Today's message from 9th circuit to BHO

[45superman]

Correct me if I'm wrong: this means that in the 9th Circuit, federal courts are bound to consider the 2nd incorporated. It doesn't do that for the rest of us, but it does mean that if the 7th Circuit rules against us in the Chicago lawsuits, there'll be a conflict between two circuits on the question and the SCOTUS will almost have to grant cert in one case or the other. Is that about right?

 

The 7th has already ruled against incorporation (Quilici v Morton Grove). Therefore there already is a circuit split.

See what I mean by my "shaky understanding"?

[Mouthpiece]

can anyone tell me what this is all about,or what it all means

[Federal Farmer]

Correct me if I'm wrong: this means that in the 9th Circuit, federal courts are bound to consider the 2nd incorporated. It doesn't do that for the rest of us, but it does mean that if the 7th Circuit rules against us in the Chicago lawsuits, there'll be a conflict between two circuits on the question and the SCOTUS will almost have to grant cert in one case or the other. Is that about right?

 

The 7th has already ruled against incorporation (Quilici v Morton Grove). Therefore there already is a circuit split.

See what I mean by my "shaky understanding"?

 

I just read that the 2nd Circuit nunchak case had its cert petition deadline extended by another week. This is a right to carry arms case in NY involving nunchaks. It'd be funny if we got SCOTUS affirming 2A Incorporation from a non-gun case.

 

They could affirm incorporation but decide nunchaku are not arms "in common use."

[GarandFan]

can anyone tell me what this is all about,or what it all means

 

You will probably see some bolied down and meaningful summaries coming out in the next few days. Keep an eye on the internet.

 

I know ... it all seems rather complicated. In part, that's because it is.

[GarandFan]

Ironically, today "dozens lie down" for more gun control.

 

http://news.yahoo.com/s/ap/20090420/ap_on_...ine_gun_control

 

At the same time, thousands are "standing their groud" for their rights ...

 

Irony is so often delicious.

 

 

That said, my sympathies go out to those killed by violent offenders, as well as their loved ones. I hope that after all of this, that we chose to become intolerant of violent offenders, and not the tools they might chose to use.

[SirMatthew]

can anyone tell me what this is all about,or what it all means

 

This older article will give you a brief overview of what has happened, what was expected with the incorporation issue, why it is important, and how is will (and will not) relate to the Chicago ban.

 

http://www.learnaboutguns.com/2008/10/05/2...-alamenda-case/

[lockman]

A quick read of this did What I thought possible. Gain incorporation but deny the "right" to a gun show on public property.

 

It also uses the concept of ordered liberty to justify the incorporation through the due process clause, something I would say is at the heart of Chicago's brief against incorporation. Chicago must now be scratching their head. Question is does it get applealed up?

 

If it sits, and the 7th goes the other way, conflicting opinions make ripe for SCOTUS cert.

 

The concurring opinion is insightfull but goes just to where we thought we would land with "resonable regualtion" The 9th feels banning guns from government property is reasonsable. We'll see what the 7th says, as it is more in line with Heller's issues. It may get to the registration issues and start us down that path of how far they can go.

 

All in all, I would say we are better off today that we were yesterday. Some will complain about Heller not going far eneough and that they will try to regulate guns any way they can to get at us. They already do and we have been fighting that fight for a long time now. And it's our job to beat them back legislatively first and in the courts if need be.

 

I will incorporate part of the ruling in to my analsys of the Chicago brief as I work on it this week from springfield.

 

 

todd

 

p.s. this view of banning guns on government property should give pause to 2257.

 

My Quick read was that they did not allow the second amendment argument to be used by Nordyke because it was not part of the original filing and a subsequent request to amend was denied by the district court. I suppose they would be able to start all over again on 2A grounds at a later date.

 

But yes it would only be binding in the 9th circuit.

[pyre400]

I wonder how the MSM is going to handle reporting this? My guess is

 

Well... they all know where the gun shows are now...

 

The MSM will probably just go the way of the Iraqi Information Minister... They'll ignore it and talk about gay marriage.

[SirMatthew]

I finished reading the ruling and am really excited about the incorporation issue, but I'm also a bit confused as I expected the gun show issue to be resolved differently.

