What would it take to get the 2nd Incorporated?

[DMK]

http://en.wikipedia.org/wiki/Incorporation_(Bill_of_Rights)

I've searched, read the Wiki, but I'm no lawyer and still don't completely understand how or why each amendment must be incorporated to be binding to anyone but the Fed govt.

So, what exactly would it take for the 2nd to be incorporated to the states?

How would this latest Supreme Court ruling affect states that have the 2nd amendment almost verbatim in the state's constitution (For edxample: North Carolina)? Would incorporation of the 2nd still be necessary in those cases, or could the Supreme Court interpretation still be used as a defense of the individual right?

 

[ctdonath]

One theory being pursued:
Chicago has a ban nearly identical to the DC ban, but established on local authority instead of federal. Since Heller established RKBA an individual right at the federal level, and the only practical/legal difference between the DC ban and the Chicago ban is jurisdiction, a suit akin to Parker (nee Heller) has been filed (practically the moment Heller's verdict was announced) there, demanding incorporation.

 

[DMK]

So then, the only reason that the DC v.Heller ruling is not now incorporated, is because DC is not a state or not within state jurisdiction?

 

[usmarine0352_2005]

One theory being pursued:
Chicago has a ban nearly identical to the DC ban, but established on local authority instead of federal. Since Heller established RKBA an individual right at the federal level, and the only practical/legal difference between the DC ban and the Chicago ban is jurisdiction, a suit akin to Parker (nee Heller) has been filed (practically the moment Heller's verdict was announced) there, demanding incorporation.

1.) Because the lawsuit has already been filed shortly after Heller was released, when do we think this will hit the courts?



2.) Will this not reach SCOTUS because the courts in Chicago will rule with Heller?


3.) How long will this take? Months? Years?

 

[XD_fan]

4. Does this have to go all the way to SCOTUS to gain incorporation? Can this happen at a lower court level?

 

[usmarine0352_2005]

4. Does this have to go all the way to SCOTUS to gain incorporation? Can this happen at a lower court level?

Good question, now where's all thehighroad scholars when you need them?

 

[ctdonath]

Yes, SCOTUS would have to say it's incorporated.

 

[Bartholomew Roberts]

Actually a lower court could find the Second incorporated but SCOTUS will have the final word and it is unlikely a lower court would reach that conclusion since there are three cases from SCOTUS saying the Second does not apply to the states (all decided before the doctrine of selective incorporation was created).

It will still take years but it will probably move faster than Heller since you won't have the big consolidation fight that delayed Heller several years.

 

[AntiqueCollector]

Lower courts could apply it to the states, but we all know certain courts who have been hostile to the Second in the past likely won't (9th circuit anyone?). So until the SCOTUS rules on it we may end up with a patchwork of cases/decisions, basically, a mess. I hope it's settled quickly though (yeah I know justice is slow), and before the make up of the court is changed to our disadvantage (if that happens).

 

[ConstitutionCowboy]

The "incorporation" bogosity is exactly that: Bogus. It is a usurped judicial power and any "incorporation" is tenuous at best. Any "incorporation" can disappear just as fast as it appears - probably faster.

If you want protection under the Fourteenth, get the people in Congress to pass law to that effect under the power granted them in Section 5 of the amendment.

It would not be easy for the Court to shoot down any such law - in fact, damned near impossible. Then, too, what force does the Supreme Court have to enforce anything it "creates"(read as, "usurps power for")? The Court has no power in its grant to even exist to summon a militia to enforce some edict it comes up with. It would have to beg Congress and the Executive to do its dirty work for them. Good luck!

Woody

 

[Frog48]

How would this latest Supreme Court ruling affect states that have the 2nd amendment almost verbatim in the state's constitution (For edxample: North Carolina)?

The 2A is not respected and enforced verbatim at the federal level, so what makes you think that, even after incorporation, it would be enforced at a state level?

If the 2A was respected and enforced at the federal level, laws such as the NFA, CGA, etc would not exist in the first place.

 

[everallm]

To return to the original question on Incorporation

Probably the best "tool" we have for getting 2A incorporated is Hizzoner Mayor Daley......

It is blatantly obvious that Chicago will not roll over an play dead even with the odds noticeably stacked against them. Daley will fight this to the last taxpayer dollar he can and will try to fight this in the court of public opinion as much as he can.

If/As/When he loses, we will see the first piece of case law attached to this new Supreme Court ruling.

The NRA are also raising suit against a number of other municipalities both in Illinois as well as California, 4 in total.excluding Chicago.

