Constitution doesn't apply to States, according to Sotomayor

[Citizen]

I beg to differ, because the Constitution was written to be understod by the average citizen, and is much easier to read than 99% of the legal doccuments written today.

Just in case you missed it, the constitution includes the very mechanism for chamge, and it is not through interpertation, but through the Amendment process, which is clearly spelled out in Article 5, so anytime it needs to be changed, it can be amendmended, as it has 27 times.

By the way, the Constitution is a written legal doccument, so what it ment when written, it means now, just as any other legal doccument can not change without be amendmend.

But amendments to the Constitution are nothing more than interpretation of the original and reclarification thereof. Since the country has bypassed the amendment process for lo these many years in favor of making law which may, or may not, be Constitutionally challenged, maybe the ONE amendment that is absolutely necessary is the one making it more simple to amend the Constitution. Today, it can take an entire morning just to dedicate a new postage stamp. To amend the Constitution again would take years.

The Amendment process was made difficult on purpose so that the Constitution would not be amendmented every time a new fad sprang up.

Sorry, but I forgot to mention that an Amendment is not, in any way, an interpertation of the Constitution, but an actual change in the written document itself.

 

[DamnYankee]

Forgive me for inappropriate wording in my haste.

But the panel on which Sotomayor served said in the case of Maloney v. Cuomo that it was clear from the Supreme Court precedent that the Second Amendment could be applied only to the federal government, or in a federal enclave such as Washington. It said the Supreme Court has "the prerogative of overruling its own decisions."

A primer on the Supreme Court cases on which the precedent cited above is based: Miller v Texas.

Miller v Texas is over 100 years old, and Presser v Illinios and United States v. Cruikshank, are older still...all predating the Supreme Court's modern incorporation criteria.


The drawback of Heller is Washington D.C. is not a state and therefore has no bearing on incorporation against the states of the Second Amendment. (Look here for more info on incorporation of amendments against the states: Of Arms and the Law: Thoughts on the 14th Amendment cases)


Watch for NRA v. Chicago (formerly McDonald v. Chicago) NRA v. Chicago - Wikipedia, the free encyclopedia to rectify this shortcoming, with or without Sotomayor.

All of this is very interesting background, and I'm sure could be used in future arguments. Still, there's been very little attention paid to the question in the OP.

If the 2nd can be said to not apply to the states and local governments, then why should the other rights spelled out in the Bill of Rights apply?

Despite the arguments you've given for the weakness of precedent, the fact remains, "Sotomayor has decided that the Bill of Rights does not apply to the states", for all intents and purposes at this point, and that has appalling ramifications.

 

[Missourian]

All of this is very interesting background, and I'm sure could be used in future arguments. Still, there's been very little attention paid to the question in the OP.

If the 2nd can be said to not apply to the states and local governments, then why should the other rights spelled out in the Bill of Rights apply?

Despite the arguments you've given for the weakness of precedent, the fact remains, "Sotomayor has decided that the Bill of Rights does not apply to the states", for all intents and purposes at this point, and that has appalling ramifications.

I've explained it as best I know how. It brings me no joy to defend Sotomayor, but the decision in Maloney v. Cuomo was correct based on current caselaw and precedent.

Why should the other rights spelled out in the Bill of Rights apply but not the 2nd?

All the Amendment of the Bill of Rights do not apply to the states. Caselaw and precedent have incorporated some but not all against the states and the 2nd amendment is one that doesn't apply...yet.

If NRA v Chicago is heard by the USSC, I fully expect the 2nd Amendment to join the other 3 Amendments incorporated against the states and the 2 that have been partially incorporated.

http://armsandthelaw.com/archives/2009/02/thoughts_on_the_5.php

 

[DamnYankee]

All of this is very interesting background, and I'm sure could be used in future arguments. Still, there's been very little attention paid to the question in the OP.

If the 2nd can be said to not apply to the states and local governments, then why should the other rights spelled out in the Bill of Rights apply?

Despite the arguments you've given for the weakness of precedent, the fact remains, "Sotomayor has decided that the Bill of Rights does not apply to the states", for all intents and purposes at this point, and that has appalling ramifications.

