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Thread: [Incorporation] Are States and Cities Bound by the Second Amendment? Sullum, Reason Mag.

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    http://reason.com/blog/show/127246.html

    Jacob Sullum | June 27, 2008, 4:33pm
    Plans for post-Heller challenges to gun control laws throughout the country will come to naught unless the Second Amendment applies to state and local governments, a question the Supreme Court did not address in yesterday's decision. Three 19th-century Supreme Court decisions say it doesn't.

    In U.S. v. Cruikshank (1875),Klansmen who had used arson to intimidate and disarm freed blacks in Louisiana were charged with violating a federal statute that criminalized conspiracies to deprive people of their constitutional rights. The Court ruled that the Second Amendment "means no more than that[theright to keep and bear arms]shall not be infringed by Congress." It added,"This is one of the amendments that has no other effect than to restrict the powers of the national government."

    Likewise, in Presser v. State of Illinois (1886), which dealt with an Illinois law prohibitingprivate military exercises, the Court saidthe Second Amendment "is a limitation only upon the power of congress and the national government, and not upon that of the state." And in Miller v. Texas (1894), amurder case in which the defendant argued that a Texas law prohibiting the carrying of weapons violated the Second and Fourth amendments, the Court said "it is well settled that the restrictions of these amendments operate only upon the federal power, and have no reference whatever to proceedings in state courts."

    As that last example suggests, these caseswere all decidedbefore the Supreme Court began to apply parts of the Bill of Rights to the states via the 14th Amendment (ultimatelysettling on the Due Process Clause as the main rationale, although the Privileges or Immunities Clause might have been a better fit). Miller v. Texasactually anticipated that development, saying "if the fourteenth amendment limited the power of the states as to such rights, as pertaining to citizens of the United States, we think it was fatal to this claim that it was not set up in the trial court."

    The question for federal courts hearing challenges to state or local gun control laws, then, is whether the right to keep and bear arms, likefreedom ofspeech or the guarantee against unreasonable searches and seizures, isan aspect of the liberty protected from state encroachment by the 14th Amendment. After reading Heller, which emphasizes that the right to arms grows out of the basic right of self-preservation that preceded theFounding and was merely recognized, not created, by the Constitution, it is hard to imagine how the Court could sayit should not beadded to the list ofcivil libertiesthat states and municipalities must respect.
    One Supreme Court case that neither the majority nor the dissenters in Heller cited is particularly illuminating on this point. In Dred Scott v. Sandford, the notorious 1856 decision in which the Supreme Court rejected a slave's petition for freedom, declaring that a black man had "no rights which the white man was bound to respect," Chief Justice Roger Taney said (emphasis added):
    It cannot be supposed that[the states] intended to secure to[blacks] rights and privileges and rank, in the new political body throughout the Union which every one of them denied within the limits of its own dominion. More especially, it cannot be believed that the large slaveholding States regarded them as included in the word citizens, or would have consented to a Constitution which might compel them to receive them in that character from another State. For if they were so received, and entitled to the privileges and immunities of citizens, it would exempt them from the operation of the special laws and from the policeregulations which they considered to be necessary for their own safety. It would give to persons of the African American race, who were recognised as citizens in any one State of the Union, the right to enter every other State whenever they pleased, singly or in companies, without pass or passport, and without obstruction, to sojourn there as long as they pleased, to go where they pleased at every hour of the day or night without molestation, unless they committed some violation of law for which a white man would be punished; and it would give them the full liberty of speech in public and in private upon all subjects upon which its own citizens might speak; to hold public meetings upon political affairs, and to keep and carry arms wherever they went.
    The decision is no longer binding, obviously, but it provides strong evidence that the right to keep and bear arms was considered part of the "privileges or immunities of citizens" that the 14th Amendment was aimed at securing.


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    I really never understood why it wasn't. If the first is, and it clearly apples to individuals, why is the 2nd not when it clearly applies to individuals?

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    I think its going to come down to state supreme court rulings on the states own version of the 2nd. The Heller case can therefore be used as precedent.

