Heller and Incorporation?

[firecaptdave]

I've read a few places here that Heller is not yet incorporated, should be incorporated, will be better when incorporated, etc.

What does incorporation mean in regards to Heller?

[RomanDad]

I've read a few places here that Heller is not yet incorporated, should be incorporated, will be better when incorporated, etc.

What does incorporation mean in regards to Heller?

It just means right now it only applies to the FEDERAL Government.... Not the States.

[Librarian]

I've read a few places here that Heller is not yet incorporated, should be incorporated, will be better when incorporated, etc.

What does incorporation mean in regards to Heller?

More detail from Wikipedia (http://en.wikipedia.org/wiki/Incorporation_(Bill_of_Rights)). Incorporation (of the Bill of Rights) is the American legal doctrine by which portions of the Bill of Rights are applied to the states through the Due Process Clause of the Fourteenth Amendment, although some have suggested that the Privileges or Immunities Clause would be a more appropriate textual basis. Prior to the ratification of the 14th Amendment and the development of the incorporation doctrine, in 1833 the Supreme Court held in Barron v. Baltimore that the Bill of Rights applied only to the Federal, but not any State, government. Even years after the ratification of the Fourteenth Amendment the Supreme Court in United States v. Cruikshank, still held that the First and Second Amendment did not apply to state governments. However, beginning in the 1890's, a series of United States Supreme Court decisions interpreted the Fourteenth Amendment to "incorporate" most portions of the Bill of Rights, making these portions, for the first time, enforceable against the state governments.

[Mr.RoDiN]

How long will incorporation take?

[glockman19]

IMHO, California already has incorporated the 2nd through:
CALIFORNIA CONSTITUTION
ARTICLE 3 STATE OF CALIFORNIA

SEC. 1. The State of California is an inseparable part of the
United States of America, and the United States Constitution is the
supreme law of the land.
AMENDMENT XIV
Note: Article I, section 2, of the Constitution was modified by section 2 of the 14th amendment.
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.

CONSTITUTION OF THE UNITED STATES OF AMERICA
Article. VI.
All Debts contracted and Engagements entered into, before the Adoption of this Constitution, shall be as valid against the United States under this Constitution, as under the Confederation.
This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.
The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.

[yellowfin]

How long will incorporation take?As soon as people will stop saying "It's not incorporated yet" and actually do something about it in the form of appealing CCW rejections based on Heller overturning Hickman v Block via individual right declaration, unconstitutionality of "arbitrary and capricious" issuance, and common practice making it a 14th Amendment issue.

[Liberty1]

IMHO, California already has incorporated the 2nd through:
CALIFORNIA CONSTITUTION
ARTICLE 3 STATE OF CALIFORNIA

SEC. 1. The State of California is an inseparable part of the
United States of America, and the United States Constitution is the
supreme law of the land.
AMENDMENT XIV
Note: Article I, section 2, of the Constitution was modified by section 2 of the 14th amendment.
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.

CONSTITUTION OF THE UNITED STATES OF AMERICA
Article. VI.
All Debts contracted and Engagements entered into, before the Adoption of this Constitution, shall be as valid against the United States under this Constitution, as under the Confederation.
This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.
The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.

I've never understood the 14th A. issue except in relation to those persons who were not "The People" at the time of ratification. I always thought Art. VI was enough to be protected by the Bill of Rights, "the...Laws of any State to the Contrary notwithstanding" .

[CCWFacts]

As soon as people will stop saying "It's not incorporated yet" and actually do something about it in the form of appealing CCW rejections based on Heller overturning Hickman v Block via individual right declaration, unconstitutionality of "arbitrary and capricious" issuance, and common practice making it a 14th Amendment issue.

Wrong, no no no. Incorporation lawsuits were filed within 15 minutes of the Heller decision being announced. The lawsuit in SF over the public housing gun ban is the incorporation lawsuit.

AFTER that is completed, THEN we can go after Hickman and those other issues.

[AngelDecoys]

How long will incorporation take?

It can happen quickly, or take some time. It may take a few years and we don't want the attorneys, cases, etc to be hastily pushed forward. Heller is a big win, but as bweise and Gene have suggested its the crack in the levy. We just need to get the levy to crumble without getting wet.

From reading other threads, it looks like the strategy seems to be start small, and build/expand from there. So, we begin with abolishing handgun bans (NY, Chicago, SF). Those are the most straightforward/parallel from the actual Heller decision. Limiting states in that way = incorporation.

After that, we broaden the expansion from just handguns, to other arms. Speculating I'd say all semi-autos since handguns (not revolvers) share the same technology, and are the most commonly used.

From there, perhaps 14th cases push some more. Due process, equal access, equal protection types of cases. (Fighting LE exemptions adds a twist in there someplace). CCW is another. Every win on 14th grounds will limit CA and other states in what they can/can't restrict.

