It’s Time For The Supreme Court To Make States Stop Ignoring The Second Amendment

[Elderberry]

The Federalist by  Cody Wisniewski 5/31/2019

New York City is far from the only government with unconstitutional gun control laws on the books. Nearly every court in the nation has ignored Heller and McDonald.

The most important Second Amendment case in a decade may soon be argued before the Supreme Court. Meanwhile, a chorus of Democratic presidential candidates has recently called for stricter gun control. With so much at stake in N.Y. Rifle & Pistol Association v. City of New York, at least one question remains to be answered: Will the Supreme Court actually decide this case?

New York City has some of the strictest gun control laws in the country. Current law, for instance, prohibits licensed handgun owners from transporting their handguns outside city limits. (Yes, New York City really does prohibit this.) Handgun owners are considered criminals if they merely bring a handgun to a shooting range in the next town for a round of target practice.

By subjecting NYC’s excessive regulations to constitutional scrutiny, the N.Y. Rifle case makes a good test of how far gun control advocates can go without running afoul of the lower courts. While NYC officials were comfortable with their regulation withstanding lower court scrutiny, early signs indicate they are well aware that they have gone beyond their constitutional limits—a fact the Supreme Court is not likely to miss. NYC officials already asked the Supreme Court to delay the case and are attempting to amend the law in question.

While the Supreme Court denied the request to put the case on hold, that does not mean the Supreme Court has to actually decide the case. If NYC officials successfully amend the challenged regulation, the Supreme Court could decide that there is no longer a current regulation to overturn, and therefore no need to decide the case.

More: https://thefederalist.com/2019/05/31/time-supreme-court-make-states-stop-ignoring-second-amendment/

[Cyber Liberty]

While the Supreme Court denied the request to put the case on hold, that does not mean the Supreme Court has to actually decide the case. If NYC officials successfully amend the challenged regulation, the Supreme Court could decide that there is no longer a current regulation to overturn, and therefore no need to decide the case.

That's exactly what will happen.  SCOTUS does not like deciding 2nd Amendment cases and will fob it off any chance they get.  It's just as well, actually because we don't have a reliable majority of pro-2nd Amendment Justices on the court.

[Jazzhead]

Heller needs to be codified.  Cyber is right - there is no stomach at the SCOTUS to hear RKBA cases,  because the individual right clings by a thin reed.   

The defect in the 2A needs to be addressed.

[txradioguy]

That's exactly what will happen.  SCOTUS does not like deciding 2nd Amendment cases and will fob it off any chance they get.  It's just as well, actually because we don't have a reliable majority of pro-2nd Amendment Justices on the court.

IMO we have three.  And that's it.

[Smokin Joe]

Heller needs to be codified.  Cyber is right - there is no stomach at the SCOTUS to hear RKBA cases,  because the individual right clings by a thin reed.   

The defect in the 2A needs to be addressed.

The defect is not in the 2nd, it is in the jurists.

[Jazzhead]

The defect is not in the 2nd, it is in the jurists.

Don't be so sure.   You've no doubt heard calls from some of the Dems for the need to codify Roe v. Wade.    They understand the peril that this individual right faces in the face of determined efforts to force a re-evaluation of Roe and its pivotal follow-up ruling, Casey, by delivering a test case to the SCOTUS.    The libs will seek to do the same to try to force a re-evaluation of Heller, and perhaps even the overturning of the individual right found by that decision.

The 2A's predicate clause make it inherently flawed.   Its plain language requires the interpretation of the Court in order to provide the individual right that folks take for granted.   What the Court giveth, it can taketh away.    If the Dems are smart enough to understand that Roe must be codified, then why aren't Republicans willing to advocate for the same thing with Heller?   

[txradioguy]

The 2A's predicate clause make it inherently flawed.

It's only flawed to people that dislike the 2nd Amendment and would like to do away with it.

Its plain language requires the interpretation of the Court in order to provide the individual right that folks take for granted.

How much more interpretation does "shall not infringe" actually need?   

What the Court giveth, it can taketh away.

   

As much as you'd like it to...the courts cannot do away with the Second Amendment.

