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9th Circus Court: 2nd amend is now incorporated
Little-Acorn
Member Posts: 103 ✭✭
In the case Nordyke v. King, the 9th Circus Court of Appeals has just handed down a ruling saying that the 2nd amendment is now "incorporated". That means, its ban on infringing on the right to own guns etc., is now a ban against State and Local governments, as well as the Federal govt.
See the text of the decision at http://www.ca9.uscourts.gov/datastore/opinions/2009/04/20/0715763.pdf . The actual language about incorporation is on Page 29.
That's not the Supreme Court saying it, of course, but maybe they will be next(?).
But hearing the ultra-leftist 9th Circuit saying that, is like hearing Iranian President Ahmadinejihad announcing that Jews should have a full state and be treated equally with Muslims.
Even a blind squirrel finds on occasional acorn. How nice the 9th Circus found this one!
BTW, what it means is:
The 14th amendment was originally passed to prevent Southern states from taking away the rights of former slaves. But its language says that no state can take away any rights that ANY U.S. citizen enjoys.
This has been widely misinterpreted to mean that even laws that were clearly meant to apply ONLY to the Federal government, now apply to the states and municipal governments too.
A classic example is the 1st Amendment. It clearly says "CONGRESS shall make no law respecting an establishment of religion, nor prohibiting the free exercise thereof; or...(several other restrictions on what Congress can pass)". It was plainly meant to apply only to the Fed govt, and not to the states, which it why it names Congress ONLY.
A look at history provides the reason WHY the 1st was written only for the Fed and not for the states: At the time it was written, a number of states had official state religions, and the 1st was written specifically to accommodate them; while prohibiting the Fed from upsetting those religions by declaring a "national religion" that was different from them; and banning the Fed from prohibiting any particular religion (private or state).
The idea of "incorporation" is based on the (sometimes mistaken) notion that all rights described in the Bill of Rights, were originally to be enforced on the Fed govt but not the states. That notion is correct for the 1st amendment, but not for some others (such as the 2nd). And so when a court says that such-and-such amendment is now also binding on state and local governments too, that amendment is now "incorporated".
It's basically a mistaken agenda. Some amendments were indeed intended to be binding on the Fed only (such as the 1st, says so in the first five words), while others were intended to be binding on ALL governments within the borders of the U.S. (such as the 2nd).
And the amendments like the 1st, should NEVER be "incorporated" to coerce state and local governments, unless the Constitution is further amended to do that explicitly.
And amendments like the 2nd, should never have been interpreted in the first place as though it applied ONLY to the Fed, when in fact the 2nd says the RKBA can never be infringed, and makes no attempt to confine this restriction to only the Fed govt as the 1st does.
"Incorporation" is completely unnecessary. All the amendments that were intended to apply only to the Fed govt, already say so right in the amendment, and must not be arbitrarily messed with. And all the amendments that were intended to apply to ALL governments in the U.S., already say that (by not restricting which govts they apply to), so no "incorporation" is needed and never has been.
Most courts choose to believe otherwise, however, despite the clear language of the Constitution. Usually the result of "incorporation" is good, though the procedure is kooky: Amendments wrongly believed to apply only to the Fed, are now declared to apply to all governments.
But occasionally the result is bad. For example, state-run schools are often forbidden to teach or even address religion, though in fact the 1st amendment does NOT prohibit the states from doing so. Remember that the 1st was DESIGNED to allow the states to keep their own state religions if they wanted to.
In the case of this 9th Circus Court decision, the result is good. The 2nd amendment (which has been wrongly believed to apply only to the Fed govt despite having no wording to that effect), is now declared to apply to the Fed, states, and municipalities: NONE of them can infringe the RKBA. This is what the Framers intended all along, of course, and is even what they wrote into the 2nd, more than 200 years ago. But at least it's nice that the 9th Circus court finally agrees.
Now, if we can only get the Supreme Court to agree too, we might actually have something we can enforce. Or at least, we will have knocked a major leg out of the left's constant agenda to ban guns from law-abiding citizens. Recall that most gun-control laws are state and local laws; only a few are Federal. If we can finally persuade people that the 2nd prohibits states and local govts from restricting guns, it will be a major step forward. Who cares if they used the "wrong" method to get to the right result?