    In NJ, the closest thing to 2A is this:

    "All persons are by nature free and independent, and have certain natural and unalienable rights, among which are those of enjoying and defending life and liberty, of acquiring, possessing, and protecting property, and of pursuing and obtaining safety and happiness."

    This doesn't say anything about defending life, or liberty or anything else. It just says you're entitled to it by natural and unalienable rights. Nothing said about the RKBA. NJ is HOSED!

    In Colorado, we got this little gem:

    "The right of no person to keep and bear arms in defense of his home, person and property, or in aid of the civil power when thereto legally summoned, shall be called in question; but nothing herein contained shall be construed to justify the practice of carrying concealed weapons."

    Aside from the last part about CC, this is an awesome state amendment. Under this amendment, plus the Heller precedent, CO could challenge the anti OC law in Denver County.

    IANAL, but this is what makes sense.

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    Sometimes you just gotta wonder - - -

    Why is the First Amendment incorporated when it says "Congress shall make no law..." which is clearly a limit and not the Second Amendment which has no such limitation?

    Furthermore,

    Why is there even "Incorporation" in the first place and why does "Incorporation" even rear its head in the first place? The only time I've heard of "Incorporation" is in regard to the Bill of Rights, there is no arguement about the other seventeen amendments passed as applying to the nation as a whole.



    Of the first Ten Amendments
    1st..... Incorporated
    2nd..... Not Incorporated
    3rd..... Not Incorporated (but the issue has never come up in the Court, either.)
    4th..... Incorporated
    5th..... Partially ncorporated (except for the right to be indicted by grand jury)
    6th..... Incorporated
    7th..... Not Incorporated
    8th..... Partially Incorporated

    Three, three and two....It's like the Bill of Rights is a chinese menu where the Supreme Court picks and chooses which ones they think should apply .


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    A vast majority of State's were required to approve the amendments in the first place; the same applies now for new amendments. So why under any circumstances would any Amendment not apply to the same approving body?

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    I can't understand why something like the Bill of Rights would not preempt everything.

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    Because the Constitution is written against the federal government only originally. In the beginning the States were as interested in and concerned with freedom as their citizens were and had the power to resist/direct the central government, for instance by appointing Senators ante 16th Amendment.

    I haven't looked specifically but I'll bet that the constitutions of anti-freedom states like NY, NJ, CA, IL, WI are real messes. I can vouch that WI's Constitution is a mess, made so by incorporating ('that' word!) case law as annotations in it!

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    http://www.chicagoguncase.com/wp-con.../complaint.pdf

    FIRST CAUSE OF ACTION – HANDGUN BAN
    RIGHT TO KEEP AND BEAR ARMS
    U.S. CONST., AMENDS. II AND XIV, 42 U.S.C. § 1983

    47. Paragraphs 1 through 46 are incorporated as though fully stated herein.

    48. The Second Amendment right is incorporated as against the states and their
    political subdivisions pursuant to the Due Process Clause of the Fourteenth Amendment.

    49. The Second Amendment right to keep and bear arms is a privilege and immunity
    of United States citizenship which, pursuant to the Fourteenth Amendment, states and their political subdivisions may not violate.

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    Very interesting thread. I think that a historical reading of the 14th amendment shows that Section 1, the due process and citizenship clauses, were not meant to incorporate any additional protections to those already considered citizens. Instead, it was meant to give citizenship and the protections of the constitution to recently emancipated slaves, reversing the Dred Scott decision. It forced the States to grant the basic protections of the Constitution to a class of people previously not considered citizens by many states. When understood that way, no part of the Bill of Rights should really be incorporated against the states, at least not using an originalist view. Certainly it would be helpful in this case view Heller as a protection for the people against their States, but that doesn't really fit in with the ideas of Federalism.

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    John Bingham, the author of the 14th amendment, would strongly disagree with you, Centsi. His intention was to apply all of the Bill of Rights to state actions against the people of a state. A Supreme Court in the 1870's, upset that Congress overturned it's decisions, started writing the 14th amendment out of existence.