 

The Second Amendment restriction against the Federal government is now being held against state and local governments. This means they cannot infringe upon it. If a large number of people want to meet, display, trade, and buy/sell their firearms in a single location then there shouldn't be any way for a local, state, or federal level of government to infringe upon that right. How then are they able to justify a ban on government property such as a county fair grounds? This part of the ruling totally contradicts the incorporation part of the ruling. The words "shall not be infringed" appear to have no meaning if the government is able to define where a citizen may exercise their 2A right.

 

I could see this ruling to really mean, "Sure, you can keep and bear arms all you like while on your private property. However, despite what the 2A really says, we can infringe upon your 2A right in every place that is not owned by a private citizen." How far are they going to take this?! Technically speaking, government property is owned by the people. Nearly every kind of public park is government property at one level or another. We can't exercise our right to keep and bear arms on public land we (collectively) own?! Getting even more technical, every road is considered to be for public use, but is owned by the government. Most every sidewalk too. Having LTC laws would be pointless if they go to this extreme.

[bob]

Keep in mind.

 

The only definitive issues regarding the 2A that the SCOTUS have ruled on is Heller. Heller only asked that he be allowed to register a 22 caliber revolver so he could keep it at his home. Out of that we got not only that the 2A is an individual right, and the right means we can keep commonly owned firearms at home for our own defense. Thats all Heller ever asked for. And he got everything he asked for.

 

Nordyke said that the 2A applies to state actions.

 

It will take many more court cases to flesh this one out, but it is not going to be long before someone brings a carry case forward. Maybe tomorrow.

[GarandFan]

It will take many more court cases to flesh this one out, but it is not going to be long before someone brings a carry case forward. Maybe tomorrow.

 

May be. Hope so. Months ago, already, people in the "know" predicted a 3-0 ruling from the 9th on incorporation.

 

And people are known to hedge their bets.

[lockman]

I finished reading the ruling and am really excited about the incorporation issue, but I'm also a bit confused as I expected the gun show issue to be resolved differently.

 

The court incorporated 2A in the ruling but upheld the lower courts ruling denying Nordyke's request to amend the original lawsuite adding a 2A infringement claim. So the court ruled for the County based solely on Nordykes original equal protection claim.

 

Now back to a second reading!

[GarandFan]

I wonder how the MSM is going to handle reporting this? My guess is

 

Uhh ... good point ...

 

Do you notice something about your little emoticons?

 

They're Spinning.

 

Note that a quick "google news" search indicates the news has not yet hit the "authorized media."

 

Here is one of the only news coverages available thus far ... (from the comments, it looks like they amendment the article to add the final three paragraphs ...)

 

 

http://www.centralvalleybusinesstimes.com/...s/001/?ID=11728

 

 

Court: Gun shows can be banned from public property

 

SAN FRANCISCO

April 20, 2009 12:49pm

 

Alameda County has the right to ban gun shows from county property without violating the U.S. Constitution, the 9th U.S. Circuit Court of Appeals says in a ruling that would apply to the court’s jurisdiction, which includes most of the West.

 

In a case that has been argued at various levels for the better part of a decade, the appeals court says “the county has offered a perfectly plausible purpose for the ordinance: the reduction of gun violence on county property.”

 

Alameda County was sued by Russell Nordyke and his wife Ann Nordyke, who operate TS Trade Shows, which operates gun shows. It had held them at the Alameda County Fairgrounds until the county passed an ordinance strictly regulating the physical control of weapons on county property.

 

“The county thought it dangerous for people to wander around its property armed. To ban or strictly to regulate gun possession on county land is the only straightforward response to such a danger,” the three-judge panel on the court of appeals says.

 

“We conclude that the ordinance is ‘unrelated to the suppression of free expression,’” the opinion says.

 

But the court, in a lengthy treatise on the history of the right to own guns in the United State, also notes that “that the right to keep and bear arms is “deeply rooted in this Nation’s history and tradition…. 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.”

 

The panel notes that “the ordinance before us … does not directly impede the efficacy of self-defense or limit self-defense in the home. Rather, it regulates gun possession in public places that are county property.”

