In my postings to Democratic Underground, I actually managed to get an anti to [i]ask me[/i] what I meant about the Second Amendment not being incorporated under the 14th.  This is the response I gave him.  Would one or two of you review it?  Am I legally consistent here?

The relevant case law is [i]U.S. v. Cruikshank[/i], which followed what is known as [i]The Slaughterhouse Cases[/i] both of which occurred immediately after passage of the 14th Amendment.

Immediately after the Civil War, the 13th Amendment ended slavery officially when it was ratified in 1865. The states immediately started passing laws known as "the Black Codes" which restricted blacks (and other minorities) from assembly, voting, testifying against whites in trials, holding certain jobs, and keeping arms, among other things. The 14th Amendment was ratified in 1868 to nullify such infringements of fundamental rights. The "priviledges and immunities" and "equal protection" clauses of the 14th read:

[blue]"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 to deny to any person within its jurisdiction the equal protection of the laws."[/blue]

It was immediately challenged in the Slaghterhouse Cases where the Supreme Court ruled very narrowly on just what the 14th actually protected.

In [i]Cruikshank[/i] a group of Klansmen in Louisiana had attacked a group of blacks holding a political meeting. Over one hundred were killed or injured. Claims of both 14th and 2nd Amendment violations (among others) were brought against the attackers, and dismissed by the court. In the case of the 2nd, the claim was rejected on the grounds that the Second protected only Federal infringment of the right to arms. The pertinent quote is:

[blue]"The right there specified is that of 'bearing arms for a lawful purpose.' This 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; but this, as has been seen, means no more than that it shall not be infringed by Congress. This is one of the amendments that has no other effect than to restrict the powers of the national government..."[/blue]

In effect, the Cruikshank decision said that Congress couldn't pass a law infringing an individual right to arms, but the states could. This logic, and this quotation, were cited in [i]Presser v. Illinois[/i] 11 years later.

(You'll note in many pro-control references, the part about "Neither is it in any manner dependent upon that instrument for its existence" is excerpted in order to claim that there is no "right of bearing arms for a lawful purpose" granted by the Constitution. Too true! The right exists, according to the Court, and it isn't dependent on the Constitution - it is merely guaranteed as uninfringable. But only by Congress. Some logic.)

As to the 14th Amendment, the court said:

[blue]"The fourteenth amendment prohibits a State from denying to any person within its jurisdiction the equal protection of the laws; but this provision does not, any more than the one which precedes it, and which we have just considered, add any thing to the rights which one citizen has under the Constitution against another. The equality of the rights of citizens is a principle of republicanism. Every republican government is in duty bound to protect all its citizens in the enjoyment of this principle, if within its power. That duty was originally assumed by the States; and it still remains there. The only obligation resting upon the United States is to see that the States do not deny the right. This the amendment guarantees, but no more. The power of the national government is limited to the enforcement of this guaranty."[/blue]

Which to me seems schizophrenic - it's the duty of the States to protect the rights of the citizens, the Federal government has the responsibility to ensure they do so. But it's OK to violate a fundamental right as long as Congress doesn't do it? But, nevertheless, the principal that the States could restrict, willy-nilly, the right to arms was established, right along with the right to lynch without consequence to the lynchers. [i](Note to Acerbic: The "right to lynch"? That's hyperbole.)[/i] Apparently Orwell was right - some are more equal than others. [i](That's not)[/i]

The "incorporation decisions" that fold Federal protection of the articles of the Bill of Rights under the umbrella of the 14th Amendment began in 1897. The 1st, 3rd, 4th, 5th, 6th & 8th Amendments have all been "incorporated". The 7th, 9th & 10th obviously don't need to be. But the 3rd???.

Anyway, that leaves only the 2nd - a "right of the people" - unincorporated under the protection of the 14th against infringment by the States.

