"2d Amend. does not apply to states" -Morgan, J.; but police demand for SSN is unlawful

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http://hamptonroads.com/2008/09/judge-norfolk-gun-law-ok-not-request-private-info

Judge: Norfolk gun law OK, but not request for private info

NORFOLK

The arrest of a man for openly carrying a gun at a Norfolk festival did not violate the U.S. Constitution but the police officer who asked for the man's Social Security number might have violated his civil rights, a federal judge ruled this week.

Chester "Chet" Szymecki Jr. of Yorktown sued the city after his arrest in June 2007 on a charge of violating a city ordinance prohibiting firearms at Harborfest, held annually at Town Point Park.

Szymecki, a gun rights advocate, has challenged handgun bans in the past. During his arrest, Szymecki claims police pushed him and that when he complained that the handcuffs were on too tight, an officer made them tighter.

During his arrest and later, when he was released from custody, police asked him for his Social Security number. He initially balked, but gave it to the officers to avoid being detained longer, he says in his suit.

The charge was later thrown out after city officials learned that it violated a state law that prohibits localities from regulating firearms.

Szymecki sued in federal court claiming multiple constitutional violations, including the Second Amendment's right to keep and bear arms and the Fourth Amendment prohibition against unlawful searches and seizures.

U.S. District Judge Henry Coke Morgan Jr. ruled Thursday that Szymecki cannot sue claiming constitutional violations under state or local law. Morgan ruled earlier this year that the city did not violate the Second Amendment for the same reason.

"It is well settled law in this circuit that the Second Amendment does not apply to the states," Morgan wrote in dismissing Szymecki's constitutional claims. "Because the Second Amendment does not apply to the states, neither a state law nor a local ordinance can run afoul of any right guaranteed by the Second Amendment."

However, Morgan ruled that the police demand for Szymecki's Social Security number - if the allegation is true - would have violated the federal Privacy Act.

Morgan will allow the case to go to trial on that issue alone. The trial has been set for Dec. 16.

Tim McGlone, (757) 446-2343, tim.mcglone@pilotonline.com

Source URL (retrieved on 09/13/2008 - 11:53): http://hamptonroads.com/2008/09/judge-norfolk-gun-law-ok-not-request-private-info

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"It is well settled law in this circuit that the Second Amendment does not apply to the states," Morgan wrote in dismissing Szymecki's constitutional claims. "Because the Second Amendment does not apply to the states, neither a state law nor a local ordinance can run afoul of any right guaranteed by the Second Amendment."


"Well settled" where? How can only one part of the COTUS not apply to the states but all the rest do? FYI Mr. Morgan,(he dos'nt deserve to be addressed as "judge")you dont select what parts of the Constitution apply to the states/people, they all apply! Equally! Even those that you personally dont like.

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I believe this is the same case that was mentioned on here before. The judge basically said that the second amendment has not been incorporated yet unlike some of the other amendments. Thus, Chet needs to sue the police at the state level for violation of the state constitution to guarantee a win.

Basically, the judge told him how to properly go about suing the police in this case.

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If the 2A doesn't apply to the states, then who the :cuss: DOES it apply to? This so-called judge needs to be checked for Alzheimer's

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I think the article's conclusion that the case is ONLY proceeding on the Section 7 Privacy Act claim is not correct - Chet?

What is the procedural status of your case - that is, what claims are left in your suit?

I would presume the 4th amendment claims are still pending because the arrest was in clear violation of the preemption statute.

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Are your additional nerve damage injuries inflicted by the police part of this law suit or will they have to be in a seperate lawsuit?

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Renegade wrote:

"It is well settled law in this circuit that the Second Amendment does not apply to the states," Morgan wrote in dismissing Szymecki's constitutional claims. "Because the Second Amendment does not apply to the states, neither a state law nor a local ordinance can run afoul of any right guaranteed by the Second Amendment."

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What a load of crap!! :cuss::cuss::cuss:

How many years of brainwashing from aninstitution of higher stupidity does it take to become this feeble minded?!

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SmallWhiteBox wrote:

I believe this is the same case that was mentioned on here before. The judge basically said that the second amendment has not been incorporated yet unlike some of the other amendments. Thus, Chet needs to sue the police at the state level for violation of the state constitution to guarantee a win.