 

The court says challenging the ordinance on Second Amendment grounds falls short because “the ordinance does not meaningfully impede the ability of individuals to defend themselves in their homes with usable firearms.… The ordinance falls on the lawful side of the division, familiar from other areas of substantive due process doctrine, between unconstitutional interference with individual rights and permissible government nonfacilitation of their exercise. Finally, prohibiting firearm possession on municipal property fits within the exception from the Second Amendment for “sensitive places.”

[Bitter]

I finished reading the ruling and am really excited about the incorporation issue, but I'm also a bit confused as I expected the gun show issue to be resolved differently.

 

The Second Amendment restriction against the Federal government is now being held against state and local governments. This means they cannot infringe upon it. If a large number of people want to meet, display, trade, and buy/sell their firearms in a single location then there shouldn't be any way for a local, state, or federal level of government to infringe upon that right. How then are they able to justify a ban on government property such as a county fair grounds? This part of the ruling totally contradicts the incorporation part of the ruling. The words "shall not be infringed" appear to have no meaning if the government is able to define where a citizen may exercise their 2A right.

 

I could see this ruling to really mean, "Sure, you can keep and bear arms all you like while on your private property. However, despite what the 2A really says, we can infringe upon your 2A right in every place that is not owned by a private citizen." How far are they going to take this?! Technically speaking, government property is owned by the people. Nearly every kind of public park is government property at one level or another. We can't exercise our right to keep and bear arms on public land we (collectively) own?! Getting even more technical, every road is considered to be for public use, but is owned by the government. Most every sidewalk too. Having LTC laws would be pointless if they go to this extreme.

 

The decision determined the right to arms for defense a fundamental right and incorporated against the states through the Due Process clause of the 14th Amendment. Constitutionally, fundamental rights are not absolute. That is to say, just because having a gun for defense is a fundamental right does not mean that it is an absolute right that one can have a gun anywhere at any time for any reason. What it does do is stop the state or local government from infringing upon that right unless the infringement is narrowly tailored to meet a compelling state interest. Nordyke's leave to amend was rejected by the 9th Circuit because they found that the ordinance, as written, met the heightened review standard.

 

To put it simply, the 9th Circuit is saying: you have a right to a weapon for self-defense from both internal and external threats, but that right may be limited if the state needs to limit it for a good reason and in a way that has the least impact on the right.

 

I have to agree with the 9th Circuit that a gun show on public property has a tenuous effect on the right to self-defense with a firearm. The only plausible argument is that not having gun shows on county property makes it more difficult to get guns for defense, but this argument has been rejected by the Supreme Court in similar fundamental rights situations (for example abortion). The state has at least an arguable interest in accordance with its legitimate police power, and the ordinance meets that interest through a pretty narrow means.

 

Rights are not absolute, at least not under the fundamental rights framework of selective incorporation. Compare the fundamental right to arms to the fundamental right to procreation, and subsequently abortion. SCOTUS has determined abortion to be a fundamental right, but one that can be infringed based on the analysis I stated above. I doubt many of us would argue that because women have a fundamental right to abortions, that there should be drive-thru abortion fairs on county property.

[johnyt101]

I finished reading the ruling and am really excited about the incorporation issue, but I'm also a bit confused as I expected the gun show issue to be resolved differently.

 

The court incorporated 2A in the ruling but upheld the lower courts ruling denying Nordyke's request to amend the original lawsuite adding a 2A infringement claim. So the court ruled for the County based solely on Nordykes original equal protection claim.

 

Now back to a second reading!

 

Thats great news! So now in the second reading, the court can rule that the county cant ban gun shows because the 2A is incorporated?

 

If SCOTUS gets an incorporation case, they really need to drop the "common use" standard becasue the Court isnt supposed to protect what is popular. They need to go back the Miller standard that the 2A protects the individual right to arms suitable for militia service. Select fire rifles anyone?

[Bitter]

I finished reading the ruling and am really excited about the incorporation issue, but I'm also a bit confused as I expected the gun show issue to be resolved differently.

 

The court incorporated 2A in the ruling but upheld the lower courts ruling denying Nordyke's request to amend the original lawsuite adding a 2A infringement claim. So the court ruled for the County based solely on Nordykes original equal protection claim.

