Posted on 06/16/2004 8:42:31 PM PDT by TERMINATTOR
Is your point that there is some way for the pro-gun community to force the hand of an unwilling Supreme Court. I specifically mentioned Silveira vs Lockyer.
How is this consistent with your claim "There are none."? Do I have to name two cases to avoid your statement that "There are none"? Did Timothy Bean not appeal to the US Supreme Court to have his Second Amendment right recognized? Are you now holding the pro-gun community responsible for the failures of the Supreme Court?
If there is simply no incorporated state RKBA then there is no change from what we have now- the states are left alone. But if there is also not a federal RKBA (which is a likely outcome) then the states can be legislatively forced by the congress into surrendering the protections in their own laws- as by the examples I gave earlier.
I agree that the incorporation of no state RKBA would not affect things by itself. It would just further show the capriciousness and historical illegitimacy of the court's 14th Amendment doctrine.
There's a Michigan Supreme Court opinion that allowed banning guns from public housingprojects. But it's just the usual gun-grabber stuff.
Morally I have no problem with making almost any demand upon a recipient of charity. But on reflection it is dangerous to let governments circumvent their own limits that way.
USSC ruled that the US Constitution does not protect you from ID'ing yourself to an officer under some circumstances.
I mean, if your state wishes to keep their laws prohibiting their officials from asking for your name, then the USSC ruling has no effect. That's basically what you're saying, right?
Exactly right.
There is nothing that strikes down or prevents State laws prohibiting officers from requiring an ID.
If USSC had said that it indeed was a protected right, then some State laws could have been struck down.
So we have an incorporated Amendment and a USSC ruling that restricted the scope of a right. The decision is now in the hands of the States, just like the RKBA would be if USSC ruled no protected individual RKBA in US Constitution.
What is so difficult to understand?
It's all those other FReepers on the Terry Stops thread that don't undrstand. They think it's a huge restriction on right to privacy, freedom from unreasonable searches, and freedom from self-incrimination, not realizing that it's no big deal, according to you.
Yep, I bet no state is going to change their Terry Stop laws given the new ruling.
Save me from looking through 441 posts -- Which examples or what post?
Ken H and I have been going back and forth on this.
Apparently not, from reading the rest of your post.
It's all those other FReepers on the Terry Stops thread that don't undrstand. They think it's a huge restriction on right to privacy, freedom from unreasonable searches, and freedom from self-incrimination, not realizing that it's no big deal, according to you.
I confined my comments to correcting your misunderstanding of a basic constitutional concept.
I chose not to be diverted from the issue of your constitutional ignorance by your misstatement of my position.
Yep, I bet no state is going to change their Terry Stop laws given the new ruling.
Do you dispute that the decision regarding ID's was left up to the States?
Do you dispute that the same would apply with a "no protected individual RKBA" ruling by USSC?
I know that we had quite a lengthy discussion about this a while back, but I forget some of the details.
We started to have a discussion on it, but we got sidetracked onto a discussion over the specific differences between Article IV and the 14th amendment.
What I had said on that other thread is that privileges and immunities are, by their nature, those things that pertain specifically to citizenship (or more broadly, to members of any particular group) - the implication being that they don't apply to non-citizens. That's distinguished from rights, which apply to everyone.
I know, I know, it's just a flesh wound.
The problem with Ken's question is that it's not reasonable to assume the court will both incorporate the 2nd without a RKBA and acknowledge the federal RKBA in an opinion. It will deny or weaken both.
So, even though incorporating the second without a state RKBA would not change anything- as Ken argues that is what we have now without incorporation- the denial of the federal right too would allow judicial and legislative restrictions to be forced upon the states.
The examples you and I cite would still be prevented by a federal RKBA- but there won't be one.
Actually, the Feds are not given explicitly the power to enforce anything. There are certain things that imply such power, such as Article 1:8:18, but what they could legally do if a State started issuing money, for example, is left undefined.
I suppose the last recourse would be to call out the Natl. Guard.
Any power includes the right to enforce it. If a state refused then armed force could be used.
Wait a minute. Where did I assume a favorable ruling on the Federal RKBA?
Not so. If the Fourth were not incorporated, the decision would have been left to Nevada to decide on the basis of the Nevada Constitution. Same with other States. Correct?
But instead, they ruled that a) it did apply, and b) Nevada hadn't violated it. This results in very disturbing implications for how the 4th amendment is applied to the federal government.
I agree with that, but how did incorporation make it worse?
With the Fourth incorporated, an individual now has no right under the US Constitution to withhold ID from police.
If the the Fourth were not incorporated, the same is true. Individuals would have no right under the US Constitution to withhold ID from police. Agreed?
Your question ignores the effect of the unfavorable ruling on the federal RKBA- which would accompany an incorporation without state RKBA.
In which case I agree with your assertions.
Or it includes the denial of the federal RKBA- in which case I disagree.
So do I agree or disagree?
Your question ignores the effect of the unfavorable ruling on the federal RKBA- which would accompany an incorporation without state RKBA. In which case I agree with your assertions.
Or it includes the denial of the federal RKBA- in which case I disagree.
So do I agree or disagree?
Here's my position:
I deliberately chose the worst case scenario for the Scond Amendment to illustrate that incorporation has no downside to an individual RKBA in the US.
If USSC incorporates the Second Amendment and says it does not guarantee an individual RKBA, I would take that as USSC's definition of the Second Amendment for both State and Federal.
I can't see why they would say it means one thing for States and another for the Federal.
Correct. That's basically what I was saying.
With the Fourth incorporated, an individual now has no right under the US Constitution to withhold ID from police.
If the the Fourth were not incorporated, the same is true. Individuals would have no right under the US Constitution to withhold ID from police. Agreed?
Agreed, insofar as it applies to state action. My point, however, was that this ruling eroded protections against actions by the federal government.
I thought your intent was to consider the effect of incorporation on it's own. It's the federal RKBA that is key.
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