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To: robertpaulsen
Like Scalia, I'm a big believer in original meaning. The Bill of Rights was never meant to apply to the states. I've said it many times, incorporation has done more to destroy federalism that the Commerce Clause can ever hope to. I don't want any of the Bill of Rights incorporated.

Interesting. I never figured you for a Ron Paul supporter. ;-)

Do you want to turn back the incorporation which has taken place, or just stop new incorporation? And how do you square non-incorporation of this particular right under section 1 of the 14th amendment with the finding that it's an individual right? Is it somehow different from the other rights?
1,277 posted on 11/19/2007 5:06:26 PM PST by publiusF27
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To: publiusF27

I think you’ll find his “original meaning” is nothing more than good old-fashioned liberal textualism. For him, Constitutional interpretation is a game of searching for just the right combination of meanings of the words to produce the desired result.


1,278 posted on 11/19/2007 5:44:46 PM PST by tacticalogic ("Oh bother!" said Pooh, as he chambered his last round.)
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To: publiusF27
"Do you want to turn back the incorporation which has taken place, or just stop new incorporation?"

Both, but I don't think we'll ever get that toothpaste back into the tube.

"And how do you square non-incorporation of this particular right under section 1 of the 14th amendment with the finding that it's an individual right? Is it somehow different from the other rights?"

There are other individual rights that are not incorporated. The protection of your right to be heard by a Grand Jury in capital crimes does not apply to the states. The protection of your right to a trial by jury in civil cases does not apply to the states. The U.S. Supreme Court has never said that the third amendment applies to the states.

So, no, the second amendment is not "different".

For incorporation, the Court would have to find that some right was fundamental to the concept of life, liberty, or property -- due process would then demand that the states protect that right. It's totally up to five justices to make that determination. I don't know their criteria.

1,282 posted on 11/20/2007 5:26:18 AM PST by robertpaulsen
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