 

Now back to a second reading!

 

Thats great news! So now in the second reading, the court can rule that the county cant ban gun shows because the 2A is incorporated?

 

If SCOTUS gets an incorporation case, they really need to drop the "common use" standard becasue the Court isnt supposed to protect what is popular. They need to go back the Miller standard that the 2A protects the individual right to arms suitable for militia service. Select fire rifles anyone?

 

No, the 9th Cir. had to reach the issue of incorporation to determine whether the court should have granted leave to amend. They decided in favor of incorporation, but that the particular 2A claim that was to be added had no merit.

[GarandFan]

This is David Kopel, and he can help you understand incorporation, etc., and what this 9th circuit opinion means ...

 

http://audio.ivoices.org/mp3/iipodcast285.mp3

[RichardM]

[edit] Amendment II

Right to keep and bear arms

 

On April 20, 2009 The Court of Appeals for the Ninth Circuit in the case of Nordyke v. King held that the Second Amendment was incorporated.[13]

 

The U.S. Supreme Court has never held this provision to be incorporated against the states. See Miller v. Texas, 153 U.S. 535 (1894); Presser v. Illinois, 116 U.S. 252 (1886); United States v. Cruikshank, 92 U.S. 542 (1875). However, these cases predate the Supreme Court's modern incorporation criteria, so it is an open question whether the Second Amendment will be incorporated.[14] The court has ruled that the second amendment codifies a pre-existing individual right to possess and carry firearms, which is not in any manner dependent on the Constitution for its existence,[15] and some commentators suggest that incorporation is likely,[16] or that incorporation can hardly be escaped if the inferior courts take the Supreme Court's incorporation jurisprudence seriously as law—as they are required to do.[17]

Regarding the Second Amendment and the incorporation doctrine, the Supreme Court in District of Columbia v. Heller said:

 

With respect to Cruikshank's continuing validity on incorporation, a question not presented by this case, we note that Cruikshank also said that the first amendment did not apply against the states and did not engage in the sort of Fourteenth Amendment inquiry required by our later cases. Our later decisions in Presser v. Illinois, 116 U.S. 252, 265 (1886) and Miller v. Texas, 153 U.S. 535, 538 (1894), reaffirmed that the Second Amendment applies only to the Federal Government.[18]

 

Since Heller, federal cases have been filed requesting the Second Amendment be made applicable to the states via the Fourteenth Amendment. Two such cases are McDonald v. Chicago and Guy Montag Doe v. San Francisco Housing Authority.

 

 

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

[GWBH]

I wonder what Eric Holder is thinking right now...?

[GarandFan]

I wonder what Eric Holder is thinking right now...?

 

My guess ...

 

Oh ****, 'bama ain't gonna like this. Now we'll NEVER be able to ban those semiautos just because they look like assault rifles.

[w00dc4ip]

If I'm reading the 9th ruling correctly, they make a few very important points regarding the 2A (I'll skip the rest, though it is interesting reading).

1. The 2A is incorporated against the state, counties, municipalities, etc.

2. The 2A as interpreted by SCOTUS in the Heller decision protects an individual's right to own and carry firearms for self defense in the home.

3. The county ordinance in question can be viewed to protect a "sensitive area," namely the county fairground, and this type of 2A restriction is what Scalia stated could be considered reasonable.

4. Given the very narrow right described by the SCOTUS in Heller, it's hard to apply that definition to the current case, as it's hard to see how restricting the use of the county fairground affects and individual's right to own or possess a firearm for self-defense in the home.

5. The appeal requesting leave to add a 2A infringement claim to the current case is denied because a 2A claim, given the facts of the case as brought, would have no effect.

 

The problem as I see it is Heller was narrow, though it was what was needed for that case. Someone needs to bring a "carry" case before the SCOTUS as soon as possible, preferably someone from Illinois. Once the right to carry for self-defense (be it open carry or concealed) is affirmed by the SCOTUS, then we'll start seeing the "gun free zone" restrictions start to be challenged. Just my opinion.

[GarandFan]

This ruling hits mainstream media ...

