Heller's Kitchen

NY Sun ^ | June 30, 2008 | DAVID KOPEL

[neverdem]

When the case of District of Columbia v. Heller was before the Supreme Court, Mayor Bloomberg filed a brief in support of the District's handgun ban, arguing that a militia-only interpretation of the Second Amendment was necessary to keep New York City's gun laws intact. On Thursday, when the Supreme Court ruled against Mr. Bloomberg's position, the mayor claimed that the ruling was a "benefit" and would not affect any New York City laws. His claim was half-right. It is a benefit, but it's unlikely that it will not affect any New York City laws. In most of America, Heller will have little effect on state and local laws, because the vast majority of states already have an individual right to arms in their state constitutions. Illinois and California are two of the states that don't; suits have already been filed challenging the handgun ban in Chicago and the S.F. ban on firearms possession by public housing residents. Those cases will help decide whether the Second Amendment is enforceable against state and local governments or only against the federal government

New York's state Constitution has no right to arms, but the Civil Rights Law does. The Civil Rights Law begins with a Bill of Rights. Article 4 declares: "A well regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms cannot be infringed." It is identical to the Second Amendment of the United States Constitution, except that New York follows modern standards for capitalization and punctuation, and says "cannot" instead of "shall not."

As a Monroe County court accurately observed in the 1994 case Citizens for a Safer Community v. City of Rochester, "The Courts of this State have concluded that the language of federal law interpreting the Second..."

[neverdem]

Mr. Kopel is an associate policy analyst with the Cato Institute, in Washington, D.C., and has taught the "Gun Control and Gun Rights" course at New York University Law School. He was part of the team of four lawyers presenting the oral argument to the Supreme Court in Heller.

[neverdem]

Heller's Kitchen is a play on Hell's Kitchen, a neighborhood near the Port Authority Bus Terminal in Manhattan. IIRC, Senator Moynihan came from there. Corrections are always appreciated.

Why Not Here? (Heller & NY)

Opening shots in NY!!!

FReepmail me if you want on or off my New York ping list.

[kingu]

I’m unclear here - how can the ‘right to privacy’ restrict state governments from being able to ban abortions, but an absolutely enumerated right, to keep and bear arms, can not be applied against state and local governments?

The argument makes no sense - the constitution is very clear - what isn’t covered, is reserved for the states, and the people, so why would anyone make the argument that the second is somehow the only amendment that’s prevented from applying to state or local laws?

[An Old Man]

"The problem is acute in New York City. Celebrities, the ultra-wealthy, and the politically influential get carry permits. But many of the people who need them the most — such as stalking victims, or crime witnesses who have been threatened by the criminal's friends — often do not. Even if New York City is not required to go as far as Connecticut, the City does need much less favoritism and much more objectivity in its administration of carry permits."

I eagerly await the repeal of the "Sullivan Act". It has always puzzled me how it has been allowed to stand so long.

[neverdem]

The argument makes no sense - the constitution is very clear - what isn’t covered, is reserved for the states, and the people, so why would anyone make the argument that the second is somehow the only amendment that’s prevented from applying to state or local laws?

Maybe because they went to law school? I don't know. I always preferred history and science.

[Clemenza]

The main reason is that the courts have never ruled on the 2nd as being applicable through the incorporation clause. The next major gun case will likely make that argument and, considering precedent, will likely rule for incorporation under the 14th.

[nonsporting]

I’m unclear here - how can the ‘right to privacy’ restrict state governments from being able to ban abortions, but an absolutely enumerated right, to keep and bear arms, can not be applied against state and local governments?

Non-existent rights dear to liberals must be worshipped by everyone in every circumstance, public or private. Enumerated rights dear to conservatives must be misconstrued out of existance or interpreted in the narrowest possible sense.

[calex59]

Actually that is what the Heller decision did, it affirmed those rights and said that the state can’t keep you from owning, and bearing, a firearm. It is an individual right, this is extremely important and the reason that Scalia was a little narrow on some of his statements because he wanted to get Kennedy on board. We have them beat, it is just a matter of time and a lot more court cases, all of which will be won now.

[wastedyears]

Tim Sullivan was a dirt bag, don’t know why they passed his stupid law.

That should be in the sights of the JPFO.

[An Old Man]

You can call me dumb as a sack full of rocks; but, I do not understand why we go through all the trouble of reducing the principles expressed in the amendments to the Constitution to writing and then have to stand by while someone tels us what the words mean.

John,
Please help me with this.

An Old Man

[Congressman Billybob]

Some parts of the Constitution are self-enforcing. A President must be 35, a Senator 30, a Representative 25. Others are simple, but not self-enforcing.

Take freedom of the press, for instance. When it was written and ratified, the press consisted only of ink printed on paper with letterpresses. Today it is all kinds of media, and all kinda of delivery modes. It takes a court to say that press means not just ink on paper, but all forms of communication of news and opinion to the people of the US.

Does that help?

John / Billybob

[An Old Man]

Not Realy. Can we discuss section 1 of the 14th amendment:

Amendment 14 - Citizenship Rights. Ratified 7/9/1868.

Upon further reading, I see where section 1 Defines the word "citizen" and then forbids the states to make or enforce any law which shall abridge the privileges or immunities of citizens of the United States. It further provides for the due process of law and equal protection under the law.

Where is the link many call incorporation? Is it spelled out somewhere that I have not searched or is it something more like a legal process or perhaps it has some special meaning in the vocabulary of lawyers?

I really do appreciate your eforts to further my education.

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.

2. Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice-President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.

3. No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.

4. The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any State shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void.

5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.

[Alamo-Girl]

Thanks for the ping!