toobfreak
Tungsten/Glass Member
The Constitution, great as it is and elegant in its simplicity still left many matters wide open demanding the eventual address of Congress through the Bill of Rights, yet most people don't realize that still even after that, the States themselves were not actually compelled to enforce it rendering these "inalienable" rights effectively moot! And what the implications of all of this actually was on our freedoms and liberties, from everything from slavery rights to the right to self-defense.
Yes, many/most of the Bill of Rights was not intended to apply to the actions of the individual states. The Constitution and its amendments applied to the Federal government and not to actions by the states. The states could not violate something like the 2nd Amendment because it didn't apply to them.
It was not until 1868 that the 14th Amendment was passed. The Republicans pushed it through in large part to ensure that slavery was truly expunged and that those who had been enslaved were accorded civil rights. Remember, this was a time when the Democrats were still mistreating Blacks terribly - often doing it through their KKK, and yet today, something like 90%+ of all Blacks still hate the GOP, call them racist and vote Democrat largely because they don't know their history and get most of their impressions and info through a largely left-leaning, democratically-controlled media and education system. However, the 14th Amendment also resolves moot all matters of any debt over slavery as well, so, all politicians talking still of some sort of "reparations" 150 years after the fact need to go back and read the law they supposedly work for.
What the 14th Amendment did (to state it somewhat generally and in far too brief a manner) was to accord civil liberties to all. This did NOT suit the Democrats who continued to fight this tooth and nail and not everything relevant in the Bill of Rights was applied to the states. It wasn't until the SCOTUS made a decision about whether or not a right was "incorporated" that the right was considered legally binding against a state.
The 2nd Amendment was the last of the rights guaranteed by the Bill of Rights to be incorporated against the states and the history is not that old but I find it very interesting and will belabor people with a very shortened version:
Dick Anthony Heller was a licensed special police officer for DC and wanted to buy a firearm for self-defense when he was at home. DC would not allow him to do that. He was chosen as the lead plaintiff but was not the only plaintiff. A lawsuit was brought.
Emmet Sullivan (the same guy who is now bizarrely trying to prosecute General Flynn) dismissed the case in 2004. Heller, et al, appealed to the Circuit and actually won 2-1 from a 3-judge panel.
I'd note that the lone Circuit/Appellate judge who dissented did so on the basis that DC is the DISTRICT of Columbia and therefore something which would apply to the states doesn't apply to a District. Ultimately her argument was not that the 2nd Amendment should not be incorporated against the states.
DC then appealed.
SCOTUS granted certiorari to Heller in November of 2008 and that was the first time they had granted cert to a case addressing the scope/applicability of the 2nd Amendment in at least decades. There is a lot of background stuff about who did the representing and why, but arguments were heard and a 5-4 decision incorporating the 2nd Amendment against the District of Columbia was handed down in June of 2008. This was effectively a geographically very limited decision since it was a DC case and DC was not a state and therefore the decision was limited to DC and still did not incorporate the 2A against the states.
In 2010 a VERY similar case frequently referred to as McDonald. The McDonald argument was mostly a "Due Process" one but Gura's team did something very strategic in the portion of the argument and made a "Privileges or Immunities" (P or I) argument as well. The 5-4 McDonald decision incorporating the 2A against the states was handed down in June of 2010 - and all States are/were legally required to respect the rights embodied in the 2A in law and practice. The fact that it was a 5-4 decision probably won't interest most people but IMHO it should so I'm going to bother everyone a bit more.
Folks should remember the legal principle of "stare decisis." Stare decisis means that a court should follow historic cases which are binding and/or persuasive.
Remember that McDonald was about as close to identical to the Heller case as one could get without being identical - about the only difference of significance was that Heller was against a District and McDonald was against a State. If the Justices were to respect stare decisis then each and every one should have found Heller to be extremely persuasive and found that stare decisis compelled that they incorporate the 2A against the states. In fact, 4 of the judges dissented claiming that the 2A is not incorporated against the states. So much for the idea that stare decisis is an actual principle which is followed if you don't like the outcome. . .
There were only 4 Justices who actually signed on to the majority opinion. Justice Thomas did not and instead issued a concurring opinion. Justice Thomas did not accept the "Due Process" argument in this particular case but did accept the "P or I" argument presented by Gura. This yielded the total of 5 justices needed to win the case for McDonald.
Now it is important to realize that Justice Kennedy only agreed to sign on to the majority opinion if there was weasel language in it which would allow a whole lot of state regulation and which has resulted since in a liberty/right which in some cases is regulated by states to the point of nonexistence for the generally law-abiding.
