[2nd Amendment “incorporated” against state intrusion by the 14th?] Well, Duh, Of Course It Is!

Barking Moonbat Early Warning System ^ | March 20, 2009

[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.

[xmission]

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.

I'm in complete disagreement. If a militia could use it, it is legal to own.

[jtom36]

Randy Barnett wrote the above quoted article..

[jtom36]

Professor Barnett 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.

Bold words that challenge the 'conventional wisdom' that States can restrict our individual rights by using 'reasonable law'.. Indeed, our rights to life, liberty or property, -- protected by the original meaning of the Fourteenth Amendment are personal and individual, and cannot be infringed upon for 'the common good'.