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Old July 5, 2008, 03:32 AM   #1
Jim March
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Article covering the incorporation issue (14th Amendment) post-Heller

I've been working HARD on this one. It's a history of the cases on incorporation from 1833 (Barron v. Baltimore) through Heller. Along the way covers Dred Scott (1856), Slaughter-House (1873), Cruikshank (1876), Presser (1886), Adamson (1947), Fresno Rifle (1992), Hickman (1996), Silveira (2002) and Nordyke (2003).

Yes, it's a lot of material. But it's important. The Supreme Court in Heller for the FIRST TIME criticized Cruikshank and by implication, Slaughter-house...signalling a possible end to over 100 years of court-supported fraud, racism and civil rights violations.

Appendix A covers a series of situations involving cross-border violations of the RKBA. Some states are violating the civil rights of visitors to their states in ways that might have been illegal pre-Heller and are definitely a problem post-Heller.

Enjoy.
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Old July 5, 2008, 01:08 PM   #2
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Thanks!

for this and all your efforts on behalf of RKBA!
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Old July 5, 2008, 01:23 PM   #3
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Here's what Scalia had to say about Cruikshank in a footnote:

Quote:
23 With respect to Cruikshank’s continuing validity on incorporation, a question not presented by this case, we note that Cruikshank also said that the First Amendment did not apply against the States and did not engage in the sort of Fourteenth Amendment inquiry required by our later cases. Our later decisions in Presser v. Illinois, 116 U. S. 252, 265 (1886) and Miller v. Texas, 153 U. S. 535, 538 (1894), reaffirmed that the Second Amendment applies only to the Federal Government.
Only Ron Paul and other radicals believe the incorporation doctrine has done more harm than good and must be rejected completely. In any case, it looks like it's here to stay, and the case is strong that the 2a should be incorporated if the others are going to be.

I wonder why Scalia phrased the bolded part the way he did, simply stating that later decisions reaffirmed an unincorporated 2nd amendment? It suggests the whole line of them may have to be overturned, doesn't it? Scalia had a whole section in the Heller opinion on this topic:

We now ask whether any of our precedents forecloses the conclusions we have reached about the meaning of the Second Amendment.

Heller overturned nothing. Scalia doesn't like overturning. He fit the Heller result within the logic of the preceding cases, leaving them intact. You simply can't fit incorporation within the logic of Presser/Cruikshank, as they speak directly against it. They'll have to be overturned.
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Old July 5, 2008, 03:31 PM   #4
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Footnote 23 has caused a lot of discussion.

First thing: don't just view it on it's own. Scalia also cites a book titled "The Day Freedom Died: The Colfax Massacre, the Supreme Court, and the Betrayal of Reconstruction" by Charles Lane that *seriously* blows the whistle on Cruikshank as being utterly racist garbage.

Between that and footnote 23, read this as:

"MEMO TO LOWER COURTS: there's a BIG problem with using Cruikshank as precedent, it cannot be viewed seriously today AT ALL, don't even think about it."

If I'm right, and I don't see how it could be anything else, then the cites to Presser and Miller v. Texas don't hurt us at all. Having read both cases, I can tell you that both depend 100% on Cruikshank. They literally say: "we've decided this matter in Cruikshank" and do no new analysis of their own.

This is the one issue I agree completely with Reinhardt in Silveira, who also spat razzberries at Cruikshank and Barron. (He then went on to invent a whole new base for gun-grabbing that depends on neither; this was shot down in flames in Heller.)
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Old July 5, 2008, 03:36 PM   #5
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Also: I'm working on two things today: a less-than-one-page executive summary to go at the beginning of this document, and a draft letter that can go out on a lawyer's stationary warning California sheriffs and chiefs that the rules have changed BIGTIME and what they need to do to avoid lawsuits.

This accomplishes two things:

* Some small agencies may cave in and go shall-issue, and not harass out-of-state CCW holders.

