Constitutional/Heller Question

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Matt King

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The Bill of Rights originally only applied to the federal government. However, in Gitlow v NY the Supreme Court of The United States ruled that via the fourteenth amendment, some of the Rights in the Bill of Rights applied to the state govs. The Second Amendment has not been incorporated. Thus, can't D.C. argue that it has the power to ban handguns?

My question is: How do you think the the Heller legal team will deal with this?

Edit: I am particularly interested in how the lawyers on THR ( El Tejon?) would address this.
 
Military districts are not exempt from the consititution. If anything, DC should have LESS power than states to possible add additional regulation to rights recognized by the constitution.
 
Playing devils advocate here, doesn't this mean that the states have the power to impose any gun control that they want?
 
Matt, that is just part of the reason that Heller represents such a nuclear weapon against gun control. (Not yelling at you, just doing this for emphasis) THE DECISION INCORPORATED THE SECOND AMENDMENT TO THE STATES!!!

Prior to this, federal appellate courts refused to recognize that the Second applied to the states (9th Cir in the Fresno Rifle Club, 7th Cir in the Morton Grove case). Parker did what the Framers of the 14th intended, apply the Second to the States.

The attorneys for Heller will deal with it just as they did at the DC COA.

Matt, as to your second post, NO! The states are bound by their own constitutions as well as the federal Bill of Rights.
 
Not your fault, Matt, but I get so tired of this misconception.

Article VI

This Constitution … shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.
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http://www.law.cornell.edu/constitution/constitution.articlevi.html

Disingenuous legal doctrine aside, the Bill of Rights has always applied to the states.

~G. Fink
 
THE DECISION INCORPORATED THE SECOND AMENDMENT TO THE STATES!!!
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No it did not... and incorporation will not be an issue in front of SCOTUS. The decision rejected the opt out argument that the 2nd does not apply in DC because DC is not a state, but that was not an incorporation argument.

An incorporation case will follow a favorable decision in Heller by SCOTUS... probably filed by Gura and dealing with Chicago's restrictions.
 
THE DECISION INCORPORATED THE SECOND AMENDMENT TO THE STATES!!!
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But D.C. isn't a state. Unless you're saying that the actual court decision explicitly incorporated it.
 
legal, you are correct. I jumped the gun and let my heady zeal (and inclination to dance like a little girl when I think about this case) get the better of me (I should have referenced Parker, not Heller, in "THE DECISION"). The way you phrased it is correct.

Matt, yes, both the majority and dissent reference your question.
 
Disingenuous legal doctrine aside, the Bill of Rights has always applied to the states.
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Not according to this unanimous SCOTUS decision:

The first amendment to the Constitution prohibits Congress from abridging 'the right of the people to assemble and to petition the government for a redress of grievances.' This, like the other amendments proposed and adopted at the same time, was not intended to limit the powers of the State governments in respect to their own citizens, but to operate upon the National government alone. Barron v. The City of Baltimore, 7 Pet. 250; Lessee of Livingston v. Moore, id. 551; Fox v. Ohio, 5 How. 434; Smith v. Maryland, 18 id. 76; Withers v. Buckley, 20 id. 90; Pervear v. The Commonwealth, 5 Wall. 479; Twitchell v. The Commonwealth, 7 id. 321; Edwards v. Elliott, 21 id. 557.
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Thus, can't D.C. argue that it has the power to ban handguns?
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The way Gura will handle it is that incorporation is not an issue. DC is a federal enclave and the entire Bill of Rights is applicable to DC without any incorporation analysis. They will then point to a prior ruling of SCOTUS which held that even though the requirement of a Grand Jury was not imposed upon the states by virtue of the incorporation doctorine, DC is bound by the Grand Jury requirement because it is governed by federal law.

Now the opt out argument is sort of a "reverse incorporation" argument. The analysis, however is strictly based upon a "pure collective right thesis" and Gura should attack that argument with as a "pure collective right thesis" in sheeps clothing.
 
Like I said, disingenuous legal doctrine. It’s right there in the Constitution, but how often has that mattered?

~G. Fink
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No, Gordon, it is NOT 'disingenuous legal doctrine.' It's what the Supreme Court ruled, and therefore it is the law.

Just because you may disagree with something the court says, that does not render it moot, it only renders your opinion moot.

We expect the court to rule next June that the Second Amendment affirms an individual civil right (which we're all convinced it does). We'll all be happy as clams and be quick to tell the Brady Bunch to "get over it."

The same reasoning applies to your "disingenuous legal doctrine" argument., because you and I both know tht when SCOTUS rules that the Second affirms an individual civil right, they'll be whining something about "disingenuous legal doctrine."
 
In Cruikshank the SCOTUS said, "The Second Amendment declares that it shall not be infringed; but this, as has been seen, means no more than that it shall not be infringed by Congress.(and does not bind the states)" SCOTUS has gotten this wrong. Nowhere in the Second Amendment does it say that the said Second Amendment applies to the federal government alone. The statement I placed in bold refers to previous decisions and the SCOTUS in this instance accepted that statement carte blanc. It didn't come to that "conclusion" in Cruikshank, the Court dug into its bag of precedence for it.

