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Thread: Incorporation Continued

  1. #1
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    I'm curious as to how the 1st, 3rd, and 4th Circuits could be suited for 2nd Amendment incorporation, in light of the race to the Supremes possibly taking a long time and subject to obstacles and changes in the weather. We're on the winning streak right now so obviously what we need is more wins while the gettin's good, at very least to stack cases in the pipe for when it's go time. Or at very least I'm just thinking out loud here and this is a good group exercise.

    MD, NJ, and MA are each in different circuits, these as listed. The people I have asked say the 2nd is screwed for the moment because of Maloney, so it's either MacDonald v. Chicago (7th Circuit) getting to the SCOTUS fast or we gotta get some more stuff done elsewhere to make best uses of the momentum, and those 3 states have some issues that need to get fixed...and at very least NJ and MA aren't going to get it done by anything else but legal sledgehammering.

    So how about it? Anyone got some good info on this?

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    just a guess, but I doubt the USSC will be willing to take a case until there is a split between more than just two circuits. Remember, the USSC declined to review US v. Emerson after the 5th became the only circuit to recognize an individual right. Only until the DC circuit did the same, making two circuits split from the rest, did they accept the case.

    since at the moment we have the 9th with incorporation and the 2nd without, it will take at least two more cases to create a good split, enough for the USSC to be forced to accept a case.

    I'd recommend taking a case through the 5th at this point. I think that's the next circuit most likely to adopt incorporation. I'd even be willing to be the test case if I could get legal support.

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    A nice offer, but here's the problem with the 5th: so far as I know, there's not anything egregious enough of a deprivation of 2A rights in those states that's compelling enough of a case to get the necessary attention. DC, Chicago, and CA's urban areas are nasty enough for the courts to immediately see the picture. With issues in Texas, Mississippi, and Louisiana they'd just say that's not a big enough issue. What got the 9th incorporation was necessity created by CA's lack of a RKBA constitutional clause, which of course is why the laws are in place to begin with.

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    BillMCyrus wrote:
    A nice offer, but here's the problem with the 5th: so far as I know, there's not anything egregious enough of a deprivation of 2A rights in those states that's compelling enough of a case to get the necessary attention. DC, Chicago, and CA's urban areas are nasty enough for the courts to immediately see the picture. With issues in Texas, Mississippi, and Louisiana they'd just say that's not a big enough issue. What got the 9th incorporation was necessity created by CA's lack of a RKBA constitutional clause, which of course is why the laws are in place to begin with.
    I disagree. TX and MS have one big issue in each state that NEEDS to be dealt with in fed court.

    TX bans carry of handguns, but then provides a 'license' to conceal carry one. Last I heard, Murdock v. PA doesn't allow a state to charge a license, fee, or tax to exercise a right protected by the constitution.

    MS has that absurd 'concealed in whole or in part' statute that their state court has translated in to making a handgun carried by a shoestring around the trigger guard makes it a concealed weapon, therefore requiring a permit.

    LA needs to invalidate their grandfathered pre-emption exemptions.

    But your statement, while valid in and of itself, misses the point I tried to make. The USSC only handled Heller because two circuits finally were split. They did nothing after Emerson. In order to incorporate, you're going to need two circuits to be incorporated to show the split and I just don't see the 7th doing that and I don't think the DC circuit can.

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    Again, you and I think so, but a judge would say "But you can get a license pretty easily so you're not being obstructed enough. There isn't significant enough injury." If they were May Issue rather than Shall Issue you'd have a case. It's gotta be iron clad they're 100% wrong AND it causes significant enough injury to the right. In the cases of CA and Chicago, it's pretty egregious--you can't OC and you can't CCW without a license AND you can't get that license.

    Directly per Alan Gura himself, heard it in person myself 36 days ago when he was here in town: states must choose at least one between Shall Issue and unlicensed open carry. If they do Vermont carry that's great, but so long as they have one they're off the hook from being required to have the other.

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