Hasta La Vista, 2nd Amendment

Liberty Belles ^ | Jennifer Freeman

[TERMINATTOR]

 

California Governor, Arnold Schwarzenegger, has recently reaffirmed his support for a federal ban on the private ownership of semi-automatic rifles, commonly known as the "Assault Weapons" ban. There was much debate and speculation about Schwarzenegger's position on firearms ownership prior to his being elected. This was primarily due to the fact that there was very little public information about his position on firearms. Californians were left to speculate about whether The Terminator -- the alpha male who made millions of dollars making movies in which characters used semi-automatic rifles to defend themselves -- was actually Mr. Shriver, a gun-banning politican towing the line for the Kennedy clan. Perhaps the Governor is neither an alpha male, nor a Kennedy wanna-be. Perhaps he is more like Bill Clinton in that he makes his decision based on what the polls say. And we know all how inaccurate polls can be. Whatever the reason, a person cannot support a ban on the private ownership of semi-automatic rifles and claim to uphold the Constitution. A politician cannot take away the rights of the citizens to protect themselves and claim to be for the people. A man cannot be judged as having good character, if his decisions are based on personal gain. And Californians cannot complain about gun rights while voting for a candidate who is questionable, at best, on the issue of firearm rights.

Say, "Hasta la vista" to the Second Amendment, baby!

[William Tell]

robertpaulsen said: "No, you provide me with the second amendment cases that the pro-gun community have ushered before the USSC. There are none. "

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?

[mrsmith]

There is an ambiguity about your question. It arises from the court finding neither a federal nor incorporated RKBA.

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.

[mrsmith]

I don't think the feds have ever even tried.

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.

[Ken H]

So, the recent USSC ruling on "Terry Stops", whereby you must provide your name, is no big deal, right?

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?

[robertpaulsen]

Oh, I 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.

[robertpaulsen]

"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"

Save me from looking through 441 posts -- Which examples or what post?

Ken H and I have been going back and forth on this.

[Ken H]

Oh, I understand.

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?

[inquest]

I've always thought that P&I included, but were not limited to rights. Is it your contention that rights are not included among P&I?

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.

[inquest]

It's only 'dead wrong' in the flawed logic of your imagination.

I know, I know, it's just a flesh wound.

[mrsmith]

Back in 380.

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.

[inquest]

Speaking of Terry's law, that case provides an excellent example of the dangers of "incorporation". If the SCOTUS had simply ruled that the 4th amendment doesn't apply to the states and left it at that, that wouldn't have been much of a problem (at least for people outside of Nevada). 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.

[LexBaird]

Well, if we both agree that the federal government had no power to enforce the Bill of Rights upon the states then we certainly agree!

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.

[mrsmith]

A power is enforced by judicial process.

Any power includes the right to enforce it. If a state refused then armed force could be used.

[Ken H]

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.

Wait a minute. Where did I assume a favorable ruling on the Federal RKBA?

[Ken H]

Speaking of Terry's law, that case provides an excellent example of the dangers of "incorporation". If the SCOTUS had simply ruled that the 4th amendment doesn't apply to the states and left it at that, that wouldn't have been much of a problem (at least for people outside of Nevada).

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?

[tpaine]

mrsmith:
Well, if we both agree that the federal government had no power to enforce the Bill of Rights upon the states then we certainly agree!

______________________________________


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.
452 -Lex-

____________________________________


The President is charged in Art. II with protecting & defending the Constitution, and seeing that its Laws are faithfully executed.

If his administration were to establish that officials of the State of Ca are violating our 2nd Amendment, certainly he could charge those State officials with that infringement in Federal court, -- and, -- if they refused to obey a USSC order to cease, enforce an order to jail them for contempt, at the least.

Not so?

[mrsmith]

"Suppose USSC incorporates and rules that the Second Amendment does not protect an individual RKBA."

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?

[Ken H]

Suppose USSC incorporates and rules that the Second Amendment does not protect an individual RKBA."

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.

[inquest]

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?

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.

[mrsmith]

Then it would lead to legislative and judicial federal removal of RKBA protections in state law.

I thought your intent was to consider the effect of incorporation on it's own. It's the federal RKBA that is key.