And there's so many other directions it can go, I dare to not even speculate.

Keep in mind, the 1st amendment limitations on states (though the 14th) took the better portion of 80 years to hammer out. We take it for granted now. I'd imagine 2nd incorporation to take significantly less time (SCOTUS willing).

When Conan is asked "What is best in life?" Our response is the same "Crush our enemies. See them driven before you......."

The key will be in picking our battles carefully, then win.

[Hopi]

It can happen quickly, or take some time. It may take a few years and we don't want the attorneys, cases, etc to be hastily pushed forward. Heller is a big win, but as bweise and Gene have suggested its the crack in the levy. We just need to get the levy to crumble without getting wet.

From reading other threads, it looks like the strategy seems to be start small, and build/expand from there. So, we begin with abolishing handgun bans (NY, Chicago, SF). Those are the most straightforward/parallel from the actual Heller decision. Limiting states in that way = incorporation.

After that, we broaden the expansion from just handguns, to other arms. Speculating I'd say all semi-autos since handguns (not revolvers) share the same technology, and are the most commonly used.

From there, perhaps 14th cases push some more. Due process, equal access, equal protection types of cases. (Fighting LE exemptions adds a twist in there someplace). CCW is another. Every win on 14th grounds will limit CA and other states in what they can/can't restrict.

And there's so many other directions it can go, I dare to not even speculate.

Keep in mind, the 1st amendment limitations on states (though the 14th) took the better portion of 80 years to hammer out. We take it for granted now. I'd imagine 2nd incorporation to take significantly less time (SCOTUS willing).

When Conan is asked "What is best in life?" Our response is the same "Crush our enemies. See them driven before you......."

The key will be in picking our battles carefully, then win.

You get bonus points for quoting the Governator!

[yellowfin]

Wrong, no no no. Incorporation lawsuits were filed within 15 minutes of the Heller decision being announced. The lawsuit in SF over the public housing gun ban is the incorporation lawsuit.

AFTER that is completed, THEN we can go after Hickman and those other issues.Something tells me there might be some effort to deliberately delay those cases because the venues trying them won't like them. They could easily put it in 5,994,382,897th place out of 5,994,382,897 cases to be heard somewhere around December 1st, 2075. Is there a way to insure expediency and push priority?

[AngelDecoys]

Something tells me there might be some effort to deliberately delay those cases because the venues trying them won't like them. They could easily put it in 5,994,382,897th place out of 5,994,382,897 cases to be heard somewhere around December 1st, 2075. Is there a way to insure expediency and push priority?

Also consider that the next President will nominate 2 or 3 justices. Will incorporation be more, or less likely to happen if those justices are appointed by Obama?

[CCWFacts]

Also consider that the next President will nominate 2 or 3 justices. Will incorporation be more, or less likely to happen if those justices are appointed by Obama?

That's a no-brainer. This decision was frighteningly close. If Obama gets to appoint 2 or 3, and they replace any of the conservatives, this decision could be severely weakened. This is a critical time to keep conservatives on the court.

[yellowfin]

Unfortunately I'm not overly enthusiastic about what choices McCain will put in there either. Better, perhaps, but not likely to be the best.

[AngelDecoys]

That's a no-brainer. This decision was frighteningly close. If Obama gets to appoint 2 or 3, and they replace any of the conservatives, this decision could be severely weakened. This is a critical time to keep conservatives on the court.

I don't know. You're probably right. I hope you're right. Rumor has it Scalia is no fan of the 14th amendment. And at least in other areas, the court has been pretty consistent in limiting civil liberties. Of course, they've been consistent in federalizing everything as well. Hard for me to gauge the balance there.

All the more reason to get these cases heard pronto before we get too far into the next term.

[hoffmang]

1. Responsible gun owners have no choice but to vote for McCain as we *know* Obama will put worse judges in that McCain will. If only Ginsburg had followed her pal Scalia...

2. Incorporation could come as soon as 6 months in Nordyke v. King or as late as 18 months through the SF case.

The path to incorporation is that an appeals panel of the 9th Circuit rules that the 2A is incorporated and an en-banc panel either does not take it up or takes it up and affirms that it is incorporated. That would incorporate it in the 9th Circuit. Nordyke is in front of an appeals panel and hence its potentially shorter timing but the case is less squarely about the 2A. The SF Housing ban case has to win or loose at the District Court level and then be appealed. The good news is that its almost only about matters of law - unlike Hunt for example (lots of fact finding in that case) so it will move quickly by the timelines of justice.

-Gene

[yellowfin]

Will the 9th do it is the question. They seem to have almost an outright phobia of supporting us even when it is painfully obvious.

[hoffmang]

The 9th is used to being overturned and in some ways ruling against us on incorporation so we can create a circuit split and get back to SCOTUS could be good. They know this so they may just try to be wishy washy inside the 9th post incorporation.