* It strengthens any later lawsuit by a denied CCW applicant or visiting CCWer by making it clear that the violations of rights were deliberate.
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Old July 5, 2008, 03:48 PM   #6
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What an incredible amount of work. We are indebted.
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Old July 5, 2008, 09:22 PM   #7
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Jim: Wish you were still in Pittsburg. I'd enjoy chatting with you.

Great work. I think Scalia threw in a lot of stuff to keep this case from appearing as it is, a real revolution. It takes actually 52 areas of law, and puts them all under what appears to be a high level of scrutiny. Heller addresses Federal, state, and Washington D.C. gun laws. As the ABA wrote in their Amicus brief, they argued the case should be decided in favor of Washington just because of the massive upheaval a contrary decision would cause. I think Scalia tried to make this palatable to the masses, and Congress, without letting on that he really does feel this is an area of government that should have been long ago limited. I think this court, Scalia and Thomas in particular, may well view this as their place in history, getting the United States back on track, after FDR.

Please send me a copy of the letter, and make sure one goes out to our Walnut Creek, and Contra Costa police chiefs.

Thanks

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Old July 5, 2008, 09:51 PM   #8
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My critique:
Page 1
Loose the sarcasm about Cloning Supreme Court Justices.
Not proper in this kind of work. I do love Hugo Black, as one of the real 'Constructionist's' present on the court, and, for no little reason that he turned on FDR, after appointment.

I would explain the difficulty without the Bill of Rights to bring state law into the Federal system, due to standing and jurisdiction issues.

Well done. Don't have much to say. I would state your point a bit more clearly at the start, in a shorter, more concise manner.

I'd also like any links you have on how to get paid for using my J.D. to further the second amendment, and, libertarian views.
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Old July 5, 2008, 11:05 PM   #9
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I'm working on an "executive briefing" style intro, that will help.
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Old July 5, 2008, 11:12 PM   #10
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Jim, I read your original over at THR. I'm pleased with some of the corrections you've made.

My Critique:
Top of Page 9 - "Yet again, because the law was race-neutral on it's face (despite a practical effect documented by the court of maintaining white supremacy at the polls), no civil rights violation was admitted as being controllable by Federal courts or authorities, even though the US Supreme Court appears to have realized it was all a 'scheme'."

A cite from the case would help bolster your claim here.
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Old July 6, 2008, 12:18 AM   #11
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You might try the old CRAC format.
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Old July 6, 2008, 04:23 AM   #12
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OK, draft number four.

This version treats page one as an executive briefing.

It also expands on the Williamson case, adding quotes. Teensy tweaks throughout but those are the biggies.
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Old July 6, 2008, 08:48 AM   #13
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Jim, I hate to be a pest, but....

Last paragraph of page 6: "Slaughter-house has not been officially overturned. However, key theoretical underpinnings in Slaughter-house were quoted in Cruikshank, reviewed in our next chapter."

Needs to be rephrased (I suggest, "section"), if there are no "chapters."

Thank you for the extended quotes from Williamson and the extended commentary. It neatly ties together voting rights, self-defense and racism. Something that was still lacking in ver. 3.
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Old July 6, 2008, 03:19 PM   #14
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I'd put this at the start:
"The purpose of this article is to outline... the ....history of incorporation and how this ... fight in the courtrooms affects our rights today."

I don't find it a secretive battle at all. Hugo Black had all this out in the open. Constructionist view vs. Incorporationist.


There have long been two great questions regarding the United States Second Amendment.
The first has been .is the 2nd Amendment an individual civil right?.. That questions has now been
answered by the US Supreme Court in DC v. Heller (2008): YES.
The second question is still open: .does the 2nd apply as limits to the actions of state and local
governments via .incorporation.?
.Incorporation. is the idea that the Bill Of Rights applies to the states via the 14th Amendment.
.Selective incorporation. is a court-created doctrine in which pieces of the BoR get applied to the
states as cases come up before the US Supreme Court regarding each right, and actually happened
across the 20th Century. .Full incorporation. is a theory gaining scholarly support whereby the 14th
Amendment was supposed to apply the entire Bill Of Rights to the states via the Privileges and
Immunities clause of the 14th.2"

There is another possibility. That Baron Vs. Baltimore was wrong, and contrary to the intention of the founders from the start. That the Bill of Right WAS intended to be extended against the states from the start, but, because of the lack of a strong central government, could not be enforced against the slave states.



