PDA

View Full Version : Incorporation Continued...US Pro 2A Butt Kicking Tour


yellowfin
05-06-2009, 10:00 PM
I'm curious as to how the 1st, 3rd, and 4th Circuits could be suited for 2nd Amendment incorporation, at very least to stack some existing cases in the pipe that are retrofitted/upgraded for the task for when it's go time, or if something goes FUBAR we don't see coming, or things take long to dislodge the screwedupedness from Maloney. Or at very least I'm just thinking out loud here and this is a good group exercise if for nothing else but the fun of it.

MD, NJ, and MA are each in different circuits, annoyingly enough not to have them all in one basket to take at once or convenient for picking 'em apart if the going gets rough, whichever you way you want to look at it. The people I have asked say the 2nd is screwed for the moment because of Maloney (Would en banc have turned up better?) and the NY state courts are blockaded, so it's either MacDonald getting to the SCOTUS fast to take care of the non-CA states (We're looking pretty good here, duh) or we gotta get some more stuff done elsewhere to make best uses of the momentum. Those 3 states have some issues that need to get fixed...and at very least NJ and MA aren't going to get it done by anything else but legal sledgehammering. They need to be invited to the whoopa** party.

So how about it? Anyone got some good info on this?

DDT
05-06-2009, 10:04 PM
Too expensive to pursue as a strategic target. With 3 circuits in play already and 2 good cases in those 3 SCOTUS will have plenty to work with. Plus, by the time things work through any other circuits the 3 in play (2 if you discount Nordyke) will have been over and done with for years.

yellowfin
05-06-2009, 10:28 PM
Who says there aren't cases in play there that are somewhat far along in the process and can use the boost when they get it? Not talking necessarily starting from scratch: Nordyke wasn't the way it was pre-Heller nor did it wait around for it to get going.

DDT
05-06-2009, 10:31 PM
Who says there aren't cases in play there that are somewhat far along in the process and can use the boost when they get it? Not talking necessarily starting from scratch: Nordyke wasn't the way it was pre-Heller nor did it wait around for it to get going.

sorry I must have misunderstood this part of your OP at very least to stack cases in the pipe for when it's go time

If you're comment was should incorporation be amended into existing suits winding their way through the system then yes, it should and I'm sure it will.

yellowfin
05-06-2009, 10:44 PM
If you're comment was should incorporation be amended into existing suits winding their way through the system then yes, it should and I'm sure it will.Agreed. Amended to stipulate the retrofitting. The basic question stands: given that the 2nd said no to the bad one, how do the 1st, 3rd, and 4th look for a good one?

tonelar
05-06-2009, 11:27 PM
I'm gonna sound dumb saying this, but which of those circuits overlap into CA?

yellowfin
05-07-2009, 12:16 AM
I'm gonna sound dumb saying this, but which of those circuits overlap into CA? Here's the situation:
http://www.uscourts.gov/images/Circuit-Map-outlined-rs2.gif

Thanks to the efforts of Alan Gura, Don Kilmer, Gene, and the crews of SAF, CGF, DK law, Gura et al. and their casts of thousands, we have incorporation in the 9th Circuit and some totally kick butt lawsuits filed to wipe CA of its sins. We're expecting Gene is probably up to more--after he wakes up from a nap, as he's probably exhausted...and he's probably dreaming up more and plotting in his sleep anyway. Either it'll be pegged at max lawyer resource expenditure and attention span as it is, or it soon will (bulk rate on this?), and it'll all be off to the races. It's basically one massive legal MIRV that's just left the silo. :nuke:

The 7th Circuit has the MacDonald case, again another Gura work, and we're awaiting the orals on this. The summary judgement motion was filed, briefs done, amicus briefs, etc....orals coming up. We expect this one will either work in the 7th or work in the SCOTUS because Mr. Gura just plain kicks butt.

The east coast, however, is out of the loop on all this thus far. No circuits overlap, and annoyingly enough though convincing as it may be to us, the other circuits aren't in the slightest affected by Nordyke. Just like here, a lot of the gun laws out there were upheld using pre-Heller cases. Of course this makes sense because starting from 1875 all the way to 2008, EVERYTHING was pre-Heller.

Now, why do we care? Well, obviously we're sold on the idea that people in other states should care about what goes on here, right? So naturally it works the other way too because:

1. Other cases may move faster or slower and our suits here won't do it all in one day, depending on all manner of stuff, so having other cases to quote is going to be helpful. Sharing of resources in the coming months and especially over the coming 2-5 years is obviously something good to have if we can get it.

