Posted on 08/25/2009 8:30:52 AM PDT by neverdem
I'm not a lawyer. The intent of the 14th Amendment was to incorporate, i.e. make them apply, the first eight amendments to the states. In the late 19th Century, a bunch of decisions called Slaughterhouse, Presser, Cruikshank and Miller were made that eviscerated the intent of the 14th Amendment. The result is full employment of lawyers to appeal to the SCOTUS for incorporation of the pertinent amendments.
The "due process" nonsense seems to me to have been invented to avoid the "privileges and immunities" clause, by calling it "substantive due process". The thinking seems to be that some rights are so "fundamental" that people are "due" protection from virtually any "process".
It's a clever way to make "due process" mean something that I would doubt was intended by those who passed the Fourteenth Amendment. To me it is pretty clear that the intention was to prevent the states from having one "process" for whites and a different "process" for freed slaves.
In order to avoid the real issues, the courts have relegated "privileges and immunities" to the use of navigable waters and other such nonsense. As if the chief problem for freed slaves was whether they were allowed to travel on the rivers and not that gangs of hooded marauders were burning their homes and lynching them after "legally" disarming them.
It's just so much nonsense designed to permit the courts to defy the Fourteenth Amendment.
If you read Kennedy's comments in Heller, there's not much doubt that he believes in the right to self defense.
Thanks for the comments. Did SCOTUS “grant cert” before they gave National Rifle Association v. Chicago and McDonald v. Chicago docket numbers?
It's called "incorporation": making the states respect a right which the feds must. Ya'd think that was obvious since the Bill Of Rights enumerates preexisting rights, but that's how the legal system has ended up - we need the Supreme Court to weigh in and say "yes, states, 'shall not be infringed' means what it says, and that goes for you too."
So the 1st then does not apply to say, Florida?
We can ban all newspapers and other media that show a clear bias and print slanted news with non factual events and claims?
Cool.
Methinks the agreement is to hear the petitions to determine whether to grant cert or not. They can’t grant cert until they’ve looked at the case long enough to decide if there’s sufficient merit & time, and they’ve now scheduled time to take that look.
I understand that.But the day to day running of the District is essentially the same as any city/town/township (that is..."municipality") in the country.So if an individual resident of the "City" of Washington has certain rights under the Second Amendment then residents of the City of New York...San Francisco....Fargo.....or Sandy Desert,Utah can't be denied those same rights.
Neither side appealed. The only reason the 9th decided on its own to hear it en banc is to overturn the incorporation ruling. Once done, there’s no disagreement among the circuits and no Supreme Court ruling.
No. Docket numbers are assigned just so they can keep track of the case. These cases have had a dozen papers & actions filed on them before the judges even sit down to discuss granting cert, which will happen September 29, 2009.
To wit: pending federal bill HR45 can mandate registration for arms possession, but cannot _forbid_ it ... unlike (so it is claimed) Chicago, which bans outright.
SCOTUS has “incorporated” the 1stA.
SCOTUS has also declared that “incorporating” one right does not automatically incorporate the rest. Each BoR-enumerated right must be reviewed & incorporated by SCOTUS individually; we’re only now getting around to the 2ndA.
I don't think that is necessarily so. One criteria which argues strongly for Supreme Court attention is a disagreement among the Circuit Courts. If such is allowed, it has a tendency to turn us into two nations (or several) instead of one.
But I don't believe that Heller was decided due to any disagreement among Circuit Courts. Heller's direct application is only to jurisdictions which are completely under control of the federal government. The reason for taking Heller is that a fundamental right was being routinely infringed.
Those who took the case before the Court recognized the value of first getting a clear ruling regarding that fundamental right, prior to asking the Court to sort out how the Fourteenth Amendment applies.
That same reasoning would argue for the Supreme Court preventing that same infringement in Chicago.
Finally, someone corrected me. Thank you!
About six provisions of the Bill of Rights have not been incorporated.
Absolutely.
If so, what is so distinctive about that particular protection that justifies such omission?
Backwards. You need to justify your desire to pervert original intent.
Or are you simply pointing out that the unjustified exclusion
What's "unjustified" about it, beggar of questions?
Heller was granted certiorari precisely because of a conflict between District Court findings. The conflict was in whether the 2nd grants an individual or a collective right. The DC District Court ruled individual (was appealed en banc and denied, then appealed to the SC and granted.) A couple of other Districts had previously ruled that the right was collective.
That’s what makes this en banc hearing rather unusual - neither side appealed, so there would normally be no en banc consideration given. The 9th took it upon themselves so they could fix the ‘glaring error’ of incorporation (as the majority of the 9th Circus sees it.) When they do, there will be no conflicting District Court rulings. Even if someone decided to appeal, I can’t foresee it being heard by the SC.
The left haven't achieved the complete destruction of the original Bill of Rights yet.
And Adamson v. California 62 years ago.
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