2nd Amendment incorporated against the states via the 14th Amendment - Tilted Forum Project Discussion Community

dksuddeth · 04-20-2009, 11:18 AM

http://www.ca9.uscourts.gov/datastor...20/0715763.pdf

Quote:

We therefore conclude that the right to keep and bear arms is “deeply rooted in this Nation’s history and tradition.” Colonial revolutionaries, the Founders, and a host of commentators and lawmakers living during the first one hundred years of the Republic all insisted on the fundamental nature of the right. It has long been regarded as the “true palladium of liberty.” Colonists relied on it to assert and to win their independence, and the victorious Union sought to prevent a recalcitrant South from abridging it less than a century later. The crucial role this deeply rooted right has played in our birth and history compels us to recognize that it is indeed fundamental, that it is necessary to the Anglo-American conception of ordered liberty that we have inherited. We are therefore persuaded that the Due Process Clause of the Fourteenth Amendment incorporates the Second Amendment and applies it against the states and local governments.

Willravel · 04-20-2009, 11:32 AM

While it kinda falls in line with the original intent of the Second Amendment, doesn't it strike you as bad idea to essentially legalize armed insurrection based simply on the whim of the individual (or am I reading this wrong)?

While I would agree that some people have the necessary critical thinking skills to recognize when armed insurrection is necessary, what about your Tim McVeighs? He believed that he was fighting to stop what happened at Waco and Ruby Ridge, but in doing so became one of the most infamous domestic terrorists in American history. While you do have problems with the federal government, I know that you'd never condone something like the Murrah Building Bombing (or an equivalent attack with guns).

dksuddeth · 04-20-2009, 11:44 AM

Quote:

Originally Posted by Willravel

While it kinda falls in line with the original intent of the Second Amendment, doesn't it strike you as bad idea to essentially legalize armed insurrection based simply on the whim of the individual (or am I reading this wrong)?

I'm guessing you're reading it wrong, though some of the judges on this circuit bench (and the 5th) have accepted and acknowledged that the 2nd Amendment is necessary so that the people maintain soveriegnty over the government, their explanation of it in this decision is just dicta.

What this decision does is force 9th circuit states in line with Heller at a minimum. This will probably invalidate Californias 'approved' handgun list and might also invalidate the roberti-roos act eventually, or at least part of it. Future USSC decisions on the 2nd will also be forced upon the states in the 9th. This will also mean that hawaii MUST allow citizens to have handguns in the home for personal protection, something that they were barely allowed before.

samcol · 04-20-2009, 11:50 AM

So does this basically make all the federal firearm laws mandatory for state level and the states can't make any more strict laws than the feds? So California won't be able to limit magazine capcities and other states will have to issue ccws?

I guess I'm confused.

Willravel · 04-20-2009, 11:55 AM

Oh, good. I figured I'd misread it.

So what you're advocating is to strip states of the right to make rulings on guns in favor of a national standard of some kind? Not to turn your own ideology around on you, but what's the harm in allowing states to make decisions regarding gun laws? Besides, California has less than 10 gun deaths per 100,000 people and Hawaii less than 3. Compare that to gun-free Alaska at 20 per 100,000 and Wyoming at 18.8. If we've found something that works for us, what's the harm in allowing us to continue?

dksuddeth · 04-20-2009, 12:02 PM

Quote:

Originally Posted by samcol

So does this basically make all the federal firearm laws mandatory for state level and the states can't make any more strict laws than the feds? So California won't be able to limit magazine capcities and other states will have to issue ccws?

I guess I'm confused.

giong by the strict application of heller, this ruling will preclude any state or municipality in the 9th from denying a homeowner to have a gun in the home. future rulings will dictate other things later.

this should clear the way to invalidate the approved handgun list, eventually the ban on high cap mags, part or all of the roberti-roos act, and the unloaded open carry law in Cali. Other laws which stand a good chance of being knocked down now will be chicagos handgun ban, new yorks outrageous license and purchase permits, and turn may issue states in to shall issue states.

---------- Post added at 03:02 PM ---------- Previous post was at 03:01 PM ----------

Quote:

Originally Posted by Willravel

Oh, good. I figured I'd misread it.

So what you're advocating is to strip states of the right to make rulings on guns in favor of a national standard of some kind? Not to turn your own ideology around on you, but what's the harm in allowing states to make decisions regarding gun laws? Besides, California has less than 10 gun deaths per 100,000 people and Hawaii less than 3. Compare that to gun-free Alaska at 20 per 100,000 and Wyoming at 18.8. If we've found something that works for us, what's the harm in allowing us to continue?

