Anyone Deny That 2nd Amendment Will Be Incorporated ?

I pledge to go APE ****. If they screw with the 2nd Amendment.

David. You have to realize that not all of us are Constitutional scholars. Could you elaborate on this incorporation ?

He means that on the basis of the due process provisions of the 14th amendment, what he claims the second amendment means will be extended to the states--that's what he means by incorporation.

This would involve the Supremes overturning previous statements by the Court. In United States versus Cruikshank (1876) and Presser versus Illinois (1886), the Court held that the second amendment binds the Federal government (specifically, Congress), but does not bind the states. I personally don't see upon what basis this Court would overturn that--would "incorporate" (new obsessive buzz word of the gun lobby, most of whom were blissfully unaware of the concept until recently) the second amendment. However, no where is a right of possessing firearms for self-defense mentioned in the constitution, yet this Court claimed there was a basis for that in Heller. So anything is possible. I would be amused to see someone explain how states regulating firearms denies people the right of due process.

Thank you Set for the accessible answer you provided.

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.

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.

Gunga Dim clearly ignores the decisions in Cruikshank and Presser. I suspect that he is unaware of them. Furthermore, in United States versus Miller, 1939, the Court noted the comments in the two earlier cases to the effect that the second amendment binds the Federal government, but not the states, and went on to observe that they knew of no reason to assume that a shotgun having a barrel of less than 18" in length was a weapon for the use of the militia. Their decision upheld the National Firearms Act of 1934. Inferentially, they were referring to the portion of Article One, Section Eight which gives the Congress the power to provide for arming the militia, and therefore, inferentially giving the Federal government the power to regulate firearms to that extent. It is noteworthy that the gun lobby has gotten positively delirious over Heller and ignore that included in that decision was a statement by the current Court to the effect that they recognized several valid reasons for regulating firearms. For example, the Heller decision specifically referred to "carrying firearms in the home," and therefore avoided the examination of laws regulating the carrying of firearms in public places. It also did not vacate the right to require that firearms be registered. Specifically, the majority opinion wrote: "Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms."

No one, of course, can predict how this Court will rule. However, i think the gun lobby's expectations might be too sanguine. There is a possibility that their expectations will be disappointed.

You say you want a revolution
Well, you know
We all want to change the world

My apologies, Sire; your point is well taken.
I assumed too much.
In recognition of your comment qua Setanta's reply
to your inquiry, I have taken him off Ignore, for the nonce
and I read his contributions. One thing about Setanta is that he is not stupid.
He never was.

What I meant by "incorporation" is the USSC declaring that
the personal freedom protected by the Bill of Rights
(the 1st ten amendments to the US Constitution)
restrains the State governments from interference
with that freedom, not only the federal government;
i.e., that the 2nd Amendment means what it says, to wit:
" . . . the right of the people to keep and bear arms shall not be infringed." [emfasis added by Me]
That is what everyone (?) thought the Constitution meant
until the USSC John Marshall, J. came out with Barron v. Mayor & City Council of Baltimore in 1833.

Having taken Setanta off Ignore and read his contributions,
I will address the elements thereof, seriatim. (That means one at a time.)

i was out for my constitutional this afternoon, lovely day for a walk

Gunga,
R u in doubt of the outcome of McDonald v. Chicago qua incorporation ?

An amicus 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 case.
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."






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” and therefore
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]




HELLER 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]








David

For many years, before I retired,
I thawt Truman was foolish for doing that,
but when one is older and has freedom to remain at home
as much as he wants, except for travel or social engagements,
one learns the value of his constitutional: avoiding atrofy.

That's certainly easy enough, conceptually. The constitution provides David a right to bear arms. This is essentially a guaranteed freedom. The constitution also provides that David will not be denied freedom without Due Process of Law. The concept of due process was around for centuries before our constitution was written, and for whatever reason our founding fathers saw fit to guarantee the right to bear arms in the Bill of Rights.

Now obviously an argument can easily be made that regulation does not constitute denial, but the concept is easy enough to understand. I'd wager you could produce a pretty good argument for it yourself, were you inclined to advocate for this freedom.

Where exactly do you think the constitution provides this?

The right to bear arms is not "life" "liberty" or "property". While you could try to argue that a gun is property that can't be taken without due process. I don't see how you came up with that argument that the constitution guarantees rights other than the 3 listed when it comes to due process.

