having no laws regulating handgun posssession, I believe Illinois would pass a CCW scheme to keep as much regulatory control over handgun possession as possible.

 

[IAJack]

They touched on the word "BEAR" last time but didnt completely go there.

 

[tube_ee]

This,

Not all people against incorporation are antis. Many people who believe in state's rights AND the individual right to keep and bear arms have a problem with this one because these two rights are in conflict when it comes to the question of incorporation. Gun rights are good, but incorporation is an affront to states rights. So is the cure worth the medicine?

to the extent that it was ever true, (and the Supremacy Clause can be read such that it was not,) stopped being correct with the ratification of the 14th Amendment.

There is no conflict between the powers (not rights... only people have those) of the States and the 14th Amendment. The 14th Amendment was intended to reduce the lawmaking powers of the States, and it did (and does) exactly that.

States simply have less power, relative to the Federal government, as a result of the 14th Amendment. There is no conflict... the Constitution cannot be in conflict with itself.

--Shannon

 

[hugh damright]

States simply have less power, relative to the Federal government, as a result of the 14th Amendment.

Of course they do. Before the 14th, a State could have laws saying that negroes could not have guns. And the 14th's equal protection clause was intended to end such laws. But it is one thing to construe the 14th to empower the SCOTUS to strike down gun laws because they are discriminatory, and a completely different matter to construe the 14th to empower the SCOTUS to strike down gun laws because they don't like them. I don't think the 14th changed the State/federal relationship as much as some people believe.

 

[tube_ee]

What the 14th was designed to do,

and did, until Slaughterhouse, was to apply the protections of the Bill of Rights to State legislative actions.

The Bill of Rights is, I think we'd all agree, a list of "thou shalt nots" for government. These are the things that We, the sovereign People, do not give our Consent to our Government to do.

In the absence of the 14th Amendment, those prohibitions did not apply to State governments. In the face of a fully-empowered 14th, they clearly do.

It's not that the 14th Amendment empowers the Federal Courts to strike down State laws they don't like, it's that the 14th Amendment empowers them to strike down State laws that conflict with the Federal Constitution.

So, for example, post 14th Amendment, Georgia could not, no matter how popular such a law would likely be in that Sate, declare Southern Baptist Christianity to be the official religion of Georgia. Since one of the "immunities" of Federal citizenship is the immunity from official religion, the 14th says that that immunity must apply at the State level as well.

If that is the law, then all we want is for the 2nd Amendment to be treated the same way. Also, it seems inconsistent for us to proclaim that the plain language of the 2nd Amendment must be the law of the land, and at the same tome to say that the equally plain language (plainer, even, it not having a confusing preparatory clause) of the 14th should not.

The 14th Amendment ended the argument over "State's Rights", at least as it relates to the Federal Bill of Rights. We can no more ignore it if we don't like it than we would let the antis ignore the 2nd because they don't like it.

--Shannon

 

[ArmedBear]

But it is one thing to construe the 14th to empower the SCOTUS to strike down gun laws because they are discriminatory, and a completely different matter to construe the 14th to empower the SCOTUS to strike down gun laws because they don't like them.

hugh, you're damwrong.

"Shall not be infringed" does not mean "shall not be infringed if they discriminate against a protected class."

That empowers the Supreme Court to strike down laws if the judges find that they infringe on RKBA, just as the 1st Amendment empowers the Supreme Court to strike down laws if they judges find that they infringe on free speech. One would hope that violating the Constitution would equate to "don't like them" in the minds of SCOTUS justices...

BTW The 14th Amendment doesn't give the Federal Government more power over the states in general. It just extends the guarantees of individual rights that applied to the Federal Government, to all government entities in the US.

"State's Rights" to limit individual freedoms, more than the limits of the Federal Constitution allow, simply don't exist, if they really ever did. The 14th codified that.

 

[ilbob]

1.) What is the anti's argument against Incorporation?

Hard to tell. They try to dance around the idea that the 2A protects an individual right, even though all nine justices in Heller agreed it is an individual right. Its hard for them to argue against incorporation in any meaningful way because most of the other individual rights have been incorporated. So they use legal sophistry.

2.) How solid is the case against Incorporation?

It seems to hinge on the idea that it is somehow OK to allow states to infringe a constitutionally enumerated right (RTKBA) that liberals don't approve of as long as other constitutionally enumerated rights (like unrestricted abortion or homosex) are protected. (Note use of sarcasm).

3.) What is the chance of us winning this?

Pretty good on incorporation. The thing is that we could easily win the battle on the incorporation issue and lose the war on "level of scrutiny". If we lost on the scrutiny issue, the rest is pretty much meaningless.

4.) When will the decision most likely be?

In the spring. Won't be published until summer of 2010 at the earliest.

5.) Is this the best case out of the of the 4 Incorporation cases available?

I think so. Despite the chance that Gura's case will force a rethink of a lot of things (like requiring jury trials for civil cases and grand jury protection at the state level), it is intellectually the most honest, and the simplest.

6.) What is the chance of SCOTUS sending this case back down to the lower courts?

Minimal.

7.) What is the chance of SCOTUS striking down Chicago's law, but leaving Incorporation un-answered?

They would have no basis to strike down Chicago's law without incorporating.

8.) Is this case too big, bringing in stuff that doesn't pertain as much to the 2nd Amendment as this states?:

I think it is long overdue that some case be brought forward to bring the to date unincorporated rights in the BOR to all citizens.