The Firing Line Forums

Go Back   The Firing Line Forums > The Conference Center > Law and Civil Rights

View Poll Results: Incorporation will make the Second Amendment:
limit federal gun control powers, limit state gun control powers 15 71.43%
limit federal gun control powers, deny state gun control powers 0 0%
deny federal gun control powers, limit state gun control powers 3 14.29%
deny federal gun control powers, deny state gun control powers 3 14.29%
Voters: 21. You may not vote on this poll

Reply
 
Thread Tools
Old December 23, 2009, 12:59 PM   #1
Hugh Damright
Senior Member
 
Join Date: June 5, 2004
Posts: 609
What Does Incorporation Mean to You?

Which best describes your view of incorporation?

Last edited by Hugh Damright; December 23, 2009 at 01:05 PM.
Hugh Damright is offline  
Old December 23, 2009, 01:12 PM   #2
ilbob
Senior Member
 
Join Date: November 29, 2006
Location: Northern Illinois
Posts: 516
I think it will be meaningless at the federal level and potentially meaningful at the state level. Even if incorporated, the 2A won't mean a whole lot anywhere unless a reasonable level of scrutiny (strict scrutiny being the obvious choice) is applied, and that case is a few years away.
__________________
bob

Disclaimers: I am not a lawyer, cop, soldier, gunsmith, politician, plumber, electrician, or a professional practitioner of many of the other things I comment on in this forum.
ilbob is offline  
Old December 23, 2009, 01:27 PM   #3
Bartholomew Roberts
Senior Member
 
Join Date: June 12, 2000
Location: Texas and Oklahoma area
Posts: 5,641
Incorporation has nothing to do with federal powers. Federal powers are already limited by the Bill of Rights whether or not those same rights are incorporated against the States.
Bartholomew Roberts is offline  
Old December 23, 2009, 05:05 PM   #4
miboso
Senior Member
 
Join Date: March 18, 2007
Location: Real northern California
Posts: 504
Incorporation will not "make" the Second Amendment do anything. It already limits federal and government control powers, in its words and meaning.
What incorporation "may" do is allow the individual states to violate the amendment in the exact same method as the federal government.
__________________
David
I pledge allegiance to the Constitution of These United States of America, and to the Republic which it defines.
miboso is offline  
Old December 23, 2009, 08:54 PM   #5
wuluf
Senior Member
 
Join Date: October 30, 2006
Location: River City CA
Posts: 219
What I hope it will do is to require California to issue carry permits.

What I think it will do is generate litigtion for years, if not decades to come.
__________________
Freedom isn't the choice the world encourages. You have to wear a suit of armor to defend it.
wuluf is online now  
Old December 23, 2009, 09:14 PM   #6
Tom Servo
Staff
 
Join Date: September 27, 2008
Location: Foothills of the Appalachians
Posts: 10,064
Quote:
What I think it will do is generate litigtion for years, if not decades to come.
Yes, but that's how the ball gets rolling. After a few successful suits, state and municipal governments will think twice before passing new restrictions.
__________________
In the depth of winter I finally learned that there was in me an invincible summer.
--Albert Camus
Tom Servo is offline  
Old December 23, 2009, 09:16 PM   #7
Brian Pfleuger
Staff
 
Join Date: June 25, 2008
Location: Central, Southern NY, USA
Posts: 18,369
Quote:
Originally Posted by wuluf
What I think it will do is generate litigtion for years, if not decades to come.
Generate? Hasn't it already been going on for decades?
__________________
Still happily answering to the call-sign Peetza.
---
The problem, as you so eloquently put it, is choice.
-The Architect
-----
He is no fool who gives what he can not keep to gain what he can not lose.
-Jim Eliott, paraphrasing Philip Henry.
Brian Pfleuger is offline  
Old December 24, 2009, 03:17 AM   #8
raimius
Senior Member
 
Join Date: January 27, 2008
Posts: 1,312
I think incorporation will allow for limited restrictions, no matter what level of scrutiny is applied. The real question is what the level of scrutiny will be, and what restrictions are deemed reasonable. Hopefully, it will be strict scrutiny, and only a few "gun control" measures will be allowed.

I think it will take decades to decide, any way it goes.
raimius is offline  
Old December 24, 2009, 11:59 AM   #9
Hugh Damright
Senior Member
 
Join Date: June 5, 2004
Posts: 609
When we say that it will limit federal gun control powers, are we talking about federal gun control powers within federal districts, or are we talking about federal gun control powers within the States?
Hugh Damright is offline  
Old December 26, 2009, 02:44 AM   #10
GHF
Member
 
Join Date: June 4, 2007
Location: Orlando, FL
Posts: 84
Incorporation Impact

The Second Amendment - per Heller - only applies to the Federal Government.

