Posted on 04/21/2009 5:10:29 AM PDT by Delacon
Last June, the Supreme Court ruled in District of Columbia v. Heller that the Second Amendment protects an individual’s right to keep and bear arms, at least in the home for self-defense. Here’s our own Bob Levy, who masterminded the Heller litigation, talking about that decision:
While the Court’s ruling was a watershed in constitutional interpretation, it technically applied only to D.C., striking down the District’s draconian gun ban but not having a direct effect in the rest of the country.
Well, today the Ninth Circuit (the federal appellate court covering most Western states) ruled that the Second Amendment restricts the power of state and local governments to interfere with individual right to have guns for personal use. That is, the Fourteenth Amendment “incorporates” the Second Amendment against the states, as the Supreme Court has found it to do for most of the Bill of Rights. I rarely get a chance to say this, but the Ninth Circuit gets it exactly right.
Here’s the key part of Judge Diarmuid O’Scannlain’s opinion:
We therefore conclude that the right to keep and bear arms is “deeply rooted in this Nation’s history and tradition.” Colonial revolutionaries, the Founders, and a host of commentators and lawmakers living during the first one hundred years of the Republic all insisted on the fundamental nature of the right. It has long been regarded as the “true palladium of liberty.” Colonists relied on it to assert and to win their independence, and the victorious Union sought to prevent a recalcitrant South from abridging it less than a century later. The crucial role this deeply rooted right has played in our birth and history compels us to recognize that it is indeed fundamental, that it is necessary to the Anglo-American conception of ordered liberty that we have inherited. We are therefore persuaded that the Due Process Clause of the Fourteenth Amendment incorporates the Second Amendment and applies it against the states and local governments.
In short, residents of Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, and Washington now join D.C. residents in having their Second Amendment rights protected. And courts covering other parts of the country — most immediately the Seventh Circuit, based in Chicago — will have their chance to make the same interpretation in due course.
Just as interesting — and potentially equally significant — is the footnote Judge O’Scannlain drops at the end of the above text in response to arguments that the right to keep and bear arms, regardless of its provenance as a fundamental natural right, is now controversial:
But we do not measure the protection the Constitution affords a right by the values of our own times. If contemporary desuetude sufficed to read rights out of the Constitution, then there would be little benefit to a written statement of them. Some may disagree with the decision of the Founders to enshrine a given right in the Constitution. If so, then the people can amend the document. But such amendments are not for the courts to ordain.
Quite right.
Within the areas of enumerated jurisdiction.
There is nothing in Rawles' writings I can see that allows the federal government to incorporate the bill of rights into the States.
In fact, to allow the created that kind of authority over those who created it is directly against the principle of a Republican form of government.
This, however is Madison's Speech to House of Representatives Proposing Bill of Rights.
I will state an instance which I think in point, and proves that this might be the case. The general government has a right to pass all laws which shall be necessary to collect its revenue; the means for enforcing the collection are within the direction of the legislature: may not general warrants be considered necessary for this purpose, as well as for some purposes which it was supposed at the framing of their constitutions the state governments had in view. If there was reason for restraining the state governments from exercising this power, there is like reason for restraining the federal government.
James Madison said the Bill of Rights was to restrain the federal government. No where does he mention the ability of the federal government to 'incorporate' its Bill of Rights into those of the States.
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Don't get me wrong. The finding by the court was a victory for the RKBA.
On the other hand, the finding had nothing to do with abiding by the Constitution.
Yes, it does seem rather self evident, doesn't it?
Either I am in the twilight zone, or the libs are eating themselves.
So do you think the States then have the ability to infringe (in some way) on our right to keep and bear arms? It seems to me that since it says the right to keep and bear arms shall not be infringed, this would suggest that no level of government can infringe on this right.
Or is it just implied that the whole BoR applies just to the feds? And if so, it seems redundant to say in the First Amendment that “CONGRESS shall make no law...”
I’m really enjoying this discussion.
Let’s hope the libs are eating themselves, especially Obama. There may be hope in that case.
ping
If you believe that, then you cannot read. The sections I quoted say so directly. "...equalizes all and binds all... says exactly that, as does "...if in any blind pursuit of inordinate power, either should attempt it, this amendment may be appealed to as a restraint on both.”
"...restraint on both..." cannot mean anything other than the amendment applying to both federal and state governments.
It's not a case of "incorporation". The Second was meant to apply to both federal and state governments from the time of its first writing, not as a result of the 14th Amendment.
When Pennsylvania wrote a bill providing funding for the purchase of the lands for what would become Washington Crossing Park back around 1911 or so, at that time the funding’s public purpose was clearly spelled out. The Park was purchased for the express purpose of providing a ground of training the militia.
Last weekend there was a Tea Party there, but usually the park has come to be used for dog walking and soccer playing, and re-enactor events. I keep waiting for the call to show up to train as militia. But then — they took it more seriously, evidently.
