NationStates Jolt Archive

9th Circuit Court Incorporates 2nd Amendment (http://news.prnewswire.com/DisplayReleaseContent.aspx?ACCT=104&STORY=/www/story/04-20-2009/0005009314&EDATE=)

I must say, I am quite surprised considering that this circuit serves CA and is traditionally rather liberal. I imagine this will almost certainly go the Supreme Court, as the Second Circuit ruled the opposite a few months ago, and its kinda a big deal. It'll be interesting to see what the SCOTUS will do, now that they don't have the loophole of DC being a federal district. Also, I wonder what this means for CA gun laws, which are among the strictest in the nation. I'm willing to bet not much; I can't think of any outright state bans anywhere, mostly heavy restrictions. But I think it will be incorporated; there are like five things from the BOR that haven't been and like it or not guns are pretty big in American culture.

There are already a few interesting cases in front of the court; I think the strip-search one, the one from AZ about English and the Connecticut firefighters are all up this session.

Btw, I'm no lawyer so if I'm totally wrong about something I said feel free to correct me.

All I can really say to you is run. Invoking the 9th Circuit will automatically summon Cat Tribe and no one has ever been able to out cite him.

Unless of course you want a grounding in case law, at which case stick around. ;)

All I can really say to you is run. Invoking the 9th Circuit will automatically summon Cat Tribe and no one has ever been able to out cite him.

Unless of course you want a grounding in case law, at which case stick around. ;)

Haha, thanks for the advice, I've been lurking here enough to see him shut people down... I don't really want to start an argument over gun control, more discuss the second amendment and what this means....if he can teach me something I don't know I'm all for it.

What makes this case interesting is that while the Court did incorporate the 2nd amendment into the 14th, they still upheld the gun ban law in question. In short, while they found that there was some degree of a right to bear arms protected under the 14th amendment, this limitation did not unduly infringe upon it.

So it's interesting to see what extent this will have. On one hand the court did incorporate it into the 14th amendment, while simultaneously placing some fairly significant limitations on that right.

What makes this case interesting is that while the Court did incorporate the 2nd amendment into the 14th, they still upheld the gun ban law in question. In short, while they found that there was some degree of a right to bear arms protected under the 14th amendment, this limitation did not unduly infringe upon it.

So it's interesting to see what extent this will have. On one hand the court did incorporate it into the 14th amendment, while simultaneously placing some fairly significant limitations on that right.
I was wondering about that given that the PR didn't go into great detail (Probably wanted to avoid it).

Despite what the NRA would have you believe, a Constitutional right does not strip the state of instituting laws which do not make exercising that right unduly difficult.

That we have a lawfully armed populace adds a measure of security for all of us and makes it less likely that a band of terrorists could make headway in an attack on any community before more professional forces arrived.
Who doesn't love imaginary scenarios that never come true even when the situation comes up.

What makes this case interesting is that while the Court did incorporate the 2nd amendment into the 14th, they still upheld the gun ban law in question. In short, while they found that there was some degree of a right to bear arms protected under the 14th amendment, this limitation did not unduly infringe upon it.

So it's interesting to see what extent this will have. On one hand the court did incorporate it into the 14th amendment, while simultaneously placing some fairly significant limitations on that right.

I think that this quite fits with our understanding of the Amendments to accept that there are, indeed, limitations that may be placed on the Bill of Rights. The classic example being that we may not shout "FIRE MOTHERFUCKERS" in a crowded theater being a restriction on the first. I don't see why we should be bothered by similar reasonable rules involving the second. Much the same, it's a reasonable restriction on the Second to limit the ability to possess, say, a functional Abrams tank.

Just my interperetation--and I'm not attempting to rebut Neo Art, I just used your post as my own personal soapbox.

Despite what the NRA would have you believe, a Constitutional right does not strip the state of instituting laws which do not make exercising that right unduly difficult.


