Posted on 02/28/2010 1:18:17 PM PST by pabianice
Yes, it says Congress. But, it wasn't until (for the most part) the issue of incorporation began to be litigated in earnest, did the federal judiciary begin to assert itself into the matter of religion and it's separation from the state.
The refusal of some states to recognize some individual rights (as outlined in the BOR), is precisely what led to the 14th Amendment.
“gang members and drug dealers”
No, no, no! “disadvantaged child victims of gun violence.”
And cops won’t frisk “children” they think might shoot them.
You're my kind of woman, maine-iac7
Submitted with all due FReeper respect.
That was the wrong fix.
The ‘liberal’ 9th Circuit Court of Appeals has already incorporated the 2nd Amendment as applying to the states.
The 7th Circuit Court of Appeals did not, citing Slaughterhouse.
Slaughterhouse is going to be slaughtered.
Most states have similar language in their constitutions protected the right to bear arms. It was pretty common language at the time. Some do not. Most states do have such language.
It is presumed under due process that the 2nd would be incorporated but McDonald argues that is also incorporated under Privileges and Immunities. Thomas once said he wanted a good case to re argue the Slaughterhouse cases.
Most states have similar language in their constitutions protected the right to bear arms. It was pretty common language at the time. Some do not. Most states do have such language.
It is presumed under due process that the 2nd would be incorporated but McDonald argues that is also incorporated under Privileges and Immunities. Thomas once said he wanted a good case to re argue the Slaughterhouse cases.
“They can not arrest you unless you are carrying in a place that has been legally posted as a weapons free zone. “
No, they can put you on your face in a mud puddle in handcuffs until they check and see if your CCW is valid.
We only win if the Court says the 2nd amendment does not apply to the States.
We can’t have the the Federal government in the making laws regarding Gun business peroid.
I don’t think McDonald has to be rooted in incorporation. Gura is giving the Supreme Court the option of overturning Slaughterhouse (his brief is directed at least partially at this) as an alternative. This would eliminate the necessity of the doctrine of incorporation as is currently applied, as it would incorporate all of the BOR. This would fit with the intent at the time of the ratification of the 14th amendment, and would generally clean up Constitutional law.
Well, it's rooted in incorporation, it's just a question of how the judges will decide the case. You might have seen a link I provided later in the thread, but essentially when the Court granted cert, it allowed review on not just due process claim, but also Privileges or Immunities, which of course is where Slaughterhouse is relevant.
When addressing fundamentals such as the Constitution, a POV which leads to very complicated, and unquestionably controversial and contentious issues is usually wrong. In this case, "This Constitution ... shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding" rather makes the whole "incorporation" question a no-brainer; it was the refusal to concede the obvious that led to the Civil War and the 14th "it means what it says" Amendment. Likewise "...shall not be infringed.
Just sayin'.
And yet, in the 207 years since Marbury v. Madison, the Court has entertained all manner of "complicated and unquestionably controversial and contentious issues", every year. There hasn't been a year gone by that the Court didn't have full docket. And, in 234 years this particular question of 2nd Amendment incorporation has NEVER been addressed in the court.
Perhaps there's a reason that the hundreds of Supreme Court justices over the years didn't have the same clarity of thought as you seem to posses. Just sayin'.
It’s a third-rail issue. Nobody wants to get near it, especially as it was a major part of what sparked the Civil War, which prompted the 14th Amendment, which was eviscerated by _Slaughterhouse_, screwed up by _Miller_, and subsequently not really cared about by anybody because the only viable cases involved defending scumbags.
SCOTUS has to address and resolve all the complicating perspectives, which kinda detracts from the simple sensible approach. _Heller_ attracted a half-million words of commentary on the subject; kinda hard to read all that BS and stay sensible enough to say “’shall not be infringed’, next case.”
Just sayin’.
“My point to pabiance (without really commenting on the merits of the case), was that McDonald is rooted in some very complicated, and unquestionably controversial and contentious issue of Constitutional Law - the incorporation doctrine.”
I agree that McDonald will deal with “incorporation” regardless of the reasoning behind the decision. However, the incorporation doctrine, that is controversial and contentious, is incorporation under due process as this involves determination of what is or isn’t an essential right. Incorporation via privileges or immunities is however not controversial in the same since as it has been completely off the table since Slaughterhouse and as it does not involve weighing the relative value of rights.
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