2. Getting out of state funding for CGF in the short term and cooperative support over the long term is going to be even easier if we have something for the folks in the other states to play along for. They're starting to get it now, but it's remote...if it's in their backyard they're going to get the picture bright, clear, and 100%. Gotta give them a clear stake in the game that's not just hypothetical and not just in "two weeks."

3. A big chunk of the non-Californian US population lives in or near the remaining problematic states on the east coast. They either live there themselves, travel and do business with them, have friends and relatives there, or at very least for certain they have to deal with contagious politics.

Ya know, the same things we tell everyone about here.

Of course -we- can't fund the whole US' fight at once. -We- won't have to. They will fund there own, plus with the help of the neighboring states--and even not so nearby ones, as Mr. LaRue showed us just a day or two ago.

Rascal
05-07-2009, 7:45 PM
Since the 9th has decided that the 2nd refers to the individual, can other circuits decide this too and incorporate without a court case?

Erik S. Klein
05-07-2009, 7:52 PM
Consider this a minority opinion, but I've always thought that incorporation is, in and of itself, stupid.

Sure the courts seem to think it's important, but it's self-serving nonsense.

We already know that the Bill of Rights applies to us. That fact does not change one iota just because some judge "recognizes" it.

I'm happy that the 9th figured it out, but I don't think it really matters.

383green
05-07-2009, 8:08 PM
Since the 9th has decided that the 2nd refers to the individual, can other circuits decide this too and incorporate without a court case?

As I understand it, the judicial branch almost can't decide what color of tie to wear until somebody with proper standing works a case up through all of the lower courts for them to decide on. It's a bit frustrating that the justices can't just start crossing out all of the bad laws on a whim, but it's an important part of our checks and balances system. For a concrete example of why limitations like this are important, just look at how screwed up things can get when the executive branch goes overboard with executive orders.

7x57
05-07-2009, 8:18 PM
Consider this a minority opinion, but I've always thought that incorporation is, in and of itself, stupid.


Incorporation itself? Selective incorporation via the Due Process clause? En bloc incorporation through the P&I clause? Which of those is stupid?


Sure the courts seem to think it's important, but it's self-serving nonsense.


Self-serving? Whose interests do you think are best served by what has happened with the Incorporation issue?


We already know that the Bill of Rights applies to us.


How do you "know" it? I doubt you have any basis to know. Here is a test question: on what date or with what event did the Bill of Rights first apply to you? If you don't know the answer, or think the question is stupid, then you don't know enough to have informed opinions on the subject.


That fact does not change one iota just because some judge "recognizes" it.

I'm happy that the 9th figured it out, but I don't think it really matters.

What color is the sky in your world?

7x57

M. D. Van Norman
05-08-2009, 8:17 AM
I’ll answer this one.

Incorporation itself? Selective incorporation via the Due Process clause? En bloc incorporation through the P&I clause? Which of those is stupid?

All of them are profane, due to Article VI of the U.S. Constitution.

Self-serving? Whose interests do you think are best served by what has happened with the Incorporation issue?

The government’s interest is served, quite obviously.

Here is a test question: on what date or with what event did the Bill of Rights first apply to you?

The Bill of Rights doesn’t apply to me as a private individual. However, it has applied to the government since Dec. 15, A.D. 1791.

What color is the sky in your world?

Being color blind, I can’t say for certain, but if the Congress or the President or even the Supreme Court say that it’s green, that still doesn’t make it so.

Unfortunately, however, incorporation does matter.

Decoligny
05-08-2009, 8:54 AM
Consider this a minority opinion, but I've always thought that incorporation is, in and of itself, stupid.

Sure the courts seem to think it's important, but it's self-serving nonsense.

We already know that the Bill of Rights applies to us. That fact does not change one iota just because some judge "recognizes" it.

I'm happy that the 9th figured it out, but I don't think it really matters.

That "fact" may not change, however, the repercussions for exercising the fact that it applies will definitely change due to the recognition obtained by incorporation.

The laws of the State of California WILL change due to the recognition obtained due to incorporation.

The courts WILL be required to hear certain cases dut to the recognition obtained due to incorporation.

There is the world the way it should be (Bill of Rights and entire constitution recognized and applied correctly by all levels of Government), and then there is the world the way it actually is (having to fight to defend the rights enumerated in the Bill of Rights and the entire Constitution.)

