The Second Amendment Only Applies to the Federal Gov't, NOT State Gov't

[Nik]

Here is someone else who disagrees with you.

Along with many others, I noted yesterday that the Supreme Court expressly left open the question whether the individual right to keep and bear arms in the Second Amendment should be incorporated into the Fourteenth Amendment to apply against the states. Here is the relevant passage reserving the issue:

The Volokh Conspiracy - <i>Heller</i> and incorporation of the Second Amendment:

no, they actually agree with me you fucking moron...read the rest and it is almost identical to what i have been arguing with you...

Add to all of this the fact that the Court repeatedly compares the incorporated First Amendment to the unincorporated Second Amendment as a guarantee of important individual rights. A court that believes the Second Amendment is comparable to the hallowed First Amendment is unlikely to leave protection of the right to the mercy of legislative majorities in states and cities.

Whichever specific route the lower courts now choose — the Citizenship Clause, the Privileges and Immunities Clause, the Due Process Clause — it seems the Supreme Court is providing a road map and is strongly suggesting that the ultimate destination is incorporation.

As I've said numerous times, I'm not making a prediction about the future, I am merely stating what the law is today. As Heller does not speak on the issue of whether the 2nd amendment applies to the states there is no need to examine it when dealing with that issue. Sotomayor did NOT go against the precedent of Heller when deciding the the 2nd circuit 2nd amendment case.

 

[midcan5]

A single woman's opinion strikes fear in the hearts of all lovers of freedom and guns every where. Sorry but I find this whining amusing considering the likes of Scalia or Thomas.

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The Most Mysterious Right by Cass R. Sunstein

"In 1991, Warren E. Burger, the conservative chief justice of the Supreme Court, was interviewed on the MacNeil/Lehrer NewsHour about the meaning of the Second Amendment's "right to keep and bear arms." Burger answered that the Second Amendment "has been the subject of one of the greatest pieces of fraud-- I repeat the word 'fraud'--on the American public by special interest groups that I have ever seen in my lifetime." In a speech in 1992, Burger declared that "the Second Amendment doesn't guarantee the right to have firearms at all. " In his view, the purpose of the Second Amendment was "to ensure that the 'state armies'--'the militia'--would be maintained for the defense of the state."

It is impossible to understand the current Second Amendment debate without lingering over Burger's words. Burger was a cautious person as well as a conservative judge, and the chief justice of the Supreme Court is unlikely to offer a controversial position on a constitutional question in an interview on national television."

The Most Mysterious Right

 

[Yurt]

A single woman's opinion strikes fear in the hearts of all lovers of freedom and guns every where. Sorry but I find this whining amusing considering the likes of Scalia or Thomas.

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The Most Mysterious Right by Cass R. Sunstein

"In 1991, Warren E. Burger, the conservative chief justice of the Supreme Court, was interviewed on the MacNeil/Lehrer NewsHour about the meaning of the Second Amendment's "right to keep and bear arms." Burger answered that the Second Amendment "has been the subject of one of the greatest pieces of fraud-- I repeat the word 'fraud'--on the American public by special interest groups that I have ever seen in my lifetime." In a speech in 1992, Burger declared that "the Second Amendment doesn't guarantee the right to have firearms at all. " In his view, the purpose of the Second Amendment was "to ensure that the 'state armies'--'the militia'--would be maintained for the defense of the state."

It is impossible to understand the current Second Amendment debate without lingering over Burger's words. Burger was a cautious person as well as a conservative judge, and the chief justice of the Supreme Court is unlikely to offer a controversial position on a constitutional question in an interview on national television."

The Most Mysterious Right

so then you believe burger is right on everything he has said and ruled on....correct

 

[garyd]

But the fourteenth was read to dictate that such laws denied due process. ie the fourteenth had already established a due process test four constitutionality hence such laws were found to be illegal in that they denied due process.

 

[editec]

The Second Amendment Only Applies to the Federal Gov't, NOT State Gov't

Yes, that certainly one interpretation of the law.

If you're a strong advocate of STATES' RIGHTS, then if one is being consistent, you are also an advocate of the states' right to make whatever laws it chooses about gun o9wnership.

If you are a FEDERALIST, then you believe that the FEDS have the right to impose their interpretation of the second amendment on the states.

I lean towards a FEDERALIST interpretation of the Constitution, personally.

Sometimes I like the outcome of that Federalism, often I don't.

 

[midcan5]

so then you believe burger is right on everything he has said and ruled on....correct

A rather odd question and one in which I'm sure there are many disagreements. But guns fall under that category of stare decisis, in this nation the idea is set, and while historically it may be a misreading it stands. Consider handguns (the real object) when the second amendment was written and you realize quickly looking back has certain complexities.

