Posted on 06/18/2009 10:46:37 AM PDT by neverdem
Federal appeals courts hearing gun rights cases after the Supreme Court’s Second Amendment ruling last year in District of Columbia v. Heller are confronting an old issue: whether the amendment applies to restrict state and local laws under the incorporation doctrine.
Heller found that the Second Amendment protected an individual right to own a gun in the District of Columbia, a federal enclave. New suits challenging state and local laws have resulted in a split. Two federal appeals courts refused to apply the Second Amendment to local laws without express Supreme Court authorization. A third disagreed.
University of Texas law professor Sanford Levinson told the New York Times that the case could present a dilemma for some conservative justices who scoffed at incorporation arguments in the past. Because of the touchy issues, he says he would be surprised if the U.S. Supreme Court agrees to hear new cases on the issue.
Yale law professor Akhil Reed Amar told the Times that incorporation fell out of favor after the 1960s, but it’s being resurrected by liberal scholars. Most of the Bill of Rights have been applied to the states under liberal Warren Court rulings that found the 14th Amendment required incorporation. One exception is the Seventh Amendment right to a jury trial, which has not been applied to the states.
“The precedents are now supportive of incorporation of nearly every provision of the Bill of Rights,” Amar told the Times. “Now what’s odd is that the Second Amendment doesn’t apply to the states.”
He believes the justices will support incorporation. A post at the Volokh Conspiracy after the Heller ruling cited evidence that Justice Antonin Scalia may be on...
(Excerpt) Read more at abajournal.com ...
Thanks for the link!
“Government exists by consent of the governed; however, if the governed are denied the right of self defense, those in power may exist in whatever form they choose.”
The Second requires no “incorporation”. Art 6 para 2.
How about the embarrassing Sanford Levinson? There's no bias here. Move along! Ugh, give me whiskey.
Article. VI.
All Debts contracted and Engagements entered into, before the Adoption of this Constitution, shall be as valid against the United States under this Constitution, as under the Confederation.This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.
The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.
That's what I used to think. From Marbury v. Madison and Barron v. Baltimore, the judges and lawyers have been pushing their luck.
The First 10 Amendments to the Constitution as Ratified by the States December 15, 1791
Preamble
Congress OF THE United States begun and held at the City of New York, on Wednesday the Fourth of March, one thousand seven hundred and eighty nine.
THE Conventions of a number of the States having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added: And as extending the ground of public confidence in the Government, will best insure the beneficent ends of its institution
RESOLVED by the Senate and House of Representatives of the United States of America, in Congress assembled, two thirds of both Houses concurring, that the following Articles be proposed to the Legislatures of the several States, as Amendments to the Constitution of the United States, all or any of which Articles, when ratified by three fourths of the said Legislatures, to be valid to all intents and purposes, as part of the said Constitution; viz.:
ARTICLES in addition to, and Amendment of the Constitution of the United States of America, proposed by Congress, and ratified by the Legislatures of the several States, pursuant to the fifth Article of the original Constitution.
Once ratified, it applied via Art 6 Para 2's Supremacy Clause. The 14th only muddied the waters and subsequent efforts to limit it's effect have been radically misapplied.
This is not a novel idea...
The prohibition is general. No clause in the Constitution could by any rule of construction be conceived to give to congress a power to disarm the people. Such a flagitious attempt could only be made under some general pretence by a state legislature. But if in any blind pursuit of inordinate power, either should attempt it, this amendment may be appealed to as a restraint on both. -William Rawle on the Second Amendment
"The whole of the Bill (of Rights) is a declaration of the right of the people at large or considered as individuals .... It establishes some rights of the individual as unalienable and which consequently, no majority has a right to deprive them of." -- Albert Gallatin, New York Historical Society, October 7, 1789
The difficulties which present themselves are on one side almost sufficient to dismay the most sanguine, whilst on the other side the most timid are compelled to encounter them by the mortal diseases of the existing constitution. These diseases need not be pointed out to you who so well understand them. Suffice it to say that they are at present marked by symptoms which are truly alarming, which have tainted the faith of the most orthodox republicans, and which challenge from the votaries of liberty every concession in favor of stable Government not infringing fundamental principles, as the only security against an opposite extreme of our present situation. I think myself that it will be expedient in the first place to lay the foundation of the new system in such a ratification by the people themselves of the several States as will render it clearly paramount to their Legislative authorities. 2dly. Over & above the positive power of regulating trade and sundry other matters in which uniformity is proper, to arm the federal head with a negative in all cases whatsoever on the local Legislatures. Without this defensive power experience and reflection have satisfied me that however ample the federal powers may be made, or however Clearly their boundaries may be delineated, on paper, they will be easily and continually baffled by the Legislative sovereignties of the States. The effects of this provision would be not only to guard the national rights and interests against invasion, but also to restrain the States from thwarting and molesting each other, and even from oppressing the minority within themselves by papermoney and other unrighteous measures which favor the interest of the majority. - James Madison to Thomas Jefferson. Letters of Delegates to Congress: Volume 24 November 6, 1786-February 29, 1788
"As civil rulers, not having their duty to the people duly before them, may attempt to tyrannize, and as the military forces which must be occasionally raised to defend our country, might pervert their power to the injury of their fellow-citizens, the people are confirmed by the next article in their right to keep and bear their private arms." - Tenche Coxe (introduction to his discussion, and support, of the 2nd Amend) "Remarks on the First Part of the Amendments to the Federal Constitution" Philadelphia Federal Gazette, 18 June 1789, pg.2
"Whenever, therefore, the profession of arms becomes a distinct order in the state . . . the end of the social compact is defeated . . . . No free government was ever founded, or ever preserved its liberty, without uniting the characters of the citizen and the soldier in those destined for the defence of the state . . . . Such are a well regulated militia, composed of the freeholders, citizen and husbandman, who take up arms to preserve their property, as individuals, and their rights as freemen."- Richard Henry Lee, Senator First Congress
Then it is up to those are denied their right to self-goverance to take back that right in any way that may prove necessary!
