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To: Admin Moderator
Is there a way that you can edit my post to include the updated information? The Decision has been confirmed.

http://www.volokh.com/posts/1240247034.shtml

Nordyke v. King. For those who count such things, the unanimous panel consists of a Reagan appointee (Judge O'Scannlain, who wrote), a Carter appointee (Judge Alarcon), and a Clinton appointee (Judge Gould).

The panel avoids the late 19th-century cases United States v. Cruikshank (1876) and Presser v. Illinois (1886) by reading them as simply foreclosing the direct application of the Second Amendment to the states, or the application of the Second Amendment to the states via the Privileges or Immunities Clause. The panel instead follows the Supreme Court's "selective incorporation" cases under the Due Process Clause, and concludes that the right to bear arms "ranks as fundamental, meaning 'necessary to an Anglo-American regime of ordered liberty.'" (I should note that many scholars view Due Process Clause incorporation as historically unfounded, but take the view that the Privileges or Immunities Clause was originally understood as incorporating nearly all of the Bill of Rights against the states; but that is not the view the Supreme Court has taken.)

Thanks to Alice Marie Beard for the tip. Will blog more as soon as I can carefully read the opinion.

36 posted on 04/20/2009 10:37:45 AM PDT by freedomwarrior998
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To: freedomwarrior998
I should note that many scholars view Due Process Clause incorporation as historically unfounded, but take the view that the Privileges or Immunities Clause was originally understood as incorporating nearly all of the Bill of Rights against the states; but that is not the view the Supreme Court has taken.

The historical record of commentary and debate by the drafters of the Fourteenth Amendment clearly indicates that they intended incorporation of the first eight Amendments (the portions of the Bill of Rights that mention specific rights) vis-a-vis the states. The original intent of the amendment was to strike down the first wave of "Black Codes" which infringed on the rights of the freedmen -- including the right to keep and bear arms, which was specifically mentioned as one of the rights that needed to be vindicated against state government infringement.

That said, the record is less clear on precisely which clause the drafters of the amendment intended as the legal basis for incorporation.

61 posted on 04/20/2009 11:30:49 AM PDT by steve-b (Intelligent design is to evolutionary biology what socialism is to free-market economics.)
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