Countdown to McDonald

eye95 said:

I don't know why no one ever argues this in court, but the following disables the 10th Amendment when it comes to the 2nd Amendment, but not when it comes to the 1st Amendment: The 1st says "Congress shall make no law..." The 2nd says "...shall not be infringed." The wording of the 2nd does not say who is restricted from infringing. The implication, since the Framers specified who in the 1st, yet chose not to do so in the 2nd, is clear: Every level of government shall not infringe on the RKBA, not just Congress, not just the feds.

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jaiotu said:

Unfortunately, it's quite possible that there might be a conservative angle toward defeating McDonald: The 10th Amendment. SCOTUS could rule in favor of States Rights, which is another Conservative value right up there with the 2nd Amendment. Keep your fingers crossed.

eye95 said:

I don't know why no one ever argues this in court, but the following disables the 10th Amendment when it comes to the 2nd Amendment, but not when it comes to the 1st Amendment: The 1st says "Congress shall make no law..." The 2nd says "...shall not be infringed." The wording of the 2nd does not say who is restricted from infringing. The implication, since the Framers specified who in the 1st, yet chose not to do so in the 2nd, is clear: Every level of government shall not infringe on the RKBA, not just Congress, not just the feds.

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eye95 said:

I don't know why no one ever argues this in court, but the following disables the 10th Amendment when it comes to the 2nd Amendment, but not when it comes to the 1st Amendment: The 1st says "Congress shall make no law..." The 2nd says "...shall not be infringed." The wording of the 2nd does not say who is restricted from infringing. The implication, since the Framers specified who in the 1st, yet chose not to do so in the 2nd, is clear: Every level of government shall not infringe on the RKBA, not just Congress, not just the feds.

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Wiley said:

The question the Court accpeted was HOW the 2nd will be incoporated against the States NOT if it will be.

And there is a very good posiblity that it will be incorporated via the PorI clause (see http://www.calguns.net/calgunforum/showthread.php?t=315322 ). Jim March gives a very good explanation of why many on the Court , conservitive and liberal, will want to correct SlaughterHouse, Cruickshank and Plessy.

The Court has had the opportunity to incorporate via the DP clause and didn't take it.

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Phoenixphire said:

Actually, you are incorrect, in the context of the original intent of the Framers. The U.S. Constitution was never meant to be applied against the states, in the orginial intent. It was a granting of and a limit on the powers of the Federal Government only.

Not until the 14th Amendment did the U.S. Constitution have any limits against the power of the state, except that states had to defer to the Federal Government on matters of Interstate Commerce, the manufactoring of Currency, etc. (Powers given specifically to the Federal Government.)

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The powers not delegated to the United States by the Constitution, nor prohibited by it [The Constitution] to the States, are reserved to the States respectively, or to the people.

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Brass Magnet said:

Did you read the orals? It seems that that idea went over like a fart in church. I think incorporation through PorI would be good but I don't think it has much of a chance.

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The 1833 ruling in Barron v. Baltimore, which is still controlling, foreclosed consideration of direct applicability of the Bill of Rights against the states by ruling that the protections embodied in the Bill of Rights were limitation to federal power only and did not limit state action.

This ruling coincides with the understanding of Bill of Rights author James Madison who attempted to specifically incorporate certain protections against the states during the drafting of the Bill of Rights by including an article which stated “No state shall infringe the equal rights of conscience, nor the freedom of speech or of the press, nor of the right of trial by jury in criminal cases.” This article passed the House of Representatives but failed in the Senate, leaving fundamental liberties completely to the protection and mercy of the states for the next 79 years.

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eye95 said:

So, the question is, did the Framers write anything that specifically says that they intended the Second Amendment to restrict only the feds? I am not aware of anything. Of course, that does not mean it doesn't exist.

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Brass Magnet said:

Did you read the orals? It seems that that idea went over like a fart in church. I think incorporation through PorI would be good but I don't think it has much of a chance.

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Wiley said:

Yes I did. But 20 min of oral is not much time. And, even Clements soft-pedaled DP during his 10 min carve-out.

However, had the Court wanted to limit to only DP they could have and didn't. Remember the Court specified the question when they granted cert (after looking at the petition for some weeks/months). Just the fact that they opened the door to dumping SlaugherHouse and Cruickshank and Plessy, gives me hope for PorI.

We'll see.

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Brass Magnet said:

Live blog going on now:

http://www.scotusblog.com/

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administrator said:

Yes. The states were seen as the ultimate protectors of liberty (which changed after the Civil War giving rise to the need for the 14th Amendment). See my article "Incorporation 101: The Second Amendment is no good here"

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TFred said:

From the SCOTUSblog Live Blog:

10:10
Erin: It should be noted that, in the guns case, the Court says explicitly in Alito's opinion that it would not reconsider the Slaughterhouse cases, which almost completely deprive the Privileges or Immunities Clause of any constitutional meaning.

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JUSTICE THOMAS agreed that the Fourteenth Amendment makes the Second Amendment right to keep and bear arms that was recognized in District of Columbia v. Heller, 554 U. S. ___, fully applicable to the States. However, he asserted, there is a path to this conclusion that is more straightforward and more faithful to the Second Amendment’s text and history. The Court is correct in describing the Second Amendment right as “fundamental” to the American scheme of ordered liberty, Duncan v. Louisiana, 391 U. S. 145, 149, and “deeply rooted in this Nation’s history and traditions,” Washington v. Glucksberg, 521 U. S. 702, 721. But the Fourteenth Amendment’s Due Process Clause, which speaks only to “process,” cannot impose the type of substantive restraint on state legislation that the Court asserts. Rather, the right to keep and bear arms is enforceable against the States because it is a privilege of American citizenship recognized by §1 of the Fourteenth Amendment, which provides, inter alia: “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.” In inter-preting this language, it is important to recall that constitutional provisions are “ ‘written to be understood by the voters.’ ” Heller, 554 U. S., at ___. The objective of this inquiry is to discern what “ordinary citizens” at the time of the Fourteenth Amendment’s ratification would have understood that Amendment's Privileges or Immunities Clause to mean. Ibid. A survey of contemporary legal authorities plainly shows that, at that time, the ratifying public understood the Clause to protect constitutionally enumerated rights, including the right to keep and bear arms. Pp. 1–34.

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