“How about the embarrassing Sanford Levinson? There’s no bias here. Move along! Ugh, give me whiskey.”
I would call him the very honest scholar Levinson.
That paper was written by a typical professor who, as is common, followed the left wing party line until he was convinced by a friend to actually study the 2A. After a fair study, he wrote an important piece for pro gun rights.
Here is a quote from his article:
“I cannot help but suspect that the best explanation for the absence of the Second Amendment from the legal consciousness of the elite bar, including that component found in the legal academy, is derived from a mixture of sheer opposition to the idea of private ownership of guns and the perhaps subconscious fear that altogether plausible, perhaps even “winning,” interpretations of the Second Amendment would present real hurdles to those of us supporting prohibitory regulation. Thus the title of this essay —The Embarrassing Second Amendment — for I want to suggest that the Amendment may be profoundly embarrassing to many who both support such regulation and view themselves as committed to zealous adherence to the Bill of Rights (such as most members of the ACLU). Indeed, one sometimes discovers members of the NRA who are equally committed members of the ACLU, differing with the latter only on the issue of the Second Amendment but otherwise genuinely sharing the libertarian viewpoint of the ACLU.”
Bingo!
I also think of it as the Constitution was paid in full by brave men and NEVER expires. We may be called upon from time to time to perform periodic maintenance work.
I feel that an Amendment should be put forward, specifically prohibiting any law made, debated, signed and put in force outside our borders, that could deprive us of our natural rights.
If somebody like that were signed, it would shield us for a time. (because when do Communists ever stop?)
“I cannot help but suspect that the best explanation for the absence of the Second Amendment from the legal consciousness of the elite bar, including that component found in the legal academy, is derived from a mixture of sheer opposition to the idea of private ownership of guns and the perhaps subconscious fear that altogether plausible, perhaps even “winning,” interpretations of the Second Amendment would present real hurdles to those of us supporting prohibitory regulation. Thus the title of this essay —The Embarrassing Second Amendment — for I want to suggest that the Amendment may be profoundly embarrassing to many who both support such regulation and view themselves as committed to zealous adherence to the Bill of Rights (such as most members of the ACLU). Indeed, one sometimes discovers members of the NRA who are equally committed members of the ACLU, differing with the latter only on the issue of the Second Amendment but otherwise genuinely sharing the libertarian viewpoint of the ACLU.”
12 posted on Thursday, June 18, 2009 4:14:45 PM by Stat-boy
Thanks for the quote Stat-boy.
Durus, why would I link the essay if I hadn't read it? What struck me was Levinsin's sense of regret, maybe horror, after he figured out the truth of the matter having been a life long gun grabber.
“Incorporation” has no relevance to the 2nd Amendment. The plain wording of the amendment is a ban on anyone at all, Congress, States, Chicago, or the neighborhood Owners Association, “infringing.” “The right...SHALL NOT BE INFRINGED” says nothing that limits who shall not infringe. It says “shall not be infringed.” If Colorado bans guns then the RKBA is infringed and it is unConstitutional. The amendments that got “incorporated” were the ones that specifically restricted the actions of Congress. They were “incorporated” by further amendment to apply also to the States. This whole “incorporation” misdirection is to get gun control and bans through at the state level and to nullify the 2nd by DIScorporating it from the States without another amendment. Don’t tell me that the first 10 were all applicable only to the Congress. That ignores the plain wording of the 2nd. Other amendments are specifically prohibitions on Congress. The plain wording of the 2nd Amd prohibits the infringement from happening altogether. Lots of Conservatives insist on things like Original Intent and Plain Wording but manage to make an exception for the 2nd Amd.
It is absurd. It all goes back to the Slaughter-House Cases, where the *Dicta* (comments and reasoning not required to reach the conclusion) indicated that only "priveleges and immunities" unique to federal citizenship, rather than *all* the priveledges and immunities, such as the immunity from infringement of the RKBA, were protected by the 14th Amendment's Priveleges and Immunities clause. This turned on it's head the rational of those who wrote, debated and passed the 14th Amendment, who stated in unambigous terms that the 14th amendment was intended to apply the guarantees of the Bill of Rights to the state governments, who were then engaged in violating the very same rights belonging to their newly freed Black citizens.
And we got bad state laws ever since.
I thought you called called Levinsin embarassing because he didn’t accuratly frame the essay. The essay in-and-of itself destroys the liberal arguements against the right to keep and bear arms. If Levinsin is a gun grabber despite knowing that it’s unconstitutional...well at least he’s partially honest.
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