Basically, the judge told him how to properly go about suing the police in this case.

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That is correct.

Also, the Second Amendment is not the only part of the Bill of Rights the Supreme Court has declined to apply to the states via the 14th Amendment. The U.S. Constitution does not guarantee you a right to a jury trial in civil cases, to grand jury proceedings in felony cases, or to a jury trial in misdemeanor cases unless jail time of more than 6 months is possible; however, analogous guarantees exist in the state constitutions of most states (with the exception of grand juries in criminal cases, which are most common in eastern states but relatively uncommon in western states).

I am not a fan of the incorporation doctrine in general. Incorporation is based on the premise that "due process of law" necessarily implies a basket of many (but not all) of the provisions of the Bill of Rights as they apply to the federal government. However, if this was so, why wouldn't the Due Process Clause of the Fifth Amendment cover many of the rights recognized & protected elsewhere in the Bill of Rights? I believe the Founding Fathers intended the Bill of Rights to be applied in a literal, absolutist sense whereas most states' constitutions recognized many of the same rights, but in less absolute terms so as not to alter the common law of defamation (equal rights for not only private citizens but public figures without distinction) nor prevent public morals legislation of the type the Founders clearly intended to deny to the federal government under both the Bill of Rights and Article I, Section 8 of the Constitution.

Rather than see this thread veer wildly off-topic as several others have done recently, I offer the above only to illuminate the complexity--right or wrong--of constitutional law.

Good luck Chet!

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WVCDL wrote:

the Second Amendment is not the only part of the Bill of Rights the Supreme Court has declined to apply to the states via the 14th Amendment.

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OK, OK, but that was long ago and frankly, those cases declining to apply the 2A against state power were prior to the whole incorporation doctrine started anyway with Gitlow.

Footnote 23 in Heller clearly invites incorporation, and we are likley to see a state or federal court or tow incorporate the Second Amendment in the coming months

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Isn't that the reason the other lawsuits were immediately filed in Chicago and San Francisco after the Heller decision, to start theprocess to hopefully get the 2nd Amendment incorporated?

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Notso wrote:

Isn't that the reason the other lawsuits were immediately filed in Chicago and San Francisco after the Heller decision, to start theprocess to hopefully get the 2nd Amendment incorporated?

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Precisely. Many of the targeted localities (e.g., Morton Grove) have already rescinded the targeted ordinances. However, someone, somewhere is going to force the issue to its ultimate judicial conclusion.

I think we long ago progressed too far along the road of incorporation to not revisit the individual's right to keep and bear arms vis-a-vis the states. I may not agree with the concept and where we have gone with it, but the right to keep and bear arms is essential to the preservation of both our individual lives and our republican form of government.

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Is incorporation only necessary for those few states that don't have same or similar verbage in their states constitution? I also wonder if itwould have an affect on states that do not allow OC.

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Bookman wrote:

If the 2A doesn't apply to the states, then who the :cuss: DOES it apply to? This so-called judge needs to be checked for Alzheimer's

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until the federal appeals court in this judges circuit (or the SC)rules it is, the 2A is not incorporated. it will be soon, but its not at this exact second. thats just the way the legal system works. the judge ruled correctly.

as I see it, the proper venue for this kind of thing is probably state court anyway. presumably there is some means of suing police for false arrest in VA.

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ilbob wrote:

...the 2A is not incorporated. it will be soon, but its not at this exact second...

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California andthe 9th Circuit Court district will most likely have the 2nd A. incorporated by March of next year!!!

See Nordyke v King

:celebrate:celebrate:celebrate:celebrate:celebrate

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Bookman wrote:

If the 2A doesn't apply to the states, then who the :cuss: DOES it apply to? This so-called judge needs to be checked for Alzheimer's

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As written, the 2A, and the entire Bill of Rights, for that matter, apply to the federal government. But then the Supreme Court, bored and power-hungry, invented a legal doctrine called "selective incorporation," which says essentially that when they feel like it, they'll take restrictions intended for the federal government and restrict the state governments too.

