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View Full Version : Somebody please explain "incorporation".


Kid Stanislaus
12-15-2008, 5:38 PM
I get the general idea that is has to do with strengthening the 2A by joining it with the 14th, but the details of it escape me.

bohoki
12-15-2008, 5:48 PM
the main goal now is to have a california court accept the heller case as precident in any trial then it will be the camels nose under the tent

Fjold
12-15-2008, 5:57 PM
From what I understand the the right to bear arms as an individual right found in Heller is only binding on the federal government until a state court uses it or the SCOTUS specifically rules that it is binding on a state.

Incorporation means that Heller is binding on all levels of government by the 14th amendment.

Please jump in and correct me if I am wrong.

AngelDecoys
12-15-2008, 6:20 PM
If you really want something as basic as I've seen it with regards to 'Incorporation', here's a quote stolen from someone else on the topic.

Think of the Federal Government and State governments as having a big FENCE between them... And the Bill of rights doesn't cross that fence on its own.... Its needs a gate opened.... "INCORPORATION" IS THE GATE. The SAWZALL that cuts the hole in the fence is the 14th amendment to the U.S. Constitution (one of the three "post civil war/ Civil rights amendments").

So Heller estabished once and for all (if there was any doubt), that the 2nd Amendment restricts the Federal government from infringing on our rights. (And why an assault weapon ban on the federal level wouldn't stand.) The 14th, once incorporated will apply that same restriction to the states.

Since 44 states already have a 2nd included in their respective state constitutions, this isn't an issue for most states. It will be huge for us in CA (and the other 5) where the the 2nd was left out of the state constitution.

ETA: BTW - If the idea of Incorporation is a bit confusing, don't feel bad. Federalism is tough for many.

JDay
12-15-2008, 7:49 PM
I get the general idea that is has to do with strengthening the 2A by joining it with the 14th, but the details of it escape me.

There is no second amendment in CA :( How this can be is beyond me though since I was under the impression that the bill of rights applied to all equally.

DDT
12-15-2008, 8:37 PM
Link doesn't want to work. Try this one: Incorporation (Bill of Rights) (http://en.wikipedia.org/wiki/Incorporation_(Bill_of_Rights))

Ironchef
12-15-2008, 8:43 PM
There is no second amendment in CA :( How this can be is beyond me though since I was under the impression that the bill of rights applied to all equally.

Apparently there is..technically. I believe I've even seen the CA Constitution quoted here saying it accepts the 2A. However, this state has rendered the 2A as a collective hodgepodge of alienable rights and suggestions...and blah blah blah..as it is represented in our laws. So the incorporation of the 2A as it stands federally..would mean that whatever the nation says the 2A is, then so too is it accepted in this state. And Heller made the federal definition of the 2A an individual right, etc. etc...so that means our laws based on the collective hodgepodge..blah blah blah should immediately be null and void wherever they may be. personally, I'd like to see 12031 immediately yanked from existence and let the Black Panthers do their armed march on sacramento!!

AngelDecoys
12-15-2008, 8:46 PM
.... I was under the impression that the bill of rights applied to all equally.

Initially the Bill of Rights was only a restriction on Federal power, not state power. State power being that which isn't designated soley to the Federal Government. After the Civil War, and the 14th Amendment, that changed.

Got to love Federalism ;)

The 14th restricts state power with regards to civil liberties. Due process is in there too. It was common for the Supreme Court to 'Incorporate' Amendments into the 14th during the 19th Century. Several Amendments haven't been incorporated yet. The 2nd is one of them, hense why all these 'wonderful' laws in CA are legal.

Heller sets the bar Federally, but until we get incorporation, its not applied to restraining state power.

BillCA
12-16-2008, 12:11 AM
Incorporation History 101

This whole mess started in 1833, when the Supreme Court held in Barron v. Baltimore that the Bill of Rights applied only to the Federal, but not any State, government. They held that the Bill of Rights was a restriction only on the federal government and states were not bound by them.

Then came the Civil War and the emancipation of the slaves. In the south, free blacks were routinely denied their rights - specifically the right to own firearms for their own protection and frequently the right to vote. To correct this, the 14th Amendment was passed to make it clear that the rights guaranteed by the Federal Constitution applied to the states.

Even this was insufficient to force subsequent Supreme Courts to apply the BoR to the states. For example, in U.S. v Cruikshank, the Supreme Court held that the 1st and 2nd Amendments did not apply to state governments.

Around the turn of the century, the Supreme Court began to incorporate the BoR against the states one right or Amendment at a time. This selective incorporation has become the method of operation for the court.

As yet, the 2nd Amendment has not been incorporated against the states. Nordyke v King in our own 9th Circiout or MacDonald v. Chicago in the 7th Circuit may help decide the incorporation issue.

