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Liberty1
07-15-2008, 12:54 PM
http://www.cato-unbound.org/2008/07/14/robert-a-levy/district-of-columbia-v-heller-whats-next/



snip...

...Will the Second Amendment Be “Incorporated”?

Imminently, the Court will have to decide whether Second Amendment rights can be enforced against state governments. Washington, D.C. is not a state; it is a federal enclave within which Congress exercises plenary legislative power. Until 1868, when the Fourteenth Amendment was ratified, the Bill of Rights applied only to the federal government, not to states or to municipalities legislating under delegated state authority. But in a series of post-Civil-War cases, the Supreme Court held that the Fourteenth Amendment was intended to “incorporate” most of the Bill of Rights in order to hold state governments accountable for violations. Interestingly, the Court has never ruled that the Second Amendment has been incorporated. If gun control regulations are to be challenged in places such as Chicago and San Francisco, that question must be answered.

In contemplating incorporation of the Second Amendment, the Court might also reexamine the means by which incorporation of other rights has been effected. One choice, rebuffed by the Court, would have been to use the Privileges or Immunities Clause of the Fourteenth Amendment (”No State shall make or enforce any law which shall abridge the privileges or immunities of citizens”). That Clause, some argue, was intended by the Framers to secure natural rights of property and liberty against state transgressions. But it was stripped of any meaningful substance in the infamous Slaughter-House Cases (1873), in which the Court concluded that privileges or immunities were those of national citizenship — rights that would not have existed but for the existence of the federal government — such as access to seaports, navigable waters, the seat of government, and the federal courts.

After Slaughter-House, the Court enforced substantive rights against the states through two other clauses of the Fourteenth Amendment: Equal Protection and Due Process. Both clauses apply to “any person,” whereas the Privileges or Immunities Clause applies to “citizens.” Further, the Equal Protection Clause does not, by its terms, mandate specific rights. Instead, it requires only that the laws be equally applied to all persons. And the Due Process Clause, as its name implies, is better adapted to enforcing procedural rather than substantive rights. Yet it has been misused to establish an array of substantive rights nowhere grounded in the Bill of Rights, our common law heritage, or natural law tradition. At the same time, economic liberties — such as those related to contract, property, and the right to pursue an honest living without unreasonable government interference — have been given short shrift under the evolving doctrine of substantive due process.

Justice Scalia and his conservative allies might be open to revisiting substantive due process and the Privileges or Immunities Clause. Indeed, he devoted 8 pages of his 64-page opinion to analyzing post-Civil War legislation and commentators, even as he conceded that discussions taking place 75 years after ratification of the Second Amendment “do not provide as much insight into its original meaning as earlier sources.” Nonetheless, by affirming a post-Civil War understanding that the Second Amendment and related civil rights statutes gave freed blacks the right to keep and bear arms for self-defense, Scalia intimates that the amendment has been incorporated. Officially, however, he states that incorporation is “a question not presented by this case.” That said, the Court will definitely have an opportunity to rule on incorporation as Second Amendment challenges in Chicago, San Francisco, and elsewhere percolate through the federal system.

In United States v. Cruikshank (1875) and Presser v. Illinois (1886), the Court stated squarely that the Second Amendment is a limitation on the power of Congress, not state and local legislative bodies. Yet both of those cases arose prior to the Court’s incorporation doctrine, which took form beginning in 1897. As Scalia put it, Cruikshank “did not engage in the sort of Fourteenth Amendment inquiry required by our later cases.” In fact, Cruikshank also held that the First Amendment did not apply against the states — a notion that is obviously antiquated. It may be, as Ninth Circuit appellate judge Stephen Reinhardt has written, that Cruikshank and Presser “are now thoroughly discredited.” Even so, stated the Second Circuit in Bach v. Pataki (2005), Presser still controls; if it is no longer good law, the Supreme Court, not the lower courts, must reverse.