See the text of the decision at http://www.ca9.uscourts.gov/datastore/opinions/2009/04/20/0715763.pdf . The actual language about incorporation is on Page 29.
That's not the Supreme Court saying it, of course, but maybe they will be next(?).
But hearing the ultra-leftist 9th Circuit saying that, is like hearing Iranian President Ahmadinejihad announcing that Jews should have a full state and be treated equally with Muslims.
Even a blind squirrel finds on occasional acorn. How nice the 9th Circus found this one!
BTW, what it means is:
The 14th amendment was originally passed to prevent Southern states from taking away the rights of former slaves. But its language says that no state can take away any rights that ANY U.S. citizen enjoys.
This has been widely misinterpreted to mean that even laws that were clearly meant to apply ONLY to the Federal government, now apply to the states and municipal governments too.
A classic example is the 1st Amendment. It clearly says "CONGRESS shall make no law respecting an establishment of religion, nor prohibiting the free exercise thereof; or...(several other restrictions on what Congress can pass)". It was plainly meant to apply only to the Fed govt, and not to the states, which it why it names Congress ONLY.
A look at history provides the reason WHY the 1st was written only for the Fed and not for the states: At the time it was written, a number of states had official state religions, and the 1st was written specifically to accommodate them; while prohibiting the Fed from upsetting those religions by declaring a "national religion" that was different from them; and banning the Fed from prohibiting any particular religion (private or state).
The idea of "incorporation" is based on the (sometimes mistaken) notion that all rights described in the Bill of Rights, were originally to be enforced on the Fed govt but not the states. That notion is correct for the 1st amendment, but not for some others (such as the 2nd). And so when a court says that such-and-such amendment is now also binding on state and local governments too, that amendment is now "incorporated".
It's basically a mistaken agenda. Some amendments were indeed intended to be binding on the Fed only (such as the 1st, says so in the first five words), while others were intended to be binding on ALL governments within the borders of the U.S. (such as the 2nd).
And the amendments like the 1st, should NEVER be "incorporated" to coerce state and local governments, unless the Constitution is further amended to do that explicitly.
And amendments like the 2nd, should never have been interpreted in the first place as though it applied ONLY to the Fed, when in fact the 2nd says the RKBA can never be infringed, and makes no attempt to confine this restriction to only the Fed govt as the 1st does.
"Incorporation" is completely unnecessary. All the amendments that were intended to apply only to the Fed govt, already say so right in the amendment, and must not be arbitrarily messed with. And all the amendments that were intended to apply to ALL governments in the U.S., already say that (by not restricting which govts they apply to), so no "incorporation" is needed and never has been.
Most courts choose to believe otherwise, however, despite the clear language of the Constitution. Usually the result of "incorporation" is good, though the procedure is kooky: Amendments wrongly believed to apply only to the Fed, are now declared to apply to all governments.
But occasionally the result is bad. For example, state-run schools are often forbidden to teach or even address religion, though in fact the 1st amendment does NOT prohibit the states from doing so. Remember that the 1st was DESIGNED to allow the states to keep their own state religions if they wanted to.
In the case of this 9th Circus Court decision, the result is good. The 2nd amendment (which has been wrongly believed to apply only to the Fed govt despite having no wording to that effect), is now declared to apply to the Fed, states, and municipalities: NONE of them can infringe the RKBA. This is what the Framers intended all along, of course, and is even what they wrote into the 2nd, more than 200 years ago. But at least it's nice that the 9th Circus court finally agrees.
Now, if we can only get the Supreme Court to agree too, we might actually have something we can enforce. Or at least, we will have knocked a major leg out of the left's constant agenda to ban guns from law-abiding citizens. Recall that most gun-control laws are state and local laws; only a few are Federal. If we can finally persuade people that the 2nd prohibits states and local govts from restricting guns, it will be a major step forward. Who cares if they used the "wrong" method to get to the right result?
Comments
* District of Alaska
* District of Arizona
* Central District of California
* Eastern District of California
* Northern District of California
* Southern District of California
* District of Hawaii
* District of Idaho
* District of Montana
* District of Nevada
* District of Oregon
* Eastern District of Washington
* Western District of Washington
It also has appellate jurisdiction over the following territorial courts:
* District Court of Guam
* United States District Court for the Northern Mariana Islands
Californians will now be able to eliminate virtually all of the ridiculous weapons laws we currently endure through well placed lawsuits by the right people. Our time has come!