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ilbob wrote:

Bookman wrote:

If the 2A doesn't apply to the states, then who the :cuss: DOES it apply to? This so-called judge needs to be checked for Alzheimer's

Click to expand...

until the federal appeals court in this judges circuit (or the SC)rules it is, the 2A is not incorporated. it will be soon, but its not at this exact second. thats just the way the legal system works. the judge ruled correctly.

as I see it, the proper venue for this kind of thing is probably state court anyway. presumably there is some means of suing police for false arrest in VA.

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But remember - the only federal court that binds a state court on a federal question is the Supreme Court. So should say the 9th Circuit hold that the 2A is incoroporated, the state courts of California are free to disregared that holding.

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Chet,

Would it be possible for you to do an interlocutory appeal to the 4th Circuit Court of Appeals on the determination that the Second Amendment doesn't apply to the states? By the time the 4th Circuit Court of Appeals gets the case, and does hearing, the Nordyke panel in the 9th Circuit will likely rule the 2nd to be an incorporated right. Though certainly not binding on the 4th Circuit, a sister circuit, especially the NINTH circuit on the issue of the Second Amendment, would carry a tremendous amount of weight, and you'll get to help your brothers (brothers as in brothers-in-arms) in Maryland too by a ruling of the 2nd applying to the states by the 4th Circuit.

-Lonnie

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When we look at a case like Heller, we tend to believe that incorporation is a winning proposition for us, especially since we have been raised to believe that the Bill of Rights protects us from all levels of government, when in fact it was intended only to protect us from federal laws.

After doing a little reading, though, I've been thinking about the 14th and its potential dangers. Basically, it's a violation of federalism, and it places lots of power over the states in the hands of federal judges, particularly SCOTUS. So 9 people get to pick what rights you have and what ones you don't. Is that really the way you think it's best to protect your rights?

Federalism means divided powers, so that power is spread over a greater number of people. This leads to a patchwork of laws, of course, which is the downside. But concentration of power means that all it takes is a small handful of wrongheads to get control and we all lose (like we did when FDR stacked the court).

The idea that you can protect liberty by giving all the power to one or a few "shining knights"* and then hope they don't turn on you or get sacked in the next election does not sound like a very stable system for protecting our rights to me.

*This is the thinking behnd those who continually berate us to be afraid of what Obama might do and why we have to panic if he wins.

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Mike wrote:

ilbob wrote:

Bookman wrote:

If the 2A doesn't apply to the states, then who the :cuss: DOES it apply to? This so-called judge needs to be checked for Alzheimer's

Click to expand...

until the federal appeals court in this judges circuit (or the SC)rules it is, the 2A is not incorporated. it will be soon, but its not at this exact second. thats just the way the legal system works. the judge ruled correctly.

as I see it, the proper venue for this kind of thing is probably state court anyway. presumably there is some means of suing police for false arrest in VA.

Click to expand...

But remember - the only federal court that binds a state court on a federal question is the Supreme Court. So should say the 9th Circuit hold that the 2A is incoroporated, the state courts of California are free to disregared that holding.

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In matters of federal constitutional law, all states within a circuit are bound by the rulings of that circuit's federal appellate court unless reversed (in that same case) or overruled (in a later case) by the supreme court. So if the 9th Circuit holds that the 2A is binding on the states, all states in the 9th circuit are bound by that ruling.

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Tomahawk wrote:

When we look at a case like Heller, we tend to believe that incorporation is a winning proposition for us, especially since we have been raised to believe that the Bill of Rights protects us from all levels of government, when in fact it was intended only to protect us from federal laws.

After doing a little reading, though, I've been thinking about the 14th and its potential dangers. Basically, it's a violation of federalism, and it places lots of power over the states in the hands of federal judges, particularly SCOTUS. So 9 people get to pick what rights you have and what ones you don't. Is that really the way you think it's best to protect your rights?

Federalism means divided powers, so that power is spread over a greater number of people. This leads to a patchwork of laws, of course, which is the downside. But concentration of power means that all it takes is a small handful of wrongheads to get control and we all lose (like we did when FDR stacked the court).

The idea that you can protect liberty by giving all the power to one or a few "shining knights"* and then hope they don't turn on you or get sacked in the next election does not sound like a very stable system for protecting our rights to me.

*This is the thinking behnd those who continually berate us to be afraid of what Obama might do and why we have to panic if he wins.

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You make a good case, and I've been considering for a while whether incorporation is a good or bad thing. I'm starting to lean toward the latter...