I've explained it as best I know how. I brings me no joy to defend Sotomayor, but the decision in Maloney v. Cuomo was correct based on current caselaw and precedent.

Why should the other rights spelled out in the Bill of Rights apply but not the 2nd?

Because caselaw and precedent have incorporated the against the states while the 2nd has not been...yet. If NRA v Chicago is heard by the USSC, I fully expect the 2nd Amendment to join the other 3 Amendments incorporated against the states and the 2 that have been partially incorporated.

I'm not bashing or defending. Now I have YOUR opinion on current case law and precedent. Dayum.... If only it were that simple, there would be no need for SC Justices and THEIR opinions, which, of course, may set new precedents, dependent on their interpretations. Little wonder we spend so much time litigating and so little time acting.

 

[Missourian]

I'm not bashing or defending. Now I have YOUR opinion on current case law and precedent. Dayum.... If only it were that simple, there would be no need for SC Justices and THEIR opinions, which, of course, may set new precedents, dependent on their interpretations. Little wonder we spend so much time litigating and so little time acting.

Not my opinion, the facts of current incorporation of the Amendments that make up the Bill of Rights against the states.

Incorporation (Bill of Rights) - Wikipedia, the free encyclopedia
​

 

[DamnYankee]

I'm not bashing or defending. Now I have YOUR opinion on current case law and precedent. Dayum.... If only it were that simple, there would be no need for SC Justices and THEIR opinions, which, of course, may set new precedents, dependent on their interpretations. Little wonder we spend so much time litigating and so little time acting.

Not my opinion, the facts of current incorporation of the Amendments that make up the Bill of Rights against the states.

Incorporation (Bill of Rights) - Wikipedia, the free encyclopedia
​

And? We're right back where we started, more or less.

Regarding the Second Amendment and the incorporation doctrine, the Supreme Court in District of Columbia v. Heller said (in a footnote):

With respect to Cruikshank's continuing validity on incorporation, a question not presented by this case, we note that Cruikshank also said that the first amendment did not apply against the states and did not engage in the sort of Fourteenth Amendment inquiry required by our later cases. Our later decisions in Presser v. Illinois, 116 U.S. 252, 265 (1886) and Miller v. Texas, 153 U.S. 535, 538 (1894), reaffirmed that the Second Amendment applies only to the Federal Government.[23]

Which is exactly what was said in the OP.

 

[Missourian]

I'm not bashing or defending. Now I have YOUR opinion on current case law and precedent. Dayum.... If only it were that simple, there would be no need for SC Justices and THEIR opinions, which, of course, may set new precedents, dependent on their interpretations. Little wonder we spend so much time litigating and so little time acting.

Not my opinion, the facts of current incorporation of the Amendments that make up the Bill of Rights against the states.

Incorporation (Bill of Rights) - Wikipedia, the free encyclopedia
​

And? We're right back where we started, more or less.

Regarding the Second Amendment and the incorporation doctrine, the Supreme Court in District of Columbia v. Heller said (in a footnote):

With respect to Cruikshank's continuing validity on incorporation, a question not presented by this case, we note that Cruikshank also said that the first amendment did not apply against the states and did not engage in the sort of Fourteenth Amendment inquiry required by our later cases. Our later decisions in Presser v. Illinois, 116 U.S. 252, 265 (1886) and Miller v. Texas, 153 U.S. 535, 538 (1894), reaffirmed that the Second Amendment applies only to the Federal Government.[23]

Which is exactly what was said in the OP.

Not exactly.

We have answered the OP question of why some rights apply to the states and others do not.

We also confirmed that the panel on which Sotomayor served in the case of Maloney v. Cuomo came to a correct verdict based on caselaw and precedent.

And we know the mechanism by which the Supreme Court can find "the prerogative of overruling its own decisions"...NRA v Chicago.

There is presently such a petition for Certiorary to the Supreme Court pending in NRA v. Chicago - the case in with the Seventh Circuit ruled against incorporation[18].

Since the modern Fourteenth Amendment analysis for incorporation was adopted, the U.S. Supreme Court has never heard a case for incorporation of this provision against the states.

