Posted on 09/24/2009 4:53:13 AM PDT by marktwain
A federal appeals court in San Francisco on Thursday will confront America's next big gun rights question: Whether or not the Second Amendment prevents state governments from enacting anti-gun laws.
The U.S. Ninth Circuit Court of Appeals will hear oral arguments in a case that's likely to decide whether the Bill of Rights' guarantee of a right to "keep and bear arms" restricts only the federal government and the District of Columbia -- the current state of affairs -- or whether it can be invoked to strike down intrusive state and local laws too.
In an earlier ruling in April, a three-judge panel of the same court ruled that the Second Amendment did apply to the states, a different outcome than appeals courts in Chicago and New York had reached. On Thursday morning, a larger Ninth Circuit panel is scheduled to re-hear the case, meaning the earlier decision in Nordyke v. King could be upheld or rejected.
The applying-to-the-states question may seem like an odd one: After all, the First Amendment starts out by saying "Congress shall make no law," but the Supreme Court has interpreted that language to prevent states (and even state universities) from suppressing political speech. The Fourth Amendment has been interpreted to restrict state police from conducting "unreasonable searches," and while the right to an abortion is not clearly found anywhere in the U.S. Constitution, the 1973 Roe v. Wade decision struck down a Texas law on constitutional grounds.
So if much of the rest of the Bill of Rights applies to state governments -- a concept called "incorporation" -- why not the Second Amendment as well?
This topic sounds a bit like one that only a law professor might appreciate, but in the last 60 years or so, the Supreme Court has ruled that only "fundamental" rights in the Bill of Rights are incorporated. If a right is not deemed "fundamental," it doesn't apply to the states. So far, the justices have not yet ruled squarely on this question (even though Justice Scalia's majority opinion in last year's D.C. v. Heller case noted that "the right to have arms had become fundamental" in the early American colonies).
The incorporation question is already bubbling up to the Supreme Court thanks to the National Rifle Association v. Chicago and McDonald v. Chicago cases and the New York Maloney v. Rice case. On September 29, the justices will meet to decide whether to accept those cases for the 2009-2010 term; those appeals courts declined to apply the Second Amendment to state laws.
Of course, even if the Supreme Court eventually agrees that gun rights are "fundamental" and apply to individual states, that may not mean very much in practice.
The Ninth Circuit incorporated the Second Amendment but still upheld an Alameda County, Calif. ban on firearms on county property, including the fairgrounds. And the Seventh Circuit recently ruled that even if the Second Amendment applied to municipalities, they could get away with forcing citizens to register firearms or face legal consequences. In other words, courts could uphold the right to keep and bears arms in form and in theory, but ignore it in practice.
And precisely my line of thought as well. Feds can’t trump states just sometimes or only along liberal lines. But, they sure try that pretzel logic.
Does the 1st amend prevent States from limiting free speech? Do the 13th and 14th prevent States from legalizing slavery?
Just curious. Strange for liberals to be advocating for States rights.
I’ll bet the court cites the 10th amendment!
Bang!
Those two amendments explicitly refer to the entire country. Whereas the first amendment, for example, just says "the congress shall make no law".
The liberals will squeal if selective application is struck down.
If incorporated, the next big issue will be the definition of infringement.
LAWS OF ANY STATE TO THE CONTRARY NOTWITHSTANDING.
How hard is this to understand?
And the Second says “...shall not be infringed.”
That seems to cover everyone and everywhere, not just a restriction on Congress.
Oh, I guess that’s different than “shall not be infringed”
Beat me by 10 seconds. :-)
Clear as fine crystal and in plain English.
FReegards...
But if the three appellate courts agree, isn’t it less likely that the issue will be heard by the Supreme Court than it was before the 9th Circuit decided to rehear the case?
In the past the Supreme Court has interpreted the Second Amendment as being a state matter in that militias are state organizations. So if states want to regulate their militie, i.e. enact gun control of some form, then they’re free to do so. Even the Heller decision was carefully crafted to impact D.C. and not the states.
The first was incorporated by the 14th, in fact all 10 amendments of the bill of rights were, the feds just don’t like to admit to the 2nd having been. That means all 10 of them top states rights and the states have no right to make anti-gun laws, in fact neither do the feds if it comes to that.
It will mean whatever a majority of the court want it to mean. Let's just hope they see things our way.
The incorporation doctrine was invented out of thin air in the twentieth century citing a truly bizarre interpretation of the 14th amendment. Since then the court has selectively decided which parts of the constitution and its amendments apply to the states.
One of the reasons the demos were so nasty with Sam Alito is because he has written articles criticizing the incorporation doctrine. So has Janice Rodgers Brown FYI. The article that won her the favor of Rush Limbaugh is an article describing the incorporation doctrine as an unconstitutional coup.
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