-Gene

[RomanDad]

The 9th is used to being overturned and in some ways ruling against us on incorporation so we can create a circuit split and get back to SCOTUS could be good. They know this so they may just try to be wishy washy inside the 9th post incorporation.

-Gene

I'd kinda like the 7th circuit to hear the incorporation issue first.... They're a little more reliable than the 9th... Then we can piggy back onto them.... Once ONE says its incorporated, the rest will fall into line like dominoes....

Scalia CLEARLY lays the groundwork for incorporation. In footnote 23 he does everything short of hiring a skywriter to send the message loud and clear to future Courts of Appeal.

[hoffmang]

I'd kinda like the 7th circuit to hear the incorporation issue first.... They're a little more reliable than the 9th... Then we can piggy back onto them.... Once ONE says its incorporated, the rest will fall into line like dominoes....

Scalia CLEARLY lays the groundwork for incorporation. In footnote 23 he does everything short of hiring a skywriter to send the message loud and clear to future Courts of Appeal.

The shortest path back to Scalia is through the 7th saying yes and the 9th saying no...

-Gene

[RomanDad]

The shortest path back to Scalia is through the 7th saying yes and the 9th saying no...

-Gene

I dont see a need to go back to the SCOTUS on this particular issue.... IF the circuits get it right... And I think they will if the 7th gets it first... Im terrified of going back to the SCOTUS on this because we all know it will be about 5-7 years or more to get there, and WHO KNOWS what the court may look like by then.... Scalia almost retired in 2001... Theres a very good chance that Scalia wont be there any more by the time a case gets back to them....

[AEC1]

If the 2 circuits disagree it should be before SCOTUS the next year. It is bad to have 2 differant circuits in disagreement, that is the fastest way to the SCOTUS.

[10TH AMENDMENT]

I dont see a need to go back to the SCOTUS on this particular issue.... IF the circuits get it right... And I think they will if the 7th gets it first... Im terrified of going back to the SCOTUS on this because we all know it will be about 5-7 years or more to get there, and WHO KNOWS what the court may look like by then.... Scalia almost retired in 2001... Theres a very good chance that Scalia wont be there any more by the time a case gets back to them....

We should take particular note of the fact that the issue of incorporation is far more likely to garner a super majority on the court than the issues that were just hashed out in Heller. This is because of the proven addiction of the libs to federalize everything they possibly can.

I think this would even apply to enforcement of the Heller decision because of the axiomatic and immutable characteristics of an addict...once a federalizing crackhead, always a federalizing crackhead!

In this sense we will not even need Scalia's vote, IMNSHO.

[AngelDecoys]

Scalia CLEARLY lays the groundwork for incorporation. In footnote 23 he does everything short of hiring a skywriter to send the message loud and clear to future Courts of Appeal.

Yup. I read that too. He all but warns that sending a case back to them on this would be unwise. :) Many hints for 14th in the summary. It was a pleasant surprise after reading many of the summaries for the last couple of years. At least in other issues, limiting civil liberties (or curtailing Warren court decisions) is more common.

(Warren court had issues too so don't get me wrong.)

.....This is because of the proven addiction of the libs to federalize everything they possibly can.

I'm not sure that's limited to just liberals. Conservatives do a fair amount of that as well. If you look at many of the close 5-4 decisions coming from SCOTUS over the last few years you'll notice a lot of cases that both federalize issues, and limit civil liberties. I guess it just depends on the issue.

I'd rather incorporation occurred sooner (circuit court) rather than later (SCOTUS). Then again, another SCOTUS decision with its current makeup might just limit states to the point where another 100 years go by before its revisited. We'll have to wait and see.

[Subvertz]

Good recap of new post-Heller cases on SCOTUSBlog:
http://www.scotusblog.com/wp/links-to-new-gun-rights-lawsuits/

On Friday, the National Rifle Association filed five lawsuits, seeking to apply the Constitution’s Second Amendment to block gun control laws adopted by local governments in California and Illinois. This blog provided a link to the California complaint as part of a post that can be found here.

The NRA has provided links to the other four lawsuits. All four were filed in the U.S. District Court Northern District of Illinois (Eastern Division). Each of the cases makes the argument that the Second Amendment is applicable to the state and local governments through the Fourteenth Amendment — an issue the Supreme Court has not considered since 1894, when it said the Amendment applied only to the federal government. That is an issue the Court specifically declined to consider in its June 26 ruling in District of Columbia v. Heller (07-290), finding an individual right to have a gun for self-defense in one’s home.

The Chicago case, NRA, et al., v. City of Chicago, et al. (docket 08-3697) is here. It challenges a city code provision that requires registration of firearms, but bars registering handguns.

The Evanston, Ill., case, NRA, et al., v. City of Evanston, et al. (docket 08-3693) is here. That city bans handgun possession, except for licensed gun collectors, and movie theaters and film production companies (presumably, for use in performances).