Second Amendment to the United States Constitution - Wikipedia, the free encyclopedia
​

Now we wait and see if the USSC will hear NRA v Chicago.

 

[DamnYankee]

Not my opinion, the facts of current incorporation of the Amendments that make up the Bill of Rights against the states.

Incorporation (Bill of Rights) - Wikipedia, the free encyclopedia
​

And? We're right back where we started, more or less.

Regarding the Second Amendment and the incorporation doctrine, the Supreme Court in District of Columbia v. Heller said (in a footnote):

With respect to Cruikshank's continuing validity on incorporation, a question not presented by this case, we note that Cruikshank also said that the first amendment did not apply against the states and did not engage in the sort of Fourteenth Amendment inquiry required by our later cases. Our later decisions in Presser v. Illinois, 116 U.S. 252, 265 (1886) and Miller v. Texas, 153 U.S. 535, 538 (1894), reaffirmed that the Second Amendment applies only to the Federal Government.[23]

Which is exactly what was said in the OP.

Not exactly.

We have answered the OP question of why some rights apply to the states and others do not.

We also confirmed that the panel on which Sotomayor served in the case of Maloney v. Cuomo came to a correct verdict based on caselaw and precedent.

And we know the mechanism by which the Supreme Court can find "the prerogative of overruling its own decisions"...NRA v Chicago.

There is presently such a petition for Certiorary to the Supreme Court pending in NRA v. Chicago - the case in with the Seventh Circuit ruled against incorporation[18].

Since the modern Fourteenth Amendment analysis for incorporation was adopted, the U.S. Supreme Court has never heard a case for incorporation of this provision against the states.

Second Amendment to the United States Constitution - Wikipedia, the free encyclopedia
​

Now we wait and see if the USSC will hear NRA v Chicago.

We've been over all this, so there isn't any point in continuing. It was something I said about Justices and differences of opinion setting new precedents. Remember? Except I've seen / heard nothing that convinces me that current law can't be overturned, despite what you've presented. Happens all the time, obviously. In fact, I hear that Executive Orders have that effect.

 

[Nik]

Great man, Thomas Jefferson, but to be fair, he was a politician of his day and his words really have no precendential value in terms of the constitution as it's construed. For that, you would have to look at caselaw since we're a common law system and everything is based on stare decisis.

For well over 200 years, the meaning of the 2nd Amendment was not in question....

Since the very beginning of the Country, citizens of the US have owned firearms for their personal use......its never been questioned that we did not have the right...
that is, until the libs came along to re-write/re-interpreted what was not questioned in earlier times....finding rights that didn't exist and abolishing rights that did.....

Actually in the 1800's the USSC ruled that the 2nd amendment didn't apply to states.

Whoops!

 

[Nik]

For that, you would have to look at caselaw since we're a common law system and everything is based on stare decisis.

Caselaw in this instance equals bad law.

The USSC decision in Miller v Texas stated

"The Miller Court then addressed the question of whether the Second or Fourth Amendments were even applicable to Texas law: "[A]nd even if he were [denied the benefit of the Second and Fourth Amendments], 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." [FN154]

(For those unfamiliar with the U.S. Bill of Rights, the Fourth Amendment protects the people against unreasonable searches and seizures.)

Quote from here: Miller v Texas.
​

But later in Wolf v Colorado (1949)and finally Mapp v Ohio (1961), the Court overturned that "well settled" decision incorporating the Fourth Amendment against the states.

Where the Fourth Amendment leads the Second will soon follow.

Perhaps you think its bad law because you disagree with its conclusions, but it is still the law and is precedent until overturned.

 

[del]

For that, you would have to look at caselaw since we're a common law system and everything is based on stare decisis.

Caselaw in this instance equals bad law.

The USSC decision in Miller v Texas stated

"The Miller Court then addressed the question of whether the Second or Fourth Amendments were even applicable to Texas law: "[A]nd even if he were [denied the benefit of the Second and Fourth Amendments], 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." [FN154]

(For those unfamiliar with the U.S. Bill of Rights, the Fourth Amendment protects the people against unreasonable searches and seizures.)

Quote from here: Miller v Texas.
​

But later in Wolf v Colorado (1949)and finally Mapp v Ohio (1961), the Court overturned that "well settled" decision incorporating the Fourth Amendment against the states.

