2nd Amendment and the Incorporation Doctrine

[Steerpike]

The District of Columbia isn't a State - it falls under federal jurisdiction, even though the city now has its own government etc.

The 2nd Amendment has never been incorporated into the 14th Amendment and applied to the States. I'm assuming the Court did not do that yesterday, as that issue wasn't before them.

So I predict a loophole that people will try to argue with respect to State and local gun legislation - that the 2nd Amendment hasn't been held to apply to the States.

Thoughts?

 

[RetiredGySgt]

Then it will go back to the Court and this Court will make it clear it applies.

 

[Steerpike]

Probably, but it would be unfortunate to have to see the whole thing crawl back up to the Supreme Court on that issue.

 

[jillian]

Probably, but it would be unfortunate to have to see the whole thing crawl back up to the Supreme Court on that issue.

I think any lawyer who tries to hang his hat on the incorporation issue would be shooting blanks. pardon the pun!

 

[Steerpike]

I think any lawyer who tries to hang his hat on the incorporation issue would be shooting blanks. pardon the pun!

I think so too...at the end of the day. But it seems like it provides a ground for appealing a decision back up to the Court.

 

[jillian]

But if it's the same Court, it would be pointless. Scalia didn't address the militia issue, which I'd think would have been far more relevant. I suspect he'd slap down anyone who raised the incorporation argument.

Now, if the court changes, I don't know that the result would even change that much, but the rationale might make more sense.

Although it really was a brilliant dissent. ;o)

 

[Steerpike]

But if it's the same Court, it would be pointless. Scalia didn't address the militia issue, which I'd think would have been far more relevant. I suspect he'd slap down anyone who raised the incorporation argument.

Now, if the court changes, I don't know that the result would even change that much, but the rationale might make more sense.

Although it really was a brilliant dissent. ;o)

I think the majority got it right, so even if the Court changes hopefully the idea of stare decisis hasn't disappeared entirely.

Will be interesting to see what cases come up from here on out.

 

[jillian]

I think the majority got it right, so even if the Court changes hopefully the idea of stare decisis hasn't disappeared entirely.

Will be interesting to see what cases come up from here on out.

I don't know, Scalia eviscerated a bunch of Sandra Day O'Connor's opinions immediately after her departure. And Thomas, at least, doesn't believe in Stare Decisis at all.

My opinion on the decision...the Constitution would prohibit a total ban since guns are the only property specifically set forth as being constitutionally protected (other than in a general "property" sense), so clearly there was some intent to make sure they weren't touched. do I think it's a private right of self-defense? No... for the reasons set forth in the defense. Is there a position somewhere in there that protects guns? Yes. And any other supreme court make-up would have sussed it out, accepted the fact that they were ruling on something that courts have avoided ruling on for hundreds of years and conferenced the issues until they had an opinion that wouldn't change as soon as the court changes composition.

Do I think the reasons for the Amendment still exist? Probably not. But no one's seen fit to change it and it is what it is.

 

[Procrustes Stretched]

The District of Columbia isn't a State - it falls under federal jurisdiction, even though the city now has its own government etc.

The 2nd Amendment has never been incorporated into the 14th Amendment and applied to the States. I'm assuming the Court did not do that yesterday, as that issue wasn't before them.

So I predict a loophole that people will try to argue with respect to State and local gun legislation - that the 2nd Amendment hasn't been held to apply to the States.

Thoughts?

*ding

 

[Procrustes Stretched]

I don't know, Scalia eviscerated a bunch of Sandra Day O'Connor's opinions immediately after her departure. And Thomas, at least, doesn't believe in Stare Decisis at all.

My opinion on the decision...the Constitution would prohibit a total ban since guns are the only property specifically set forth as being constitutionally protected (other than in a general "property" sense), so clearly there was some intent to make sure they weren't touched. do I think it's a private right of self-defense? No... for the reasons set forth in the defense. Is there a position somewhere in there that protects guns? Yes. And any other supreme court make-up would have sussed it out, accepted the fact that they were ruling on something that courts have avoided ruling on for hundreds of years and conferenced the issues until they had an opinion that wouldn't change as soon as the court changes composition.

Do I think the reasons for the Amendment still exist? Probably not. But no one's seen fit to change it and it is what it is.

*ding

uhm...err...ah....