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Old February 8, 2009, 01:22 PM   #1
DG45
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Insider term "incorporation" leaves new guy puzzled

I'm fairly new to the forum and have noticed the term "incorporation" used in several posts, as being something that is a first order of priority. I don't have a clue what this refers to. Can somebody help me out?
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Old February 8, 2009, 01:31 PM   #2
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Certain rights in the Bill of Rights are "unincorporated" rights which means the 14th Amendment which forces the states to apply the Bill of Rights does not apply to certain rights. I think it's the 2nd Amendment, the 8th Amendment and one more I forgot. Three of 10 amendments don't apply to the states.

If the Second Amendment is incorporated, that means that the states MUST abide by the prohibition on infringement. That means the states cannot violate your right to keep and bear arms.
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Old February 8, 2009, 01:42 PM   #3
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Hahaha. Now I'm confused.
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Old February 8, 2009, 01:45 PM   #4
Don H
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Quote:
Originally Posted by freakshow10mm
If the Second Amendment is incorporated, that means that the states MUST abide by the prohibition on infringement. That means the states cannot violate your right to keep and bear arms.
Without, hopefully, getting too far off track, the Second Amendment hasn't stopped the federal government from infringing on the right to keep and bear arms and I doubt the states would be any less successful. Incorporation, however, would probably curtail some of the more egregious infringements that states practice, depending, of course, on the make-up of the USSC at the time.
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Old February 8, 2009, 01:46 PM   #5
maestro pistolero
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The 14th amendment provides equal protection under the law for all people. It came out of civil war reconstruction period where newly freed slaves were denoed baics civil rights, especially second amendment rights.

The court have used a selective incorporation doctrine which, until recently, has not been historically applied to the 2nd amendment, which may be puzzling to some, because of the original intent of the 14th and 2nd amendments.

Due to the 2008 Heller vs D.C. decision, where the Supreme Court recognized for the first time that the 2nd amendment is an individual right (not necessarily related to militia service), the 2A right is now considered by most to be a right so fundamental, that incorporation against the states is likely, if not inevitable.

There are at least two high profile cases on appeal right now, which may recognize the 2nd as an incorporated right. One of them is Nordyke vs Alameda county in CA, another is against Chicago because of their DC-esque handgun ban.
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Old February 8, 2009, 01:47 PM   #6
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The Bill of Rights only applies to the Federal government. The 14th Amendment applies the Bill of Rights to the states, except for a few of the rights. The Second Amendment doesn't apply to the states because it wasn't incorporated into the 14th Amendment.

Read this:

http://en.wikipedia.org/wiki/Fourtee...s_Constitution
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Old February 8, 2009, 01:58 PM   #7
freakshow10mm
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Quote:
Originally Posted by Don H
Without, hopefully, getting too far off track, the Second Amendment hasn't stopped the federal government from infringing on the right to keep and bear arms and I doubt the states would be any less successful. Incorporation, however, would probably curtail some of the more egregious infringements that states practice, depending, of course, on the make-up of the USSC at the time.
Correct. The Federal government has been eroding the Second Amendment ever since the NFA of 1934 (no federal gun control law existed before then; the NRA said they'd fight it and get it repealed and here we are) and then the GCA of 1968. To get our rights back, we have to take baby steps. Heller was a big hurdle, next is incorporation, then challenges all over the country to repeal controls placed on our rights.

We have ruled it is an individual right. Next we have to rule what they can't do such as bans and controls. The gun grabbers will take the same approach with the gun safety routine as far as the Consumer Protection Act allows them to do. California, Massachusetts, New York, and others have passed legislation to regulate firearms and mainly handguns in the name of safety. The gun grabbers will try to find some way around any court ruling.

Key points to hammer out:

Limits of controls. What they can ban and what they can't.

What constitutes "arms". Small arms as in shoulder fired weapons. Shall it include parts, sub assemblies, ammunition and its components?

What line is reasonable to draw as far as preventing criminals from obtaining arms but still upholding and not infringing on the rights of free citizens?

Funny enough, the reason automatic weapons, suppressors, short barreled weapons weren't actually banned by the NFA of 1934 was because it was regarded as a right to own them. Through the process of an imposed tax upon the transfer that was very hefty for its time, especially when an automatic firearm could be bought for $25-$75, then taxed at $200, was out of reach for most people. They thought the way to control them so criminals couldn't get them is to make it so expensive that only the wealthy, upstanding citizens could afford to own them.

