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California 2nd Amend. Political Discussion & Activism Discuss gun rights activism and 2A related political topics here. All advice given is NOT legal counsel.

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Old 03-17-2009, 12:57 PM
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spyderco monkey spyderco monkey is offline
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Thumbs up Interesting NYTimes Article

http://www.nytimes.com/2009/03/17/us/17bar.html?em

Very interesting article, especially about how Gay rights and Abortion supporters may favor incorporation. Could be the foundations of a broad coalition if approached correctly.

A couple highlights:
But some liberal lawyers and law professors sense an opportunity, and they have urged courts to incorporate the Second Amendment in a novel way, one that might help liberal arguments for protecting rights not specifically mentioned in the Constitution. Abortion and gay rights come to mind.
In a supporting brief filed in the Chicago case, lawyers for the Constitutional Accountability Center, a liberal group, urged the court to bypass the usual way that amendments are applied to the states, through the Fourteenth Amendment’s due process clause. Using that clause to guarantee fundamental rights has always seemed a little curious, as “due process” would seem to protect only fair procedures and not substance.

Another possibility, and the one urged by the center’s brief, is the Fourteenth Amendment’s “privileges and immunities” clause, which says that “no state shall make or enforce any law which shall abridge the privileges and immunities of citizens of the United States.” The virtues of that clause are it makes sense by its terms and there is some evidence that its framers specifically wanted it to apply to allow freed slaves to have guns to defend themselves.

Last edited by spyderco monkey; 03-17-2009 at 1:01 PM..
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Old 03-17-2009, 1:16 PM
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The problem is that this just means they've found another way to gut the original meaning of the Constitution. They only change strategy when the current one doesn't seem to do what they want (which is to make it say whatever they please regardless of what the words say). I'd guess that the only *real* reason they disliked the P&I clause is because obeying it would automatically incorporate the 2A as intended. Now that they suspect they will finally, at long last, be forced to obey the 2A, they no longer have a reason to stonewall on the P&I clause and now are interested in the other possibilities in a change in strategy.

I try never to get into other issues on Calguns because they are distractions from the 2A and I don't ask gunnies *as gunnies* about other rights any more than I ask reporters about the RKBA. But I'm going to violate my rule this once.

My own opinion is that abortion violates the right to life of the unborn child, and so a valid use of the P&I clause would pretty much outlaw abortion federally and take the ability to protect abortion away from the states forever (currently I tend to suspect that the feds can't regulate either way and it's probably a state's issue, but I haven't tried to settle my mind on that once and for all), but that won't stop them any more than the law ever has.

So if they can play games with the P&I clause, then I view that as a reason to wish it remained nullified. But I'm not allowed to play that kind of dishonest game as the "living constitution" people can--I believe the original meaning of the P&I clause was en bloc incorporation of the entire BoR and probably a few other Constitutionally protected rights, and therefore I have no choice but to say that's what it still means. Then its application has to be fought out, but I won't nullify the law to make policy for any reason. I intend to always work *within the law*, because I don't believe in fixing things by breaking them.

7x57
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Old 03-18-2009, 12:55 AM
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