Essentially, the 14th was passed to ensure that the civil rights of minorities - all of them - would be protected by the Federal government against infringement by the States. It is interesting to note that the case that has been called "the match that ignited the Civil War" listed those rights expressly - as rights denied to blacks because they were not and could not be citizens. The case was Scott v. Sanford. The pertinent quote is:

[blue]For if they were so received, and entitled to the [red]privileges and immunities[/red] of citizens, it would exempt them from the operation of the special laws and from the police regulations which they considered to be necessary for their own safety. It would give to persons of the negro race, who were recognised as citizens in any one State of the Union, the right to enter every other State whenever they pleased, singly or in companies, without pass or passport, and without obstruction, to sojourn there as long as they pleased, to go where they pleased at every hour of the day or night without molestation, unless they committed some violation of law for which a white man would be punished; and it would give them the full liberty of speech in public and in private upon all subjects upon which its own citizens might speak; to hold public meetings upon political affairs, [red]and to keep and carry arms wherever they went[/red]. And all of this would be done in the face of the subject race of the same color, both free and slaves, and inevitably producing discontent and insubordination among them, and endangering the peace and safety of the State. [/blue]

Since that time the only case to come before the Supreme Court directly concerning the Second Amendment was US v. Miller, and that concerned a federal statute, not a state one. The 14th could not be considered even had the Court wanted to. And you already know what I think of that decision.


End of post.  Note, I'm an engineer, not a Constitutional lawyer.

I'll throw this one into the fray:

I'm currently writing a law review piece on why the current state of the law vis a vis the second amendment is inconistent given the treatment of the first amd. Most of the first is constructed as a restraint on Congress ("Congress shall make no law...") yet it is broadly construed and incorporated to act against ANY govt actor at any level of govt.
My argument (in part) is that, as the 2nd amd is a broader "right of the people", it should be construed AT LEAST as broadly as the first amd and I then apply some first amd caselaw standards (prior restraints, time/place/manner, nat'l security, protection of minors) to the second and see where it comes out. For example, the state has a compelling interest in protecting minors and is generally given great deference in doing so. But the law must be tailored to affect only minors, not overinclusive so as to infringe on adults' rights. This comes up in obscenity law. I make the argument that this applies to guns as well, so when they "do it for the children" and ban guns (or pass other law) that infringe on MY rights, they act illegitimately. The prior restraints argument is the best one though.
Basically, I try to analogize these standards to the RKBA and I'm using NFA '34 as amended by FOPA '86 and the '94 AW ban as examples, tying in the "revolutionary" model of the second amd and the Miller case (arms of military utility are protected). It's a pretty clean and tight argument, I think.

dbrowne1 you may very well have an argument that the Supreme Court may hear someday.

KBaker, I've never looked into that issue before, but I'm due in Court at 1:00 PM. Let me review this afterwards and I'll give you my opinion on the 'incorporation' view of the 14th Amendment.

Until then, I think you're as right as rain on the matter.

Eric The(OutOfLawSchoolSince1978)Hun[>]:)]

Your essay looks good.  The key point to make is that all of the "fundamental" rights set forth in the Bill of Rights have been incorporated into the 14th (and even some rights that don't appear in the Bill of Rights, such as the "right" to abortion and right to privacy).  There can be no rational explanation why the Second Amd. has not been, other than it is an unpopular right.

Of course, liberals would argue that the Second Amend. is not a right of the people at all (despite the fact the language of the amendment states to the contrary) and therefore there is nothing to incorporate into the 14th.

DBrowne, I have never heard this argument before, but it is excellent.  Thanks for bringing it up and good luck with the law review article.  Do post a link when it is finally published.

On a slightly different tangent...