Until then, federal courts in Illinois and California will be constrained by Presser. That means Second Amendment challenges will almost certainly be rejected until the Supremes consider incorporation. In the end, the Second Amendment — a fundamental right, expressly enumerated, “implicit in the concept of ordered liberty,” and “deeply rooted in the Nation’s history and traditions” — will no doubt be incorporated. Perhaps the more interesting question is whether the vehicle for incorporation will continue to be the Due Process Clause, or will the Court side with Harvard Professor Laurence Tribe, who wrote in his treatise on American Constitutional Law that Second Amendment rights “may well … be among the privileges or immunities of United States citizens protected by § 1 of the Fourteenth Amendment against state or local government action.”...

Toolbox X
07-15-2008, 1:52 PM
Can someone smarter than me explain how the 'incorporation' is going to happen? When, where and who declares it?

Glock22Fan
07-15-2008, 2:48 PM
Can someone smarter than me explain how the 'incorporation' is going to happen? When, where and who declares it?

There's probably better placed people than me, but as I understand it, it will need someone to bring a lawsuit where the settlement depends upon whether Heller is the law in California. Either the courts will give in and say "We accept Heller" or they won't. In either case, it won't really be settled until some losing party appeals and SCOTUS says, "Hey you guys down in California, when we ruled on Heller, we meant 'You too.'" Or not, as the case may be.

AngelDecoys
07-15-2008, 2:58 PM
Can someone smarter than me explain how the 'incorporation' is going to happen? When, where and who declares it?

Short answer is that it may take anywhere from 6-18 months (or longer depending), and that it may not necessarily need to get all the way back to SCOTUS. Scroll down to Gene's comments.

Lots of threads on this.
http://www.calguns.net/calgunforum/showthread.php?t=108779&highlight=Incorporation

From another thread. To Quote El Presidente de la Federación de Calguns :)
This case could take up to 24 months. Nordyke v. King may come first.

I'll keep everyone up to date on timing.

-Gene

Shotgun Man
07-15-2008, 6:06 PM
Until then, federal courts in Illinois and California will be constrained by Presser.

I don't agree with author's analysis.

He cites Cruikshank and Presser as standing for the proposition that the 2nd Amendment does not apply to the states or an individual, but then he concedes that those decisions pre-dated the concept of incorporation.

Inexplicably, he then concludes that a lower court is bound by Cruikshank and Presser and obliged to follow them until the SCOTUS tells them otherwise.

Patently absurd. A judge is to apply reasoned, analytical thinking. A judge can and should properly acknowledge all the incorporation decisional case law as well as the philosophy that favors incorporation of almost all constitutional rights.

The lowliest trial judge can ethically and reasonably rule that the 2nd Amendment is incorporated.

Liberty1
07-15-2008, 6:12 PM
The lowliest trial judge can ethically and reasonably rule that the 2nd Amendment is incorporated.

I was thinking this the other day and wishing I was a trial judge with stones!

Shotgun Man
07-15-2008, 6:22 PM
I was thinking this the other day and wishing I was a trial judge with stones!

I'd vote for ya!

GuyW
07-15-2008, 6:42 PM
....The lowliest trial judge can ethically and reasonably rule that the 2nd Amendment is incorporated.

And have his/her decision immediately appealed.

Just as will happen if they don't find it incorporated.

hoffmang
07-15-2008, 9:40 PM
1. Bob Levy is not someone that you can easily disagree with. He's the other half of the Gura/Levy team.

2. Incorporation will occur when either a court in one of the circuits realizes that Presser and Cruickshank are bad law or that Fresno Pistol and Rifle v. Van de Kamp doesn't control. That will either happen in the SF case or Nordyke. Anti gun judges can try to duck the issue by claiming one of the above cases controls. The good news is that the 9th Circuit Court of Appeals is likely to either incorporate in a 3 judge panel or en banc.

-Gene

383green
07-15-2008, 10:58 PM
I wish that I could be a fly on the wall when the Right People discuss their strategy. I presume that just as the incorporation cases were filed minutes after the Heller verdict was released, they will have one or more cases prepared to be filed minutes after incorporation is announced. I wonder what those cases will be?

E Pluribus Unum
07-16-2008, 12:53 AM
1. Bob Levy is not someone that you can easily disagree with. He's the other half of the Gura/Levy team.