Where the Fourth Amendment leads the Second will soon follow.

Perhaps you think its bad law because you disagree with its conclusions, but it is still the law and is precedent until overturned.

thanks, cap'n obvious, what would we ever do without you?

 

[Nik]

Forgive me for inappropriate wording in my haste.

A primer on the Supreme Court cases on which the precedent cited above is based: Miller v Texas.

Miller v Texas is over 100 years old, and Presser v Illinios and United States v. Cruikshank, are older still...all predating the Supreme Court's modern incorporation criteria.


The drawback of Heller is Washington D.C. is not a state and therefore has no bearing on incorporation against the states of the Second Amendment. (Look here for more info on incorporation of amendments against the states: Of Arms and the Law: Thoughts on the 14th Amendment cases)


Watch for NRA v. Chicago (formerly McDonald v. Chicago) NRA v. Chicago - Wikipedia, the free encyclopedia to rectify this shortcoming, with or without Sotomayor.

All of this is very interesting background, and I'm sure could be used in future arguments. Still, there's been very little attention paid to the question in the OP.

If the 2nd can be said to not apply to the states and local governments, then why should the other rights spelled out in the Bill of Rights apply?

Despite the arguments you've given for the weakness of precedent, the fact remains, "Sotomayor has decided that the Bill of Rights does not apply to the states", for all intents and purposes at this point, and that has appalling ramifications.

No, it does not have appalling ramifications. The status quo is that an amendment does NOT apply to the states until a court decides it does. That Sotomayor decides that an amendment does not apply to the states does NOT change what the other amendments do or whether they apply to the states or not. Sotomayors ruling was on the 2nd amendment, and the 2nd amendment alone.

 

[Nik]

How can each state, constitutionally limit the types of guns their citizens can own without infringing on the 2nd amendment?

Technically, the Supreme Court has not extended the 2nd amendment to cover the states, so as idiotic and counter intuitive as it may sound, Sotomayor was correct in her ruling.

But no one doubts that as this case, or a case with a similar lower court ruling reaches the Supreme Court, the 2nd amendment will be construed by the court to apply to the states.

As Example, you can not own a bunch of missals or nukes or automatic machine guns etc?

So, is the 2nd amendment being "bent" already by limiting different types of arms?

Well, yes...and no.

The private ownership of missiles and nukes, or grenades, mortars, tanks, artillery pieces, warplanes and the like are not protected by the Second Amendment. The 2nd Amendment, as it has been historically interpreted, only protects the private ownership of personal (one man) firearms and lesser weapons.

A successful argument could be mounted claiming that the denial of unimpeded ownership fully automatic weapons is unconstitutional, but a challenge would need no be initiated. At present, no one seems inclined to make that challenge due to popular (and IMO well founded) public support to maintain the status quo.

Contrary to popular belief, ownership of a fully automatic weapon or a suppressor (commonly referred to as a silencer) is not illegal. You can purchase a Class III firearm license, submit to an FBI background check, and agree to abide by the special regulation addressing storage and transport, and legally purchase and personally own fully automatic weapons, suppressors and parts to manufacture both.

Is being required to be registered, if you own a gun, also a 2nd amendment infringement?

It is the potential abuse of registration that gives us pro-2nd folks pause. It does nothing to prevent crime. So what is it's purpose? It seems as though it is nothing but a precursor to confiscation.

If you were never permitted to express your right to free speech, or freedom of religion without first registering with the government, would you consider those rights infringed?

Actually a lot of people doubt that the USSC will apply the 2nd amendment to the states. I wasn't sure before, but taking into account Easterbrooks ruling makes me think it more likely they won't apply the 2nd than that they will. But its pretty much a crapshoot.

 

[Citizen]

How can each state, constitutionally limit the types of guns their citizens can own without infringing on the 2nd amendment?

Technically, the Supreme Court has not extended the 2nd amendment to cover the states, so as idiotic and counter intuitive as it may sound, Sotomayor was correct in her ruling.

But no one doubts that as this case, or a case with a similar lower court ruling reaches the Supreme Court, the 2nd amendment will be construed by the court to apply to the states.