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    Frankly, in an ideal world I think this should be a matter left to the states and each of their state constitutions. If a certain state has a state constitutional prohibition on firearms, the citizens of that state are free to fight for a state constitutional amendment or to move to a state where RKBA is constitutionally recognized. Unfortunately, many state supreme courts have utterly failed to uphold their own constitutions, making it not an ideal world. Still, I find the concept of SCOTUS dictating such matters to the states troubling and a further drop nearly to the bottom of the slippery slope of an imperial federal government.

    The Missouri constitution, for example, reads:
    Article I
    BILL OF RIGHTS
    Section 23

    Right to keep and bear arms--exception. Section 23. That the right of every citizen to keep and bear arms in defense of his home, person and property, or when lawfully summoned in aid of the civil power, shall not be questioned; but this shall not justify the wearing of concealed weapons.

    Ironically, while the concealed carry of weapons is fully pre-empted, open carry of firearms, ostensibly fully protected by the Missouri constitution, is not. Many local ordinances prohibit what, in a plain reading, is clearly a constitutional right in the state. I do not recall whether it is a matter of the MO supreme court saying it is not a constitutional right or a matter of them refusing to take a case on the subject, although I'm thinking it is the latter, but either way, the clear meaning, politics and public policy aside, is that open carry is constitutionally protected.

    I would much rather see SCOTUS enforcing the constitutions of the many states on these matters rather than forcing what appears to me a clearly federal restriction on any RKBA infringement in the 2A. The fact that the many states were granted statehood in part on the merit of their state constitutions, even if restricting RKBA, including those states admitted around the time of the writing and passage of the BOR, tells me that the original intent was such a federal restriction and a matter for the individual states to decide.

    The modern situation now forces me into the position of having to support the federal government, through the judiciary, of forcing matters onto the state that I think are state's perogatives.

    Bob Owens @ Bearing Arms (paraphrased): "These people aren't against violence; they're very much in favor of violence. They're against armed resistance."

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    The 1st sentence of the 14th gives citizenship to freed slaves, both in the United States and in the state where they reside. The first part of the second sentence is expanding upon the Privleges and Immunites clause in Art. 4, Section 2 of the original Constitution. Originaly citizens of one state were given the same "privleges and immunites" of another state. Since 14th gave citizenship to a new class of people, the text goes on to ensure that this new class of people has the same protections afforded to the those original citizens, by saying that a state may not abridge them. The final part of Section 1 invokes the 5th's due process clause against the States. That is the only enhancement of rights for the general polulation, excluding the freed slaves. I don't think that supports incorporation.

    However, John Bingham probably did intend the 14th to impose the protections of the BOR upon the states, but does that override the intentions of the BOR originally? Both Madision and Jefferson are quoting said that the BOR was only a restriction upon the feds and not upon the states. Today's reality is that most
    of the original BOR is enforced against the states, but that was still clearly not the intent of the anti-federalists when they drafted it.

    And even if Helleris imposed upon the states, I would still be against a federal judiciary taking power away from the states in a way that was never intended. Government closest to the people works best, and if you happen to live in a state that does not protect RKBA, like California for example, you have the freedom to try and influence the law/constitution or move to another state that more closely represents your values. As important that we all hold RBKA to be, we still shouldn't
    impose our values on others. If the People's Republic of San Francisco really want to disarm themselves, so be it.

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    The Heller decision doesn't touch on incorporation because that was not part of the case. Heller was a very narrow case on what is called "scope of inquiry". Heller only asked the Supreme Court to strike down the gun ban against an entire class of weapons (in this case handguns), strike down the required use of gun locks, and order the District to issue Heller a permit to have a handgun at home.

    Justice Scalia deliberately did not address the subjects of incorporation, permit/license issuing, concealed/open carry, etc, because they were not part of the suit. The official opinion in Heller, however, is practically a written invitation for these issues to be brought in front of the court. I foresee a large wave of litigation of various individual issues. It should be a very interesting time for the next few years.


    --RedKnightt--

    Zombie Squad has it right: "We hold fast to the belief that if you are prepared for a scenario where the walking corpses of your family and neighbors are trying to eat you alive, you will be prepared for almost anything."