It'stwo hundred years of civil rights violations and attempted reforms....
The story can be directly linked to over 100 deaths in a single riot, 4,000 murders by lynching across
generations, uncountable assaults and other violent crimes and the disenfranchisement of millions of
minority voters. People were disarmed of personal defense weapons for the specific purpose of
assaulting them, and disenfranchised to continue their de-facto enslavement.


Reforms happened in the 20th century, but in a piecemeal fashion (.selective incorporation.) that has
never fully restored our rights to what they were supposed to be.

Reforms from what? out of place maybe delete.

Should this be a footnote?

Appendix A covers a set of circumstances in which states abuse the rights of citizens who are visiting,
rather than their own residents. Case law dating to 1999 suggests that even without dealing with
incorporation of the Bill Of Rights against states, this cross-border discrimination in handling a basic
civil right (as per Heller) can be controlled by the Federal courts and authorities right now.

The rest is pretty solid.

I love con law, did well in it, but, the area you are trying to condense is very difficult to discuss. I would go back and outline it, much as a Hornbook would, or better, one of
condensed study guides, and give your readers a condensed version at the start. You've started on this already.
I'd also go into the difficulty of challenging a state or federal law, and, one, how you get into court, and two how you get standing to challenge a law.

I'm wondering, in reading this, how many of these gun control laws haven't been challenged on the basis of race discrimination?

Is financial discrimination a basis to challenge a law, and, if so, when?

How about our county where if you live in Richmond, no CCW?

Computer question: Why can I move text from your document into another program, where, in the past, I've been unable to do this?
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Old July 6, 2008, 04:09 PM   #15
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Socrates:

The reason I call it a "hidden history" is that the incorporation issue hasn't been widely discussed. The general public has no clue. There's a good reason for this: if people realized that states were claiming a right to violate the Bill Of Rights based on cases as bone-deep-ugly as Cruikshank, there'd have been riots long ago.

In other words, "the truth has been out there" but certainly not piped into people's homes on the evening news or even a PBS documentary...

Regarding Barron being a blooper from the get-go, we agree. But there's now a hell of a lot of case law back and forth either based on or caused by Barron, plus there's the 14th itself designed to overturn it. I don't see the clock getting reset back to 1833. But on page 2 in the 1833/Barron chapter I did mention this point.

Sidenote: in one of Amar's law review articles:

http://www.saf.org/LawReviews/Amar1.html

...he goes into this in detail. Among other things he finds various judges post-1833 ignoring Barron and assuming that the BoR applies to the states.

Quote:
Reforms from what? out of place maybe delete.
Well...it was meant as a bit of a teaser. This whole intro is meant to drag people into the main body of the thing. And maybe that's not the right idea...I'm thinking about that.

Quote:
I'm wondering, in reading this, how many of these gun control laws haven't been challenged on the basis of race discrimination?
I've been arguing that for YEARS. Went so far as to try and recruit black or latino CCW discrimination suit challengers at local shooting ranges in California. Turns out everybody "black or brown" is seriously gun-shy about suing the local sheriff.

Quote:
Is financial discrimination a basis to challenge a law, and, if so, when?
Been there, done that. Challenged CCW on exactly that basis in Federal district court, San Francisco. Was able to prove that CCW was being handled on racial lines, but as a white dude wasn't allowed to present the evidence. Was able to prove economic discrimination too but as that only gets you a "rational basis" analysis when we're dealing with something not a basic civil right, I was tossed out on my butt.

