R u in doubt of the outcome of McDonald v. Chicago
qua incorporation ?
There's an English language thing in this aspect of the thing even.
The constitution says "the right of the people to keep and bear arms shall not be infringed"
without specifying by who and you have to assume it means "by anybody" and not just by the federal government.
brief was filed with the USSC by recognized expert grammarians,
whose conclusions, after meticulous judicial analysis, were adopted by the Court
and constitutute part of the precedent of the HELLER
That grammar was found to be in harmony with the known
history of the times, and its zeitgeist
, as expressed
in surviving contemporaneous writings.
Essentially, it comes down to this:
on the Aristotelian Square of Logical Opposition,
it is an "E" proposition: UNIVERSAL NEGATIVE
It shall not be done by any government; "shall not be infringed."
The motivational clause clearly refers to a national militia
and not individual state militias so that it is not plausible
that the statement could mean "shall not be infringed other than
by state or city governments". That would allow states and cities
to monkey with the safety of the national state.
I respectfully disagree.
If that were the case, the language "selected militia" woud have been used.
Selected militia (such as those of Article I Section 8)
were public militia. Well regulated militia was a term of art
for private militia (like a volunteer fire dept.),
bearing in mind that there were no police
anywhere in the USA, nor in England, until the 1800s.
The citizens needed to take care of themselves,
defending their property from crime, fire and predatory animals.
Thay did so alone; thay did so together.
I have copied and pasted the following
from another thread, concerning USSC indications
expressed in HELLER
, see what u think, Gunga:
If I remember accurately, oral arguments in McDonald v. Chicago
are on March 2nd, 2010, ten days from now.
We expect a decision before next July, but it seems to me
that the USSC already told us in HELLER
what that decision will be.
Here is a beautiful case, Nunn v. State
, to which the USSC has lovingly
cited with approval
in D.C. v. HELLER
The following is quoted from the USSC in HELLER:
In Nunn v. State
, 1 Ga. 243, 251 (1846), the Georgia Supreme Court
construed the Second Amendment as
protecting the “natural right of self-defence”
struck down a ban on carrying pistols openly.
Its opinion perfectly captured the way in which the operative clause
[i.e.: "the right of the people to keep and bear arms shall not be infringed"]
of the Second Amendment furthers the purpose announced in
the prefatory clause, [i.e., the militia clause]
in continuity with the English right:
“The right of the whole people,
old and young, men, women and boys
, and not militia only,
to keep and bear arms of every description
and not such merely as are used by the militia,
shall not be infringed, curtailed, or broken in upon,
in the smallest degree;
and all this for the important end to be attained:
the rearing up and qualifying a well-regulated militia,
so vitally necessary to the security of a free State
Our opinion is, that any law
, State or Federal
, is repugnant
to the Constitution, and void, which contravenes this right
originally belonging to our forefathers
trampled under foot by Charles I. and his two wicked
sons and successors, re-established by the revolution
of 1688, conveyed to this land of liberty by the colonists,
and finally incorporated conspicuously in our own Magna Charta!”
[all emphasis joyfully added by David]
Elsewhere in HELLER
, the USSC sets forth that:
As we said in United States v. Verdugo-Urquidez
, 494 U. S. 259, 265 (1990):
“ ‘[T]he people’ seems to have been a term of art employed in select parts of the Constitution... .
[Its uses] sugges[t] that
‘the people' protected by the
Fourth Amendment, and by the First and Second Amendments
and to whom rights and powers are reserved
in the Ninth and Tenth Amendments, refers to
a class of persons
who are part of a national community
or who have otherwise developed sufficient connection
with this country to be considered part of that community.”
"We start therefore with a strong presumption that
the Second Amendment right is exercised individually
and belongs to all Americans."
[all emfasis has been exultantly added by David]
also sets forth:
"Just as the First Amendment
protects modern forms of communications, ...
and the Fourth Amendment applies to modern forms of search,
the Second Amendment extends, prima facie, to all instruments
that constitute bearable arms, even those that were not
in existence at the time of the founding.
We think that JUSTICE GINSBURG accurately captured
the natural meaning of “bear arms.” Although the phrase
implies that the carrying of the weapon is for the purpose
of “offensive or defensive action,” . . . .
Putting all of these textual elements together,
we find that they guarantee the individual right
to possess and carry weapons in case of confrontation.
[All emfasis has been gleefully added by David]