Does the 2nd Am restrict all govts? Or just Fed govt?

[Cosmoline]

The following from Article III, Section 2, encompasses a violation by a state of a provision in the Constitution, and is borne out in Federals 80:

Does the US Supreme Court have the power via Art. III and the Judiciary Act to overrule a state supreme court or state legislature on a matter of federal law? Yes, of course. That was settled long ago, before the Civil War.

But that's an entirely separate question from whether the Second, or any other part of the Federal BOR, applies to limit State action absent the 14th.

The Texas Supreme Court didn't come right out and say it was following the Supreme Law of the Land, they simply ruled accordingly, and included it in its decision. They said, "It is contended, that this article of the code, is in violation of the constitution of the United States, and of this state. The clause in the constitution of the United States, that it is said to be in violation of, is the 2d article of the amendments: "A well regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed."" The case was tried as a violation of the Second Amendment as well as a violation of the 13th section of the bill of rights of the Texas Constitution. It's undeniable. It's written right in the decision.

No, the Texas' court enforced the Texas bill of rights, as it indicated. Since the court did not come out and say that it was bound by the Second, you have no holding to cite and the case does not support your conclusion. Besides, as I said you would need to find a FEDERAL opinion where they applied any aspect of the BOR to the states and overturned a state law on those grounds.

Folks, this is pretty much black letter Constitutional law. You can go off to your own make believe land and try to interpret the Constitution ab initio, but while a fun exercise it means nothing. More to the point, it does nothing to help the cause.

Currently, there is no binding federal authority applying the Second to state laws under the Incorporation Doctrine. The goal is to secure such an opinion. You can come up with your own personal interpretation of the Constitution all you want, but that won't help one bit in swaying the courts.

There are hundreds, if not thousands, of cases restating the basic Incorporation Doctrine. Here's the Court itself noting it:

See Kansas v. Marsh, 126 S.Ct. 2516, n.1 (2006) ("In those early days, bear in mind, the guarantee of equal protection had not been extended beyond race to sex, age, and the many other categories it now covers. Also still to be developed were the incorporation doctrine (which holds that the Fourteenth Amendment incorporates and applies against the States the Bill of Rights, see Duncan v. Louisiana, 391 U.S. 145, 147-148, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968)); Barron ex rel. Tiernan v. Mayor of Baltimore, 7 Pet. 243, 8 L.Ed. 672 (1833)

 

[hugh damright]

Currently, there is no binding federal authority applying the Second to state laws. The goal is to secure such an opinion.

Not all of us have a goal of having an activist court reconstruct the Second Amendment. I personally have a goal of preserving the original intent, where most gun laws are intrastate affairs, beyond the reach of the US.

 

[Cosmoline]

Not all of us have a goal of having an activist court reconstruct the Second Amendment. I personally have a goal of preserving the original intent, where most gun laws are intrastate affairs, beyond the reach of the US.

Activist courts? The activist judges actually agree with you, and don't want the Second to be enforced to limit state action via the Incorporation Doctrine. It's a quick and easy way for them to avoid ever having to deal with it.

 

[The Real Hawkeye]

Cosmo, what Hugh is saying is that some of us would simply like the Second Amendment to be enforced as intended, i.e., as a restraint on the Federal Government, which has been the primary source of rights violations in our nation since the War of Northern Aggression. Unfortunately, with the 17th Amendment in place, there is no one in power at the Federal level with any natural inclination to restrain Federal power. Certainly the Supremes do not have that natural inclination. Making them the sole guardians of States rights is very much like putting the fox in charge of hen-house security.

 

[Malum Prohibitum]

Congress or Supreme Court

So who matters, Congress or the Supreme Court?

 

[Malum Prohibitum]

Protection of Lawfuul Commerce in Arms Act

S. 397, last year's Protection of Lawful Commerce in Arms Act, has a neat jurisdictional clause. It appears to argue for the incorporation of the Second Amendment via the Fourteenth Amendment.

Can Congress do this or only the Supreme Court?


Anyway, here is the relevant language excerpted from the bill as passed:

SEC. 2. FINDINGS; PURPOSES.

(a) Findings- Congress finds the following:

(1) The Second Amendment to the United States Constitution provides that the right of the people to keep and bear arms shall not be infringed.

(2) The Second Amendment to the United States Constitution protects the rights of individuals, including those who are not members of a militia or engaged in military service or training, to keep and bear arms.
. . .

(7) The liability actions commenced or contemplated by the Federal Government, States, municipalities, and private interest groups and others are based on theories without foundation in hundreds of years of the common law and jurisprudence of the United States and do not represent a bona fide expansion of the common law. The possible sustaining of these actions by a maverick judicial officer or petit jury would expand civil liability in a manner never contemplated by the framers of the Constitution, by Congress, or by the legislatures of the several States. Such an expansion of liability would constitute a deprivation of the rights, privileges, and immunities guaranteed to a citizen of the United States under the Fourteenth Amendment to the United States Constitution.
. . .

(b) Purposes- The purposes of this Act are as follows:
. . .

(3) To guarantee a citizen's rights, privileges, and immunities, as applied to the States, under the Fourteenth Amendment to the United States Constitution, pursuant to section 5 of that Amendment.



Link to thread

 

[hugh damright]

Activist courts? The activist judges actually agree with you, and don't want the Second to be enforced to limit state action via the Incorporation Doctrine. It's a quick and easy way for them to avoid ever having to deal with it.

I do not see the incorporation doctrine as being judicial activism. It is not legislation from the bench, it is a proper attempt by the bench to take existing legislation and try to make it fit within our constituted frame of government.