Heller of course changes all the rules. Now it IS a fundamental right, even in the 9th Circuit.

Quote:
Computer question: Why can I move text from your document into another program, where, in the past, I've been unable to do this?
Because my text really is text, not graphics.

OK, a lot of .PDF files that look like "text" really aren't. They're scans of printed pages, so they're graphics. They look readable to our human eyeballs of course, but they're graphics.

My PDF text was typed in, not scanned in. So basic copy'n'paste-somewhere-else works fine. You can't edit my PDF unless you have specialized PDF editing software (Adobe Acrobat or others).

Sidenote: OpenOffice 3.x series (due out in a couple of months) will have built-in PDF editing capability, which will be way cool. As it is, when I had to edit PDFs I use a Linux program called "PDFEdit"...pretty basic but it works, esp. for copying pages from one PDF and interleaving them with another PDF file.
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Old July 6, 2008, 05:27 PM   #16
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Excellent work as always, Jim. The problem as I have seen here thus far in my short but interesting stay here, a fair bit from what you yourself taught me, is that the sheriffs and other higher ups simply don't care about avoiding the lawsuits because 1) it's not on their dime 2) if they lose it's small and they (the city councils and county boards) can still invent more stupidity so it doesn't take full effect 3) they have courts that work the way they want that will justify anything outrightly criminally anti 2A because they've been doing so for 15-20 years, law and facts be damned, otherwise this wouldn't even be a discussion in the first place and 4) they still keep their jobs at the end of the day regardless. What of this is going to fix those 4 problems? They'd starve their children and turn off the street lights if that's what it'd cost to keep the 2nd Amendment out of CA and not think twice about it. Sure it's a perfect arguement and sound legal, but how the heck to you tattoo it on them so they can't just say "Nuh uh, not how we see it so it's not going to go your way" ? All they have to do is say no, and that they will without hesitation.

They're like spoiled children refusing to eat their broccoli. What's going to MAKE them?
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Old July 7, 2008, 01:38 AM   #17
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Jim:
Something you might think about:

Your real issue is how have so many illegal laws, that violate the 2A been able to be passed, and then not challenged?

First: How do you challenge a state law?
Sub issues:
Standing
Jurisdiction
Second: How do you challenge a federal law?
Standing
Jurisdiction

Another issue is why did it take 200 years for the US Supreme Court to define the 2A?

Here the underlying racism of the 'incorporationist doctrine' comes into play.

You might also go into the tremendous growth of Federal government, and law, thanks to FDR, his threat to pack the bench, and change the numbers, and how his bullying
finally got rid of the Four Horseman, who I think, may well be your 'good judges' DNA.

Of course, is that what you are really after?

Or, are you trying to write a guide book to both understand the steps necessary to challenge illegal gunlaws, and how to do it?

I'm not real clear on the purpose of your work.
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Old July 7, 2008, 02:07 AM   #18
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Socrates: this is about informing people of their rights. To do so we need to know how we got here - particularly "how is it that with an individual Federal right, anybody could think it doesn't apply to the states?"

Because it's a dead certainty that some states are going to try and say the 2nd isn't incorporated. Illinois and California for starters, although Cali has that "self incorporation clause" in their own const. that may screw 'em .

So let's take IL: they may get away with claiming lack of incorporation unless people understand how rotten the anti-incorporation case law is. Cruikshank is a total [color=#FF0000]█[/color][color=#FF0000]█[/color][color=#FF0000]█[/color][color=#FF0000]█[/color] - ain't no way to "pick up the clean end". In turn it stains Slaughter-house because it borrows S-H logic (and involves some of the same judges). And Cruikshank is wiped all over Presser, Miller v. Texas and other later cases all the way to the 2003 Nordyke decision as all cite Cruikshank or it's crap-stained descendants.

People have got to KNOW this.