McDonald v The City of Chicago is designed to do 2 things.
  1. Have the Second Amendment apply to the States via the 14th Amendment.
  2. By the clause in Section 1 of the 14th 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 of 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.

    either use the Equal Protection Clause now used in 1st, 4th, 5th, and 6th Amendment incorporation, or overturn the 1873 Slaughter House cases which killed the Privileges and Immunities Clause.
Keep in mind that the 14th Amendment was geared to overturn the 1857 Scott (AKA Dred Scott) v Sandford, which said black people could not be citizens, and used as an example of that not be a citizen the ability to carry firearms.

Read Tandy's decision in the case - http://www.pbs.org/wgbh/aia/part4/4h2933t.html - and throw up.

Last edited by GHF; December 26, 2009 at 02:50 AM.
GHF is offline  
Old December 26, 2009, 07:24 AM   #11
publius42
Senior Member
 
Join Date: February 9, 2002
Posts: 1,885
Quote:
Incorporation has nothing to do with federal powers. Federal powers are already limited by the Bill of Rights whether or not those same rights are incorporated against the States.
That's true, and Hugh's poll questions made no sense to me because of that fact. However, on thinking about it, application to the states will create more case law (for better or worse) and that case law will affect how the 2nd applies to the feds as well as to other states.
publius42 is offline  
Old December 26, 2009, 11:33 AM   #12
Hugh Damright
Senior Member
 
Join Date: June 5, 2004
Posts: 609
Quote:
Keep in mind that the 14th Amendment was geared to overturn the 1857 Scott (AKA Dred Scott) v Sandford, which said black people could not be citizens, and used as an example of that not be a citizen the ability to carry firearms.
But also keep in mind that the preceding Freedmens Bureau Bill and Civil Rights Act addressed this by saying that laws regarding protection of person and property must result in equal benefit and protection, and this equal protection clause carried over to the 14th. I believe the intent was a federal power over discriminatory gun laws, not a federal power over gun laws in general.

Quote:
Read Tandy's decision ... and throw up.
I think Taney was correct ... what was he to do, rule that negroes were citizens and that every State in the Union was in violation of the Constitution and always had been?

Quote:
Incorporation has nothing to do with federal powers.
Some people seem to think the idea is to level the governments, to have the Second Amendment bind the feds and the States to the same degree ... which seems to lead to a vision of the feds having gun control powers just as the States do.

Last edited by Hugh Damright; December 26, 2009 at 12:05 PM.
Hugh Damright is offline  
Old December 27, 2009, 09:37 PM   #13
GHF
Member
 
Join Date: June 4, 2007
Location: Orlando, FL
Posts: 84
What Should Have Tandy Done

Quote:
I think Taney was correct ... what was he to do, rule that negroes were citizens and that every State in the Union was in violation of the Constitution and always had been?
He should have, at worst, made a very narrow technical decision. The sweep of his decision created no middle ground, and did not end the slavery discussion.

If he would have ruled more broadly for Scott, he would have laid out the start of a legal process that would have ended slavery without a Civil War.
GHF is offline  
Old December 29, 2009, 09:59 AM   #14
KSFreeman
Senior Member
 
Join Date: June 9, 2001
Location: Lafayette, Indiana--American-occupied America
Posts: 5,416
Incorporation means bringing the Bill of Rights to the states to prevent the states from denying the civil rights of its citizens as per the original intent of the Framers of the Fourteenth Amendment.
__________________
"Arguments of policy must give way to a constitutional command." Payton v. New York, 445 U.S. 573, 602 (1980).
KSFreeman is offline  
Reply

Thread Tools

Posting Rules
You may not post new threads
You may not post replies
You may not post attachments
You may not edit your posts

BB code is On
Smilies are On
[IMG] code is On
HTML code is Off

Forum Jump


All times are GMT -5. The time now is 07:45 PM.


Powered by vBulletin® Version 3.8.7
Copyright ©2000 - 2014, vBulletin Solutions, Inc.
This site and contents, including all posts, Copyright © 1998-2014 S.W.A.T. Magazine
Copyright Complaints: Please direct DMCA Takedown Notices to the registered agent: thefiringline.com
Contact Us
Page generated in 0.09746 seconds with 8 queries