But they do prevent it from instituting outright bans or laws which do make it unduly difficult...I guess the 9th circuit ruled that this example wasn't....I'd like to see what the Supreme Court says.

What makes this case interesting is that while the Court did incorporate the 2nd amendment into the 14th, they still upheld the gun ban law in question. In short, while they found that there was some degree of a right to bear arms protected under the 14th amendment, this limitation did not unduly infringe upon it.

So it's interesting to see what extent this will have. On one hand the court did incorporate it into the 14th amendment, while simultaneously placing some fairly significant limitations on that right.

Tell me if I understand what incorporating the Second in the Fourteenth means: the Circuit Court has said the Second Amendment must apply to the states, as well as the federal government? Is that right?

Despite what the NRA would have you believe, a Constitutional right does not strip the state of instituting laws which do not make exercising that right unduly difficult.

Why are the second amendment rights any different than our 1st, 4th, 5th, 6th, ect, rights?

But they do prevent it from instituting outright bans or laws which do make it unduly difficult...I guess the 9th circuit ruled that this example wasn't....I'd like to see what the Supreme Court says.

The point was that the NRA would bitch and moan if the US government banned people from owning mid-range missiles.

I think that this quite fits with our understanding of the Amendments to accept that there are, indeed, limitations that may be placed on the Bill of Rights. The classic example being that we may not shout "FIRE MOTHERFUCKERS" in a crowded theater being a restriction on the first. I don't see why we should be bothered by similar reasonable rules involving the second. Much the same, it's a reasonable restriction on the Second to limit the ability to possess, say, a functional Abrams tank.

Just my interperetation--and I'm not attempting to rebut Neo Art, I just used your post as my own personal soapbox.

That's...essentially correct. I only make a correction because the term "reasonable restriction" is sort of a term of art. Basically, in simple, it works like this. Whenever the government restricts your ability to do anything, the constitutional test requires a degree of review. What they restrict you from doing (and what your classification as a group is) determines the test required.

At its least restrictive, for restrictions that don't impact on rights that are "fundamental" (for lack of a better term) and do not offend sensibilities of equal protection, the rational basis test is used. This basically means the restriction stands, if the government can proffer any rational reason for that restriction.

On the other end of the spectrum, for restrictions on rights that are fundamental, or that impact suspect classifications under an equal protection argument, is the "strict scrutiny" test, which requires the government to show that their interest in restricting such is compelling, and there is no less restrictive alternative.

Now, when it comes to banning assault rifles, or things like conceal carry permits, there have been three arguments. First is that, at the state level, there is simply no 2nd amendment right, and as such, any restriction on gun ownership is acceptable, even under a rational basis test. The second argument is, accepting the 2nd amendment applies to the states, there is a compelling state interest in limiting ownership of assault rifles, and concealing guns in public, thus, even if it is a fundamental right, the laws meet the strict scrutiny standard.

The third argument, and the one the court here seems to have accepted, is a hybrid between them. some degree of gun ownership is a fundamental right, but only to the extent of the original scope and purpose of the 2nd amendment. That which is useful for self protection in your own home. That kind of ownership is a fundamental right. Beyond that, such as conceal carry permits, or assault weapons, is not protected, and thus, rational restrictions on those things do not run afoul of the quite different rights granted under the 2nd.

Why are the second amendment rights any different than our 1st, 4th, 5th, 6th, ect, rights?

All of which have "common sense" restrictions on them (or in the case of the 4th, fucking truck sized holes in it). Try again, Rambo.

Why are the second amendment rights any different than our 1st, 4th, 5th, 6th, ect, rights?

Try crying "fire" in a crowded theater; there are limits to all rights. Now, you're right there are stricter laws for gun control than something like free speech, but that's because it's much easier for firearms to present a clear and present danger than speech, or petition.

EDIT: I used the phrase "clear and present danger" in a way that didn't really make much sense legally. Please forgive me.