The logic is simple here. How can anyone say that the only source of tyranny would come on the federal level? It is patently and provably FALSE! The tyranny the slaves lived under...Pardon me...Existed under was at the STATE level! In my opinion, the Cruikshank decision purposely avoided the application of the Second Amendment to the states because, in 1875, the SCOTUS didn't have the guts to force the states to adhere to the Constitution.

The SCOTUS contradicted itself in Cruikshank in that it stated that the rights enumerated in the Constitution are preexisting to the Constitution but ignored the fact that those same rights are preexisting to the states as well! The illogic of this boggles my mind. How could the founding fathers have recognized the Right to Keep and Bear Arms, placed protection of it in the Constitution, and done so only as an academic exercise? Every citizen of this country is a citizen of a state. It is pure fallacy to claim a preexisting right, protected by the Constitution for the security of the people, cannot be protected from infringement by the states by that same Constitution that all states agreed to adhere to!

Truth is, SCOTUS does not have the guts to force the states to adhere to the constitutional protections of our rights. Is it fear of We the People? Maybe. If fear is the player here, all in government who have and would do more to stifle our rights are to blame. The more they stifle, the louder the rhetoric from us becomes. I, for one, don't want that rhetoric to develop into anything more serious than a rush to the ballot box, and it may disappoint them if they loose there, but there is much more to fear at the cartridge box. All it would take is for them to recognize, unfetter, and hold sacred our rights and there would be NOTHING to fear from We the People.

My wish for myself, family, and all my fellow citizens (We the People) is to have the peace, freedom, and security only our unfettered rights can guarantee. The most pertinent ones are enumerated in the Constitution. Those not enumerated are protected by the Constitution as well. Know this:...The most restricted government on this Earth is the most powerful, the wealthiest, healthiest, most free, and is host of the most sought-after and envied place to live. Do you want to keep this land? Then you must campaign for, vote for, fight for, preserve, teach the importance of, and cherish those rights.

Know what would make me happy? To be alive on the day the Congress and the Court decide to abide the Constitution and not all their agenda driven drivel.

Woody

"I pledge allegiance to the rights that made and keep me free. I will preserve and defend those rights for all who live in this Union, founded on the belief and principles that those rights are inalienable and essential to the pursuit and preservation of life, liberty, and happiness." B.E.Wood
 
The men who wrote our Constitution were not concerned that their rights would be infringed by the states in which they lived. They were all big men in their home states, and the states themselves had constitutions to restrain those governments. They were concerned that a large central government would begin to infringe on their rights, and that's why the Bill of Rights exists.

Now on their face some of the rights seem to apply only to Congress, and others are more general, but there is no doubt the signers thought they just applied to the central (or as it was referred to then, the General) government.

It's my understanding that one reason why Heller was brought is that because D.C. is not a state you don't have to ask the Supreme Court to overturn Presser v. Illinois, which holds that the second amendment does not apply to the states.

It is best in Constitutional cases not to ask the court to do too much at once. The NAACP did this by bringing incremental cases to overturn segregation. Note that Brown v. Board of Education was in 1954, but segregation in higher education was not fully struck down until well into the 1960s.
 
Amendment 14 - Citizenship Rights.

1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
...

5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.
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One would think that the fairly clear wording of the 14th amendment would mean that no state can deny any US citizen any of his rights. However, paragraph 5 may well mean congress might have to deal with the problem.

There is another slippery slope that the courts got themselves into here. By selectively incorporating some rights and not others, they may have essentially gutted paragraph 5.

You would think that if any right is incorporated by court action, as opposed to congressional action, that all of them would have to be incorporated.

personally, I think the fact that the 14th gave the power to congress to determine just how to deal with infringement of rights by the states, might well have meant that the courts had no power to do so in the first place, beyond whatever power was given to the courts by congress to deal with this specific issue.

just an evil thought that does not apply in this case since DC is not a state.

OTOH, I cannot imagine any liberal arguing that the courts have no jurisdiction to deal with state infringement of the rights of citizens beyond what is granted by congress.
 
ilbob said:
One would think that the fairly clear wording of the 14th amendment would mean that no state can deny any US citizen any of his rights. However, paragraph 5 may well mean congress might have to deal with the problem.

There is another slippery slope that the courts got themselves into here. By selectively incorporating some rights and not others, they may have essentially gutted paragraph 5.

You would think that if any right is incorporated by court action, as opposed to congressional action, that all of them would have to be incorporated.

personally, I think the fact that the 14th gave the power to congress to determine just how to deal with infringement of rights by the states, might well have meant that the courts had no power to do so in the first place, beyond whatever power was given to the courts by congress to deal with this specific issue.
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Woody smacks his forehead and says, "WOW! I could'a had a V-8!"

Excellent , Ilbob. Excellent.