Well, yes...and no.

The private ownership of missiles and nukes, or grenades, mortars, tanks, artillery pieces, warplanes and the like are not protected by the Second Amendment. The 2nd Amendment, as it has been historically interpreted, only protects the private ownership of personal (one man) firearms and lesser weapons.

A successful argument could be mounted claiming that the denial of unimpeded ownership fully automatic weapons is unconstitutional, but a challenge would need no be initiated. At present, no one seems inclined to make that challenge due to popular (and IMO well founded) public support to maintain the status quo.

Contrary to popular belief, ownership of a fully automatic weapon or a suppressor (commonly referred to as a silencer) is not illegal. You can purchase a Class III firearm license, submit to an FBI background check, and agree to abide by the special regulation addressing storage and transport, and legally purchase and personally own fully automatic weapons, suppressors and parts to manufacture both.

Is being required to be registered, if you own a gun, also a 2nd amendment infringement?

It is the potential abuse of registration that gives us pro-2nd folks pause. It does nothing to prevent crime. So what is it's purpose? It seems as though it is nothing but a precursor to confiscation.

If you were never permitted to express your right to free speech, or freedom of religion without first registering with the government, would you consider those rights infringed?

Actually a lot of people doubt that the USSC will apply the 2nd amendment to the states. I wasn't sure before, but taking into account Easterbrooks ruling makes me think it more likely they won't apply the 2nd than that they will. But its pretty much a crapshoot.

In other words, the Supreme Court can just ignor the portion of the 14th Amendment that states, "No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States;" while the right to keep and bear arms would clearly be abridged if a state passed any law infringing upon that individual right.

Here are a few quotes, from those that should know the intent of our Constitution, that should make it clear to anyone with an average ammount of intellingence, what the Framers intended.

"On every question of construction (of The Constitution), let us carry ourselves back to the time when The Constitution was adopted, recollect the spirit manifested in the debates, and instead of trying what meaning may be squeezed out of the text, or invented against it, conform to the probable one in which it was passed." - Thomas Jefferson

"No legislative act contrary to the Constitution can be valid. To deny this would be to affirm that the deputy is greater than his principal; that the servant is above his master; that the representative of the people is superior to the people." - Alexander Hamilton, Federalist Paper No. 78.

"Since the general civilization of mankind, I believe there are more instances of the abridgement of the freedom of the people by gradual and silent encroachments of those in power than by violent and sudden usurpations." - James Madison - 1788

"There is in the nature of government an impatience of control that disposes those invested with power to look with an evil eye upon all external attempts to restrain or direct its operations. This has its origin in the love of power. Representatives of the people are not superior to the people themselves." - Alexander Hamilton - Federalist Paper No.15, 1787.

"The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation and foreign commerce. The powers reserved to the several States will extend to all the objects which in the ordinary course of affairs, concern the lives and liberties, and properties of the people, and the internal order, improvement and prosperity of the State." - James Madison, Federalist Paper No. 25, 1788 - considered the 'father of the Constitution'

"No freeman shall ever be debarred the use of arms." - Thomas Jefferson

"The Constitution shall never be construed to prevent the people of the United States who are peaceful citizens from keeping their own arms." - Samuel Adams

"The best we can hope for concerning the peope at large is that they be properly armed." - Alexander Hamilton

Also, if I am not mistaken, the United States Constitution trumps any State Constitution, so even if a state constitution allows the infringment upon the right to keep and bear arms, the Federal one states that the right of the people to keep and bear arms shall not be infringed. Given that the US Constitution protects our rights, I do not see how any state can abridge those rights.

 

[Nik]

Technically, the Supreme Court has not extended the 2nd amendment to cover the states, so as idiotic and counter intuitive as it may sound, Sotomayor was correct in her ruling.

But no one doubts that as this case, or a case with a similar lower court ruling reaches the Supreme Court, the 2nd amendment will be construed by the court to apply to the states.




Well, yes...and no.

The private ownership of missiles and nukes, or grenades, mortars, tanks, artillery pieces, warplanes and the like are not protected by the Second Amendment. The 2nd Amendment, as it has been historically interpreted, only protects the private ownership of personal (one man) firearms and lesser weapons.