Tell me if I understand what incorporating the Second in the Fourteenth means: the Circuit Court has said the Second Amendment must apply to the states, as well as the federal government? Is that right?

essentially. The bill of rights, or, rather, the restrictions the bill of rights place on the government, apply only to the federal government. For instance, the first amendment states only that congress shall make no law abridging free speech etc etc. For about 70 years of our nation's history, the states were perfectly free to pass laws restricting free speech, and the like. The bill of rights only restricted what the federal gov't could do, not the states.

But when the 14th amendment was passed, it stated "No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."

Now there was some debate in the courts as to what that meant. he idea was that the 14th amendment "incorporated" the rights protected under the Bill of Rights, and applied them to the states. Hence "incorporating" them into the 14th. Some justices argued that every single restriction the bill of rights placed on the federal government should be placed on the state governments. TA theory known as "total incorporation" (states can't do what feds can't do). Other justices argued that the courts should examine each right independently, to see if it fell within our ideas of "due process of law". This was "partial incorporation" theory.

The partial incorporation theory won out. The irony, of course, is that, over the last 140 years, the courts have, piecemeal, adopted just about every single restriction on the federal government, onto the states. Thus while they did it under a theory of partial incorporation, in reality what happened was a slow but steady near full incorporation.

There were a few holdouts, mostly minor, such as that while a federal indictment requires indictment by grand jury (5th amendment), this has not been held binding on the states. The biggest and most important question that was still remaining was whether the 2nd amendment (a limitation on the federal government only) would be "incorporated" into the 14th (thus making it a limitation on the state governments as well). And even now, 140 years after the 14th amendment, modern courts are split on that issue.

That was a really long way of saying "yes, you're right".

The ruling makes sense. Incorporates 2nd with the 14th, however a county or any government should have the right to deny shows on county property. If they want a gun show there, that bad get some private property.

what surprises me is they incorporated the 2nd amendment with the 14th amendment when they really didn't need to in order to tell the gun nuts they can't force someone to let you sell stuff at their fair if they don't want you to.

The point was that the NRA would bitch and moan if the US government banned people from owning mid-range missiles.

I think you're over-exaggerating quite a bit on that. The NRA has in the past helped to craft reasonable legislation (they have supported Project Exile, as well as NICS, even to the point of approving of strengthening it in the wake of the Virginia Tech shooting).

The question has rarely been weather restrictions on Firearms can be put in play; the question has been what exactly constitutes reasonable restrictions.

It will be interesting to see what exactly comes of the Heller case. I don't imagine that a massive amount of gun control legislation will be declared unconstitutional, but i can see situations where an Assault Weapons Ban might be declared unconstitutional by state courts. IANAL.

The question has rarely been weather restrictions on Firearms can be put in play; the question has been what exactly constitutes reasonable restrictions.

It will be interesting to see what exactly comes of the Heller case. I don't imagine that a massive amount of gun control legislation will be declared unconstitutional, but i can see situations where an Assault Weapons Ban might be declared unconstitutional by state courts. IANAL.

That'd be awesome if that happened in CT. :D

That's...essentially correct. I only make a correction because the term "reasonable restriction" is sort of a term of art. Basically, in simple, it works like this. Whenever the government restricts your ability to do anything, the constitutional test requires a degree of review. What they restrict you from doing (and what your classification as a group is) determines the test required.

At its least restrictive, for restrictions that don't impact on rights that are "fundamental" (for lack of a better term) and do not offend sensibilities of equal protection, the rational basis test is used. This basically means the restriction stands, if the government can proffer any rational reason for that restriction.

On the other end of the spectrum, for restrictions on rights that are fundamental, or that impact suspect classifications under an equal protection argument, is the "strict scrutiny" test, which requires the government to show that their interest in restricting such is compelling, and there is no less restrictive alternative.