I don't think the Court gutted Paragraph 5, though. Usurped(partially) maybe, but not gutted. Congress still has that power. All Congress needs to do is act with it. That would be another avenue for us to better secure our RKBA - to get in the face of those in Congress and say, "HEY! Do something for the people for once in your term. YOU have the power. YOU tell the states to bugger off!"

I'd really like that.

Woody

Thomas Jefferson worried that the Courts would overstep their authority and instead of interpreting the law would begin making law....an oligarchy...the rule of few over many.

I think the Court has already done that - all too often, too, especially when once is more than is allowed...
 
Nowhere in the Second Amendment does it say that the said Second Amendment applies to the federal government alone.
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But that was the founders intent.

Remember: Congress shall make no laws. . .
 
But that was the founders intent.

Remember: Congress shall make no laws. . .
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No that was the 1st not the 2nd. The 2nd says "..shall not be infringed..." which is clearly much broader in scope. In addition, it is clear the the courts have incorporated the 1st even though it's language is clearly designed as a limitation on the power of congress to enact certain laws.
 
Matt King said:
Remember: Congress shall make no laws. . .
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That is only in the First Amendment. The Second Amendment - and any of the other eight in the Bill of Rights - have no such caveat, and each one of these stands alone.

Woody
 
Looking through this thread has me thinking that a few here don't understand the current law of the land (whether you like it or not, the current law stands, but is of course subject to change in the future). To clarify, I make the following statements.

1. The second amendment has not been incorporated via the 14th. Thus, states have the authority to regulate (and prohibit) firearms as they please and as depends on their constitutions. Some states further allow home rule powers to local governments, who may enact their own prohibitions (such as Chicago).

2. The DC v. Heller case is almost certain not to bring incorporation of the 2A to the table. Thus, incorporation will likely be brought up in a future case challenging some state or city gun ban. Likely that will be Chicago as Chicago's ban (handguns) is the second-most strict to DCs. The Illinois Supreme Court held that Morton Grove's ban is consitutional (under IL consitution) and Presser (1886) held that the 2A is a limitation only on the power of Congress and the national government, and not of the States. Thus, until the 2A is specifically incorporated, state and city bans shall legally stand.

3. As an aside, an individual rights ruling in Heller is NOT going to eliminate all federal firearms laws in one fell swoop. The NFA, GCA, and FOPA (Hughes Amend.), etc. are not just going to suddenly disappear. Until those laws are challenged and over-ruled, they will stand as law. One might argue that the zeal to enforce them would be lessened. Even in a strong individual rights ruling, current federal firearms laws will be slow to fall, if they ever fall.
 
As for "incorporation", when was Article III of the Constitution incorporated? When was the Eleventh Amendment incorporated? How about the Thirteenth Amendment, or the First Article of the Constitution? I'm truly curious, because it seems we've been living under these amendments and articles for quite some time but I have found nothing from the Supreme Court or Congress "incorporating" these articles and amendments.

Woody
 
If you read the 13th amendment you will see that it applies to all the territory "within the United States", so no incorporation is necessary.
 
another okie said:
If you read the 13th amendment you will see that it applies to all the territory "within the United States", so no incorporation is necessary.
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Yeah, I know. I was being facetious - or trying to appear facetious. Article III pretty much "incorporates" itself, as does the Eleventh Amendment and Article I. Truly, the only amendment of the first ten needing "incorporation" is the First Amendment since it originally only applied to Congress. The Third Amendment technically can't apply to the states unless Congress authorizes the states to keep troops in time of peace or the states engage in war 'cause the feds can't get there in time.

The Fifth Amendment would apply to the states because in its text it excepts the militia same as the land and naval forces of the Union when in actual service or time of danger, meaning the militia - those not in the land or naval forces of the union and certain public officials - would be otherwise protected. The militia, being comprised of citizens in the several states, would otherwise not need excepting during service in time of danger if it didn't apply to the states in the first place. The time in service during time of public danger would not necessarily be a matter of war, but can be like in a flood, or hurricane, or earthquake, or to round up a band of criminals. Because of that, and the entitlement of all citizens to all privileges and immunities in the several states would encompass all citizens and not just those of the militia. Ergo, the Fifth Amendment must apply to the states or else it has a quandary.

Amendments IV, V(again), VI, VII, and VIII must also apply to the several states; linked inextricably by the fact that there is only one court system in this country, all courts being inferior and answerable to the one Supreme Court, and the Constitution being the supreme law of the land, etc.

The IX Amendment mentions the rights retained by the people. Retained by the people means out of the purview of the state or Union. Sorry, but those rights cannot be denied or disparaged.

The X Amendment spells out that there are powers not delegated to the Union, and some prohibited to the states, that belong to the people. Y'can't deny the applicability of the Tenth Amendment to the states!

The Fourteenth Amendment incorporates the First Amendment to the states and only puts the gild on the lily to the others(among the other stuff the amendment does).

Woody

You all need to remember where the real middle is. It is the Constitution. The Constitution is the biggest compromise - the best compromise - ever written. It is where distribution of power and security of the common good meets with the protection of rights, freedom, and personal sovereignty. B.E.Wood
 
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