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    RedKnightt wrote:
    ...
    Justice Scalia deliberately did not address the subjects of incorporation, permit/license issuing, concealed/open carry, etc, because they were not part of the suit. The official opinion in Heller, however, is practically a written invitation for these issues to be brought in front of the court. I foresee a large wave of litigation of various individual issues. It should be a very interesting time for the next few years.


    --RedKnightt--
    And the Grabbers know this, thats why Helmke wrote that response. Got'em on the run boys, lets take back our ground.

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    I simply do not understand how it cannot be incorporated since the U.S. Constitution is the supreme law of the land. All states are bound by it upon admission to the union. Furthermore,I am unaware of any state or local public official whose oath of officedoes not require allegiance to both the state AND federal constitutions- any official act, therefore, which infringes uponcitizens' rights is a violation of that oath (if not outright treason).

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    The Constitution is the supreme law of the land, but the BOR was written afterwords and was designed not to restrain the states but to restrain the feds. The preamble states:

    THE Conventions of a number of the States, having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added: And as extending the ground of public confidence in the Government, will best ensure the beneficent ends of its institution.



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    ne1 wrote:
    I simply do not understand how it cannot be incorporated since the U.S. Constitution is the supreme law of the land. All states are bound by it upon admission to the union. Furthermore,I am unaware of any state or local public official whose oath of officedoes not require allegiance to both the state AND federal constitutions- any official act, therefore, which infringes uponcitizens' rights is a violation of that oath (if not outright treason).

    Try Fenty for Treason?


    I'm in.

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    centsi wrote:
    The Constitution is the supreme law of the land, but the BOR was written afterwords and was designed not to restrain the states but to restrain the feds. The preamble states:

    THE Conventions of a number of the States, having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added: And as extending the ground of public confidence in the Government, will best ensure the beneficent ends of its institution.


    Bull's-eye! I don't want the federal government directing any more of my daily life than it already does. We've completely lost our understanding of state sovereignty. Darn that Lincoln!

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    It's because the USA is a corporation and we are slaves to it as long as we remain citizens. All CT's aside, look at it logically:

    If you own 500 acres of beautiful land completely paid off, lakes and streams full of fish, woods full of game, farm your own veggies and need absolutely NOTHING from the outside, you are still liable to pay property tax. Why and for what? You need nothing. So you must then either workoff your own land, selling the fruits of your laborsto pay the taxes, or you must indenture yourself into the emloyment of another to earn the money to pay the taxes.

    Fail to pay and ALL your property WILL be forfeit. All of it and you will be criminalized. Is that freedom? No. Is that liberty? No. Is that what we've become? Most resoundingly - Yes.

    That is where we are today folks. Paraphrasing from Ben Hur "We keep you alive to serve this ship (of state).



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    The fundamental rights guaranteed in the Bill of Rights have been selectively incorporated via the due process clause of the 14th amendment on a case by case basis. So while they were written as limitations on the federal government, the court invented a way to apply them as limitations on the states as well. The 2A has not been incorporated because the case just hasn't come up.

    The incorporation doctrine is a bad reading of the due process clause, but it is so entrenched in our jurisprudence that there is no doing away with it now. If the the rights guaranteed by the 2A meet the standards of incorporation, I'm sure they'll be applied to the states like the others.

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    BobCav wrote:
    If you own 500 acres of beautiful land completely paid off, lakes and streams full of fish, woods full of game, farm your own veggies and need absolutely NOTHING from the outside, you are still liable to pay property tax. Why and for what? You need nothing. So you must then either workoff your own land, selling the fruits of your laborsto pay the taxes, or you must indenture yourself into the emloyment of another to earn the money to pay the taxes.

    Fail to pay and ALL your property WILL be forfeit. All of it and you will be criminalized. Is that freedom? No. Is that liberty? No. Is that what we've become? Most resoundingly - Yes.

    That is where we are today folks. Paraphrasing from Ben Hur "We keep you alive to serve this ship (of state).

    While your observations are true, I'd like to point outfor the states' rights people that real estate taxes come from LOCAL laws, not the federal government. I do not know if it is true in all states but fish and game, even on private property, are generally considered public assets thus you would need a license to harvest them (again this is a state imposed requirement). AFAIK the federal government is only interested in anyincome that your property might generate. If you are not involved in any commerce and utilize the resources for only your own needs then there should be no federal issue.