A little snippet from what the court said:
quote:"The Second Amendment protects a right that predates
the Constitution; therefore, the Constitution did not
grant it. See, e.g., Heller, 128 S. Ct. at 2797 ("t has always
been widely understood that the Second Amendment, like the
First and Fourth Amendments, codified a pre-existing right."
A provision of the Federal Bill of Rights is incorporated when the Supreme Court declares that the 14th Amendment prohibits state governments from violating the right.
In 1833 the US Supreme Court decided in Barron v Baltimore that the states could violate the Bill of Rights, because the Bill of Rights only restrained the federal government. After the civil war, the 14th Amendment was passed to protect the rights of blacks and former slaves from violation by state governments. But in seeming defiance of the plain meaning of the 14th Amendment, the Supreme Court decided in the Slaughter-House Cases, that the 14th Amendment only protected the "privileges and immunities" of US citizens against state violations, not their rights. The courts are very reluctant to overturn their prior rulings, but finally in the early 20th century, the Supreme Court came up with a way to get around their Slaughter-House rulings without expressly overturning themselves. In the case of Gitlow v. New York, they declared that the 14th Amendment prohibited the states from violating some of the rights of citizens without "due process". But the court stopped short of "incorporating" all of the bill of rights at once. Instead each amendment or even part of an amendment, had to be incorporated by the court individually. The Second Amendment is one of the last rights in the Bill of Rights that has not been incorporated.
In the case Nordyke v. King, the 9th Circus Court of Appeals has just handed down a ruling saying that the 2nd amendment is now "incorporated". That means, its ban on infringing on the right to own guns etc., is now a ban against State and Local governments, as well as the Federal govt.
See the text of the decision at http://www.ca9.uscourts.gov/datastore/opinions/2009/04/20/0715763.pdf . The actual language about incorporation is on Page 29.
That's not the Supreme Court saying it, of course, but maybe they will be next(?).
But hearing the ultra-leftist 9th Circuit saying that, is like hearing Iranian President Ahmadinejihad announcing that Jews should have a full state and be treated equally with Muslims.
Even a blind squirrel finds on occasional acorn. How nice the 9th Circus found this one!
BTW, what it means is:
The 14th amendment was originally passed to prevent Southern states from taking away the rights of former slaves. But its language says that no state can take away any rights that ANY U.S. citizen enjoys.
This has been widely misinterpreted to mean that even laws that were clearly meant to apply ONLY to the Federal government, now apply to the states and municipal governments too.
A classic example is the 1st Amendment. It clearly says "CONGRESS shall make no law respecting an establishment of religion, nor prohibiting the free exercise thereof; or...(several other restrictions on what Congress can pass)". It was plainly meant to apply only to the Fed govt, and not to the states, which it why it names Congress ONLY.
A look at history provides the reason WHY the 1st was written only for the Fed and not for the states: At the time it was written, a number of states had official state religions, and the 1st was written specifically to accommodate them; while prohibiting the Fed from upsetting those religions by declaring a "national religion" that was different from them; and banning the Fed from prohibiting any particular religion (private or state).
The idea of "incorporation" is based on the (sometimes mistaken) notion that all rights described in the Bill of Rights, were originally to be enforced on the Fed govt but not the states. That notion is correct for the 1st amendment, but not for some others (such as the 2nd). And so when a court says that such-and-such amendment is now also binding on state and local governments too, that amendment is now "incorporated".
It's basically a mistaken agenda. Some amendments were indeed intended to be binding on the Fed only (such as the 1st, says so in the first five words), while others were intended to be binding on ALL governments within the borders of the U.S. (such as the 2nd).
And the amendments like the 1st, should NEVER be "incorporated" to coerce state and local governments, unless the Constitution is further amended to do that explicitly.
And amendments like the 2nd, should never have been interpreted in the first place as though it applied ONLY to the Fed, when in fact the 2nd says the RKBA can never be infringed, and makes no attempt to confine this restriction to only the Fed govt as the 1st does.