Is the 2nd Amendment an individual right protected by the US constitution? why would we not enforce the constitution against every state that asked for admission in to the union? or were you a big fan of selective incorporation as it started out?

samcol · 04-20-2009, 12:08 PM

Quote:

Originally Posted by Willravel

Oh, good. I figured I'd misread it.

So what you're advocating is to strip states of the right to make rulings on guns in favor of a national standard of some kind? Not to turn your own ideology around on you, but what's the harm in allowing states to make decisions regarding gun laws? Besides, California has less than 10 gun deaths per 100,000 people and Hawaii less than 3. Compare that to gun-free Alaska at 20 per 100,000 and Wyoming at 18.8. If we've found something that works for us, what's the harm in allowing us to continue?

Is that just devil advocate? Because I'm pretty sure I've brought up the idea of different states having seperate policies for things like health care, gay marriade, social welfare programs instead of broad stroke federal laws. The difference is I guess that the definition of the 2nd amendment makes it nationwide IMO, where as the others aren't expresslly delegated to federal government thus reserving them to the states.

Jinn · 04-20-2009, 12:15 PM

Quote:

Originally Posted by samcol

Is that just devil advocate? Because I'm pretty sure I've brought up the idea of different states having seperate policies for things like health care, gay marriade, social welfare programs instead of broad stroke federal laws. The difference is I guess that the definition of the 2nd amendment makes it nationwide IMO, where as the others aren't expresslly delegated to federal government thus reserving them to the states.

Rights granted by the federal government cannot be superseded by state governments. Just as the 1st Amendment federally guarantees freedom of speech that the state cannot impede upon, so does the 2nd grant an individual right to bear arms that the state cannot impede on.

Willravel · 04-20-2009, 12:44 PM

Quote:

Originally Posted by dksuddeth

Is the 2nd Amendment an individual right protected by the US constitution? why would we not enforce the constitution against every state that asked for admission in to the union? or were you a big fan of selective incorporation as it started out?

If I remember correctly, you were not happy with the outcome of DC v. Heller because Scalia wrote that the Second Amendment has limits:

Quote:

Originally Posted by Scalia, District of Columbia v. Heller

[L]ike most rights, the Second Amendment is not unlimited. It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.

The decision essentially provided precedent that establishes that while gun bans and trigger locks are unconstitutional, gun control laws are not necessarily. Based on this decision, your argument that gun control is unconstitutional is unfounded.

Quote:

Originally Posted by samcol

Is that just devil advocate? Because I'm pretty sure I've brought up the idea of different states having seperate policies for things like health care, gay marriade, social welfare programs instead of broad stroke federal laws. The difference is I guess that the definition of the 2nd amendment makes it nationwide IMO, where as the others aren't expresslly delegated to federal government thus reserving them to the states.

I'm okay with state level health care, gay marriage, and social welfare, though there's less administrative costs for them when they're federal.

I'm half playing devil's advocate. While I don't buy into the "everything should be run at a state level" libertarian/conservative ideology, I do have a problem with having no gun control and I'll fight it with whatever ideological argument is handy. I want gun control laws in California.

dksuddeth · 04-20-2009, 12:51 PM

Quote:

Originally Posted by Willravel

If I remember correctly, you were not happy with the outcome of DC v. Heller because Scalia wrote that the Second Amendment has limits:

The decision essentially provided precedent that establishes that while gun bans and trigger locks are unconstitutional, gun control laws are not necessarily. Based on this decision, your argument that gun control is unconstitutional is unfounded.

I was unhappy with Scalias decision because it did not cover what level of scrutiny the 2nd Amendment is protected by. Of course I think gun control laws the prohibit or infringe the right to bear arms is unconstitutional, but that was a sidepoint of the Heller decision with me.

The_Jazz · 04-20-2009, 12:52 PM

And this is why we ask the OP to frame the discussion, so we don't have to spend 5 posts figuring out the intent of the first post.

/grumpy staffer

I don't think that the 2nd mentions individuals at all.

dksuddeth · 04-20-2009, 01:36 PM

Quote:

Originally Posted by The_Jazz

And this is why we ask the OP to frame the discussion, so we don't have to spend 5 posts figuring out the intent of the first post.

/grumpy staffer

I don't think that the 2nd mentions individuals at all.

what does it mention then?