2. Incorporation will occur when either a court in one of the circuits realizes that Presser and Cruickshank are bad law or that Fresno Pistol and Rifle v. Van de Kamp doesn't control. That will either happen in the SF case or Nordyke. Anti gun judges can try to duck the issue by claiming one of the above cases controls. The good news is that the 9th Circuit Court of Appeals is likely to either incorporate in a 3 judge panel or en banc.

-Gene

The ninth circuit took the "collective rights" stance quite firmly; what makes you think they would incorporate?

Ford8N
07-16-2008, 5:20 AM
The ninth circuit took the "collective rights" stance quite firmly; what makes you think they would incorporate?


Because that fundamental question was settled with Heller. The vast majority of gun laws are based on the "collective rights", especially this one:

12275.5. (a) The Legislature hereby finds and declares that the proliferation and use of assault weapons poses a threat to the health, safety, and security of all citizens of this state. The Legislature has restricted the assault weapons specified in Section 12276 based upon finding that each firearm has such a high rate of fire and capacity for firepower that its function as a legitimate sports or recreational firearm is substantially outweighed by the danger that it can be used to kill and injure human beings. It is the intent of the Legislature in enacting this chapter to place restrictions on the use of assault weapons and to establish a registration and permit procedure for their lawful sale and possession. It is not, however, the intent of the Legislature by this chapter to place restrictions on the use of those weapons which are primarily designed and intended for hunting, target practice, or other legitimate sports or recreational activities.


These types of firearms maybe a threat if you are some gangbanger, tweeker or exFelon cruising around at two in the morning in some ghetto public housing project. But there are all ready laws against those kind of scum from owning firearms, so 12275 is based on protecting society for the "greater good" = "collective right". But now we have Heller and now maybe our rulers and the Ninth will focus laws against the individual scum bag and let the law abiding citizen exersize their "individual" Second Amendment rights. We shall see how the Ninth rules in the future.

E Pluribus Unum
07-16-2008, 10:44 AM
Because that fundamental question was settled with Heller. The vast majority of gun laws are based on the "collective rights", especially this one:

12275.5. (a) The Legislature hereby finds and declares that the proliferation and use of assault weapons poses a threat to the health, safety, and security of all citizens of this state. The Legislature has restricted the assault weapons specified in Section 12276 based upon finding that each firearm has such a high rate of fire and capacity for firepower that its function as a legitimate sports or recreational firearm is substantially outweighed by the danger that it can be used to kill and injure human beings. It is the intent of the Legislature in enacting this chapter to place restrictions on the use of assault weapons and to establish a registration and permit procedure for their lawful sale and possession. It is not, however, the intent of the Legislature by this chapter to place restrictions on the use of those weapons which are primarily designed and intended for hunting, target practice, or other legitimate sports or recreational activities.


These types of firearms maybe a threat if you are some gangbanger, tweeker or exFelon cruising around at two in the morning in some ghetto public housing project. But there are all ready laws against those kind of scum from owning firearms, so 12275 is based on protecting society for the "greater good" = "collective right". But now we have Heller and now maybe our rulers and the Ninth will focus laws against the individual scum bag and let the law abiding citizen exersize their "individual" Second Amendment rights. We shall see how the Ninth rules in the future.


I'm not a fool; I know that Heller solves the "collective rights" idea... but the idea that the 9th circuit will just lay down and take it is too hopeful. I think they will find some way to rule that the second is not incorporated in order to further their goal of keeping the gun bans on the books.

mblat
07-16-2008, 10:57 AM
I'm not a fool; I know that Heller solves the "collective rights" idea... but the idea that the 9th circuit will just lay down and take it is too hopeful. I think they will find some way to rule that the second is not incorporated in order to further their goal of keeping the gun bans on the books.

+1
If 4 justices of SCOTUS managed to dissent in Heller there are pretty good chance that majority in 9th will manage to avoid incorporation, ........ somehow.

heycorey
07-16-2008, 11:07 AM
What a marvelous name for a potential business! I just registered the domain name ... 2ndAmendmentInc.com.

Thanks Guys! :D

CSDGuy
07-16-2008, 11:34 AM
+1
If 4 justices of SCOTUS managed to dissent in Heller there are pretty good chance that majority in 9th will manage to avoid incorporation, ........ somehow.