7x57
05-08-2009, 9:28 AM
All of them are profane, due to Article VI of the U.S. Constitution.


So it is your position that Barron is invalid law. Can you support the position that the authors of Article VI understood it to apply the restrictions on the federal government as restrictions the states, rather than simply guaranteeing that wherever the federal government was granted power it is always supreme? I can think of a line of argument or two either way.


The governmentís interest is served, quite obviously.


That doesn't answer much. Which government? We have two with reserved powers. Incorporation seems to serve the federal government's interest against the interests of the state governments, so it is curious that you advance a self-interest argument in the case of the federal courts ruling that the BoR does not apply to the states until incorporation (forget for a moment which incorporation theory may be used).


The Bill of Rights doesnít apply to me as a private individual.


True, and that puts you ahead of Ron Paul at least in understanding the Constitution.


However, it has applied to the government since Dec. 15, A.D. 1791.


Saying "the government" makes it a fairly useless discussion, since the whole question is about distinguishing the feds and the states. You speak as though we have a single level of sovereignty in the European (and indeed most of the world) style, with the states being organs of the federal government in the way local governments are organs of the states (unless otherwise defined by the *state* Constitution, I seem to recall at least a few do reserve powers to local governments from the state).


Being color blind, I canít say for certain, but if the Congress or the President or even the Supreme Court say that itís green, that still doesnít make it so.

But the understanding of the people who engaged in the compact about what compact they were in fact making is indeed relevant.

7x57

M. D. Van Norman
05-08-2009, 11:00 AM
Itís pointless to argue. I can read the clear words of the Constitution as well as the next honest person, and that is why I despise the incorporation doctrine. However, we are stuck with it.

7x57
05-08-2009, 11:05 AM
Itís pointless to argue. I can read the clear words of the Constitution as well as the next honest person, and that is why I despise the incorporation doctrine. However, we are stuck with it.

I've seen that argument over and over again with regard to interpretation fo texts, and it doesn't work. In whose context is it clear? Yours, or the framers'?

Hermeneutics is hard and there is no escaping that, either for biblical or Constitutional fundamentalists (and I use fundamentalist in its precise meaning, not the news media's slander). Context is king, and an interpretation that reads the text in the wrong context is no more accurate than one that does not really read the text.

7x57

M. D. Van Norman
05-08-2009, 11:21 AM
Itís just legalistic gymnastics performed to preserve state power.

ďHere is a Bill of Rights to protect individual citizens.Ö What!? Youíre ignoring the supreme law of the land? Fine! Here is the 14th Amendment. You have to respect civil rights! Ö No!? Okay. Okay. The Supreme Court will incorporate the Bill of Rights through the 14th Amendment. Take that! Ö You still arenít listening!? All right. Here is a federal civil-rights lawsuit for you.ÖĒ

GaryV
05-08-2009, 11:22 AM
Itís pointless to argue. I can read the clear words of the Constitution as well as the next honest person, and that is why I despise the incorporation doctrine. However, we are stuck with it.

The problem is that every court in our history, and even the Founding Fathers, have disagreed with your "reading of the clear words of the Constitution". When James Madison introduced the Bill of Rights, he included an amendment that would have applied the restrictions in it to the state governments as well as the federal government. It was voted down. The individual founding state representatives never intended the Constitution to apply to anyone but the federal government.

DDT
05-08-2009, 12:22 PM
The problem is that every court in our history, and even the Founding Fathers, have disagreed with your "reading of the clear words of the Constitution". When James Madison introduced the Bill of Rights, he included an amendment that would have applied the restrictions in it to the state governments as well as the federal government. It was voted down. The individual founding state representatives never intended the Constitution to apply to anyone but the federal government.

Don't go injecting history or reality into an argument with someone who stated:

"Itís pointless to argue."

M. D. Van Norman
05-08-2009, 12:57 PM
Itís pointless to argue because 14th Amendment incorporation is the method we are stuck with. That may change, but it is unlikely at this point. The history of it all is quite fascinatingóand infuriating for civil libertarians.

The Bill of Rights is part of the Constitution by amendment. The Constitution is the supreme law of the land per Article VI.

Publius
05-08-2009, 1:38 PM
The Bill of Rights is part of the Constitution by amendment. The Constitution is the supreme law of the land per Article VI.

