Blatantly Unconstitutional

[Frank Ettin]

....So using this logic, the Bill of Rights isn't really a "positive" list of rights that Americans are guaranteed but more of a "Do not touch" list for the federal government? In other words, the Bill of Rights basically just means "Hey you, Federal Government, you're not allowed to pass a new law that abridges any of these rights." ???

That seems like such a mind game to me.

In my mind, as an American, it's a list of protected, pre-existing natural rights that humans have that are inalienable. I have the right to speak my mind just as much as I have a right to defend myself so I'm not murdered.

What gives?

It is what it is.

In the early 19th Century, the Supreme Court ruled that the Bill of Rights applies only to the federal government and not to the states. In the late 19th Century, after the adoption of the 14th Amendmet, the Supreme Court began using the 14th Amendment to apply the Bill of Rights piecemeal to the states.

That might not seem right to you, but that doesn't change anything. It is what it is.

 

[gc70]

The 14th Amendment automatically incorporated the other Amendments when it was ratified.

Read the SCOTUS decsion in the Slaughterhouse Cases which held that the 13th & 14th Amendments don't guarantee federal protection of individual rights (Bill of Rights) against discrimination by their own state governments.

 

[Bubba613]

Bubba, it is a ban because they are making people justify a need to own a hand gun.

That isn't a ban. I tend to think NYC's incredibly repressive scheme of licensing is nontheless constitutional. I think it would pass muster.
So this is a no-brainer that it would.

 

[hugh damright]

the Slaughterhouse cases ... held that the 13th & 14th Amendments don't guarantee federal protection of individual rights (Bill of Rights) against discrimination by their own state governments.

And yet there seems to be no doubt but that the 14th was specifically intended to protect against discrimination by the states against certain rights or privileges including the RKBA. Too bad that the SCOTUS is manic, first construing the 14th to mean nothing, then construing it to mean everything.

 

[ManBearPig]

Bubba,

But Heller just finished saying that having a handgun is an individual civil right. So the very first time they deny someone a handgun because the person gives them the justification of "I want a handgun because it's my right".......then they are going to lose all the taxpayer's money in another lawsuit that will end in another 5-4 win for us. And you know for a fact they won't accept that as justification, nor would they accept target shooting, and they probably wouldn't even accept self-defense unless the person was actively being stalked and harrassed with legal documents to prove it. Technical or not, that's a ban.

Edit: And we can't just go around having a SCOTUS case for each and every town, city, and state in America that all deals with the same thing the Heller case did. That would be ridiculous. We had Heller, that's it.

 

[gc70]

the 14th was specifically intended

SCOTUS could not swallow the 14th at one time, but has been nibbling at it ever since. Hopefully, the 2nd Amendment will be in the next bite.

 

[DHJenkins]

It just goes to show there's a reason it says "New Jersey sucks" in spray paint at the base of the statue of liberty.

Very poetic.

 

[hugh damright]

SCOTUS could not swallow the 14th at one time, but has been nibbling at it ever since.

To me, that is like saying that they've been nibbling at the interstate commerce clause. I think the 14th is being construed to increase federal jurisdiction beyond anything every consented to. I do not share a desire to "incorporate the 2nd Amendment", and I think it defies the Ninth Amendment to construe the enumeration of rights so as to increase federal jurisdiction.

 

[gc70]

I think the 14th is being construed to increase federal jurisdiction beyond anything every consented to. (emphasis added)

The 14th was obviously intended to radically change the relationship of the states to the federal government. It would be hard to say that most of the former states of the Confederacy consented to the 14th, since their ratification of the amendment was under duress. Nevertheless, SCOTUS frustrated the intent of the 14th's authors.

I do not share a desire to "incorporate the 2nd Amendment"

I would be perfectly happy if the federal government stayed out of firearms issues and left them to the states, but the federal government has intruded on firearms. 2nd Amendment incorporation is an avenue to help balance the scales.

 

[hugh damright]

The 14th was obviously intended to radically change the relationship of the states to the federal government.

That may seem obvious to you, but there are other theories. Personally, what seems obvious to me is that the 14th was intended to make the 1866 Civil Rights Act part of the US Constitution. As I understand it, the Southern States were about to regain their seats in the US Congress, and they would have repealed the Civil Rights Act. By making it an amendment, it would take 3/4 of the States to repeal it, and then the South would not be able to touch it. I believe that was the more common intent of the 39th Congress in supposedly passing the 14th, to make the 1866 Civil Rights Act part of the US Constitution. I read a book on reconstruction in Virginia (Unleashed at Long Last - Squires) which referred to this as "prostituting the supreme law of the land to partisan politics of the lowest order". I reckon that was the intent.

Of course, it was given that the South wasn't going to vote for it, and the whole ratification process was just pretense. But beyond that, if we pretend that it was properly ratified, there seems to be great evidence that even the 39th Congress would not have passed something which radically altered the state/federal relationship. I think this view was associated with a radical minority.

