Posted on 03/20/2009 8:51:48 PM PDT by 2ndDivisionVet
Instapundit links over to the Volokh Conspiracy, who writes about his upcoming law lecture in which he’ll wonder if the 2nd Amendment is “incorporated” against state intrusion by the 14th Amendment. Currently, most of the other rights enumerated by the Bill of Rights are considered incorporated by the 14th, except the 2nd and 3rd ... but “incorporated against the States” means that the question of that particular right, or aspect of it, has come before the Supremes and been decided on in favor of the Bill of Rights. Not all of them have; the 3A will probably never come before them (besides, most of us would give up the couch if a couple Marines needed a place to sleep, at least for a night).
I’ve said it before ... Slaughterhouses was a bad decision by SCOTUS. It should be overturned. “Due process” is far more than just a procedural concept. Cruikshank was even worse, and it too should be overturned. Follow the links to look them up if you aren’t familiar with them.
But honestly, how can people not see the connection?
14.1 “ ... 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.”
And guess what one of those main privileges is?
2. 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.
What does all of that mean? It means that every gun control law in every state in the nation is unconstitutional, because the individual right enumerated by the 2A (and affirmed by the recent DC v. Heller decision) is the kind of right, the “incorporated” kind, that is not subject to the State’s fussing with. Or ignoring. Or denying. Or abridging or infringing. The only way to lose that right is through Due Process, which means you have to be convicted of a significant offense, one that logically precludes you from owning a gun anymore.
Professor Volokh writes:
Is Originalism Crossing Over? Next week, I will be giving my talk on “Was Lochner Right? Natural Rights and the Fourteenth Amendment” at Georgetown Law on Tuesday at noon and at GMU Law on Thursday at 5pm. In my talk, I explain the original meaning of the Privileges or Immunities Clause and its connection to the Ninth Amendment. In response, people are very curious as to whether whether I think there is any chance for a revival of the Privileges or Immunities Clause in the Supreme Court. My answer is that we stand poised on the threshold of a possible shift when the constitutionality of state restrictions of the right to keep and bear arms is confronted by the Court in the wake of DC v. Heller. The evidence is overwhelming that the Privileges or Immunities of Citizens of the United States included a personal right to keep and bear arms. Indeed, the evidence that the right protected by the original meaning of the Fourteenth Amendment was personal and individual is even stronger and less impeachable than it is with the Second Amendment. And all the historical evidence concerning a right to keep and bear arms that exists concerns the Privileges or Immunities Clause, not the Due Process Clause.
And yes, Lochner was right. The right to freely contract your work is one of those basic but unenumerated rights [which begs the question whether the minimum wage is constitutional, but let’s not go there today].
There are currently two court cases in the works requesting that the 2A become incorporated. McDonald v. Chicago seeks to extend Heller to the state level by tossing Chicago’s gun ban, and Guy Montag Doe v. San Francisco Housing Authority seeks to extened Heller right down to the condo association level. Good luck to both of them.
All of theses may take decades to work through, but I’m glad to see some expert legal beagles thinking in the same direction I’ve always thought. As I said last summer, the proper decision for Heller should have been “What part of ‘shall not be infringed’ don’t you understand?” Likewise, the proper decision for both Montag andDoe ought to be “Well duh, of course it is!”
but ... but ... but ... we need some kind of gun control laws and definitions, or else everyone will be carrying an atomic bomb around with them! It will be the Nuke-u-lar Wild West!!! Sure. Fine. In that case, I suggest 2, and that ought to do it:
1) If you can pick it up and carry it 2 miles by yourself, then it’s a gun. If it’s too heavy to lift, too bulky to maneuver with, comes with wheels on, or requires a tripod to use, then it’s classified as artillery and subject to restrictions. While we’re at it, you also have to carry 250 rounds of ammo for that weapon on your 2 mile hike. Special provisions will be made for wheelchair bound people, and old folks with walkers, but it won’t be easy for them either.
2) If shrapnel from your explosive device can penetrate 3/8” softwood plywood at 15 feet, or if the overpressure blast from the explosive fractures that plywood at that distance, then this is also “artillery”. Lesser explosive devices are just fine, thank you. “Bullets” and “shotgun pellets” are not shrapnel ... don’t be a smartass.
From Volokh’s mouth to God’s ears, via nine black robes.
Seems to make some sense to me....
Interesting article but the Good Professor messed up a bit.
The 2nd Amendment is intended to cover arms. Small arms, crew served arms, etc. This is basically every conventional arm out there with about one exception. The proper defining line for what is covered by the 2nd Amendment and what isn’t is controllable fallout.
If a weapon produces immediately lethal UNCONTROLLABLE fallout such as poison gas, biological fallout, or radioactive fallout... it’s not covered. In these instances, wind and other weather effects can have an immediate affect on the dispersement of the fallout. With conventional arms, this is not the case... for the most part.
Surface to air missiles, it may be argued, produce uncontrollable fallout in lethal debris of aircraft. Air to ground and ground to ground munitions are legitimate under the 2nd.