The Oak Park, Ill., case, NRA, et al., v. Village of Oak Park, et al. (docket 08-3696) is here. The Village bans handgun possession and bars carrying other guns, such as a rifle or shotgun, outside the home or business or beyond one’s own land, but there is an excpetion for licensed hunters or fishermen going to or from game areas. There is a general exc eption for licensed gun collectors. Like Evanston, Oak Park allows guns to be used in theater performances, using blank ammunition.

The Morton Grove, Ill., case, NRA, et al., v. Village of Morton Grove, et al. (docket 08-3694), is here. That community bans handgun possession, except for licensed gun collectors and licensed gun clubs on their own premises.

The Chicago and Morton Grove cases have been assigned to District Judge Harry D. Leinenweber, the Evanston case to District Judge Marvin E. Aspen, and the Oak Park case is District Judge Joan H. Lefkow.

The lawsuit against Morton Grove is, in essence, a historical echo: that community is generally considered to be one of the first in the nation to have adopted a flat ban on handgun ownership, and its ban was challenged up to the Supreme Court. Morton Grove adopted its ban in 1981, five years after the District of Columbia adopted the handgun ban that the Supreme Court has just struck down.

The Seventh Circuit Court, in a December 1982 ruling in the Morton Grove case, found that the Second Amendment applied only to the federal government — relying upon the Supreme Court’s 1894 decision in Presser v. Illinois. The Circuit Court rejected arguments in that case that Presser was no longer good law because the Supreme Court later incorporated much of the Bill of Rights into the Fourteenth Amendment so that specified rights did apply to state and local government, that the Presser decision was flawed, and that all of the Bill of Rights had been incorporated into the Fourteenth Amendment.

The Supreme Court denied review of the challengers’ appeal on Oct. 3, 1983, leaving the village’s ordinance intact. That is the same ordinance now under new challenge by the NRA, which had a role in the earlier litigation.

un-rights-lawsuits/

[drawn]

I shared some of the fact filled pages of this thread including the meaning of incorporation with my partner Dave and he wrote back;

I didn't notice this delay when the CA court said gay marriage was legal; in fact, it seemed like all the county clerks were stumbling over themselves to get reprinted applications so they could start using them as soon as possible. I don't suppose we'll be seeing this happen with CCW permits or AW permits.

Dave

[outersquare]

no kidding

[Hopi]

I shared some of the fact filled pages of this thread including the meaning of incorporation with my partner Dave and he wrote back;

I didn't notice this delay when the CA court said gay marriage was legal; in fact, it seemed like all the county clerks were stumbling over themselves to get reprinted applications so they could start using them as soon as possible. I don't suppose we'll be seeing this happen with CCW permits or AW permits.

Dave

If I understand it, the CA Supreme court overturned the gay marriage ban, meaning the decision regarding the CA law, being handed down by a CA court, specifically applies to CA. The Heller ruling, is a federal decision of the SCOTUS and does not apply to the states until incorporation ensures it. Different legal circumstances.

When we achieve incorporation, state officials will indeed heed the law or they will be subject to lawsuits....

[dfletcher]

I've read most of the Heller threads and Scalia's decision. I think there are many fine ponts of the decision that will be explored in detail and over time by some very sharp minds. I suppose new approaches to gaining an advantage will be discovered. But the basics I gleaned were that an absolute ban of a common firearm suitable for self defense is a violation of an individual's 2nd Amendment right. Given that basic concept, once incorporation is accomplished why would the current CA AW ban not be most certainly a violation? In passing a revised law, what is the minimum the state could do to assert they have not violated this right?

[Librarian]

I've read most of the Heller threads and Scalia's decision. I think there are many fine ponts of the decision that will be explored in detail and over time by some very sharp minds. I suppose new approaches to gaining an advantage will be discovered. But the basics I gleaned were that an absolute ban of a common firearm suitable for self defense is a violation of an individual's 2nd Amendment right. Given that basic concept, once incorporation is accomplished why would the current CA AW ban not be most certainly a violation? In passing a revised law, what is the minimum the state could do to assert they have not violated this right?The CA AW law is not so draconian as DC's. It does not, for example, ban the entire class of firearms called "rifles".

The AW law certainly does not make sense, and it has nothing to do with the claims made for it, and I'd like to see it go away. But it is not equivalent to the DC ban which was overturned.

[tango-52]

The CA AW law is not so draconian as DC's. It does not, for example, ban the entire class of firearms called "rifles".

The AW law certainly does not make sense, and it has nothing to do with the claims made for it, and I'd like to see it go away. But it is not equivalent to the DC ban which was overturned.

However, the current AW law prevents Joe Average from getting a permit to posess an entire class of commonly available (in other states) firearms and is therefore a defacto ban.