I think that the odds are good that sometime in the next few years, we will eventually win an argument against the Federal government that the Second Amendment protects an individual right.  [b][u]If[/u][/b] this happens, the next phase of litigation will likely be about deciding the [b][u]scope[/u][/b] of the right.  Naturally, we will hear all about "no right is absolute", you can't "cry fire in a crowded theater", etc. etc.  We need to be ready with some good arguments for preserving a strong RKBA.  To my mind, these might include:

1)  Defensive use of firearms in large numbers every year

2)  Lack of government responsibility to protect individual citizens.

3)  Arguments about the prudence of an armed citizenry.

4)  [b][u]Drawing parallels with existing individual rights, such as freedom of speech and association[/u][/b]

For instance:
You can't cry fire in a crowded theater.  [b]Second Amendment analog:  You can't discharge a firearm or threaten someone in a crowded theater. [/b]

Prior restraint:  You can't be restrained from publishing letters which might be defamatory, offensive or incite violence.  You can be punished [b]after[/b] the fact.  [b]Similarly, you can't be forced to wait weeks and months for a gun purchase permit or a carry permit.[/b]

Chilling effect:  Often, laws that viciously punish certain types of conduct are found unconstitutional, because they exert a "chilling effect" on adjacent, but protected, types of conduct.  [b]Similarly, laws that punish the harmless possession of certain types of firearms (ex: fully automatic M16s) with ten to thirty years in prison should be unconstitutional, because they exert a chilling effect on the possession of fully legal semiautomatic AR15s.[/b]  Or, laws that punish keeping loaded guns in the home exert a chilling effect on citizens who wish to use them for lawful self defense of family and home.  There is actually precedent in Washington State law for this.  The Washington Supreme Court has struck down an enhanced penalty for certain firearm crimes because it exerted a chilling effect on the state RKBA.  Sorry, I do not have a citation handy.

As you can see, the analogies require work and polish.  Anyone who wants to collaborate on this?  Surely between some of our members, we ought to be able to produce the material for a good law review article.

I have an interesting thought on incorporation and the 2nd Amendment.

Compare the 1st's

"[b]Congress[/b] shall pass no law.."

With the 2nd's

"...shall not be infringed"

and the fifth's

"No person...."

and the sixth's

"In all criminal prosecutions...."

and the rest of the Bill of Rights.

It looks to me that only the first amendment could be construed as being limited by its terms to federal action.  Other amendments (including the second) are not similarly limited.  Although I admit it does not follow tradtional legal scholarship, this is food for thought.  Arguably only the first amendment even needed incorporation, since the purpose of incorporation is to force state compliance.

The only second amendment Supreme Court case I am aware of involved a sawed off shotgun.  My understanding was that the court limited the 2nd to include only weapons with a significant military purpose, thus excluding the sawed off shotgun.

And let me add to the fire, The whole yelling fire in a theatre.......Not banned nationally that I know of, Not safe-guarded by 20,000 +
legal statutes....and sometimes it would be a moral imperative for you to scream fire in a crowded theatre.......
hound out

Indeed, this is part of the point in my paper. The courts have developed the First Amendment extensively since the Near case at the beginning of the 20th century, yet we have all these gun laws and NO definitive rulings from the Sup. Ct.

AR15gator-

That's exactly my point. The First Amd is constructed as a restraint on Congress, whereas the Second is a "right of the people". If anything, the Second Amd should offer broader protection.
The case about the sawedoff shotgun was a challenge brought by Jack Miller (U.S. v. Miller) decided in 1939. Miller died before it even got there and nobody showed up to argue his side. So, the court said that in the absence of any evidence to show that the gun had military utility (READ: Miller didn't show up to tell them that short shotguns were a widely used trench clearing weapon in WWI) they found for the govt. and upheld his conviction, and hence the NFA.

Close, but not quite - the court remanded the case back down to the Circuit Court for determination, but since Miller couldn't be found (he wasn't dead or it wouldn't have gone before the Court), no such determination was ever made.

Which begs the real question:  If Miller had posessed an unregistered full-auto W.W.I era Browning Automatic Rifle, would the court still have so ruled?  Makes you go hmmmmmmmmm? doesn't it?