The due process clause of the 14th amendment.
Not true. Many states had state religions well into the 19th century. Hard to imagine Connecticutt or Massachusetts with state churches, but they had em. The First Amendment wasn't incorporated until 1947, the extent of it is in dispute.
Now ask yourself....would we be better off with the establishment clause incorporated, where the SCOTUS lords over all states, or would we be better off with it unincorporated, where the Feds have to butt out, and each state deals with the question individually? To me, the question answers itself.
Show me a state constitution that allows such things. It's a question of jurisdiction. The states, at the time of the founding, already had constitutions and bills of rights. They weren't a concern. The concern was the newly created National gubmint, hence, a national bill of rights.
Why do you think they passed the 14th amendment in the first place? For that very reason. Which demonstrates clearly that before the 14th amendment, obviously, states COULD enslave people.
California does not have an equivalent, in its constitution, to the Second Amendment. Therefore the State and its municipalities are free to disarm citizens at discretion (and do) -- at least California law thinks so.
Binding the Second to the States makes all the difference in California's case. They just have never been forced to confront, until now, the divergence of their conception of citizens' rights from Original Intent.
A scholar will correct me, but I suspect that California's omission of 2A protections was deliberate, and goes back to the Civil War era, in which a freesoiler faction suppressed a Southern faction in the State to impose freesoiling as California law and prohibit slavery. One suspects that California intended to suppress the losing faction and disarm it as well, just as in Illinois after the Civil War, employers acting through the Republican legislature (but I repeat myself) passed a restrictive Militia Act that denied RKBA to Illinoisans (and especially union organizers) by restricting the right to the Militia (whose enrollment was limited to 8600 politically-connected "reliable" members). The landmark gun-control case titled Presser vs. Illinois resulted, and Presser was the cornerstone of the restrictive interpretation of gun rights in the 1939 Miller decision and other gun-rights cases decided since then on the basis of the opinion in Miller.
Well stated.
Clarity/worth-repeating bump.
This is exactly what Hamilton and Madison were talking about when they warned that a Bill of Rights would be used against the People to deny and "disparage" other rights not enumerated.
That's why Madison, when he finally consented to write the Bill of Rights, in order to ensure that it be "done right", penned the Ninth Amendment, which explicitly voids Justice Story's assertion, and Lord Bacon's, that claims of, or appeals to, non-enumerated principles or rights are weak.
They are signalling their orc armies that the time is right to push for an amendment repealing 2A.
No. The Right to life brings with it the right to defend that Life, it's part of the laws of Nature. No political entity has any authority to tell the People they may not defend themselves because that right existed before the creation of the States or federal governments.
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Or is it just implied that the whole BoR applies just to the feds?
The Founders were persnickety about the separation of State and federal powers, so yes, IMHO the BOR in the federal Constitution applies only to the federal government.
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And if so, it seems redundant to say in the First Amendment that “CONGRESS shall make no law
The Founders were in full CYA mode when they created the federal government, so you will find a great deal of redundancy. Since the legislative branch had the most power, the Founders were afraid it would be the first branch to get out of line. You have to be aware there are different types of clauses.
Take the first Amendment, for example:
'CONGRESS shall make no law' is restrictive. It forbids actions toward all those items that follow in the Amendment.
The second Amendment, the RKBA, is declaratory. It declares the right to keep and bear arms shall not be infringed.
There are declaratory clauses aimed at the judicial branch (due process) and those aimed at the executive (no quartering of soldiers).
Like I said, FULL CYA mode. :-)
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I’m really enjoying this discussion.
As am I!
General is in reference to the general, or centralized government He goes on to specify CONGRESS.
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His conjecture that the BOR 'May be appealed to' should the States try to infringe on the RKBA. If something has to be appealed to, then it cannot be legal fact.
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Rawles is trying to have it both ways-
The following part of the 6th article has more immediate reference to the judicial proceedings of the United States, and may therefore be considered as restraints only on the legislation of the United States.
Either the Amendments affect the federal or the State governments. You can't have it both ways. Just because the BOR was 'incorporated' into the federal Constitution by the States doesn't give the federal government the ability to 'incorporate' it's BOR back into the States.
The legitimate power flows from the People, through the States and to the federal government....all the Founders made that clear.
Trying to 'reverse the flow' back into the States not only defeats the purpose of the Constitution giving the States the ability to limit federal power, it violates the concept of a Republican form of government.
Keep Rawle if you like. I think the man who wrote both the Constitution AND the Bill of Rights would have the clearest position on the matter.
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If you believe that, then you cannot read.
Look, I like a rousing debate as much as the next person, but if you just want a target for asinine remarks, let me know now so I won't waste my time.
Exactly! The Rule of Exclusion was a legal standard, and Madison knew a BOR, must, by definition, fly directly in the face of that established rule. Thus was born the 9th Amendment.
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