A successful argument could be mounted claiming that the denial of unimpeded ownership fully automatic weapons is unconstitutional, but a challenge would need no be initiated. At present, no one seems inclined to make that challenge due to popular (and IMO well founded) public support to maintain the status quo.

Contrary to popular belief, ownership of a fully automatic weapon or a suppressor (commonly referred to as a silencer) is not illegal. You can purchase a Class III firearm license, submit to an FBI background check, and agree to abide by the special regulation addressing storage and transport, and legally purchase and personally own fully automatic weapons, suppressors and parts to manufacture both.




It is the potential abuse of registration that gives us pro-2nd folks pause. It does nothing to prevent crime. So what is it's purpose? It seems as though it is nothing but a precursor to confiscation.

If you were never permitted to express your right to free speech, or freedom of religion without first registering with the government, would you consider those rights infringed?

Actually a lot of people doubt that the USSC will apply the 2nd amendment to the states. I wasn't sure before, but taking into account Easterbrooks ruling makes me think it more likely they won't apply the 2nd than that they will. But its pretty much a crapshoot.

In other words, the Supreme Court can just ignor the portion of the 14th Amendment that states, "No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States;" while the right to keep and bear arms would clearly be abridged if a state passed any law infringing upon that individual right.

Actually the USSC didn't just "ignore" the privileges clause. They addressed it. In fact, you seem to be ignorant as to what the privileges and immunities clause does.

From Nordyke v. King:

We are similarly barred from considering incorporation through the Privileges or Immunities Clause. The Clause provides that “[n]o State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.” U.S. Const. amend. XIV, § 1. Under the Slaughter-House Cases, 83 U.S. (16 Wall.) 36, 21 L.Ed. 394 (1872), this language protects only those rights that derive from United States citizenship, but not those general civil rights independent of the Republic's existence, see id. at 74-75, 21 L.Ed. 394. FN5 The former include only *447 rights the Federal Constitution grants or the national government enables, but not those preexisting rights the Bill of Rights merely protects from federal invasion.

Here are a few quotes, from those that should know the intent of our Constitution, that should make it clear to anyone with an average ammount of intellingence, what the Framers intended.

"On every question of construction (of The Constitution), let us carry ourselves back to the time when The Constitution was adopted, recollect the spirit manifested in the debates, and instead of trying what meaning may be squeezed out of the text, or invented against it, conform to the probable one in which it was passed." - Thomas Jefferson

"No legislative act contrary to the Constitution can be valid. To deny this would be to affirm that the deputy is greater than his principal; that the servant is above his master; that the representative of the people is superior to the people." - Alexander Hamilton, Federalist Paper No. 78.

"Since the general civilization of mankind, I believe there are more instances of the abridgement of the freedom of the people by gradual and silent encroachments of those in power than by violent and sudden usurpations." - James Madison - 1788

"There is in the nature of government an impatience of control that disposes those invested with power to look with an evil eye upon all external attempts to restrain or direct its operations. This has its origin in the love of power. Representatives of the people are not superior to the people themselves." - Alexander Hamilton - Federalist Paper No.15, 1787.

"The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation and foreign commerce. The powers reserved to the several States will extend to all the objects which in the ordinary course of affairs, concern the lives and liberties, and properties of the people, and the internal order, improvement and prosperity of the State." - James Madison, Federalist Paper No. 25, 1788 - considered the 'father of the Constitution'

"No freeman shall ever be debarred the use of arms." - Thomas Jefferson

"The Constitution shall never be construed to prevent the people of the United States who are peaceful citizens from keeping their own arms." - Samuel Adams

"The best we can hope for concerning the peope at large is that they be properly armed." - Alexander Hamilton

Also, if I am not mistaken, the United States Constitution trumps any State Constitution, so even if a state constitution allows the infringment upon the right to keep and bear arms, the Federal one states that the right of the people to keep and bear arms shall not be infringed. Given that the US Constitution protects our rights, I do not see how any state can abridge those rights.

[/quote]

Oh, do give me more quotes that express how the founders interpreted the 14th amendment