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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.
Nope. Rawles wrote his View in 1829. Tucker's was the first to be approved and printed by Congress in 1803 [See link in post #27].
Joseph Story wrote his in 1833, and says the exact same thing as Tucker.
§ 312 But a contract of this nature actually existed in a visible form between the citizens of each state in their several constitutions. It might, therefore, be deemed somewhat extraordinary, that in the establishment of a federal republic, it should have been thought necessary to extend its operation to the persons of individuals, as well as to the states composing the confederacy
I am familiar with Rawles work, and cannot recall any such statement. I would appreciate your providing the Book/Chapter/Section to support you assertion.
As I browse thru the “Threads” on this issue, your post on no mention on any of the news channels, rings so true, however, I have found 3 “Threads” on this issue in 2 days, and combined, only 160 replies. You would think that the replies would have passed 500 or more by now.
How did you make that determination?
The Nordyke decision takes into account a "heightened" level of scrutiny and decided, based on that level, that the county had the power to deny use of its buildings to gun shows.
Without the determination of what the proper level of scrutiny is, it would not be possible to decide the limits of the county's power.
An appeal of Nordyke, by the Nordykes, should result in the Supreme Court finding that such a fundamental right as described in Nordyke is deserving of the highest level of scrutiny, called "strict scrutiny".
Does anybody think the county could outlaw book shows and require some showing by various groups that their books do not offend?
How, then, can you claim that the determination of incorporation and the level of scrutiny required is simply "dicta". What would the decision look like if you omitted what you claim is dicta?
Thanks!
Bookmark for later.
I have been persuaded by a fellow (smarter?) lawyer that I may be wrong about the dicta issue. It’s like to be raised by the opponents later, and has some moderating effect, but I’ll yield on the question.
OK, that made me LOL right here at work. Yep, that's the reason, all righty.
It all starts to make sense when you posit that most of the decisions the Ninth Circus pumps out are only to piss somebody off. They'll be having a collective attack of the vapors in San Francisco reading that one.
Seeing as the 9th is the most overturned Circuit in history, it wouldn't surprise me for the SCOTUS to overturn the ruling on the merit of the case. Can a local governemnt prohibit some forms of exhibition or sales on government property.
Now, it's just my humble opinion, but if the SCOTUS overturns the ruling on the merit of the case, and agrees or states the 'incorporation' portion is correct, then we can sit in awe of the judicial process that finally 'got it right'.
Only since the USSC began reading words that don't appear in the text of the Amendment. Words like "Abortion." Look at the original intent of that Amendment: It was the second in a natural progression involving the eradication of slavery. The 13th Amendment banned slavery. The 14th Amendment made former slaves US citizens as a necessary precursor to the 15th Amendment which was to give the former slaves the right to vote.
Later on liberal courts began tacking on "interpretations" so as to give their judicial activism teeth and in some cases that was a good thing. The reality is that the Bill of Rights was originally designed to only apply to the Federal government. That's why the Feds could ban discrimination but the states were free to institute same at the state and local levels for another 100 years, preventing blacks from voting and allowing them to be lawfully (albeit immorally) denied local access to firearms to fend off the incursions of the KKK. When incorporation came along in the 1960s that was the final link to force even local government to adhere to the Bill of Rights. The immoral thing done at that time was to deny the 2nd Amendment inclusion for the satisfaction of the power elites.
You can't have "states' rights" and incorporation. It's one or the other.
When you put it like this, what you're saying is to deny the concept of Federalism. Look at it this way: Used in the way you just did it calls for a clear return to the Articles of Confederation, the first framework for our government which was clearly insufficient as the time spent under it demonstrates. The Whiskey Rebellion and Shays rebellion are symptoms. The Articles prevented raising taxes to cover the cost of any sort of government. The Articles forbade raising of a standing army for self defense from global aggression. The Articles were weak.
Federalism repudiates all that and stands for the separation of powers with the Federal law as the controlling authority. But this presupposes that the current federal government really has the security, strength and prosperity of the nation as the foremost concern. Where that is absent tyranny soon appears and the importance of the 2nd Amendment becomes even more clear.
If you actually read the Bill of Rights, you will see that it, itself, says exactly that---note the First Amendment..."CONGRESS shall make no law"---and the Second Amendment...."..the right of the PEOPLE....".
It is plainly apparent that the RKBA was to be protected by both the Federal gov't AND the state gov'ts.
"I am familiar with Rawles work, and cannot recall any such statement. I would appreciate your providing the Book/Chapter/Section to support you assertion."
Sorry, no can do. I got Rawles book via interlibrary loan years ago, and read and returned same. I know there's a copy of it on-line somewhere, but I am away from my home computer, so don't have the link available.
Yes. Rawles was a teenager during the Revolutionary War, and "came of age" during the time frame when the Constitution was forumulated. He practiced law and was a high judiciary official (I forget which office he occupied), so his views are precisely "of the period".
Federalism as created by the US Constitution has been a complete failure. The anti-feds were correct. The federalists were woozy. I'd rather we'd have erred on the side of weak central gubmint, but that's water under the bridge now. We are one big megastate and nothing but Armageddon will undo it.
He would be impaired by the State gubmint in which he works. That state has its own laws and rights, in its own Constitution. The Bill of Rights in the US Constitution was meant to pertain only to the national gubmint.
That’s fine. Given the way things are, it’s a great victory. It just shows that even when we win, we lose.
Good read! Thanks...
“Articles of Confederation and Perpetual Union”.
Notice the word perpetual? That means forever. The states already ceded their right to break from the union even before the constitution was written.
i would argue as well that the Fourteenth Amendment is unconstitutional based upon its ratification process. Telling states that they cannot change their ratification ballots while forcing others to do just that pretty much violates the spirit of the amendment itself.
The Bill of Rights is a charter adopted by the States at ratification, it has ALWAYS applied to the States. Read for example the wording of the 6th. That additional protection of citizen rights in jury trials applies to all jurisdictions, not just Federal.
The same philosophic forces that would not join a Union that banned slavery quickly re-interpreted the Bill of Rights as “un-incorporated”. That is, judicial fiat.
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