 

http://www.sfgate.com/cgi-bin/article.cgi?.../BA1V1760BI.DTL

 

 

Citizens can challenge state, local gun laws

Bob Egelko, Chronicle Staff Writer

Tuesday, April 21, 2009

 

(04-20) 19:10 PDT San Francisco -- A federal appeals court ruled Monday that private citizens can challenge state and local gun laws by invoking the constitutional right to bear arms - the first such ruling in the nation - but upheld a ban on firearms at gun shows at the Alameda County Fairgrounds in Pleasanton.

 

The ruling by the Ninth U.S. Circuit Court of Appeals in San Francisco followed last year's landmark Supreme Court decision that the Constitution's Second Amendment protects an individual's right to possess guns for self-defense.

 

The high court struck down a handgun prohibition in Washington, D.C., a federal enclave, and did not say whether the Second Amendment also applied to state and local laws. Nor did the court spell out the extent of the government's authority to regulate firearms, although it said guns could be excluded from "sensitive places such as schools and government buildings."

 

National Rifle Association lawsuits in the aftermath of the ruling prompted some local governments and agencies to abandon restrictive gun laws, including a ban on possession of guns and ammunition in public housing that the San Francisco Housing Authority dropped in January. But no court had ruled on the scope of the Second Amendment until Monday.

 

The case was a challenge by gun show promoters to a 1999 ordinance that banned firearms on all Alameda County property, including the fairgrounds, where 16 people had been injured in a melee that included gunfire the previous year. The court could have decided the case with its conclusion that the ban was a reasonable safety measure, without addressing the Second Amendment, but opted for a broader ruling.

 

While a few sections of the Bill of Rights apply only to the federal government, amendments that protect fundamental rights - including the Second Amendment - can be enforced against the states, said Judge Diarmuid O'Scannlain in the 3-0 decision.

 

"The right to bear arms is deeply rooted in the history and tradition of the republic," O'Scannlain said, citing selected passages from speeches and writings during the colonial and post-Revolutionary War period and the years leading up to the Civil War. "It is a means to protect the public from tyranny" as well as "to protect the individual from threats to life or limb."

 

Judge Ronald Gould, in a separate opinion, pictured a gun-wielding citizenry defending 21st century America against invaders or terrorists.

 

"That we have a lawfully armed populace adds a measure of security for all of us and makes it less likely that a band of terrorists could make headway in an attack on any community before more professional forces arrived," he said.

 

The judges concluded, however, that the Supreme Court's reference to exclusion of guns from "sensitive places" allows a county to ban firearms from its property. The ordinance "does not meaningfully impede the ability of individuals to defend themselves in their homes," O'Scannlain said, and county officials are entitled to conclude that guns sold at shows on the fairgrounds could be dangerous.

 

Donald Kilmer, lawyer for the gun show promoters, said they have not yet decided whether to appeal. He said other Bay Area counties - including San Mateo, Marin, Santa Cruz and Sonoma - have emulated the Alameda County ban, despite what he described as a lack of evidence linking the gun shows to any crimes or violence.

 

"The county was never able to point to any problems," Kilmer said. "Isn't it a good idea for gun shows, if they're going to take place, to be on public property" patrolled by law enforcement?

 

The county's lawyer was unavailable for comment. Sam Hoover, an attorney with Legal Community Against Violence, which supports gun regulation, said the court had needlessly opened the door to challenges of other state and local laws.

 

"We already have a patchwork, piecemeal system of gun regulation in the United States," he said. "This is going to make it that much harder to stem the tide of gun deaths and injuries."

 

E-mail Bob Egelko at begelko@sfchronicle.com.

[Tvandermyde]

In Heller, Scalia cited the First and Fourth Amendments several times. As stated before I think this was intentional to set up the comparision for both a standard of review and a blueprint on case law to follow.

 

this nugget from the Nordyke case:

 

"Footnote 19Fundamental rights usually receive strict scrutiny as a matter of substantive due process doctrine. See, e.g., Glucksberg, 521 U.S. at 721. But where the Due Process Clause incorporates one of the rights enumerated in the Bill of Rights, the standard of review becomes that appropriate to the specific right. For example, First Amendment rights, whether against the states or the federal government, trigger the same standards of review. We find no reason to treat the Second Amendment differently."

