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.

[txradioguy]

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

Check the signature block for the representatives of each state that ratified the Constitution and the Bill of Rights.  Several states via their representatives to the Constitutional Convention said if the Second Amendment isn't in there....we won't ratify the Constitution.

[txradioguy]

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

The Second Amendment isn't for only the Federal Government.  Only gun grabbers like yourself believe that lie.

the right of the people to keep and bear arms, shall not be infringed.

Nothing in there about it being exclusive to the Federal Government.

[Bill Cipher]

Check the signature block for the representatives of each state that ratified the Constitution and the Bill of Rights.  Several states via their representatives to the Constitutional Convention said if the Second Amendment isn't in there....we won't ratify the Constitution.

That’s nice.  But I prefer the Constitution itself. Where in the Constitution does it expressly say that the Second Amendment applies against the states?

[Cyber Liberty]

Check the signature block for the representatives of each state that ratified the Constitution and the Bill of Rights.  Several states via their representatives to the Constitutional Convention said if the Second Amendment isn't in there....we won't ratify the Constitution.

Leftists don't care what was written by the signers at the time the Constitution.  They are a bunch of dead, white guys.  What matters now is how the words of those dead guys can be twisted in court to fit modern leftist notions.

[txradioguy]

That’s nice.  But I prefer the Constitution itself. Where in the Constitution does it expressly say that the Second Amendment applies against the states?

14th Amendment:

"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."

There's also this thing in Article IV of the Constitution called the "Privileges or Immunities Clause ".  It protects against interstate discrimination with regard to "all Privileges and Immunities of Citizens in the several States."

There's also  Corfield v. Coryell.


The answer to your question is out there.  Not hard to find.  Anti gunners like yourself just don't like the answer you get versus the one you WANT to hear.

[Bill Cipher]

The Second Amendment isn't for only the Federal Government.  Only gun grabbers like yourself believe that lie.

Nothing in there about it being exclusive to the Federal Government.

Oh dearie.  And here I thought you knew something about the Constitution.  Or so you’ve always claimed. 

The Bill of Rights, of which the Second Amendment is a part, only bound the federal government when it was written.  See Barron v. Baltimore (1833).

It didn’t start to be applied to the states until the early 20th century, when it was selectively incorporated Amendment by Amendment, under the auras and emanations of the 14th Amendment’s due process clause. 

Hugo Black thought all the amendments should be mechanically incorporated under that provision, but he did not prevail.  Instead, Justice Frankfurter and his selective incorporation doctrine prevailed.  Under that doctrine, a right under one of the amendments is only incorporated if the court has decided that it is required under the general concept of due process - ie, it’s in there if its omission would shock the conscience of the court.  Rochin v. California (1952).

In other words, a provision of the bill of rights only applies if at least five justices declare themselves shocked that it’s not required by general due process principles.

That is, it’s an emanation or aura of the 14th Amendment.

[Bill Cipher]

14th Amendment:

There's also this thing in Article IV of the Constitution called the "Privileges or Immunities Clause ".  It protects against interstate discrimination with regard to "all Privileges and Immunities of Citizens in the several States."

There's also  Corfield v. Coryell.


The answer to your question is out there.  Not hard to find.  Anti gunners like yourself just don't like the answer you get versus the one you WANT to hear.

Nope. 

And here I thought you actually knew something about the Constitution. 

[Smokin Joe]

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.

You cite "bodily freedom". You have freedom over your body, until and unless you reach out and harm another without just cause. That 'fetus' is another body. It may be contained within the body of another, temporarily, but it is a genetically unique separate body. Where is the freedom for that one?
Your argument does not hold water.
As for this bit of shit:

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

You defile yourself with such emanations. Had you said this of me in person, my reaction would not be so gracious, and none would fault me for it.

We have state laws against murder, here.
We aren't getting the sanctimonious press the smug killers in the northern cities are busy aiming at the Southern States, trying to make distaste for killing human offspring into a southern 'hick' thing, but our state has made advancements in the restriction of the slaughter, too.

I, sir, am not the murderer, but rather one who seeks to stop the slaughter which has taken over 60 million innocent American lives already.

When the eugenicists get a little farther down the slippery slope, it is only a matter of time until it is your turn. Perhaps then your tone might change.

[Bill Cipher]

Leftists don't care what was written by the signers at the time the Constitution.  They are a bunch of dead, white guys.  What matters now is how the words of those dead guys can be twisted in court to fit modern leftist notions.

So, wise guy, where are the words that expressly say the Second Amendment applies against the states?  Where is it written?

[txradioguy]

Nope.

  

And here I thought you actually knew something about the Constitution.

Clearly I know more about it than you do.  Otherwise you'd be showing case law and where exactly in the Constitution I've erred.

Instead you just play rope a dope and demand of others that you won't do yourself.

Typical small minded Progressive tactics.

[txradioguy]

So, wise guy, where are the words that expressly say the Second Amendment applies against the states?  Where is it written?

You've been shown where.  And you dismissed it without even reading what's in the Constitution.

Time for you to show us where in the Constitution is says the Second Amendment does NOT apply to the states.

Put up or shut up.

[Cyber Liberty]

So, wise guy, where are the words that expressly say the Second Amendment applies against the states?  Where is it written?

Right next to where it says guns are only for Militias.

[Bill Cipher]

You've been shown where.  And you dismissed it without even reading what's in the Constitution.

Time for you to show us where in the Constitution is says the Second Amendment does NOT apply to the states.

Put up or shut up.

No, I haven’t been boy-o.  I’ve been shown the 14th Amendment, which nowhere expressly makes a statement about the Second Amendment. 

And I would think that even you realize that when it was enacted, the Bill of Rights only applied to the federal government. 

In fact, when it was drafted, language that would have applied it to the states was deleted, so clearly it was not intended to apply to the states when it was drafted and ratified. 

[Bill Cipher]

Right next to where it says guns are only for Militias.

Really?  So why didnt the entire Bill of Rights automatically apply to the states as of 1789?

[Bill Cipher]

 

Clearly I know more about it than you do.  Otherwise you'd be showing case law and where exactly in the Constitution I've erred.

Instead you just play rope a dope and demand of others that you won't do yourself.

Typical small minded Progressive tactics.

Clearly you do not because you don’t even have the faintest idea how it is that the various parts of the bill of rights came to be applied against the states. 

You don’t have a clue. 

[Cyber Liberty]

Really?  So why didnt the entire Bill of Rights automatically apply to the states as of 1789?

"Incorporation" happened.  You should be familiar with it, you tout it constantly for the other Amendments.  Only the Second Amendment is not to be enforced, according to what appears to be your view.

[Jazzhead]

"Incorporation" happened.  You should be familiar with it, you tout it constantly for the other Amendments.  Only the Second Amendment is not to be enforced, according to what appears to be your view.

The problem is that, in our partisan culture, the SCOTUS has become unwilling to step up and enforce the Constitution in the face of threats to its perceived "legitimacy".    Both the choice right and the individual gun right are subject to reasonable regulation - that the SCOTUS has acknowledged.   But the states have been pushing the envelope,  passing regulations that skirt closer and closer to crossing the line of "unreasonableness", whatever that means.   Well,  it's up to the SCOTUS to apply the brakes,  but it seems to have been effectively intimidated.   

[Bill Cipher]

"Incorporation" happened.  You should be familiar with it, you tout it constantly for the other Amendments.  Only the Second Amendment is not to be enforced, according to what appears to be your view.

No. That is not my view.  You would do well to stop assuming you know what someone’s view is and, if it’s germane to the conversation, ask them what their view is.  That way, you’ll spend less time making an ass out of u and me. 

And incorporation is not mechanical.  Justice Frankfurter and the Supreme Court have said as much.  Instead, a right is incorporated against the states under the general rubric of substantive due process if the Court finds that the absence of the right would “shock the conscience”.  See Rochin v. California. 

The Supreme Court applied that substantive due process approach to incorporating the Second Amendment against the states in McDonald v. Chicago. 

Which takes us back to my original point:  the route the Court used to apply the Second Amendment to the states - general substantive due process - is the same route the Court used to justify Roe v. Wade. 

[thackney]

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

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States

[thackney]

Nope. 

And here I thought you actually knew something about the Constitution.

The incorporation doctrine is a constitutional doctrine through which the first ten amendments of the United States Constitution (known as the Bill of Rights) are made applicable to the states through the Due Process clause of the Fourteenth Amendment. Prior to the doctrine's (and the Fourteenth Amendment's) existence, the Bill of Rights applied only to the Federal Government and to federal court cases. States and state courts could choose to adopt similar laws, but were under no obligation to do so.

https://www.law.cornell.edu/wex/incorporation_doctrine

[txradioguy]

Really?  So why didnt the entire Bill of Rights automatically apply to the states as of 1789?

Are you really this damn ignorant of history? 

Here let me educate you.

U.S. Constitution - Ratified 21 June 1788.  Effective 4 July 1789

Bill of Rights - Created 25 September 1789.  Ratified 15 December 1791.


Cant have something apply that hadn't been finalized or ratified by 2/3rds of the states.  The drafting and approval process for the Constitution and the Bill of Rights were two separate tasks. 

The Bill of Rights was written to address the objections raised by Anti-Federalists over some flaws they saw in the way the Constitution in it's approved form had ben written.

[txradioguy]

"Incorporation" happened.  You should be familiar with it, you tout it constantly for the other Amendments.  Only the Second Amendment is not to be enforced, according to what appears to be your view.

@Cyber Liberty he's actually asking us to answer a question that is truly ignorant on his part.  Especially if you know anything about history.

[Bill Cipher]

Are you really this damn ignorant of history? 

Here let me educate you.

U.S. Constitution - Ratified 21 June 1788.  Effective 4 July 1789

Bill of Rights - Created 25 September 1789.  Ratified 15 December 1791.


Cant have something apply that hadn't been finalized or ratified by 2/3rds of the states.  The drafting and approval process for the Constitution and the Bill of Rights were two separate tasks. 

The Bill of Rights was written to address the objections raised by Anti-Federalists over some flaws they saw in the way the Constitution in it's approved form had ben written.

Bravo!

And the Bill of Rights only limited the federal government when it was ratified.  It was not made applicable to the States until the beginning of the 1900s, when the Supreme Court began to selectively incorporate its provisions under the rubric of substantive due process.

Since you obviously have a browser handy, why don’t you surf on over to Wikipedia and look up the article on the incorporation of the bill of rights.  You’ll find a discussion of the background, including that it initially did not apply to the states, and citations to the case law for the cases in which the Court eventually began incorporating it against the states. 

In fact, you’ll even find discussion of the point that, for at least 20 years after the 14th Amendment was ratified, the Court actually refused to apply the Bill of Rights against the states. 

Geez!

[Bill Cipher]

@Cyber Liberty he's actually asking us to answer a question that is truly ignorant on his part.  Especially if you know anything about history.

Which you painfully know nothing of. 

[Cyber Liberty]

Which takes us back to my original point:  the route the Court used to apply the Second Amendment to the states - general substantive due process - is the same route the Court used to justify Roe v. Wade.

In that case, you should be every bit as supportive the Right to Keep and Bear Arms as you are of Roe.   Are you?