Now, when it comes to banning assault rifles, or things like conceal carry permits, there have been three arguments. First is that, at the state level, there is simply no 2nd amendment right, and as such, any restriction on gun ownership is acceptable, even under a rational basis test. The second argument is, accepting the 2nd amendment applies to the states, there is a compelling state interest in limiting ownership of assault rifles, and concealing guns in public, thus, even if it is a fundamental right, the laws meet the strict scrutiny standard.

The third argument, and the one the court here seems to have accepted, is a hybrid between them. some degree of gun ownership is a fundamental right, but only to the extent of the original scope and purpose of the 2nd amendment. That which is useful for self protection in your own home. That kind of ownership is a fundamental right. Beyond that, such as conceal carry permits, or assault weapons, is not protected, and thus, rational restrictions on those things do not run afoul of the quite different rights granted under the 2nd.

^
What I would have said had I not been more than a touch...toasted...when I made my first post.

essentially. The bill of rights, or, rather, the restrictions the bill of rights place on the government, apply only to the federal government. For instance, the first amendment states only that congress shall make no law abridging free speech etc etc. For about 70 years of our nation's history, the states were perfectly free to pass laws restricting free speech, and the like. The bill of rights only restricted what the federal gov't could do, not the states.

Now I understand the wording of amedment as you say congress but why can state law overrule federal law?

You mentioned it in another thread that now people can't be busted for drugs that may be prohibited under federal law but can't be prosecuted for it if state law allows it.

Now I understand the wording of amedment as you say congress but why can state law overrule federal law?

You mentioned it in another thread that now people can't be busted for drugs that may be prohibited under federal law but can't be prosecuted for it if state law allows it.

Federal law ALWAYS supersedes state law. In this case, the Feds had fewer restrictions on rights, so the states were able to enact more restrictive laws. If the feds pass more restrictive laws than the states, the states are powerless to prevent the feds from enforcing those more restrictive laws. In the drug case, it is simply a matter of the Federal Gov't saying "we are not going to enforce our laws in certain circumstances."

Federal law ALWAYS supersedes state law. In this case, the Feds had fewer restrictions on rights, so the states were able to enact more restrictive laws. If the feds pass more restrictive laws than the states, the states are powerless to prevent the feds from enforcing those more restrictive laws. In the drug case, it is simply a matter of the Federal Gov't saying "we are not going to enforce our laws in certain circumstances."

Not exactly true. Federal Law supersedes state in those areas granted to the Federal government by the Constitution. In areas not so granted, State law is supreme.

Not exactly true. Federal Law supersedes state in those areas granted to the Federal government by the Constitution. In areas not so granted, State law is supreme.

Semantics, because in areas not covered by Federal law, there is no other law in existence for the State law to be supreme over.

Now I understand the wording of amedment as you say congress but why can state law overrule federal law?

State law doesn't overrule federal law, however the federal government is one of limited power, and can only make laws covering certain things.

You mentioned it in another thread that now people can't be busted for drugs that may be prohibited under federal law but can't be prosecuted for it if state law allows it.

That's something different. What that is was the US Attorney General stated that the US federal government will decline to prosecute anyone arrested under federal drug laws, if their activity was legal under the state they were in.

The federal government most certainly can arrest, try, and convict people who violate federal drug laws, even if their activity was legal in that state. But they stated that they decline to do so, as is their perogative. It's not a matter that state law allows it therefore the federal government can't prosecute. They just said they won't, as long as it was legal under state law.

That's something different. What that is was the US Attorney General stated that the US federal government will decline to prosecute anyone arrested under federal drug laws, if their activity was legal under the state they were in.


A side question. Isnt selective prosecution of the law by the AG sidesteping legislative intent? Doesnt the AG pledge to uphold the law as written, not just selectively decide which ones he likes and doesn't like and what ones he will pursue based on his convenience?