The_Jazz · 04-20-2009, 01:51 PM

It says that the Federal Government can't infringe on the ability of the States to keep and maintain a militia, in my opinion. But that's an argument you and I have talked over for years, DK. It specifically mentions "The People", but that's not a term that used elsewhere in the Constitution and one that's never really been defined.

And that you need to actually ask questions and not post links in your original posts so that we know what the hell you want to talk about.

Derwood · 04-20-2009, 02:00 PM

Can we just sticky a "gun thread" please?

samcol · 04-20-2009, 02:43 PM

Quote:

Originally Posted by The_Jazz

It says that the Federal Government can't infringe on the ability of the States to keep and maintain a militia, in my opinion. But that's an argument you and I have talked over for years, DK. It specifically mentions "The People", but that's not a term that used elsewhere in the Constitution and one that's never really been defined.

And that you need to actually ask questions and not post links in your original posts so that we know what the hell you want to talk about.

'The right of the people' occurs in the 1st 2nd and 4th amendment, and it is widely accepted that these are individual rights in the 1st and 4th.

Also the Bill of Rights wasn't designed to deny rights to anyone. It was created to acknowledge basic rights that already existed. Even if you think the 2nd refers to 'militia' only, the 9th amendment makes it real clear.

Quote:

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

You and many others are clearly using the 2nd amendment to deny the right to bear arms to 'the people'.

Jinn · 04-21-2009, 11:04 AM

Quote:

Originally Posted by Jazz

It says that the Federal Government can't infringe on the ability of the States to keep and maintain a militia, in my opinion. But that's an argument you and I have talked over for years, DK. It specifically mentions "The People", but that's not a term that used elsewhere in the Constitution and one that's never really been defined.

In believing it is not an individual right, you not only disagree with dk, but with the highest court in the United States, who asserted that it was, indeed, an individual right.

Until that decision is reversed or superseded, it is precedent at worst and law at best that "the right to bear arms" is an individual right, independent of any sort of membership in a militia.

The_Jazz · 04-21-2009, 11:32 AM

Quote:

Originally Posted by The_Jazz

It says that the Federal Government can't infringe on the ability of the States to keep and maintain a militia, in my opinion. But that's an argument you and I have talked over for years, DK. It specifically mentions "The People", but that's not a term that used elsewhere in the Constitution and one that's never really been defined.

And that you need to actually ask questions and not post links in your original posts so that we know what the hell you want to talk about.

Quote:

Originally Posted by Jinn

In believing it is not an individual right, you not only disagree with dk, but with the highest court in the United States, who asserted that it was, indeed, an individual right.

Until that decision is reversed or superseded, it is precedent at worst and law at best that "the right to bear arms" is an individual right, independent of any sort of membership in a militia.

The operative caveat is highlighted there for you, big guy. And before any one of you get any further up on your high horse, remind me the exact date that I personally showed up on your doorstep to take away your guns. Or, alternatively, any one single post that I've ever made here denying your right to own guns. I gave my interpretation of the 2nd Amendment - absolutely nothing more. I'm fully aware of what the real-world interpretation is, and if you don't like my opinion that's admittedly not based in reality, too fucking bad.

Jinn · 04-21-2009, 11:50 AM

Quote:

Originally Posted by The_Jazz

The operative caveat is highlighted there for you, big guy. And before any one of you get any further up on your high horse, remind me the exact date that I personally showed up on your doorstep to take away your guns. Or, alternatively, any one single post that I've ever made here denying your right to own guns. I gave my interpretation of the 2nd Amendment - absolutely nothing more. I'm fully aware of what the real-world interpretation is, and if you don't like my opinion that's admittedly not based in reality, too fucking bad.

<3

I never suggested you shouldn't have an opinion, only that your opinion disagrees with current legal opinion. Depending how you take that, it could even be a compliment.

dksuddeth · 04-21-2009, 02:14 PM

Quote:

Originally Posted by The_Jazz

It says that the Federal Government can't infringe on the ability of the States to keep and maintain a militia, in my opinion. But that's an argument you and I have talked over for years, DK. It specifically mentions "The People", but that's not a term that used elsewhere in the Constitution and one that's never really been defined.