BTT

Eric, I'm still waiting for your educated, erudite, binding legal opinion.

Worth precisely what I'm paying for it - zero![:D]

BTT one last time.

Sorry, KBaker, I will turn my erudite attention to your post shortly.

Eric The(BetterLateThanNever)Hun[>]:)]

Gentlemen,

As an NRA member and long time gun nut...I absolutely believe in the literal translation of the Second Amendment to the Constitution and the RIGHT it confers upon all Americans to legally own firearms.

Further, I believe that any law that infringes, restricts, curtails, or impedes our right to use, shoot, carry (open or concealed), manipulate, fondle, worship or do any other damn thing we choose to or with our firearms is an illegal law and should be declared unconstitutional on its face.

Having marked my territory, I will now state what may be the obvious to some but which I have so far failed to see framed in our discussion so far:

We gun owners are not dealing with rationale, logical beings when we argue with Antis.  They are liberals.  They don't use logic to frame an argument, they use FEELINGS.  They argue with their feelings, not their brain.  They don't make an argument for individual rights either.  They wish for the "commune good".

Since Antis are irrational and emotional, nothing you can say will change their already-made-up minds.  You can show an Anti a copy of More Guns, Less Crime by Dr. Lott, take the time to [try to] explain to the Anti the statistical methodology and models, and the results, and pretty soon, you just watch their eyes glaze over.  For the most part, they can't grasp the facts (Sort of like the OJ jury trying to understand DNA testing?), and even if they could, they don't really want to live with the results, so they simply declare the study to be irreparably flawed and yielding false results.  "Lott is wrong", the more genteel libs will intone.  "Lott is a biased gun nut trying to push an evil gun agenda", the more polarized will blather.  Either way...it doesn't matter...they ain't listening.

Since firearms are designed to kill humans and little innocent creatures (No argument there...), and since they don't own any firearms, Antis don't understand why we "need" a firearm for any reason.

Since they strongly believe in wealth redistribution, they don't understand why we just don't stop buying firearms, supplies and ammo and just don't give all the money spent supporting the evil arms industry back to noble causes that our benevolent government may choose to support or to charity.

Antis see the Constitution as a "Living" document, subject to the every changing "needs" of a modern, evolving society.  With respect to the Second Amendment anyway, Antis see the words of the Founding Fathers as just a bunch of hot air.

When even a proven LIAR like Dr. Bellisle publishes a pack of lies against guns, the Antis line up to praise and buy.  A FRAUD?  No way...they say.  When presented with the incontrovertible FACTS (Pesky things facts.) that Bellisle lied and made shit up...the Antis simply say..."Well, so what...it was for a good cause anyway.)  For the Antis, the cause holds primacy over all.  They just say, "So what...I still don't like guns...and I still don't see why you "need" them!" [shock] (For info:  Those are the EXACT words my sister in law from San Luis Obispo County, CA spoke to me a few months ago in our ongoing battle over the Second Amendment.)

While I admire and applaud your sand in taking these people on...I fear you are just pissing in the surf.  I don't think it will have much of an impact.

Good luck anyway.

[beer]

Mr. Wilde:

Thank you for expressing your views.  I think you summed it up nicely in your concluding paragraph (see above).  However, I'm doing it primarily for my own entertainment.  It's fun! [}:D]  While the beliefs expressed in the post were actually my own, I especially like presenting the Second Amendment to left-wing gun-grabbing liberals as a civil-rights issue, and showing them that it is simply an extension of racism.  First, blacks didn't have a right to arms because they couldn't be citizens.  Now, even citizens don't have a right to arms.  Only our overseers do.  Yassa, Massa.  Right 'way, Massa.  

I believe it must make their brains hurt.  "Wait.  Um, racism is evil. Um, but gun control is racist.  Um, so, um...  Ow!"

I hope it hurts.  I hope it hurts BAD.