Each of these relates to a direct wholesale ban of an entire class of weapon and as such are directly related to the DC ban and relatively easy to leverage.

Assuming a positive result we will then have not only more case law but case law across Federal, City and State.

NYC and the Sullivan Act, NJ and arbitrary licensing/permit to purchase/scary feature = Assault weapon would be then practical to take on.

Here we would already have demonstration of 2A applicability across multiple states as well as a good crack at the bounds of registration or restriction.

Here I really see the level of scrutiny being fleshed out.

At this point it would be apropos to take a test case to the SC regarding formal as opposed to effective incorporation.

The word to hold close is INCREMENTAL, gun rights were whittled away small step by small step, restoration of fundamental rights will also take time.

This is what is somewhat irritating to see with some of our brethren on the boards who seem to see Heller as a failure "'cause I want my M16 NOW".

This was never on the cards with Heller and yet we have won more than the initial pleadings would have led us to believe was attainable.

 

[glockman19]

The California Constitution states:

CALIFORNIA CONSTITUTION
ARTICLE 3 STATE OF CALIFORNIA

SEC. 1. The State of California is an inseparable part of the
United States of America, and the United States Constitution is the
supreme law of the land.

It appears that our Constitution already has a method that codifies or incorporates laws of the "United States Constitution" into the California Constitution, and should nullify any law that comes in conflict.

 

[hugh damright]

I think it depends on what we mean by "incorporation". In one sense of the term, the SCOTUS might rule that the 14th's "privileges and immunities" include the right to keep an operable firearm including handguns in a home, and we might call that "incorporation" ... and that seems to be within reach. But in another sense of the term "incorporation", where it means that all aspects of the RKBA are under federal protection, I think that is a horse of a different color.

 

[riverdog]

Glockman,
That quote from the CA constitution deserves a second post:

CALIFORNIA CONSTITUTION
ARTICLE 3 STATE OF CALIFORNIA

SEC. 1. The State of California is an inseparable part of the
United States of America, and the United States Constitution is the
supreme law of the land.

It seems to my simpleton brain that California is already incorporated based on its own constitution. Someone should challenge the CA AWB now, using both Miller and Heller as precedent and those few words from California's own constitution. .

 

[awkx]

Glockman,
That quote from the CA constitution deserves a second post:

CALIFORNIA CONSTITUTION
ARTICLE 3 STATE OF CALIFORNIA

SEC. 1. The State of California is an inseparable part of the
United States of America, and the United States Constitution is the
supreme law of the land.

It seems to my simpleton brain that California is already incorporated based on its own constitution.

The Second Amendment, like all the other provisions in the Bill of Rights, originally limited the power of only the federal government. This is explicit in the First Amendment ("Congress shall make no law..."), but it is implicit in the Second and other amendments. Today, it's obvious that "shall not be infringed" means only "shall not be infringed by the government" -- the owners of private property can still prohibit you from carrying a firearm on their property. Well, back in 1791, it was universally understood that the Second Amendment's "shall not be infringed" meant "shall not be infringed by the federal government".

The provisions of the Bill of Rights only started to limit the power of the several states when the 14th Amendment "incorporated" them against the states. The actual language used in the 14th Amendment is terribly murky and confusing.

 

[glockman19]

awkx,

CA acknoweledges the US Constitution as the law of the land? The 2A has always been law. the SCOTUS only reaffirmed what was already there. It also defined what the words "keep" and bear" meant in the context of the existing law. It means we can have and carry on our person for self defense".

Please read the CA Constitution Article 3 Section 1 again. It's 21 words without ambiguity. "the United States Constitution is the
supreme law of the land".

I'd bet the kids on that show "are you as smart as a 5th Grader" could understand this one.

 

[Deanimator]

Some really arrogant and stupid shenanigans by Richard "Baby Dick" Daley.

Incorporation's looking pretty good.

 

[DMK]

The California Constitution states:

Quote:
CALIFORNIA CONSTITUTION
ARTICLE 3 STATE OF CALIFORNIA

SEC. 1. The State of California is an inseparable part of the
United States of America, and the United States Constitution is the
supreme law of the land.
It appears that our Constitution already has a method that codifies or incorporates laws of the "United States Constitution" into the California Constitution, and should nullify any law that comes in conflict.

North Carolina has a similar statement in its constitution. I'd imagine a few other states do as well. Does Illinois?

Sec. 3. Internal government of the State.

The people of this State have the inherent, sole, and exclusive right of regulating the internal government and police thereof, and of altering or abolishing their Constitution and form of government whenever it may be necessary to their safety and happiness; but every such right shall be exercised in pursuance of law and consistently with the Constitution of the United States.