Now that said, each state is different. I'm researching Hawaii right this second. Get this: their state const. RKBA clause is a word-for-word copy of the US 2A. So they can hardly claim it means something different from Heller, can they? So incorporation is an instant non-issue where gun laws are concerned. Whoa. See also:

http://www.thehighroad.org/showthread.php?t=376004
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Old July 7, 2008, 02:25 AM   #19
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After seeing Hawaii's state RKBA clause (identical to Fed 2A) I decided to check on other states. Found a neat guide:

http://www.firearmsandliberty.com/states.rkba.html

We'd have to confirm accuracy of course before basing litigation on it but for now it looks accurate.

Alaska is another 2A clone, but I doubt there's anything to challenge .

North Carolina is a "partial clone" and I think close enough that Heller should immediately apply:

Quote:
"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; and, as standing armies in time of peace are dangerous to liberty, they shall not be maintained, and the military shall be kept under strict subordination to, and governed by, the civil power. Nothing herein shall justify the carrying of concealed weapons, or prevent the General Assembly from enacting penal statutes against that practice." N. C. Const. art. I, S 30
It's an open-carry state per: http://opencarry.org/opencarry.html

Let's see here, who's next...

Quote:
RHODE ISLAND: "The right of the people to keep and bear arms shall not be infringed." R. I. Const. art. I, S 22
opencarry.org says it's a "licensed open carry state" and I know their CCW permit process is a friggin' mess. Oh MAN are they ever open to challenge. Chortle. Wait...this site:

http://www.handgunlaw.us/

...says they're shall-issue. Did that change recently?

Oh well. What I find interesting from this list:

http://www.firearmsandliberty.com/states.rkba.html

...is that of all the states listed, only Hawaii, Illinois and Mass. have serious restrictions on personal defense (assuming RI is OK, gotta check that). The Mass. RKBA clause is a very weak one, listing "common defense" only. Illinois is almost as bad:

Quote:
ILLINOIS: "Subject only to the police power, the right of the individual citizen to keep and bear arms shall not be infringed." Ill. Const. art. I, S 22
All the rest have strong state-level RKBA clauses and are at least decent in regards personal defense with the sole exception of Hawaii. And now that the ground has seriously shifted under Hawaii, expect that one to change bigtime, one way or the other (read: do we need to sue the hell out of 'em or will they cave?).
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Old July 7, 2008, 04:32 AM   #20
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Jim:
Hawaii says one thing, does another. I suspect if you go into their actual gun laws, you will find them VERY restrictive. It's very hard to get loaded ammo in and out, due to shipping companies, and, for some reason boat shipping is not allowed.

Seems if you are rich, Hawaiian, or a police officer there is clearly a different set of rules.

IIRC, they pretty much copied the FRCP as well, for state procedure, so, if your able to practice in Federal court, your ready for Hawaii.
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Old July 7, 2008, 05:44 AM   #21
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Jim, have you considered trying to bring in the issue of poll taxes, their racist origin, and how the constitutional law on the subject might apply to taxes like the NFA?
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Old July 7, 2008, 12:28 PM   #22
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Though many of us here have the patience, interest, and brain capacity to wade though all this, the general public probably does not.

Is it possible to get a 'Cliff Notes' draft going so that these points can be more accessible to the GP?

I'm talking about folks who read at, let's say a sixth grade level. They have the same rights we do, of course, and might be particularly interested to know about the dark underbelly of gun control legislation history.
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Old July 7, 2008, 02:20 PM   #23
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Jim:
Quote:
I suspect if you go into their actual gun laws, you will find them VERY restrictive.
I did. No "suspect" about it - they're as bad as anywhere. That's one reason Heller may prove a total shock...

Quote:
It's very hard to get loaded ammo in and out, due to shipping companies, and, for some reason boat shipping is not allowed.
No surprise.

Quote:
Seems if you are rich, Hawaiian, or a police officer there is clearly a different set of rules.
Again: no surprise.

The surprise is that AG Bennett has signalled a willingness to review HI gun laws top to bottom in light of Heller, and they have to follow Heller because they cloned the 2A locally.
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