 

[jillian]

Wasn't the 14th amendment supposed to make the amendments apply to states as well?

in theory, however, the 14th has not been directly applied to the second amendment, at least as far as i know

It looks as though the Heller case was drawn narrowly so technically Presser and Cruishank haven't been overruled. However, when the proper case for doing so comes up through the court system, I would expect the Heller majority to overturn those cases.

The dissent in Heller is far more interesting because it was much more on target and pointed out all of the questions left unanswered in the Court's opinion. And given that the question in Heller was narrowly drawn, most of the decision is dicta.

That said, I think it's clear that if the court's composition remains the same, that there is no way Heller wouldn't be applied to the States.

Technically she was right, but as a practical matter it's not going to be upheld... s'okay. Scalia has every right to be wrong.

 

[PubliusInfinitum]

VERY interesting little nugget when researching Sotomayor:

CNSNews.com - Sotomayor Ruled That States Do Not Have to Obey Second Amendment

The text of the Amendment is as follows:

"A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed."

Sotomayor says that this right shall not be infringed upon by the Federal Government, but State governments don't have to abide by this!

(CNSNews.com) &#8211; Supreme Court nominee Sonia Sotomayor ruled in January 2009 that states do not have to obey the Second Amendment&#8217;s commandment that the right to keep and bear arms shall not be infringed.

In Maloney v. Cuomo, Sotomayor signed an opinion of the U.S. Court of Appeals for the Second Circuit that said the Second Amendment does not protect individuals from having their right to keep and bear arms restricted by state governments.

The opinion said that the Second Amendment only restricted the federal government from infringing on an individual's right to keep and bear arms. As justification for this position, the opinion cited the 1886 Supreme Court case of Presser v. Illinois.

&#8220;It is settled law, however, that the Second Amendment applies only to limitations the federal government seeks to impose on this right,&#8221; said the opinion. Quoting Presser, the court said, &#8220;it is a limitation only upon the power of Congress and the national government, and not upon that of the state.&#8221;

The Maloney v. Cuomo case involved James Maloney, who had been arrested for possessing a pair of nunchuks. New York law prohibits the possession of nunchuks, even though they are often used in martial arts training and demonstrations.

The meaning of the Second Amendment has rarely been addressed by the Supreme Court. But in the 2008 case of Heller v. District of Columbia, the high court said that the right to keep and bear arms was a natural right of all Americans and that the Second Amendment guaranteed that right to everyone.

The Second Amendment, the Supreme Court ruled, &#8220;guarantee(s) the right of the individual to possess and carry weapons in case of confrontation. The very text of the Second Amendment implicitly recognizes the pre-existence of the right and declares only that it &#8216;shall not be infringed.&#8217;&#8221;

&#8220;There seems to us no doubt,&#8221; the Supreme Court said, &#8220;that the Second Amendment conferred an individual right to keep and bear arms.&#8221;

Sotomayor, however, said that even though the Heller decision held that the right to keep and bear arms was a natural right--and therefore could not be justly denied to a law-abiding citizen by any government, federal, state or local--the Second Circuit was still bound by the 1886 case, because Heller only dealt indirectly with the issue before her court.

&#8220;And to the extent that Heller might be read to question the continuing validity of this principle, we must follow Presser because where, as here, a Supreme Court precedent has direct application in a case, yet appears to rest on reasons rejected in some other line of decisions, the Court of Appeals should follow the case which [it] directly controls.&#8221;

In its 2008 case, the Supreme Court&#8217;s took a different view of its own 1886 case, saying that Presser had no bearing on anything beyond a state&#8217;s ability to outlaw private militia groups.

&#8220;Presser said nothing about the Second Amendment&#8217;s meaning or scope, beyond the fact that it does not prevent the prohibition of private paramilitary organizations,&#8221; the court ruled. &#8220;This does not refute the individual-rights interpretation of the Amendment.&#8221;

The Second Amendment is the only part of the Bill of Rights that the Supreme Court has not specifically extended to the states through a process known as incorporation, which involves interpreting the Fourteenth Amendment to read that no state can deprive its citizens of federally guaranteed rights.

The Fourteenth Amendment reads, in part: &#8220;No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States &#8230; nor deny to any person within its jurisdiction the equal protection of the laws.&#8221;

Sotomayor&#8217;s decision rejected the Fourteenth Amendment&#8217;s incorporation doctrine as far as Second Amendment was concerned, saying any legislation that could provide a &#8220;conceivable&#8221; reason would be upheld by her court.

&#8220;We will uphold legislation if we can identify some reasonably conceived state of facts that could provide a rational basis for the legislative action. Legislative acts that do not interfere with fundamental rights &#8230; carry with them a strong presumption of constitutionality,&#8221; the appeals court concluded. &#8220;The Fourteenth Amendment,&#8221; she wrote, &#8220;provides no relief.&#8221;

Sotomayor&#8217;s ruling ran to the left of even the reliably liberal San Francisco-based U.S. Court of Appeals for the Ninth Circuit, which ruled in the April 2009 case Nordyke v. King that the Second Amendment did, in fact, apply to the states via the Fourteenth Amendment, heavily citing the Supreme Court in Heller.