As a matter of fact, all concealable weapons were to be classified as AOWs, even handguns. However, the legislature thought it to be morally wrong to require a woman to pay an extra tax for a handgun for protection, so they kept these off the bill as being defined as AOWs and now their transfer isn't regulated by the NFA.

Just a bit of cool history about the NFA.
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Old February 8, 2009, 02:00 PM   #8
maestro pistolero
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Quote:
wasn't incorporated into the 14th Amendment.
Hasn't yet been incorporated. Some courts treat the right as if it is already incorporated. And for most people, it's news to them that the states can ignore the bill of rights.

Here's the argument as I see it: If free speech, religion, freedom from unreasonable search and seizure, and freedom from cruel and unusual punishment are fundamental rights, surely the now-recognized individual right to self-defense is fundamental enough for 14th amendment incorporation.

What could be more fundamental than self-preservation? If one's life is taken away, any other rights are meaningless.
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Old February 8, 2009, 02:46 PM   #9
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FOURTEENTH 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 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.
Prior to the adoption of the 14th Amendment, SCOTUS had ruled (Barron v Baltimore) that the Bill of Rights applied to the federal government, but not to states.

The legislative intent of the 14th Amendment, and particularly the "privileges or immunities" clause, was to extend the protections of the Bill of Rights to the states.

SCOTUS gutted the application of the "privileges or immunities" clause of the 14th Amendment in the Slaughterhouse Cases, so that the Bill of Rights was not applied to the states.

SCOTUS subsequently used the "due process" clause of the 14th Amendment to selectively include (or "incorporate") specific rights within the Bill of Rights under the scope of the 14th Amendment to protect those rights against state action.

Parts of the Bill of Rights that have not been "incorporated" include:
  • 2nd Amendment - keep and bear arms
  • 3rd Amendment - quartering of soldiers
  • 5th Amendment - section on indictment by a grand jury
  • 7th Amendment - jury trial in civil cases
  • 8th Amendment - section on excessive bails and fines
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Old February 8, 2009, 08:33 PM   #10
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Quote:
The Bill of Rights only applies to the Federal government.
Here we go again....
"A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed."

Please notice it does not say:"A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed by Congress."
Notice that the first amendment says "Congress shall make no law...."

No governmental entity may infringe on the right of the people to keep and bear arms.

The Constitution, including the amendments, is the "law of the land", and as such, it applies to every governmental body, federal, state, and local.

The reason you can't yell fire in a crowded theater (absent a fire) is that the local entities that wrote such laws were not Congress, therefore that particular example does not show an exemption to the Constitution, but supports it.

Let us quit mixing up where the federal government is specifically limited and when all governments are limited.
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Old February 8, 2009, 08:46 PM   #11
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Miboso, you fail to realize that "the Bill of Rights only applies to the Federal government" is how the law is applied. There is a difference between what the law says and how the law is applied. I think we are all in agreement here that the way the law is applied is not what the law says.

Now before the 14th Amendment, the Bill of Rights only applied to the Federal government. Since the 14th Amendment, parts of the Bill of Rights apply to the state governments.

I think we are all in agreement that from day one the Bill of Right applies to all forms of federal, state, and local governments. The problem is the court doesn't see it that way, but they are starting to do so. We have to take small steps to regain our rights.

I am the last person who should be lectured about the Second Amendment. Trust me.
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Old February 8, 2009, 09:01 PM   #12
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Everything you ever wanted to know about incorporation but were afraid to ask.

http://thefiringline.com/forums/showthread.php?t=301054

Pull up "draft #4" on post 12, rather than the earlier versions in that thread.
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Old February 8, 2009, 10:23 PM   #13
DG45
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Does the soverignty issue mentioned elswhere in this forum ("Washington State declares soverignty" - or something like that) gee and haw with incorporation?
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Old February 8, 2009, 10:29 PM   #14
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Several of my professors have stated many times that the entire bill o' rights was incorporated with the passing of the 14th.

Even my gun-fearing weenie of a Constitutional Law professor thinks so.

If there is any doubt, it's only because there is very little legal precedent on the 2nd. That has been changing, though, and hopefully we can stack up a few more cases before any originalist justices die or retire.
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Old February 9, 2009, 10:57 AM   #15
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Mr. Freakshow, my apologies. I failed to catch the subtlety of "applies to" as opposed to "should apply to". Thank you.

ETA: I generally start with the words of the Constitution, not the mis-application currently in use. Again, my apologies.
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