Sec. 5. Allegiance to the United States.

Every citizen of this State owes paramount allegiance to the Constitution and government of the United States, and no law or ordinance of the State in contravention or subversion thereof can have any binding force.

 

[awkx]

awkx,

CA acknoweledges the US Constitution as the law of the land? The 2A has always been law. the SCOTUS only reaffirmed what was already there. It also defined what the words "keep" and bear" meant in the context of the existing law. It means we can have and carry on our person for self defense".

Please read the CA Constitution Article 3 Section 1 again. It's 21 words without ambiguity. "the United States Constitution is the
supreme law of the land".

I'd bet the kids on that show "are you as smart as a 5th Grader" could understand this one.

There is no disagreement about the fact that the national Constitution is the supreme law of the land. The question is: Whom does the Second Amendment prohibit from infringing the right to arms? The amendment itself uses the passive voice ("[it] shall not be infringed"), so it doesn't explicitly say who is forbidden from infringing the right. Some may argue that it means everyone is forbidden from infringing the right, but that wouldn't make sense, because it would include private-property owners as well. When the Bill of Rights was ratified, people understood the Second Amendment as if it had explicitly said "[it] shall not be infringed by the national government". It was certainly not intended as a limitation on the plenary police power of the several states.

 

[One of Many]

The intent of the 14th Amendment was to incorporate all of the individual rights expressed in the first eight Amendments to the US Constitution, as limitation upon the individual States as well as the Federal Government. What are referred to as RIGHTS in the Bill of Rights, are referred to as Privileges and Immunities in the 14th Amendment.

Doesn't Justice Scalia specifically refer in his majority opinion, to the intent of the 14th to provide firearms protection to the citizens of the states that were being denied that right by some of the southern states, especially those that were freed men. Now that the 2nd Amendment has been declared to be an INDIVIDUAL right, and not a right of the State in a collective sense, it would seem that as one of the privileges and immunities of individual citizens contained in the Bill of Rights, that it should receive incorporation automatically. It may not work that way in real life, but that is because people with power are always reluctant to relinquish that power, and the courts are no exception.

 

[Groovski]

When the Bill of Rights was ratified, people understood the Second Amendment as if it had explicitly said "[it] shall not be infringed by the national government". It was certainly not intended as a limitation on the plenary police power of the several states.

No doubt that's what it meant, but the 14th amendment generally incorporates most of, but not all of the Bill of Rights to the States. It remains to be decided. For most fundamental rights, it's a slam-dunk, but with the Gang of Four on the SC interpreting the constitution however they see fit to deny inalienable rights, it's a crap-shoot.

I recall reading an opinion by an anti with some legal background saying months ago when Heller first started that if the DC ban was struck down, incorporation is automatically implied because the DC law was not created by the Federal government, but by a local government entity, albeit not a state. SCOTUS has, in fact, struck down what was a local law, and why should the rest of us be subject to tyrannical local laws when DC residents now aren't? He or she argued that the best defense was for DC to argue against incorporation from the get-go and any other defense would be shooting themselves in the foot, because it meant automatic incorporation. I don't know enough about any historical legal DC precedents to know if he's right, but it made a lot of sense.

I'd be interested to know if any constitutional law person had an opinion on this automatic incorporation idea. It's possible incorporation could be ruled to already have happened by a lower court, without the need to put it before the Gang of Four and any other tyrant that might be appointed.

 

[Groovski]

dupe

 

[rocinante]

As others IANAL but I just don't get the idea of a natural right being infringed on by any level of government. Much of the discussion here is the amendment originally only applied to the federal government and the states pretty much could do what they wanted within their borders. How does that mean it is a right at all? Isn't that what we see in separate states now? I always thought the people means the people regardless of which state they belong to. i.e. The RKBA is a right and characteristic of the American citizen PERIOD. Not an issue of federal government or state government or county or city government infringing. No government can take the rights of an individual. But in the Alice in Wonderland world of law and politics what do I know.

 

[awkx]

As others IANAL but I just don't get the idea of a natural right being infringed on by any level of government. Much of the discussion here is the amendment originally only applied to the federal government and the states pretty much could do what they wanted within their borders. How does that mean it is a right at all?

The idea isn't that the states had authority to infringe the right to arms. Rather, the idea is that the states' own constitutions were supposed to safeguard the rights of the people of those states.

In other words, the issue isn't "may states infringe the right?"; instead, it is "who has the power to determine whether the right is violated?". Back in 1791, people were comfortable with a state's own courts having final authority in determining whether the state violated a person's rights.