&#8220;We therefore conclude that the right to keep and bear arms is deeply rooted in this Nation&#8217;s history and tradition,&#8221; said the Ninth Circuit court of Appeals. &#8220;We are therefore persuaded that the Due Process Clause of the Fourteenth Amendment incorporates the Second Amendment and applies it against the states and local governments.&#8221;

The argument is absurd... the amendment protects and defends the PRE-EXISTING RIGHT... and where there is SUCH A RIGHT... ANY state of the Union which seeks to infringe upon that right, UNDERMINES THE SECURITY OF THE WHOLE STATE, through the infringement of that citizenry to keep and bear arms.

But let's put this to bed through the peremptory fact, that where the 2nd amendment is limited to the Federal Government, the balance of the amendments are limited, by that same default conclusion...

Thus, the basis of ROE is null and void... (Which is a fact without regard to this argument; the point here is that such is AMPLIFIED by this argument)

At the basis of this argument is that "the RIGHT" is a pretense... that such is not actually "A RIGHT" unless and until the government ratifies such... The argument essentially says that 'sure, the Federal government recognizes such A RIGHT, but that does not mean that the individual States must recognize such.'

In point of fact, there is either A RIGHT or there is NOT...

Surely States have the right to determine policy which is suitable to their respective cultures; but the functional purpose of the union is the common understanding regarding unalienable Human Rights, not the least of which is the right to defend one's life... as such is the BASIS of ALL OTHER RIGHTS.



LOL... Leftists...

 

[Yurt]

so then you believe burger is right on everything he has said and ruled on....correct

A rather odd question and one in which I'm sure there are many disagreements. But guns fall under that category of stare decisis, in this nation the idea is set, and while historically it may be a misreading it stands. Consider handguns (the real object) when the second amendment was written and you realize quickly looking back has certain complexities.

it is a logical question, you tend to cite someone ONLY when they agree with YOUR worldview and you tout this, especially a conservative, as somehow giving them greater authority...you even point out how they are conservative, as if this lends more weight to their argument. it is hypocritical because if they argued against your POV, you bash them for being a stupid republican.

 

[Missourian]

A fundamental right is a vague term. It does NOT mean that the states can't infringe on that right.

This quote speaks volumes.

 

[Nik]

A fundamental right is a vague term. It does NOT mean that the states can't infringe on that right.

This quote speaks volumes.

Oh, do please write the volumes that it speaks.

By the way...how do y'all feel about the liberal, activist, far-left Sotomayor's gun ruling...now that Easterbrook and the 7th circuit agree? Easterbrook is hardly a liberal

 

[PubliusInfinitum]

A fundamental right is a vague term. It does NOT mean that the states can't infringe on that right.

This quote speaks volumes.

Oh, do please write the volumes that it speaks.

By the way...how do y'all feel about the liberal, activist, far-left Sotomayor's gun ruling...now that Easterbrook and the 7th circuit agree? Easterbrook is hardly a liberal

The volumes speak to the notion that you SEEM to be adhering to the idea that a state has a right to infringe upon the Fundamental rights of it's citizenry.

The absurdity rests in the notion that governments have rights which supercede the rights of the governed.

Ya see Nik, the fact is that any rights that the Government has, come from where? Don't these rights come from the goverened? Thus where the governed do not have a right to infringe upon the rights of others; particularly where the moral imperative of all rights requires that NO ONE MAY EXERCISE THEIR RIGHT TO THE DETRIMENT OF ANOTHER'S RIGHT; isn't it then, necessarily true and readily discernible that where sound jurisprudence rests upon that very principle; that where justice exists, it exists purely to serve that moral imperative to preserve the just rights of the individual; it is impossible for justice to prevail where one presumes a right to exercise their rights to the detriment of another's... without regard to the respective individual element; even when the individual element is a representative body of the collective; there may be reasonable temporal exceptions; such as emergencies wherein the exercising certain fundamental rights raise the risk to one's existance; but the key here is the termporal aspect; which evolve through exceptional circumstances and which rest on what? Preserving the moral imperative, right?

In effect that is what you seem to be saying... That the government of a state may use the power with which it is vested; power which rest with the governed; that the government is entitled to use its power to usurp the right on which their power rests...

It's a classic circular argument... If one gains their power from the rights of the goverened; when that power is used to strip the governed of their rights, the government would at that point forfeit the source of it's previously justified power; and becomes tyrannical at precise point.