Anyway, the upshot is that the relevant rights specified in the Bill of Rights were not something to which the states were bound until the 14th Amendment was passed in 1868 and even then they weren't actually legally recognized until incorporated against the states - and the last to be incorporated was the 2nd Amendment and that wasn't until 28 June 2010. And even now the 2A is greatly disrespected. Even un-enumerated rights are typically protected under a "strict scrutiny" standard of review whereas the 2nd Amendment (which is an enumerated right also declared to be "fundamental") is typically reviewed under what is effectively a "rational basis" standard even if called "intermediate scrutiny". It’s actually pretty bizarre.
en.wikipedia.org
en.wikipedia.org
en.wikipedia.org
Yes, many/most of the Bill of Rights was not intended to apply to the actions of the individual states. The Constitution and its amendments applied to the Federal government and not to actions by the states. The states could not violate something like the 2nd Amendment because it didn't apply to them.
It was not until 1868 that the 14th Amendment was passed. The Republicans pushed it through in large part to ensure that slavery was truly expunged and that those who had been enslaved were accorded civil rights. Remember, this was a time when the Democrats were still mistreating Blacks terribly - often doing it through their KKK, and yet today, something like 90%+ of all Blacks still hate the GOP, call them racist and vote Democrat largely because they don't know their history and get most of their impressions and info through a largely left-leaning, democratically-controlled media and education system. However, the 14th Amendment also resolves moot all matters of any debt over slavery as well, so, all politicians talking still of some sort of "reparations" 150 years after the fact need to go back and read the law they supposedly work for.
What the 14th Amendment did (to state it somewhat generally and in far too brief a manner) was to accord civil liberties to all. This did NOT suit the Democrats who continued to fight this tooth and nail and not everything relevant in the Bill of Rights was applied to the states. It wasn't until the SCOTUS made a decision about whether or not a right was "incorporated" that the right was considered legally binding against a state.
The 2nd Amendment was the last of the rights guaranteed by the Bill of Rights to be incorporated against the states and the history is not that old but I find it very interesting and will belabor people with a very shortened version:
Dick Anthony Heller was a licensed special police officer for DC and wanted to buy a firearm for self-defense when he was at home. DC would not allow him to do that. He was chosen as the lead plaintiff but was not the only plaintiff. A lawsuit was brought.
Emmet Sullivan (the same guy who is now bizarrely trying to prosecute General Flynn) dismissed the case in 2004. Heller, et al, appealed to the Circuit and actually won 2-1 from a 3-judge panel.
I'd note that the lone Circuit/Appellate judge who dissented did so on the basis that DC is the DISTRICT of Columbia and therefore something which would apply to the states doesn't apply to a District. Ultimately her argument was not that the 2nd Amendment should not be incorporated against the states.
DC then appealed.
SCOTUS granted certiorari to Heller in November of 2008 and that was the first time they had granted cert to a case addressing the scope/applicability of the 2nd Amendment in at least decades. There is a lot of background stuff about who did the representing and why, but arguments were heard and a 5-4 decision incorporating the 2nd Amendment against the District of Columbia was handed down in June of 2008. This was effectively a geographically very limited decision since it was a DC case and DC was not a state and therefore the decision was limited to DC and still did not incorporate the 2A against the states.
In 2010 a VERY similar case frequently referred to as McDonald. The McDonald argument was mostly a "Due Process" one but Gura's team did something very strategic in the portion of the argument and made a "Privileges or Immunities" (P or I) argument as well. The 5-4 McDonald decision incorporating the 2A against the states was handed down in June of 2010 - and all States are/were legally required to respect the rights embodied in the 2A in law and practice. The fact that it was a 5-4 decision probably won't interest most people but IMHO it should so I'm going to bother everyone a bit more.
Folks should remember the legal principle of "stare decisis." Stare decisis means that a court should follow historic cases which are binding and/or persuasive.
Remember that McDonald was about as close to identical to the Heller case as one could get without being identical - about the only difference of significance was that Heller was against a District and McDonald was against a State. If the Justices were to respect stare decisis then each and every one should have found Heller to be extremely persuasive and found that stare decisis compelled that they incorporate the 2A against the states. In fact, 4 of the judges dissented claiming that the 2A is not incorporated against the states. So much for the idea that stare decisis is an actual principle which is followed if you don't like the outcome. . .
There were only 4 Justices who actually signed on to the majority opinion. Justice Thomas did not and instead issued a concurring opinion. Justice Thomas did not accept the "Due Process" argument in this particular case but did accept the "P or I" argument presented by Gura. This yielded the total of 5 justices needed to win the case for McDonald.
Now it is important to realize that Justice Kennedy only agreed to sign on to the majority opinion if there was weasel language in it which would allow a whole lot of state regulation and which has resulted since in a liberty/right which in some cases is regulated by states to the point of nonexistence for the generally law-abiding.
Anyway, the upshot is that the relevant rights specified in the Bill of Rights were not something to which the states were bound until the 14th Amendment was passed in 1868 and even then they weren't actually legally recognized until incorporated against the states - and the last to be incorporated was the 2nd Amendment and that wasn't until 28 June 2010. And even now the 2A is greatly disrespected. Even un-enumerated rights are typically protected under a "strict scrutiny" standard of review whereas the 2nd Amendment (which is an enumerated right also declared to be "fundamental") is typically reviewed under what is effectively a "rational basis" standard even if called "intermediate scrutiny". It’s actually pretty bizarre.