We the people of the United States, (preamble)

Art. I, § 2, cl. 1 ("The House of Representatives shall be composed of Members chosen every second Year by the People of the several States")

the right of the people peaceably to assemble (1st Amendment)

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated,(4th Amendment)

shall not be construed to deny or disparage others retained by the people.(9th Amendment)

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.(10th Amendment)

United States v. Verdugo-Urquidez

Quote:

While this textual exegesis is by no means conclusive, it suggests that "the people" protected by the Fourth Amendment, and by the First and Second Amendments, and to whom rights and powers are reserved in the Ninth and Tenth Amendments, refers to a class of persons who are part of a national community or who have otherwise developed sufficient connection with this country to be considered part of that community.

And just to further persuade you that your opinion might be inaccurate,

Quote:

Art. 1, Section 10, Clause 3 (Compact Clause): No State shall, without the Consent of Congress, lay any duty of Tonnage, keep Troops, or Ships of War in time of Peace, enter into any Agreement or Compact with another State, or with a foreign Power, or engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay.

This may, or may not, change your opinion, and if it does not, I would urge you to examine your opinion to see if that's really an opinion on your straight reading of the text of the 2nd Amendment or nothing more than your desire to see it read that way.

samcol · 04-21-2009, 02:24 PM

Quote:

Originally Posted by dksuddeth

This may, or may not, change your opinion, and if it does not, I would urge you to examine your opinion to see if that's really an opinion on your straight reading of the text of the 2nd Amendment or nothing more than your desire to see it read that way.

Exactly, I don't have a problem with someone having the opinion that guns should be banned. However, the glaring inaccuracies that he said to base his opinions off of just made his stance sound foolish. Which is why he came back with an over the top stern reply while everyone else was calmly discusisng facts. Sad really

04-20-2009, 11:50 AM	#4 (permalink)
samcol Junkie Location: Indiana	So does this basically make all the federal firearm laws mandatory for state level and the states can't make any more strict laws than the feds? So California won't be able to limit magazine capcities and other states will have to issue ccws? I guess I'm confused. __________________ It's time for the president to hand over his nobel peace prize.

04-20-2009, 12:52 PM	#11 (permalink)
The_Jazz Asshole Administrator Location: Chicago	And this is why we ask the OP to frame the discussion, so we don't have to spend 5 posts figuring out the intent of the first post. /grumpy staffer I don't think that the 2nd mentions individuals at all. __________________ "They that can give up essential liberty to obtain a little temporary safety deserve neither liberty nor safety." - B. Franklin "There ought to be limits to freedom." - George W. Bush "We have met the enemy and he is us." - Pogo

04-20-2009, 01:51 PM	#13 (permalink)
The_Jazz Asshole Administrator Location: Chicago	It says that the Federal Government can't infringe on the ability of the States to keep and maintain a militia, in my opinion. But that's an argument you and I have talked over for years, DK. It specifically mentions "The People", but that's not a term that used elsewhere in the Constitution and one that's never really been defined. And that you need to actually ask questions and not post links in your original posts so that we know what the hell you want to talk about. __________________ "They that can give up essential liberty to obtain a little temporary safety deserve neither liberty nor safety." - B. Franklin "There ought to be limits to freedom." - George W. Bush "We have met the enemy and he is us." - Pogo

04-20-2009, 11:32 AM	#2 (permalink)
Willravel ... a sort of licensed troubleshooter.	While it kinda falls in line with the original intent of the Second Amendment, doesn't it strike you as bad idea to essentially legalize armed insurrection based simply on the whim of the individual (or am I reading this wrong)? While I would agree that some people have the necessary critical thinking skills to recognize when armed insurrection is necessary, what about your Tim McVeighs? He believed that he was fighting to stop what happened at Waco and Ruby Ridge, but in doing so became one of the most infamous domestic terrorists in American history. While you do have problems with the federal government, I know that you'd never condone something like the Murrah Building Bombing (or an equivalent attack with guns).

04-20-2009, 11:55 AM	#5 (permalink)
Willravel ... a sort of licensed troubleshooter.	Oh, good. I figured I'd misread it. So what you're advocating is to strip states of the right to make rulings on guns in favor of a national standard of some kind? Not to turn your own ideology around on you, but what's the harm in allowing states to make decisions regarding gun laws? Besides, California has less than 10 gun deaths per 100,000 people and Hawaii less than 3. Compare that to gun-free Alaska at 20 per 100,000 and Wyoming at 18.8. If we've found something that works for us, what's the harm in allowing us to continue?

04-20-2009, 02:00 PM	#14 (permalink)
Derwood Who You Crappin? Location: Everywhere and Nowhere	Can we just sticky a "gun thread" please?