Posted on 04/20/2009 1:34:38 PM PDT by Free ThinkerNY
Big news for constitutional law junkies, not so big for gun owners. We’re dealing here with the doctrine of “incorporation,” the notion that some — but not all — of the rights in the Bill of Rights protect people not only from the federal government but from their state governments, too.
That wasn’t the case until the Fourteenth Amendment was passed, thereby “incorporating” certain federal constitutional rights to the state level; ever since, courts have agonized over deciding which rights are sufficiently “fundamental” as to qualify for incorporation.
Why not just say that the entire Bill of Rights was incorporated instead of picking and choosing from it? Don’t ask. The whole subject’s a major clusterfark.
Per the Ninth Circuit, as of today, the Second Amendment is officially “fundamental” on the west coast.
No surprise there, even with two Democratic appointees on the three-judge panel: On the very day that the Supreme Court decided the Heller case, I told you it was a fait accompli that the Second Amendment would end up being incorporated.
The whole logic of the Heller opinion was that gun ownership is an important safeguard of liberty and deeply rooted in American history; if that’s not “fundamental,” nothing is. The real question is how much this matters in practical terms. Answer: Not much, as TNR predicted more than a year ago when the Court was hearing oral arguments in the Heller case.
(Excerpt) Read more at hotair.com ...
Having something declared a “right” doesn’t mean much when courts will still permit that right to be regulated to death (i.e., McCain-Feingold, Fairness Doctrine, etc.)
The 9th Circuit? No way!
You’ll excuse me while I look for the viper under this pretty flower, BEFORE I reach for it...
True, but the SCOTUS has repeatedly held that government cannot infringe upon a fundemental right except when necessary to promote a compelling governmental interest that cannot be achieved by less restictive means. In other words, the government’s interest must be real, compelling, and legitimate; there must be a direct connection between the means and the ends; and the means must be narrowly tailored to achieve the governmental interest.
I posted after Heller that there was no cause to celebrate.
Heller set the foundation for only posessing certain firearms in the home and nowhere else.
Say a prayer, would you? The 9th Circuit is the most overturned circuit court in the US. Nor do I find their logic as compelling as it could be. Simply put there are several avenues which could be used by the court in interpreting the 14th Amendment, and the court in this case took the wrong one (imo). I am the kind of person who wants right results, via right process. Picky I know, but I can’t help it.
WAY!
Exactly. The same court that incorporated the 2nd also said it doesn’t apply in cases where 4000 people would be exercising that right (in a historically very safe & repsonsible manner) in one gov’t-owned location (fairgrounds) because it wouldn’t be “safe”. Ergo, the 2nd was incorporated, then amputated.
In terms of federal constitutional law, that’s more than existed pre- Heller.
There is a viper.
The ruling also deems fairgrounds a “sensitive area” and thus subject to prohibitive restrictions.
Tell that to Maryland.
I’m not sure that the 2nd amendment need to be incorporated. Unlike the first which itself is strictly a prohibition against The Congress, the second seems to be a general prohibition against infringing the right to keep and bear arms, as such it would apply to both the United States and the several states, even without the 14th amendment.
A long while back I read an article about 2nd amendment case law that discussed a number of state cases that ruled the second applied to the states (or at least the sate in question). These cases went back to the early 19th century. Overall the cases were split, with about half the states courts ruling that the second applied to the states and the other half ruling it was only against the United States.
Bush.
Wins.
Again.
Way back in 1820, in Barron v. Baltimore, the Supreme Court unanimously held that none of the Bill of Rights applied to the states. That was not overturned for about a century, until the Supreme Court started holding that some (but not all) of the BOR were "incorporated" into the 14th Amendment and thus applied as against the States.
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