SCOTUS frustrated the intent of the 14th's authors.

I am of the impression that Bingham and Howard were not representative of the House and Senate. But I agree that in the Slaughterhouse cases the SCOTUS frustrated the intent of the 14th. I think it was their proper job to frustrate the intent of the radical "authors", but I think they went too far and gave the 14th too narrow a construction, and that we are now going too far the other way and giving it too wide a construction. Somewhere in the middle is a 14th that protects against the States discriminating in certain areas.

And this does not seem like such a radical change to me. The Framers' Constitution includes a privileges and immunities clause so that a State must treat citizens of other States as equals in certain areas. I think the intended change with the 14th was that it extended this federal/state relationship to apply to a State's own citizens too, such that it ended class discrimination in certain areas. Actually that was kind of radical ... but ending discriminatory laws in certain areas seems rather conservative in comparison to this idea of a 14th that radically alters our frame of government.

 

[gc70]

but ending discriminatory laws in certain areas seems rather conservative...

The federal government "ending discriminatory laws" of states is only conservative if the Constitution empowered the federal government to do so.

... in comparison to this idea of a 14th that radically alters our frame of government.

The 14th is not radical if the idea of shifting from a limited federal government to a pervasive federal government does not seem like a significant change.

 

[Bubba613]

But Heller just finished saying that having a handgun is an individual civil right. So the very first time they deny someone a handgun because the person gives them the justification of "I want a handgun because it's my right".......then they are going to lose all the taxpayer's money in another lawsuit that will end in another 5-4 win for us.

Heller held no such thing. Heller merely said that Washington DC could not outright ban all handguns. Anything short of an outright ban on handguns could probably pass muster. Even now the city requires tests, training, registration etc etc. All of that would seem to pass the requirements laid out in Heller. If you can't pass their tests, you can't own a handgun. All of that is constitutional per Heller.

 

[everallm]

This is why both the California and Chicago cases are so important at this time.

The SC, because of the inherent boundaries of the DC case could not rule on incorporation, what "reasonable regulation" means and what level of scrutiny is required around 2A laws.

Don't think for one moment that they didn't discuss these points loud and long in chambers but the response had to be on the basis of the case in front of them.

The two current cases, by their nature, address these as well as the 9th and 14th amendment aspects of 2A.

California also raises issues of the bounds of existing law as well as its application.

Chicago also deals with the EFFECTIVE banning of entire classes of firearms (not exclusively hand guns) as well as the legality, effectiveness and limits around what is touted as Chicago's "reasonable regulation.

 

[eye5600]

So, if the Second Amendment is not incorporated, can you argue that it still applies if, for example, you have a VA mortgage, or if you live in an federally financed housing project?

(No, not really serious.)

 

[everallm]

Actually quite serious in part, when taken in context of the recent backdown in San Francisco and banning of otherwise legally held firearms in public housing.

http://www.nraila.org/Legislation/Read.aspx?ID=4347

Snippet below

The San Francisco Housing Authority (SFHA) and the property management company that oversees San Francisco’s public housing projects have agreed to completely remove a lease provision banning guns in the residences.

The City of San Francisco itself legally stipulated that its ordinance banning gun possession on county owned or controlled property cannot be applied to the public housing properties, even though Mayor Gavin Newsom announced at a May 2007 press conference that the new city ordinance would ban gun possession there. By excluding the application of the ordinance and removing the lease provision, the right of public housing residents to choose to own a gun to defend themselves or their families has been restored.

The settlements bring a successful conclusion to the lawsuit, filed June 2008. The decision to repeal SFHA’s lease provisions banning firearms came despite initial claims by Mayor Newsom that the lawsuit would be “absolutely defended,” and comes after initial claims by the San Francisco City Attorney that the lawsuit was “frivolous” and that the City would seek sanctions. No sanctions were sought, nor could they have been.

This is emblematic of how, even in otherwise highly restricted legislatures, effective 2A rights are being extended and why the Chicken Little tendency are somewhat.......over eager, in saying "We're doomed I tell you, DOOOOOOOOOMED".

It's the old adage of "How on earth can you eat an ENTIRE elephant"...."One bite at a time"

 

[rscalzo]

licensed pistol club

Pistol clubs aren't licensed. While a town may pass an ordinance covering such actions, the state itself has no such provisions.

Bills are filled all the time. most never see the light of day. I don't see this gaining any support, even in NJ. If it was seriously considered, it would have several big name co-sponsors. I lived in that county for thirty years and within miles of it all my life. Never heard of the bill's sponsor. Even the one handgun a month bill never went anywhere although thay are trying to bring it back to light. But the state has a lot more problems to deal with and the mood of the population is not to worry about new firearm's legislation.