And this is the problem with the secular left; you simply do not believe in 'fundamental rights;' Rights are not hard and fast concepts, which are set in stone; which cannot be justifiably usurped by any human power; to you people these rights are ''vague concepts' which are a matter of personal opinion; and while states may give a 'wink and a nod,' the bottom line is that the state can do pretty much what ever it wants... and if that infringes on your vague fundamental right, 'you can sue us... but we own the judiciary, so we're feeling pretty good about it.'

That's not an American perspective there Nik...

Feel better?

 

[Agnapostate]

That would never fly. There would be incorporation to individual states through the Fourteenth Amendment if the case ever came up, as previously mentioned.

 

[Nik]

This quote speaks volumes.

Oh, do please write the volumes that it speaks.

By the way...how do y'all feel about the liberal, activist, far-left Sotomayor's gun ruling...now that Easterbrook and the 7th circuit agree? Easterbrook is hardly a liberal

The volumes speak to the notion that you SEEM to be adhering to the idea that a state has a right to infringe upon the Fundamental rights of it's citizenry.

The absurdity rests in the notion that governments have rights which supercede the rights of the governed.

Ya see Nik, the fact is that any rights that the Government has, come from where? Don't these rights come from the goverened? Thus where the governed do not have a right to infringe upon the rights of others; particularly where the moral imperative of all rights requires that NO ONE MAY EXERCISE THEIR RIGHT TO THE DETRIMENT OF ANOTHER'S RIGHT; isn't it then, necessarily true and readily discernible that where sound jurisprudence rests upon that very principle; that where justice exists, it exists purely to serve that moral imperative to preserve the just rights of the individual; it is impossible for justice to prevail where one presumes a right to exercise their rights to the detriment of another's... without regard to the respective individual element; even when the individual element is a representative body of the collective; there may be reasonable temporal exceptions; such as emergencies wherein the exercising certain fundamental rights raise the risk to one's existance; but the key here is the termporal aspect; which evolve through exceptional circumstances and which rest on what? Preserving the moral imperative, right?

In effect that is what you seem to be saying... That the government of a state may use the power with which it is vested; power which rest with the governed; that the government is entitled to use its power to usurp the right on which their power rests...

It's a classic circular argument... If one gains their power from the rights of the goverened; when that power is used to strip the governed of their rights, the government would at that point forfeit the source of it's previously justified power; and becomes tyrannical at precise point.

And this is the problem with the secular left; you simply do not believe in 'fundamental rights;' Rights are not hard and fast concepts, which are set in stone; which cannot be justifiably usurped by any human power; to you people these rights are ''vague concepts' which are a matter of personal opinion; and while states may give a 'wink and a nod,' the bottom line is that the state can do pretty much what ever it wants... and if that infringes on your vague fundamental right, 'you can sue us... but we own the judiciary, so we're feeling pretty good about it.'

That's not an American perspective there Nik...

Feel better?

Way to make shit up. I adhere to the Constitution, not to some vague bullshit you want to make up about fundamental rights. The Constitution was designed to apply to, and limit, the feds, NOT the states.

And yes, the people can choose that the government take a right away. Say the right to murder someone. Or the right to not wear a seatbelt.

 

[Nik]

That would never fly. There would be incorporation to individual states through the Fourteenth Amendment if the case ever came up, as previously mentioned.

Not necessarily for the 2nd amendment. Two very different judges from two very different jurisdictions have just decided that the 2nd amendment is not incorporated.

 

[Agnapostate]

Not necessarily for the 2nd amendment. Two very different judges from two very different jurisdictions have just decided that the 2nd amendment is not incorporated.

Those who would rule against it have little power and would likely eventually be overrode. The Ninth Circuit is far more libertarian than "liberal," and controls a significant component of federal appeals matters.

 

[Nik]

Not necessarily for the 2nd amendment. Two very different judges from two very different jurisdictions have just decided that the 2nd amendment is not incorporated.

Those who would rule against it have little power and would likely eventually be overrode. The Ninth Circuit is far more libertarian than "liberal," and controls a significant component of federal appeals matters.

Umm, actually the 2nd and the 7th circuits have quite a lot of power, and you have no idea whether they will be overturned or not.

 

[Agnapostate]

Umm, actually the 2nd and the 7th circuits have quite a lot of power, and you have no idea whether they will be overturned or not.

Not in terms of regional control, at least when compared to the 9th Circuit. There will likely be an eventual overturn, considering the current composition of the SCOTUS.

 

[Nik]

Umm, actually the 2nd and the 7th circuits have quite a lot of power, and you have no idea whether they will be overturned or not.

Not in terms of regional control, at least when compared to the 9th Circuit. There will likely be an eventual overturn, considering the current composition of the SCOTUS.

Umm, yes, they control less territory than the 9th circuit, but they aren't exactly minor courts. They are one removed from the USSC.

And what about the current composition of the USSC makes you think it will overturn Sotomayor? You do know that Easterbrook is extremely conservative, yes?