Does that help?

rayra
12-16-2008, 12:29 AM
speaking of which, the Nordyke Oral arguments were supposed to be yesterday, but I haven't seen any reporting on them.

ke6guj
12-16-2008, 12:32 AM
speaking of which, the Nordyke Oral arguments were supposed to be yesterday, but I haven't seen any reporting on them.

Nordyke is next month, January 15, 2009.
http://www.calguns.net/calgunforum/showthread.php?t=137800

Librarian
12-16-2008, 1:56 AM
I get the general idea that is has to do with strengthening the 2A by joining it with the 14th, but the details of it escape me.

Here's an example of the effect: in FRESNO RIFLE AND PISTOL CLUB, INC. v. VAN DE KAMP, 965 F.2d 723 (9th Cir. 1992), the first big 'assault weapon' case, the appellants argued that the 14th amendment incorporated the 2nd amendment against the states.

The 9th Circuit said no.

The plaintiffs also challenge the AWCA as a violation of the
Second Amendment to the United States Constitution. They argue
that the Fourteenth Amendment incorporates the Second such that it
limits the actions of states in addition to those of Congress, and
that the right to bear arms exists to protect the individual as
well as to assist in the common defense through the use of a well-
regulated militia. [footnote 7]

The Supreme Court, however, has held that the Second Amendment
constrains only the actions of Congress, not the states. See
United States v. Cruikshank, 92 U.S. 542, 553, 23 L.Ed. 588 (1876)
("The second amendment declares that [the right to bear arms] shall
not be infringed; but this ... 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. . . . "); Presser v. Illinois, 116 U.S. 252, 264-65, 6
S.Ct. 580, 583-84, 29 L.Ed. 615 (1886) (same). We are therefore
foreclosed from considering these arguments.
....

In this view we join the Seventh Circuit, which considered
arguments similar to those plaintiffs make in this case, and held
that Cruikshank and Presser are still controlling. See Quilici v.
Village of Morton Grove, 695 F.2d 261, 269-70 (7th Cir.1982)
(upholding local ordinance prohibiting possession of handguns in
village; Presser is still "good law," especially in light of Su-
preme Court's rejection of theory "that the entire Bill of Rights
applies to the states through the fourteenth amendment"), cert.
denied, 464 U.S., 863, 104 S.Ct. 194, 78 L.Ed.2d 170 (1983). Until
such time as Cruikshank and Presser are overturned the Second
Amendment limits only federal action, and we affirm the district
court's decision "that the Second Amendment stays the hand of the
National Government only." Fresno Rifle, 746 F.Supp. at 1416.
[footnote 9]
And that's where we still are today.

Publius
12-16-2008, 1:36 PM
Here's an example of the effect: in FRESNO RIFLE AND PISTOL CLUB, INC. v. VAN DE KAMP, 965 F.2d 723 (9th Cir. 1992), the first big 'assault weapon' case, the appellants argued that the 14th amendment incorporated the 2nd amendment against the states.

The 9th Circuit said no.

And that's where we still are today.

Although it must be noted that the Supreme Court's Heller decision appeared to explicitly question the continuing validity of U.S. v. Cruikshank and Presser v. Illinois, the two cases that controlled the result in that 9th Circuit case. Which is why incorporation of the 2nd Amendment suddenly became a hot topic again.

DDT
12-16-2008, 1:42 PM
Does DC's status as a non-state impact incorporation at all? Since DC is officially under Federal control can Heller be assumed to be a precedence for incorporation? I will accept that the majority decision "appeared to explicitly question" Cruikshank and Presser but Heller would have been a whole lot better if DC were a State/Local jurisdiction.

Or am I completely off-base?

Librarian
12-16-2008, 1:49 PM
Does DC's status as a non-state impact incorporation at all? Since DC is officially under Federal control can Heller be assumed to be a precedence for incorporation? I will accept that the majority decision "appeared to explicitly question" Cruikshank and Presser but Heller would have been a whole lot better if DC were a State/Local jurisdiction.

Or am I completely off-base?

For a number of FedLaw purposes, DC is included in the definition of 'state'. But for Heller, NOT having it a state was crucial to avoiding all the 'state' objections to 2A application.

Incorporation of other rights has happened over time; that's what is being worked on now for the Second. We just have to accept delayed gratification here.

Publius
12-16-2008, 3:29 PM
Does DC's status as a non-state impact incorporation at all? Since DC is officially under Federal control can Heller be assumed to be a precedence for incorporation? I will accept that the majority decision "appeared to explicitly question" Cruikshank and Presser but Heller would have been a whole lot better if DC were a State/Local jurisdiction.

Or am I completely off-base?