Here's a sincere question. You previously said the Bill of Rights doesn't apply to you as an individual. Why not, based on that interpretation? Individuals have to obey other laws, like laws against speeding and theft. If you believe that the Bill of Rights applies to the states because it's (generally) not limited by its terms to the federal government, I would submit that several provisions aren't limited by their terms to government at all. "The right of the people to keep and bear arms shall not be infringed" doesn't end with "by the federal government," granted. But it doesn't end with "by the federal government or the states" either. So why wouldn't it violate the 2nd Amendment for someone to, say, rent out a room in their house to an individual with a clause in the lease preventing the tenant from keeping a gun in the room?

M. D. Van Norman
05-08-2009, 3:08 PM
The Constitiution defines the powers and limitations of the federal government and its relationship to the several states.

DDT
05-08-2009, 3:30 PM
The Constitiution defines the powers and limitations of the federal government and its relationship to the several states.

I thought that you previously stated that it defined the limitations of the several states as well.

yellowfin
05-08-2009, 4:20 PM
The problem is that every court in our history, and even the Founding Fathers, have disagreed with your "reading of the clear words of the Constitution". When James Madison introduced the Bill of Rights, he included an amendment that would have applied the restrictions in it to the state governments as well as the federal government. It was voted down. The individual founding state representatives never intended the Constitution to apply to anyone but the federal government.

At the time they didn't think it'd have to. If they saw NY, NJ, and MD today there's no way in hell they'd like what goes on there, nor would the accompanying populous of their time allow it. They counted on the people to read the Constitution and apply it to the people they elected--people who violate it aren't supposed to stay in office. They also didn't plan on the people allowing career politicians either. We're out of way spec, as we'd say in firearms terms.

Thus the need for my original assertion. CGF and its efforts need to be replicated elsewhere.

M. D. Van Norman
05-08-2009, 5:34 PM
I thought that you previously stated that it defined the limitations of the several states as well.

It does, though that does not preclude any limitations in their own constitutions.

yellowfin
05-09-2009, 4:54 PM
Another important point to consider at the time of the writing of the Constitution and BOR was that everyone was clearly convinced that the federal government posed the greatest threat to individual liberty. Some wanted only the most rudimentary central government and many didn't want one at all. They didn't want a standing army or even banks, two things we take completely as a given but were seen as highly dangerous at the time. They would look at credit card interest rates, Fannie Mae and Freddy Mac, inflation and the national debt due to collusion between the Treasury and Federal Reserve, mortgage problems, and lobbying by the financial sector *coughBloombergcough* and say "See, I told you so!" and be completely right.

GaryV
05-09-2009, 9:15 PM
At the time they didn't think it'd have to. If they saw NY, NJ, and MD today there's no way in hell they'd like what goes on there, nor would the accompanying populous of their time allow it. They counted on the people to read the Constitution and apply it to the people they elected--people who violate it aren't supposed to stay in office. They also didn't plan on the people allowing career politicians either. We're out of way spec, as we'd say in firearms terms.

Thus the need for my original assertion. CGF and its efforts need to be replicated elsewhere.

Not true at all. The reason they didn't pass it was because many of them (remember that they were also the political leaders in their respective states) fully intended to violate at least some those rights within the borders of their own states, and did so quite enthusiastically. Many states had official religions, for example, and several places enacted very strict local gun control laws. They specifically did not want the federal constitution to apply to them, which is why each state had its own, several of which did not include any analog to the Bill of Rights; and those that did generally did not mirror the Bill of Rights in the federal constitution.

You have to remember that the original concept of the United States was much more like a loose confederation of semi-autonomous nations (which is why they're called "states", which is a term that is usually synonymous with "nation", and not provinces or counties), each with it's own concept of how things should be done. The idea is that citizens would then have a choice about what type of state they wanted to live in. This is the reason for all the arguments and compromises between the Federalists and the Anti-Federalists, and why even at the end many felt that the federal constitution still gave too much power to the federal government.

This is really what the Civil War is all about. The Southern states understood that it was their right to retain whatever system of economy and social organization they pleased, and when they felt that was no longer being respected, they decided it was time to leave. It's only after they lost the war that these concepts about how our Constitution and governmental systems changed, and the post-Civil War amendments, especially the 14th, were passed, making these new changes formal.

GaryV
05-09-2009, 9:22 PM
It does, though that does not preclude any limitations in their own constitutions.

And besides your own personal interpretation of the Article VI, which has never been upheld by any court, or agreed with by any historical scholar (because all the historical documentation from the time of the Founding Fathers says otherwise), what evidence do you have that this is what was meant to be the case?