My view on the 2nd is basically this... if the military has a legitimate reason to have it and law enforcement has a need for it, then all Americans have a legitimate need for it.
Oh, and EVERY exemption for the Government in firearms laws are UNCONSTITUTIONAL... my company doesn’t recognize those exemptions.
Mike
Good concept! But will the Mighty Media Monolith even allow it to be DISCUSSED?
Unless the 2nd Amendment was written in code that only the authors could interpret I think he's absolutely right of course. I believe the only reason that it has not been incorporated into the 14th long before now is the bias of the judiciary against privately owned firearms. If the four originalists on the current court had not had to have Kennedy's vote to get a majority in Heller I believe they would have incorporated the 2nd into the 14th and made it applicable to state and local restrictions on 2nd A rights instead of just some of the most egregious parts of the gun laws of the D.C.
The best thing by far that came from Heller is the court's opinion that the amendment protects an individual right and not just a state's right.
It's amazing how stupid people can be yet still claim to know.
A minor teaching moment:
A case in point, here is what happens ... A Phoenix gun shop, X-Caliber Guns, was charged with selling 700 AK-47 weapons illegally to the Mexican drug cartels. Front page news in many places, lots of readers. No one questions the story's premise, it's just accepted that the reporter knew what he was talking about, court case and all, don't you know.
Next came the court ruling, case dismissed, thrown out as completely bogus, on the facts. Not one gun was ever proved traced to the illegal trade. Prosecutor's arguments were completely fallacious. Most of the data about the case, made up out of whole cloth.
But they had succeeded.
Well so what about the newspaper retraction, sure, page 21 section G. The intrepid reader never sees it, along with a whole lot of others, and it then becomes recognized pseudo-fact that American gun stores are selling guns illegally to the Mexican drug cartels. And the plaintive cries begin, we have to do something ... Repeat often.
It's done on purpose by our liberals friends and their PRAVDA news services.
When you start out to succeed in deception, plant false facts in the public's eyes, it's a lot easier than you think to make that deception take root in the political arena, especially when the politicians are in on the game. We can no longer sit idly by when this happens.
nah. Limitations are infringements.
What's that old adage? something like, "A lie goes around the world twice before the truth gets it's shoes on".
Glenn Beck had Wayne La-Pierre on the show the other night and he said these clowns absolutely know and are lying about American weapons supplying the cartels. I'm absolutely amazed at the size and scope of this (dare I say it) conspiracy to implement their totalitarian state.
“...we’re up against a tsunami of idiots like the one I work “
Yeah well the ones I work for gave $50K to the Obameister & I’m hanging the pictures of “triumph” on the wall (got the contribution info from good ol’ HuffPo).
In “innocence” I run the Gadsden “Don’t Tread on Me” screen saver.
To paraphrase t s eliot (one of those Fabians whose wonderful words seduced us) “... I should have been a whore, scuttling across the silent seas of necessity...”
“If you can pick it up and carry it 2 miles by yourself...”
Some people can’t go two miles even when carrying nothing at all.
“The law is whatever the govt says it is nowadays...”
Seems to me that the law has always been whatever the goverment says it is.
I agree with the part about the idiots.
Re my comment: I agree with the part about the idiots.
I didn’t mean anything personal by that :)
That seditious behavior has put you on Obummer's terrorism watch list. Please stand by, Das Fuhrer will be with you momentarily...
No offense taken. I cant really disagree. For far too long our masters have been doing anything and everything they want to enrich themselves, empower themselves and rape us.
The reason the 2nd A has not been incorporated to the states through the 14th A is because the FedGove gets to pick and choose which civil rights they want to protect.
There were citizens in the US prior to the 14th Amendment. Unfortunately most were white and sovereigns of their respective states and were citizens of the United States ... the collection or Union of states.
After the Civil War freed slaves were not considered citizens under the US Constitution so the 14th A was passed to create a new class of citizenship.
It is important to note however that three United states. The collective or Union of states. The United states as a Nation state among other nation states. And the United States District of Columbia and all it owns.
Dont believe me? Check a law dictionary...there is case law that supports these definitions.
The point is, the 14th Amendment created a new class of Citizenship under the United States DC for ex-slaves that did not have a place of citizenship.
Since the inception of the SS number whites and other citizens of the United States ... the union of states ... have been able to incorporate themselves as citizens of the United States DC so now we are all considered 14th Amendment citizens. The united States DC gets to pick and choose which civil rights it feels like it wants to enforce.
Artillery should be not regulated.
Nuclear armament should be subject to inspection once every few years by a state government agency.
Sure they know, the whole scam was to get the story on the front pages. From the prosecutors, the lawyers, the news sources, to the judge. They all knew in advance ... Knowing full well that enough ignorant Obama voters would take it from there.
You know, the ones that say, hey I say it on TV, or in the newspaper, that automatically makes it true ... RIGHT.
We need to get better at spotting this and knowcking it down, that was my point.
My view on the 2nd is basically this... if the military has a legitimate reason to have it and law enforcement has a need for it, then all Americans have a legitimate need for it.
If it’s hypothetically useful in securing the freedom against tyranny, it’s “arms.”
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