If the Dems are smart enough to understand that Roe must be codified, then why aren't Republicans willing to advocate for the same thing with Heller?

Why are you bringing abortion into a gun debate...again?

[Jazzhead]

Why are you bringing abortion into a gun debate...again?

Because the situations are parallel.   Conservatives are hell-bent on denying this Constitutional right, just as liberals are hell-bent on denying your Constitutional right.  All the tactics "our" side uses to suppress choice are also used by "their" side to suppress your individual gun right.   And the long-term solution in both cases, it seems to me, is the same - codification of the right so it doesn't depend on a transient SCOTUS majority.   

[Jazzhead]

How much more interpretation does "shall not infringe" actually need?   

The flaw is the predicate clause.   It is the means by which a liberal SCOTUS majority can deny your individual gun right.  Why give them the chance?  Codify Heller!   
   

[txradioguy]

The flaw is the predicate clause.

Only to Liberal anti-gun types who look for things like that to hang their hat on in order take away a fundamental right of every law abising citizen in America. 

It is the means by which a liberal SCOTUS majority can deny your individual gun right.

 

Except they can't under the Constitution.  That's why Liberals like yourself do their best to nibble around the edges of the Second Amendment without trying to completely abolish it.  You can't.  The courts can't.  No matter how much you wish they would.

Codify Heller!   
   

It's unnecessary and only those that want to restrict the ownership of firearms by law abiding citizens think this is a swell idea.

[Jazzhead]

You can't fight willful ignorance . . .   

Don't say I didn't warn ya.   

[txradioguy]

You can't fight willful ignorance . . .   

Most of us here know that...and yet we still indulge you and your daily deep dive into "willful ignorance" where the Constitution is concerned.

[Smokin Joe]

Don't be so sure.   You've no doubt heard calls from some of the Dems for the need to codify Roe v. Wade.    They understand the peril that this individual right faces in the face of determined efforts to force a re-evaluation of Roe and its pivotal follow-up ruling, Casey, by delivering a test case to the SCOTUS.    The libs will seek to do the same to try to force a re-evaluation of Heller, and perhaps even the overturning of the individual right found by that decision.

The 2A's predicate clause make it inherently flawed.   Its plain language requires the interpretation of the Court in order to provide the individual right that folks take for granted.   What the Court giveth, it can taketh away.    If the Dems are smart enough to understand that Roe must be codified, then why aren't Republicans willing to advocate for the same thing with Heller?

R0o is not Written in the Constitution, not a protected Right, but one made up by 5 jurists.

Go ahead, argue for a natural right to murder your offspring.
It does not exist.
What deity would have babies sacrificed on the altar of convenience?
How does nature crave shedding the blood of millions of innocents, not in warfare, even, but because they were 'unplanned'? 
 The idea of eliminating one's own progeny flies in the face of all natural instinct to perpetuate genetics and the species.

However, it is universal to argue for the right of self-defense, including from a tyrannical government.
It is a natural Right; an unalienable Right.
It exists, with or without the scribblings of those who would decide what people can and cannot do under their dominion.
"Codifying" it only makes it appear as if the Right is somehow granted by government.
It is not.
If it was granted by government, it could be removed by government.
Government did not grant it.
So, it is only respected or infringed by government.
Despite a good start, the infringements mount.


 

[Smokin Joe]

The flaw is the predicate clause.   It is the means by which a liberal SCOTUS majority can deny your individual gun right.  Why give them the chance?  Codify Heller!   
   

The codification of Heller only narrows the scope of the RKBA where such code takes effect.

It is an infringement to so limit a Right which shall not be infringed, not a guarantee.
Once the RKBA is presumed by any court to only be about self defense, the firearms not deemed useful to that end, nor convenient for it by the arbitrary decree of government would just be subject to greater restriction.

Nice gambit, but no.

Heller only acknowledges one facet of the RKBA.

[Bill Cipher]

R0o is not Written in the Constitution, not a protected Right, but one made up by 5 jurists.

Go ahead, argue for a natural right to murder your offspring.
It does not exist.
What deity would have babies sacrificed on the altar of convenience?
How does nature crave shedding the blood of millions of innocents, not in warfare, even, but because they were 'unplanned'? 
 The idea of eliminating one's own progeny flies in the face of all natural instinct to perpetuate genetics and the species.