 

Preceeding that footnotes was this:

 

"Again, we begin with Heller, which did not announce any standard of review, though it precluded rational basis review as an insufficient protection for a specifically enumerated right.19"

 

This means that anti-gun regulations will have a higher burden to clear to be lawful. It looks as the Nordyke case also builds on gun bans and selfdefense.

 

"Next, the Court connected the statute’s operation to the conduct the Second Amendment protects: “the inherent right of self-defense has been central to the Second Amendment right. The handgun ban amounts to a prohibition of an entire class of ‘arms’ that is overwhelmingly chosen by American society for that lawful purpose.” Id. It was thus the statute’s burdens on effective self-defense that implicated the Second Amendment. More particularly, Heller noted that the “prohibition extends . . . to the home, where the need for defense of self, family, and property is most acute.” Id. For the Court, this meant that, no matter the intensity of constitutional scrutiny, the District’s law could not survive."

 

This is a deathknell for Chicago.

 

Notice they also cite a ban on an entire class of arms. I think this gives us a lot to stand on in stopping semi-auto bans.

 

On selfdefense they said:

Heller tells us that the Second Amendment’s guarantee revolves around armed self-defense. If laws make such self-defense impossible in the most crucial place—the home —by rendering firearms useless, then they violate the Constitution.

 

But the Ordinance before us is not of that ilk. It does not directly impede the efficacy of self-defense or limit selfdefense in the home. Rather, it regulates gun possession in public places that are County property."

 

The court expanded Heller's support of prohibitions on guns in governmental buildings to "property" a big leap also citing that they could be sensitive places. That could extend to rest areas, parks, parking lots and other places.

 

In all we won more than we lost, but Nordyke could appeal to SCOTUS. They could take it up and find for incorporation, and define both sensitive places and shorten the expansion to "property"

 

The real trick now will be to cherry pick gun laws in the 9th for challenge. Unless we wait for SCOTUS incorporation to more firmly set the standard and scope of the right.

[TTIN]

If people would stop sueing for every silly-assed thing,maybe a county wouldn't feel it needed to protect itself from potential harm.

[Drylok]

Our friend MoHunter from missouri carry says this about incorporation. I'll ask him to come over here, cause I'd like to watch some of you folks discuss this with him.

 

Mohunter

"I've still got mixed emotions about it. Part of me wants to say it's a good ruling, and another part of me wants to say that I don't believe in incorporation of these amendments. I guess we shall see how this works out as time goes on.

 

The Constitution and our Bill Of Rights was written to limit the powers of Federal Government, not of the state. The 10th Amendment reserves all other powers to the state and the people of the state, respectively. Incorporation of these amendments is basically imposing the limitations of the Federal Government on the states by the Federal Government, even though no such authority has ever been given to them. Our founders envisioned a weak central government, and a government that grew stronger and stronger the closer it got to the level of "the people". Incorporation kinda takes that out of the equation. Are we to believe that the states are limited in their powers to that which the Federal Government is limited? That is certainly not how the 10th Amendment reads.

 

Furthermore, the Second Amendment is a right endowed to us by our "creator". It shouldn't be freely ignored by government at any level, period.

 

At the very least, I think the issue of incorporation is a slippery slope to go down and could come back to bite us at some point."

[bob]

The Constitution and our Bill Of Rights was written to limit the powers of Federal Government, not of the state. The 10th Amendment reserves all other powers to the state and the people of the state, respectively. Incorporation of these amendments is basically imposing the limitations of the Federal Government on the states by the Federal Government, even though no such authority has ever been given to them. Our founders envisioned a weak central government, and a government that grew stronger and stronger the closer it got to the level of "the people". Incorporation kinda takes that out of the equation. Are we to believe that the states are limited in their powers to that which the Federal Government is limited? That is certainly not how the 10th Amendment reads.

Apparently he never heard of the 14th amendment.

[abolt243]

The incorporation deals with the amendments only. Not the rest of Federal laws. If the second is incorporated, then "shall not be infringed" will be the law of the land, not just for those states that choose to recognize it.

