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Posted: 2/15/2007 4:41:35 AM EST
I'm taking two US history courses this semester and both teachers are pretty conservative. One of them has no qualms with letting people know he leans to the right, which I'm loving.

The courses continually are continually bringing up the constitution, which is great.
Anyway... the other day we covered several amendments, this being one of them, and it seemed like the 14th Amendment supports the 2nd Amendment rather well.


Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. 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.


Am I reading it wrong?
Link Posted: 2/15/2007 5:54:21 AM EST
Link Posted: 2/15/2007 3:08:00 PM EST

Originally Posted By shotar:
There has never been a supreme court case which applied the 2nd through the 14th. Thus, no, it does not apply.


Saying it doesn't apply solely because a legal precedent has not yet been set implys that we have no future, only a past. To me it sounds like it says the states can't bas something the constitution gaurentees.
Link Posted: 2/15/2007 3:17:19 PM EST
The SC is guilty of moral cowardice with regards to the 2nd Amendment and will dodge facing the truth whenever possible.

I wish there was an organization like the ACLU (but not the commie ACLU) that actually went to the mat on every constitutional issue, even the ones the left doesn't agree with. The gov needs to get bitch slapped and dragged into court every time it exceeds it's constitutional authority.

Where are our soldiers for the constitution?

Link Posted: 2/15/2007 10:06:57 PM EST
Wouldn't it be great if the ACLU actually meant what it appears to mean?
Link Posted: 2/15/2007 10:09:04 PM EST
The term is incorporation, and the second amendment has not yet been incorporated.
Link Posted: 2/16/2007 7:21:41 AM EST
[Last Edit: 2/16/2007 7:24:31 AM EST by Captain_Picard]

Originally Posted By Combat_Jack:
The term is incorporation, and the second amendment has not yet been incorporated.


Thank you Jack. That is a fine point of law I was not aware of and which seems to back my moral cowardice arguement.

Why wouldn't the SC incorporate the Bill of Rights completely rather than selectively so all states had to honor all portions? It just dumbfounds me to what lengths the legal system will go to violate or subvert the true spirit of the Constitution.

For those not familiar with incorporation (as I was), here's a useful link:

en.wikipedia.org/wiki/Incorporation_(Bill_of_Rights)

ETA: I doubt the SC will ever incorporate the 2nd. Fortunately many state constitutions (including Nevada's) include wording similar to the 2nd.
Link Posted: 2/16/2007 7:39:17 AM EST
Mmmm, yeah... I don't get it.
Link Posted: 2/16/2007 7:48:25 AM EST

Originally Posted By pathfinder74:
Mmmm, yeah... I don't get it.


Exactly as the lawyers designed it.

It only applies as they want it to at certain points in time.

Common citizens like us are too stupid to get it, apparently.
Link Posted: 2/16/2007 7:54:48 AM EST
The 14th doesn't specifically mention the 2nd. But the idea that the 14th is what protects any of the other amendments from the states is preposterous. They stand on their own merit within the framework of the Constitution as the law of the entire land.


CJ
Link Posted: 2/16/2007 7:59:38 AM EST

Originally Posted By cmjohnson:
The 14th doesn't specifically mention the 2nd.


Guns are property, right? That's kind of where I was going with the whole thing.
Link Posted: 2/16/2007 8:10:09 AM EST
shut up peasant and go back to work!




Link Posted: 2/16/2007 10:10:07 AM EST

Originally Posted By pathfinder74:

Originally Posted By cmjohnson:
The 14th doesn't specifically mention the 2nd.


Guns are property, right? That's kind of where I was going with the whole thing.


But they can deny from possessing or restrict that property so long as there is some due process.

It would seem the incorporation issue, if I'm understanding the argument correctly, would leave the states free to deny those rights within of the Bill of Rights which have not been "incorporated" as applying to them. That just seems fucked up beyond all recognition.

I would think, perhaps in ignorance, that all states are bound by the constitution and it's amendments, most importantly the Bill of Rights and that there should be NO wiggle room whatsoever.

But then I'm not a lawyer whose profession it is to pervert, subvert, and twist the English language into unrecognizable jibberish.
Link Posted: 2/16/2007 10:27:50 AM EST
“The claim and exercise of a constitutional right cannot be converted into a crime.” Miller v. US, 230 F 486, 489.
Link Posted: 2/16/2007 10:30:59 AM EST
That's what I thought the 14th did... cut out any wiggle room.

What due process is there to keep someone from buying a gun?

I guess I don't really understand due process. I thought it was supposed to work for the people, not against them. I thought it basically kept the man from getting in the way of the people by making them give a strong legal reason why they shouldn't be able to do something.
Link Posted: 2/16/2007 10:56:16 AM EST

Originally Posted By pathfinder74:
That's what I thought the 14th did... cut out any wiggle room.

What due process is there to keep someone from buying a gun?

I guess I don't really understand due process. I thought it was supposed to work for the people, not against them. I thought it basically kept the man from getting in the way of the people by making them give a strong legal reason why they shouldn't be able to do something.


Perhaps due process, in this instance, is simply state legislation to deny or restrict and you can sue if you want (and have the money)? I always thought of due process as an individual protection along the lines of.......they can't throw you in the can without a trial, but I'm sure there is some nuanced wiggling in the legal system. This thread needs the input of a constitutional attorney, or any lawyer for that matter
Link Posted: 2/21/2007 11:14:26 AM EST
According to the fifth and fourteenth amendments, the 1939 Miller Supreme court case violates procedural due process because:


Procedural due process is essentially based on the concept of "fundamental fairness". As construed by the courts, it includes an individual's right to be adequately notified of charges or proceedings involving him, and the opportunity to be heard at these proceedings. Procedural due process has also been an important factor in the development of the law of personal jurisdiction.


The Miller case, which overturned a lesser courts finding that the NFA was unconstitutional, was against an individual who was not notified of the proceedings, and had no opportunity to be heard. The Miller case was allowed to be heard and conducted in absence of any defense. Given the fifth and fourteenth amendment, the Miller case result is unconstitutional, and therefore EVERY gun control law who's premise of legality is based on this ruling is unconstitutional. That includes ALL of them, on both the state and federal level.

So where is the NRA, or the rest of them? Busy spending our hard-earned $$$ on the campaigns of politicians, which would be unnecessary if they just went after the law.
Link Posted: 2/21/2007 11:18:20 AM EST
[Last Edit: 2/21/2007 11:50:46 AM EST by jrkarp]

Originally Posted By Faustrocket:

Originally Posted By shotar:
There has never been a supreme court case which applied the 2nd through the 14th. Thus, no, it does not apply.


Saying it doesn't apply solely because a legal precedent has not yet been set implys that we have no future, only a past. To me it sounds like it says the states can't bas something the constitution gaurentees.


Incorporation by the 14th is a tricky and amorphous thing. Some of the original Bill of Rights is incorporated, some is not. It is impossible to say which is and which is not without a SCOTUS ruling.

Frankly I find the whole concept of selective incorporation absurd, but that's how it is.
Link Posted: 2/21/2007 11:44:52 AM EST
[Last Edit: 2/21/2007 11:52:53 AM EST by wise_jake]
Selective incorporation sucks. Justice Black was all for total/complete incorp, but he didn't win.


ETA: Nevermind. The wikipedia article hits all the high points pretty well.
Link Posted: 2/23/2007 3:54:08 PM EST

Originally Posted By jrkarp:

Frankly I find the whole concept of selective incorporation absurd, but that's how it is.


I couldn't agree more. The fact that the Supreme Court gets to decide what rights are 'fundamental' in their view is a mockery of our entire system of law.
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