Is the 2nd Amendment Redundant?

[Tennyson]

I'm not following what you are saying, or perhaps you misunderstood what I wrote. The Presser ruling was long after the ratification of the 14th Amendment, and part of the ruling was that the 2nd Amendment only applied to the federal government, thus negating any 20th century nonsense of the Bill of Rights being incorporated.

That part of Presser relied on Cruikshank. The only reason the Court did not enforce the 2nd Amendment under the 14th in Cruikshank was that the people who disarmed Levi Nelson and Alexander Tillman were not state agents but private citizens (the Louisiana state militia having been disbanded by the republican governor).

The Cruikshank holding was not a blanket ruling for the right to arms under the 14th Amendment. That ruling was specific to Cruikshank (as was Presser -- "Military organization and military drill and parade under arms are subjects especially under the control of the government of every country. They cannot be claimed as a right independent of law."). Had the Court held that private citizens had a right to military drill and parade under arms, independent of law, the Court would have rejected any claim that Illinois made to prosecute Presser et al, and applied the 14th Amendment to negate state law.

It is a first generation understanding of the 14th Amendment v. 20th century judicial activism regarding the incorporation doctrine.

"First generation" understanding was applied in The Slaughterhouse Cases which gutted the 14th's "privileges or immunities" clause. The only legal mechanism left in the 14th to apply to challenged state laws was the due process clause which demanded excruciating case by case examination . . . That's what begot the selective incorporation doctrine.

I don't like it either, but I accept the intent of the 14th Amendment was to make the first 8 Amendments enforceable on the states, so it's all SCOTUS has to work with until it reverses Slaughterhouse. (Of course penumbral rights theory has been employed by the Court as essentially a Slaughterhouse work-around)

Regarding the second part, Article I, Section 8 provided the right to bear arms prior to the Bill of Rights.

LOL. The right to arms is not a product of the Constitution. To double-down on your error and say that it was provided by the Article that sets-out the federal legislative power, is just laughable.

That part of Presser relied on Cruikshank. The only reason the Court did not enforce the 2nd Amendment under the 14th in Cruikshank was that the people who disarmed Levi Nelson and Alexander Tillman were not state agents but private citizens (the Louisiana state militia having been disbanded by the republican governor).

The Cruikshank holding was not a blanket ruling for the right to arms under the 14th Amendment. That ruling was specific to Cruikshank (as was Presser -- "Military organization and military drill and parade under arms are subjects especially under the control of the government of every country. They cannot be claimed as a right independent of law."). Had the Court held that private citizens had a right to military drill and parade under arms, independent of law, the Court would have rejected any claim that Illinois made to prosecute Presser et al, and applied the 14th Amendment to negate state law.

The ruling in Cruikshank was a precedent applicable to all inferior federal courts, and kept intact the subject matter jurisdiction of the Supreme Court regarding the Bill of Rights and the Second Amendment:

The second and tenth counts are equally defective. The right there specified is that of 'bearing arms for a lawful purpose.' This is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence. The second amendment declares that it shall not be infringed; but this, as has been seen, means no more than that it shall not be infringed by Congress. This is one of the amendments that has no other effect than to restrict the powers of the national government, leaving the people to look for their protection against any violation by their fellow-citizens of the rights it recognizes, to what is called, in The City of New York v. Miln, 11 Pet. 139, the 'powers which relate to merely municipal legislation, or what was, perhaps, more properly called internal police,' 'not surrendered or restrained' by the Constitution of the United States.

This ruling also reaffirmed the framers intent of the Bill of Rights and the individual rather than collective rights.

"First generation" understanding was applied in The Slaughterhouse Cases which gutted the 14th's "privileges or immunities" clause. The only legal mechanism left in the 14th to apply to challenged state laws was the due process clause which demanded excruciating case by case examination . . . That's what begot the selective incorporation doctrine.

The Slaughter House cases were ruled according to the stated intent of the 39th Congress regarding the “privileges or immunities" clause of the 14th Amendment, and Cruikshank narrowed it even further.

I don't like it either, but I accept the intent of the 14th Amendment was to make the first 8 Amendments enforceable on the states, so it's all SCOTUS has to work with until it reverses Slaughterhouse. (Of course penumbral rights theory has been employed by the Court as essentially a Slaughterhouse work-around)

The 39th Congress never intended to incorporate the first eight amendments. That is a twenty-first century judicial creation. But that is a whole different discussion.

Regarding the second part, Article I, Section 8 provided the right to bear arms prior to the Bill of Rights.

LOL. The right to arms is not a product of the Constitution. To double-down on your error and say that it was provided by the Article that sets-out the federal legislative power, is just laughable.

The right to arms predates the Constitution, and was also a subject of Presser regarding Article I, §8, Clause 15 as enforceable on the states if the state restricted firearms to a degree to deprive the federal government of its powers of “calling forth the militia.”

 

[Agit8r]

We all have a right to self-defense, including using lethal force. So wouldn't we still have the right to own the means to defend us and our's whether we had the 2nd Amendment or not?

It would be protected by the 9th Amendment anyway, yeah.

 

[legaleagle_45]

Much misunderstanding about Cruikshank... The Slaughterhouse cases restricted the Privileges or Immunities Clause of the 14th to such rights which were conferred or created by virtue of Federal Constitution by virtue of and resulting because of US citizenship, to all individuals of all the states. Since the right to keep and bear arms was not conferred or created by the Constitution but prexisted the creation of the Constitution and was protected from infringement by the federal government, the P or I clause did not apply... that is the reason for the language in Cruikshank:

The particular amendment now under consideration assumes the existence of the right of the people to assemble for lawful purposes, and protects it against encroachment by Congress. The right was not created by the amendment; neither was its continuance guaranteed, except as against congressional interference

Since the right was not created by the Constitution and it only protected against federal encroachment upon a preexisting right, it was not one of the "privileges or immuniies of national citizenship which a state could not violate. HOWEVER:

The right of the people peaceably to assemble for the purpose of petitioning Congress for a redress of grievances, or for any thing else connected with the powers or the duties of the national government, is an attribute of national citizenship, and, as such, under the protection of, and guaranteed by, the United States

As such this WOULD be subject to the P or I clause because it is an attribute of national citizenship. Continuing...

The very idea of a government, republican in form, implies a right on the part of its citizens to meet peaceably for consultation in respect to public affairs and to petition for a redress of grievances. If it had been alleged in these counts that the object of the defendants was to prevent a meeting for such a purpose, the case would have been within the statute, and within the scope of the sovereignty of the United States. Such, however, is not the case. The offence, as stated in the indictment, will be made out, if it be shown that the object of the conspiracy was to prevent a meeting for any lawful purpose whatever.

Assembly for any lawful purpose, NOT protected; assembly to petition NATIONAL GOVERNMENT PROTECTED--- because such a right is an incident of national citizenship.

Now, turning our attention to that portion of Cruikshank dealing with the 2nd...

The right there specified is that of "bearing arms for a lawful purpose." This is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence. The second amendment declares that it shall not be infringed; but this, as has been seen, means no more than that it shall not be infringed by Congress..

That was what it was all about and that is why the language was employed--- it was merely a demonstration that the 2nd Amend was NOT a one of the"privileges or immunities of citizens of the United States" which no state is allowed to abridge by virtue of the 14th.