Like Librarian said, incorporation was not an issue in Heller because DC is a federal entity rather than a state, and DC's ordinances are adopted under authority delegated from Congress. So the Bill of Rights applies directly to DC ordinances in a way it doesn't directly apply to state law. That's why the majority opinion wouldn't do more than throw a passing reference to Cruikshank and Presser into a footnote. Even if they're inclined to incorporate the 2nd Amendment, it was not necessary to the result in Heller.

N6ATF
12-16-2008, 10:26 PM
:dupe::dupe::dupe::dupe::dupe::dupe:

http://calguns.net/calgunforum/showthread.php?t=130087&highlight=incorporation
http://calguns.net/calgunforum/showthread.php?t=121117&highlight=incorporation
http://calguns.net/calgunforum/showthread.php?t=112157&highlight=incorporation
http://calguns.net/calgunforum/showthread.php?t=108899&highlight=incorporation
http://calguns.net/calgunforum/showthread.php?t=108390&highlight=incorporation
http://calguns.net/calgunforum/showthread.php?t=107800&highlight=incorporation

Kid Stanislaus
12-16-2008, 11:06 PM
Good info guys, thanks a bunch.

alleyehave
12-16-2008, 11:25 PM
Thanks for the info guys.

I understand everything that is being said here. However; i'm still curious as to how this applies to ME specifically. How would this change the notorious ca gun laws? Would it null them? Would I then be able to take the damn bullet button off of my OLL? Would I be able to CC??

Thanks!

Librarian
12-16-2008, 11:40 PM
Thanks for the info guys.

I understand everything that is being said here. However; i'm still curious as to how this applies to ME specifically. How would this change the notorious ca gun laws? Would it null them? Would I then be able to take the damn bullet button off of my OLL? Would I be able to CC??

Thanks!

Can't tell yet. CA is likely to kick and scream with every challenge to a gun law; they'll need to lose a bunch of cases before that will ease off. But nearly every thing you mention will probably need individual-topic litigation to change. And each case is likely to be a half-step, with DC-like responses from the legislature.

There may be a more coherent litigation plan than that, to which I am not privy (or if I were, which I'm not, I couldn't talk about yet, anyway.)

fatirishman
12-17-2008, 12:37 AM
A few points, in no particular order:
1. On the politics of gun restrictions, it seems to me that the overall direction is against them (which does not necessarily mean that the existing ones will be easy to repeal). In part, this seems a generational issue (albeit not as clearly so as, eg, gay marriage): younger voters seem less inclined to see any particular benefit to such laws, if for no other reason than 4 decades or so of failure. Another important point on this is that younger folks seem more inclined to view the war on drugs as an important factor in street crime, and are more willing to ameliorate or abolish drug laws in order to seek crime reduction - gun laws seem, at worst, an afterthought. NB, though, we need to be careful - guns are also a culture war issue, and the side that has tended to be pro-gun is losing the culture war more broadly. IOW, if we allow ourselves to be seen as culture warriors in the broader sense, we can still be hurt just for being on the wrong side. Libertarians are our friends here, and should probably tend to lead on the issue (Heller was backed by a bunch of urbane libertarians, few if any conservatives could be found).
2. On the legal side, it is pretty obvious that failure to incorporate the 2nd is incoherent. However, incorporation itself is falling out of favor in the legal community - thus, we behoove ourselves to become informed on the leg. history of the P&I clause of the 14th Amendment (which seems pretty clear that guns for self defense were well intended to be included). Recall that the 14th Amendment was largely a response to Klan violence against newly freed slaves - both through the state apparatus and on the freelance side.

BillCA
01-07-2009, 9:49 AM
I understand everything that is being said here. However; i'm still curious as to how this applies to ME specifically. How would this change the notorious ca gun laws? Would it null them? Would I then be able to take the damn bullet button off of my OLL? Would I be able to CC??

If the 9th Circuit incorporates, in theory all of the gun laws can be challeged as an infringment on the 2A rights. Some will be challenged like one-gun-a-month or the prohibition against homeland defense rifles (AWB). But if the 9th Circuit incorporates, expect California to not lose gracefully and appeal to SCOTUS. If they do, there may be legal reasons for the incorporation decision to not be effective. But if SCOTUS denies the appeal, CA loses and incorporation becomes effective within the 9th Circuit.

I have a hard time believing any of the Circuit Appellate Courts would deny incorporation of the 2nd Amendment. At least, any of them with an ounce of integrity. The history of the 14th Amendment clearly shows Congressional intent to override Barron v. Baltimore which first said the BoR applies only to the federal gov't.

In addition, as part of the support for the 14th Amendment it was argued that freed blacks were being denied their right to arms ... among other rights. The 14th Amendment was a clear message to The Court that the bill of rights should apply to the states. Unfortunately, through legal gymnastics, we ended up with the selective incorporation doctrine. :mad: