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TXduckdog
09-30-2009, 08:57 PM
Here's an interesting post from a friend of mine's blog.

Analysis, anyone?

"The Supreme Court, with that new "liberal wienie" Justice Sotomayer, today has agreed to hear a case concerning an issue I suspect most of you didn't even think existed: Does the Second Amendment's "Right to Bear Arms" apply to the states and local municipalities.

Stay with me here.

The Second Amendment says "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"

But the problem is that when the Bill of Rights was first enacted, all the amendments applied to the federal government and not the States. No one disputes that, and the First Amendment, for example, even starts out with "Congress shall make no law . . . . " Let that sink in. In the beginning, the Constitution did not prevent a city, state, or county from preventing a citizen from speaking his mind, preventing a defendant from having a jury trial, or banning any newspaper. There might have been other laws enacted by the states that would provide that protection, but the Constitution didn't help out.

But after states and local governments began trampling on its citizens, the Supreme Court began considering whether the Bill of Rights could, in some form or fashion, be used to prevent states, cities, counties, and any public subdivision from committing civil rights violations. Here is where your head will spin: So began a series of cases using the "Incorporation Doctrine" which decided, on a right by right basis, whether that right "applied to the States through the enactment of the 14th Amendment." If you want to research that, go ahead. Basically, it says that the 14th Amendment sucks out some, if not all, of the first ten amendments and makes them applicable to the states. Call it mental gymnastics or judicial activism or just plain craziness, but you can't take a Con Law class without studying it.

http://en.wikipedia.org/wiki/Incorporation_%28Bill_of_Rights%29

But, like I said, the Court has previously made those decisions on a right by right basis (freedom of speech, freedom of assembly, right to counsel, etc.) But as of 2009, I think there are currently only two rights in the Bill of Rights that the Supreme Court has not decided whether they "apply to the States." The first one is the right to a Grand Jury indictment (which doesn't matter to Texas because Texas law requires that anyway) and the other is the Right to Bear Arms in the Second Amendment.

Yep, this Supreme Court is going to decide whether the Second Amendment prevents, for example, the State of Texas, the City of Decatur, or Wise County from enacting laws that would ban gun possession. (If the Second Amendment doesn't apply, that doesn't mean all guns are automatically banned. It just means that states and local governments are free to enact any law they want concerning the right to own or possess a gun.)

Think it's impossible for the Supreme Court to rule that the Second Amendment doesn't apply to all aspects of government? Justice Sotomayor and a the Second Circuit Federal Appeals Court have already done just that.

http://www.reason.com/blog/show/134772.html

Annie, get your gun."

Bob Gutermuth
09-30-2009, 09:33 PM
Sotomayor will likely have to recuse herself if this involves a case that she ruled on while on the appeals bench. That aside, the 5-4 vote on Heller tells me that SCOTUS will likely rule in favor of the 2nd Amendment applying to the states.

YardleyLabs
09-30-2009, 09:46 PM
As a clarification, the SCOTUS previously decided that the second amendment does not prevent states from regulating guns. The DC decision did not affect this precedent since DC is administered by the Federal government. The case now going before the SCOTUS will reopen this case and could significanrly change the landscape in a favorable way by reducing the lattitude of states to regulate guns or reaffirm the rights of states to regulate guns. In Sotomayor's prior decision, she applied prior precedent. That is also true in the Chicago case. By voting to hear the appeal, the Court is reopening what has been considered settled law for a long time. In the DC case, the Court indicated that outright bans on handguns violated the second amendment. However, they also opened the door to significant regulatory restrictions without providing guidance on what types of regulation -- short of outright bans -- would be permitted. If something is done, it will probably only have an effect in those states such as New York, New Jersey, etc., and in those localities, such as NYC and Chicago, that have virtual bans in effect because of the severity of their regulations.