For a half a century, the Supreme Court has been trending toward more broadly interpreting the due process clause of the 14th amendment (including the 5th, and I think we’d agree this is a good thing?) to the bill of rights. If you really can’t see this, you haven't looked. What makes you think the 2nd amendment is immune to similar treatment by this court anyway?

Which ruling do you think applied the due process clause to protecting freedoms granted in the first and second amendment?

"You haven't looked" doesn't really provide an answer to me Bill.

I didn't say it's been applied to the 1st or 2nd specifically. Nor did I say it's been applied to the entire bill of rights. I said the Court's been trending that way for half a century. (Though the first was covered in Gitlow v. New York and Near v. Minnesota.) Liberty as guaranteed in the fifth was dramatically increased in Brown v. Board, which is probably the best example (though I’m also a big fan of Loving v. Virginia, which is an excellent example as well). Again: what makes you think the 2nd amendment is immune to similar treatment by this court?

In US v. CRUIKSHANK 92 US 542 (1875) felonious convictions of some Klansmen
for violation of the 1st Amendment (right of assembly of some blacks),
and of the 2nd Amendment (right to keep and bear arms of those blacks),
were reversed by the US 5th Circuit Ct. of Appeals, on the grounds
that it was neither pled nor proven that THE STATE had,
by its laws, abridged the rights of US citizens (Defendants being
private citizens), and FOR THAT REASON, the 14th Amendment
could not apply the 1st nor the 2nd Amendment to the case at bar;
i.e., the 14th Amendment only protected citizens of Louisiana
from the GOVERNMENT of that State, not from their fellow citizens.
That Court pointedly implied that if officers of the State of Louisiana
had, BY ITS LAWS, violated the 1st or 2nd Amendment,
they would have feloniously violated the 14th Amendment
and the Enforcement Act of May 31, 187O.

Note that the US Supreme Court affirmed this case.
In so doing, it held that the rights of the 1st and 2nd Amendments
long antedated the Constitution, such that when created,
the US government found them in being. In HELLER, the USSC recognized that and re-affirmed it.

Accordingly, these rights are older than the Constitution,
which neither created nor granted them to the citizenry
any more than the Constitution created the moon nor granted the stars.

In affirming the CRUIKSHANK holding, the USSC said that the 2nd Amendment
"... has no other effect than to restrict the powers of the national government . . ." (supra)



Saying that the 2nd Amendment only limited the powers of Congress, clearly the Court was following its holding
in BARRON v. BALTIMORE (1833) 7 Pet. 243 (that the Bill of Rights does not mean what it says).

Yet, the author of §1 of the 14th Amendment, Rep. John A. Bingham,
explained in a speech in Congress, on March 31st, 1871,
that it was his intention to overthrow BARRON v. BALTIMORE when he wrote the 14th Amendment,
thereby to curtail the powers of the states by use of its "privileges or immunities"
and "due process" clauses, thus to enlarge the personal freedom of the Bill of Rights,
quoting verbatim each one of the first eight amendments.

When Sen. Jacob Howard introduced the 14th Amendment to the US Senate,
he described "the PERSONAL RIGHTS guaranteed and secured by
the FIRST EIGHT amendments of the Constitution; such as freedom of speech
and the press; ...the right to keep and bear arms....
The great object of the first section of this amendment is...
to restrain the power of the states and compel them ... to respect these great fundamental guarantees."
[emphasis added] (That Every Man Be Armed by Dr. Stephen Halbrook, cited with approval by the USSC in HELLER.)





David

The right to bear arms is clearly in defense of life
from the violence of predatory animals and from criminals.
The right protects liberty from interference of any government
while in execution of its provisions. The right protects gun collections.
It seems to me that it also renders defensive weapons immune from any taxation,
the same as religious articles or newspapers. A constitutional right cannot be taxed.

In regard to incorporation of the Bill of Rights against State governments,
the USSC observes that the right to bear arms pre-existed the US Constitution,
existing independently thereof:

This meaning is strongly confirmed
by the historical background of the Second Amendment.
We look to this because it has always been widely understood
that the Second Amendment, like the First and Fourth Amendments, codified a pre-existing right.
The very text of the Second Amendment implicitly recognizes the pre-existence of the right and declares only
that it “shall not be infringed.” As we said in United States v.Cruikshank, 92 U. S. 542, 553 (1876),
“[t]his 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. . . .”
[All emfasis has been added by David.]