 

There are those that think that Nordyke will give more power to local governments to make more rules i.e. no guns on government property, etc. I think that we have only begun to see what incorporation of the Second will give us. The Second, if applied correctly, will keep local laws from being imposed.

 

I'm aware that some phrases of Heller and even of Nordyke may seem to indicate differently, but I really feel that the Second will be upheld and "not be infringed" will prevail.

 

But, it will take awhile, and lots of money.

 

AB

[Drylok]

I was going on in a reply about the folks living in each state are still United States citizens and their rights are being infringed upon so if one wants to look at this as intrusion of government and going against the limitations of the fed, well this is one acception we should make. But then if we do that all our arguments about standing for constitutional law will be laughed at. I'm just trying to get across to him that the bill of rights, the constitution should trump state law.

 

MO says this in reply:

 

"I think you are looking at this from the wrong angle. The Constitution clearly spells out the limits of the federal government. That's what it was designed to do. It was NOT designed to limit state powers. The 10th Amendment reserves all powers not granted to the federal government in our Constitution, to the states and the people respectively. For example, the Federal Government has no authority to operate a tax payer funded health insurance program, but if a state wanted to implement such a thing for it's citizens, and the citizens of said state supported such a program, the 10th Amendment gives them the authority to do so.

 

The same thing can be said of gun laws. The 2nd Amendment clearly states that the Federal Government cannot infringe on an individual's right to keep and bear arms. That idea has even been held up in court, which is why the Federal Government turned to the commerce clause in Article 1, Section 8 to regulate firearms. Basically, they did an end around on our God given rights. Anyway, there is nothing in the 2nd Amendment that prohibits a state from making laws that regulate firearms, so long as those laws are equally applied to all people in the state as per the 14th Amendment. Now, having said that, most state constitutions pretty much follow along the same lines as our 2nd Amendment does, so many restrictive laws states have implemented are still not Constitutional. The state cannot "grant" or "recognize" a more liberal interpretation of a right than the Federal Government does, but in a lot of cases, they can recognize a more restrictive interpretation.

 

In a nutshell, there is only one place in the Constitution that mentions what rights the states must respect, and that is in Article 4, Section 2: "The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.

 

A Person charged in any State with Treason, Felony, or other Crime, who shall flee from Justice, and be found in another State, shall on Demand of the executive Authority of the State from which he fled, be delivered up, to be removed to the State having Jurisdiction of the Crime."

 

We should be arguing that the Second Amendment falls under those "Privelages and Immunities" rather than trying to incorporate them under the 14th Amendment."

[Federal Farmer]

Our friend MoHunter from missouri carry says this about incorporation. I'll ask him to come over here, cause I'd like to watch some of you folks discuss this with him.

 

Mohunter

"I've still got mixed emotions about it. Part of me wants to say it's a good ruling, and another part of me wants to say that I don't believe in incorporation of these amendments. I guess we shall see how this works out as time goes on.

 

The Constitution and our Bill Of Rights was written to limit the powers of Federal Government, not of the state. The 10th Amendment reserves all other powers to the state and the people of the state, respectively. Incorporation of these amendments is basically imposing the limitations of the Federal Government on the states by the Federal Government, even though no such authority has ever been given to them. Our founders envisioned a weak central government, and a government that grew stronger and stronger the closer it got to the level of "the people". Incorporation kinda takes that out of the equation. Are we to believe that the states are limited in their powers to that which the Federal Government is limited? That is certainly not how the 10th Amendment reads.

 

Furthermore, the Second Amendment is a right endowed to us by our "creator". It shouldn't be freely ignored by government at any level, period.

 

At the very least, I think the issue of incorporation is a slippery slope to go down and could come back to bite us at some point."

 

I'm an engineer (the type that DOESN'T drive trains) so the equation is very simple:

civil rights > states powers/rights* > federal powers/rights*

 

 

* rights used a bit loosely

[Drylok]

Fed Farmer,

I don't follow your symbols, are you trying to illustrate how one trumps the other down the line?

 

And what do you mean by rights being used a bit loosely. Either something is a right or it isn't. For example the right of the people to keep and bear arms is obviously a right.