A side question. Isnt selective prosecution of the law by the AG sidesteping legislative intent? Doesnt the AG pledge to uphold the law as written, not just selectively decide which ones he likes and doesn't like and what ones he will pursue based on his convenience?

the short answer is "no".

The slightly longer answer is "executive privlidge", with a side of "seperation of powers".

The actual long answer is this. Writing laws is the power of the legislative. Enforcing laws is the power of the executive. And never the twain shall meet. Just as the Executive Branch, under the seperation of powers doctrine, can't tell Congress which laws to pass, Congress can not tell the Executive Branch (which the DoJ and the AG is a part of) which laws to enforce. What cases to pursue, which not to pursue, and where to allocate resources is entirely at the discretion of the Department of Justice, and no other branch may dictate how to do so.

It's a doctrine called "prosecutorial discretion". No other branch but the executive can tell the executive what to do.

State law doesn't overrule federal law, however the federal government is one of limited power, and can only make laws covering certain things.

*snip this part while it clarifies it takes up room in the quote box, thanks anyway Neo*

Yes I am aware of that but what I want to know is why this thing with the second is even an issue? Should it not be incorporated anyway? I mean it is covered under federal law and unlike the 1st doesn't limit it to individual sections of the federal government.

Now this section with the 14th is when they talk about the 1st section of the 14th?

Bare in mind I am not a citizen of the US and have only spent a total of 2.5 months in the country and so am not fully aware of the way the US constitution and the bill of rights.

Yes I am aware of that but what I want to know is why this thing with the second is even an issue? Should it not be incorporated anyway? I mean it is covered under federal law and unlike the 1st doesn't limit it to individual sections of the federal government.

Now this section with the 14th is when they talk about the 1st section of the 14th?

Bare in mind I am not a citizen of the US and have only spent a total of 2.5 months in the country and so am not fully aware of the way the US constitution and the bill of rights.

Because of the way the body of the Constitution is written, the provisions of it originally applied only to the Federal Government, and only those specific clauses that covered the states, and SAID they covered the states, could be applied to the state governments (such as the proviso that state Constitutions could not directly contradict the Federal one).

That all changed with the passage of the 14th Amendment. Basically, the 14th made a sweeping change to the interpretation of US constitutional law, and, over time, has led to certain aspects of the Bill of Rights being forced on (often recalcitrant) states. But no "this is all applying now" sweeping statement has ever been made.

Basically, the 9th Circuit has taken the Supreme Court's ruling on the DC Handgun ban as incorporating (applying to the states) the second amendment as a personal right. It remains to be seen whether the SCOTUS will let that stand or pull back from full incorporation.

Yes I am aware of that but what I want to know is why this thing with the second is even an issue? Should it not be incorporated anyway? I mean it is covered under federal law and unlike the 1st doesn't limit it to individual sections of the federal government.

You're right in a general sense. The first amendment specifically says "Congress shall make no law" but the 2nd amendment is a more general "the right of the people to keep and bear arms shall not be infringed", which does make it seem, by wording alone, that the 2nd amendment is much broader, and implies that it shall not be infringed by anyone. Thus while the first amendment is a specific limitation on the federal Congress the 2nd seems more general.

However the Constitution does not exist in a vaccum, and many of the people who wrote the constitution also had their own writings on it. The most well known being The Federalist Papers written by Alexander Hamilton, James Madison and John Jay. These men, were extremely influential people in the Constitutional Convention, and Madison is often refered to as "the father of the constitution", largely because he mostly wrote the damned thing.

And in the federalist papers, and other documents, they discuss its purpose and intent. So while the wording, itself, of the 2nd amendment appears to be a much broader "shall not be infringed" than the 1st amendments more specific "congress shall make no law", the federalist papers and others make it clear that the entire bill of rights was only intended to be a check on the federal government, and not intended to be a limitation on the states.

In other words, the bill of rights of the constitution was not intended to apply to the state governments because the men who wrote it said it didn't.

The 14th amendment, of course, changed all that.