However, it is universal to argue for the right of self-defense, including from a tyrannical government.
It is a natural Right; an unalienable Right.
It exists, with or without the scribblings of those who would decide what people can and cannot do under their dominion.
"Codifying" it only makes it appear as if the Right is somehow granted by government.
It is not.
If it was granted by government, it could be removed by government.
Government did not grant it.
So, it is only respected or infringed by government.
Despite a good start, the infringements mount.


 

Roe is no more “made up” than is the application of the Second Amendment to the states. 

[Smokin Joe]

Roe is no more “made up” than is the application of the Second Amendment to the states.

While you might posit that the application of the Bill of Rights does not apply to the States, but to the Federal Government alone, There would have been no Federal Government without the ratification of those Amendments, at least implying that the selfsame states which wanted those Constitutional protections of fundamental Rights would abide by them.

Roe, On the other hand was imposed upon the states by the votes of five black clad jurists, and never subject to ratification.

Maybe you don't see a vast difference there, but I sure do.

[txradioguy]

Roe is no more “made up” than is the application of the Second Amendment to the states.

You're so precious when you show how little you know about the Constitution.

[txradioguy]

Roe, On the other hand was imposed upon the states by the votes of five black clad jurists, and never subject to ratification.

And on top of that a law clerk wrote it largely based on a work of fiction.

http://godreports.com/2015/11/roe-v-wade-influenced-by-false-historical-citations-and-a-young-clerks-over-zealous-hand/

[Bill Cipher]

You're so precious when you show how little you know about the Constitution.

Really?  So, how is it that a provision that, when written, applied ONLY to the federal government suddenly becomes applicable to the states?

[Bill Cipher]

While you might posit that the application of the Bill of Rights does not apply to the States, but to the Federal Government alone, There would have been no Federal Government without the ratification of those Amendments, at least implying that the selfsame states which wanted those Constitutional protections of fundamental Rights would abide by them.

Roe, On the other hand was imposed upon the states by the votes of five black clad jurists, and never subject to ratification.

Maybe you don't see a vast difference there, but I sure do.

Total nonsense.  Application of the specific provisions of the Bill of Rights to the states is just as much the product of auras and emanations as Roe was. 

Funny how you like one aspect of judicial activism: incorporation of the Second Amendment via the auras and emanations of fourteenth Amendment due process, but not the recognition of a fundamental right to bodily freedom under the same auspices. 

Apparently, you’d rather more we’re born so you could shoot ‘em up yourself, and state law be damned.

[thackney]

Really?  So, how is it that a provision that, when written, applied ONLY to the federal government suddenly becomes applicable to the states?

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.

https://constitutionallawreporter.com/amendment-14-01/

[Bill Cipher]

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.

https://constitutionallawreporter.com/amendment-14-01/

Where does it expressly say that the bill of rights, or the second amendment, expressly applies to the states?

[Smokin Joe]

And on top of that a law clerk wrote it largely based on a work of fiction.

http://godreports.com/2015/11/roe-v-wade-influenced-by-false-historical-citations-and-a-young-clerks-over-zealous-hand/

Interesting. Thanks for the link!

[Cyber Liberty]

Apparently, you’d rather more we’re born so you could shoot ‘em up yourself, and state law be damned.

Nice straw man you got there. 

[Smokin Joe]

Where does it expressly say that the bill of rights, or the second amendment, expressly applies to the states?

It doesn't expressly apply to the States. The Constitution is a compact, ratified by the States, limiting Federal Powers. The Bill of Rights were necessary amendments to get the agreement to the compact. Applying for Statehood, likewise, indicates agreement to that compact.

Unlike the First Amendment which states "Congress shall make no law...", there is nothing in the Second Amendment limiting the proscription of infringing on the people's right to keep and bear arms to the Federal government, nor any specific branch thereof. The Right is reserved to the People, and to be free from infringement, period.

By achieving Statehood, either as one of the original 13, or being added later, the agreement to that is implied, and done so by the election of the citizens of the territory seeking statehood.