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    CALIFORNIA CONSTITUTION
    ARTICLE 3 STATE OF CALIFORNIA


    SEC. 1. The State of California is an inseparable part of the United States of America, and the United States Constitution is the supreme law of the land.



    I would think that this little gem in the California Constitution would in effect make incorporation of the Second Amendment irrelevant to California, as we supposedly already recognizeit as the "supreme law of the land".

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    Seems to me that, in most instances, states are MORE restrictive than the federal government.

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    hsmith wrote:
    I really never understood why it wasn't. If the first is, and it clearly apples to individuals, why is the 2nd not when it clearly applies to individuals?
    Rights under the purported Amendment 14 are "incorporated" by the U.S. Legislator (per Civil Rights Acts) and Court Decisions. These citizens in this instant case fall under the Jurisdiction of the Federal Government and are U.S. citizens (review Illinois FOID application and find the Subject being a U.S. citizen).

    Natural Rights are held by "the original Citizens of the states" as are recognized:

    The Constitution for the United States of America
    Article. IV. - The States
    Section 2 - State citizens, Extradition

    The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.



    One "citizen" is noted in law with a small cap "citizen" the other with large cap "Citizen".

    Please make note that the "current Illinois Constitution of 1970" makes no Territorial Jurisdiction claim. Take a moment to examine past Illinois Constitutions of 1818, 1848 and 1870 Territorial Jurisdiction claims:



    Beginning at the mouth of the Wabash river, thence up the same, and with the line of Indiana, to the northwest corner of said state; thence east with the line of the same state, to the middle of Lake Michigan; thence north, along the middle of said lake, to north latitude 42° and 30'; thence west to the middle of the Mississippi river, and thence down, along the middle of that river, to its confluence with the Ohio river; and thence up the latter river, along its northwestern shore, to the beginning.

    -Illinois Constitution of 1818



    ARTICLE I.

    BOUNDARIES.

    § 1. The boundaries and jurisdiction of the state shall be as follows, to-wit: Beginning at the mouth of the "\Vabash river; thence IIp the same. and with the line of Indiana, to the northwest corner of said state; thence east, with the line of the same state, to the middle of lake Michigan; thence north along the middle of said lake, to north latitude 42° 30'; thence west to the middle of the Mississippi river, and thence down along the llliddle of that river to its confluence with the Ohio river; and thence up the latter riyer, along its northwestern shore, to the place of beginning: Provided, that this state shall exercise such jurisdiction upon the Ohio river as she is now entitled to, or such as may be agreed upon by this state and the state of Kentucky.

    -Illinois Constitution of 1848



    ARTICLE I

    BOUNDARIES.

    The boundaries and jurisdiction of the state shall be

    as follows, to-wit: Beginning at the mouth of the

    Wabash river; thence up the same, and with the line

    of Indiana, to the northwest corner of said stare; thence

    east, with the line of the same state, to the middle of

    Lake Michigan; thence north, along the middle of said

    lake, to north latitude 42° and 30'; thence west to the

    middle of the Mississippi river, und thence down along

    the middle of that river to its confluence with the Ohio

    river, and thence up the latter river, along its northwestern

    shore, to the place of beginning: Provided,

    that this state shall exercise such jurisdiction upon the

    Ohio river as she is now entitled to, or such as may

    hereafter be agreed upon by this state and the state of

    Kentucky.

    - Illinois Constitution of 1870





    Now compare and contrast to the current Illinois Constitution of 1970 (annotated for Legislators) @ http://www.ilga.gov/commission/lru/ILConstitution.pdf (This book includes the text of the 1970 Constitution as amended through the November 2004 election; commentary describing relevant court decisions, laws, and Attorney General's opinions, and a detailed index to the Constitution's text. It emphasizes the constitutional structures of state and local government; legislative powers and procedures; and limitations on statutes.) Surprise. No Territorial Jurisdictional Claim is made (nor a claim of Sovereign Immunity..) and this is very significant in law.



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