I thought that all 9 SCOTUS Justices agreed that the 2nd protects an individual right, but the dissent was that it was the individual right is connected to Militia service. With that in mind, I fail to see how the 9th can easily avoid incorporation...

E Pluribus Unum
07-16-2008, 12:11 PM
I thought that all 9 SCOTUS Justices agreed that the 2nd protects an individual right, but the dissent was that it was the individual right is connected to Militia service. With that in mind, I fail to see how the 9th can easily avoid incorporation...

You don't have a clear idea about what "incorporation" means.

Just because the 2nd amendment limits the FEDERAL government's ability to restrict firearms does not automatically mean that the states are so limited.

Because DC is not a state, Heller only limits a FEDERAL gun ban. For "incorporation" to exist the supremes must rule that the second amendment applies to state government as well.

hoffmang
07-16-2008, 12:18 PM
The ninth circuit took the "collective rights" stance quite firmly; what makes you think they would incorporate?

Dicta in both Silviera and Heller. I've already heard Rheinhardt on an en-banc panel admit that a guy in San Jose had an individual right to own a gun. He admitted that an hour after Heller was out.

-Gene

CSDGuy
07-16-2008, 12:47 PM
You don't have a clear idea about what "incorporation" means.

Just because the 2nd amendment limits the FEDERAL government's ability to restrict firearms does not automatically mean that the states are so limited.

Because DC is not a state, Heller only limits a FEDERAL gun ban. For "incorporation" to exist the supremes must rule that the second amendment applies to state government as well.
Actually, couldn't the 9th incorporate the 2nd within it's own circuit? I recall that one of the reasons SCOTUS would take up a case would be to resolve circuit splits on a particular issue. If the 9th still says "no, not applicable to states out here" and another circuit says "Yep, applicable to states here", isn't that a split involving incorporation that the SCOTUS would have to resolve?

I'm well aware of what "Incorporation" is and how it is done.

My point is that I don't see how the 9th can easily avoid the issue. They can find a way I'm sure, but that potentially sets up a circuit split and results in fast-tracking the incorporation issue to SCOTUS.

bulgron
07-16-2008, 1:51 PM
Actually, couldn't the 9th incorporate the 2nd within it's own circuit? I recall that one of the reasons SCOTUS would take up a case would be to resolve circuit splits on a particular issue. If the 9th still says "no, not applicable to states out here" and another circuit says "Yep, applicable to states here", isn't that a split involving incorporation that the SCOTUS would have to resolve?

I'm well aware of what "Incorporation" is and how it is done.

My point is that I don't see how the 9th can easily avoid the issue. They can find a way I'm sure, but that potentially sets up a circuit split and results in fast-tracking the incorporation issue to SCOTUS.

Yes, others have posted on here that the fastest way back to SCOTUS is for there to be a split in the federal appellate courts on the issue of incorporation.

I have trouble believing that even the 9th will say 'no' to incorporation. After all, they even said in Silveria that if the 2A is an individual right, then it would be incorporated.

But I suppose one can never underestimate the lengths that anti-gunners will go to in order to push their agenda forward. So I'm guessing that sometime in the next 12 - 24 months we're going to find out just how intellectually dishonest the courts really are.

PatriotnMore
07-17-2008, 3:20 AM
But I suppose one can never underestimate the lengths that anti-gunners will go to in order to push their agenda forward. So I'm guessing that sometime in the next 12 - 24 months we're going to find out just how intellectually dishonest the courts really are.

And that's it in a nut shell! The fact that this type of bias regarding 2A rights has no place in a court of law, let alone the 9th, is most troubling.

Wulf
07-17-2008, 5:45 AM
Why is it not sop for the issue of incorporation to be part of the original Decision?

Why bother writing the letter if you're not going address and put a stamp on the envelope? Seems like a 1/2 assed job not to settle incorporation at the time.

383green
07-17-2008, 6:23 AM
Why is it not sop for the issue of incorporation to be part of the original Decision?

As I understand it, the way our legal system works is that the courts cannot rule on issues that were not brought before them by somebody with legal standing. Since DC is not a state, there was no basis for SCOTUS to rule either way on incorporation, whether they wanted to or not. I think they could have (and would have?) ruled on incorporation if the case had originated in a state.