"Incorporation" is completely unnecessary. All the amendments that were intended to apply only to the Fed govt, already say so right in the amendment, and must not be arbitrarily messed with. And all the amendments that were intended to apply to ALL governments in the U.S., already say that (by not restricting which govts they apply to), so no "incorporation" is needed and never has been.
Most courts choose to believe otherwise, however, despite the clear language of the Constitution. Usually the result of "incorporation" is good, though the procedure is kooky: Amendments wrongly believed to apply only to the Fed, are now declared to apply to all governments.
But occasionally the result is bad. For example, state-run schools are often forbidden to teach or even address religion, though in fact the 1st amendment does NOT prohibit the states from doing so. Remember that the 1st was DESIGNED to allow the states to keep their own state religions if they wanted to.
In the case of this 9th Circus Court decision, the result is good. The 2nd amendment (which has been wrongly believed to apply only to the Fed govt despite having no wording to that effect), is now declared to apply to the Fed, states, and municipalities: NONE of them can infringe the RKBA. This is what the Framers intended all along, of course, and is even what they wrote into the 2nd, more than 200 years ago. But at least it's nice that the 9th Circus court finally agrees.
Now, if we can only get the Supreme Court to agree too, we might actually have something we can enforce. Or at least, we will have knocked a major leg out of the left's constant agenda to ban guns from law-abiding citizens. Recall that most gun-control laws are state and local laws; only a few are Federal. If we can finally persuade people that the 2nd prohibits states and local govts from restricting guns, it will be a major step forward. Who cares if they used the "wrong" method to get to the right result?
Your analysis is WAY OFF, WAY WRONG. It sounds really good, only problem is history completely contradicts your position.
The first ten amendments of the constitution bar the FEDERAL government from involving themselves in those issues specified.
Some judges have decided, that the 14th amendment bars ANY government from infringing on those rights enumerated. The language of the amendment does not say that, history does not say that, nothing except a few judicial opinions created the notion that the 14th amendment binds the states to the so called bill of rights.
Your analysis is WAY OFF, WAY WRONG. It sounds really good, only problem is history completely contradicts your position.
The first ten amendments of the constitution bar the FEDERAL government from involving themselves in those issues specified.
Some judges have decided, that the 14th amendment bars ANY government from infringing on those rights enumerated. The language of the amendment does not say that, history does not say that, nothing except a few judicial opinions created the notion that the 14th amendment binds the states to the so called bill of rights.
Salzo:
I've heard this theory before, but:
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.
Reading Section 1 above seems to state fairly clear that there now exists a status of 'Citizen of the United States', and that people of that status are extended the protections found in the Bill of Rights. One can still logically argue that the First Amendment is not binding upon the States, as it specifically limits Congress. I do not see how one can argue that the protections of the remainder of the B.O.R. are not confirmed to all citizens.
Please explain how, given the language of the Section 1, you can state:
'The language of the amendment does not say that, history does not say that, nothing except a few judicial opinions created the notion that the 14th amendment binds the states to the so called bill of rights.'
Brad Steele
Your analysis is WAY OFF, WAY WRONG. Were you about to cite the wording in the Constitution and BOR that supports this? Looks like you accidentally hit the SEND button before having a chance to type it in.
quote:It sounds really good, only problem is history completely contradicts your position.Then it's a good thing that the Const was written before that "history" took place, isn't it? That lets us judge what it means, strictly by what it says and what its writers meant, rather than by what generations of big-govt advocates have tried to pretend it says later.
quote:The first ten amendments of the constitution bar the FEDERAL government from involving themselves in those issues specified.You still haven't identified where the Const (including the BOR) says that. Until you do, you are merely blustering and posturing, with nothing to back up your words.
quote: Some judges have decided, See above reply on why the Constitution supersedes what people try to claim about its words after the fact.
quote: The language of the amendment does not say that,Actually the language of each amendment DOES say what government it applies to, as I have already pointed out. Please read the OP and supply your evidence for whatever difference of opinion you may have, so that we may take you seriously.
quote: (more unsupported blather on "history" having an effect on the document that came before it, deleted)
Back to the subject: As I said in the OP, it's nice that the 9th Circus Court of Appeals arrived at the right conclusion (the 2nd amendment is binding on ALL governments in the U.S., not just the Fed govt), even if they took the wrong road to get to that decision. Even a blind squirrel occasionally finds an acorn. How nice the 9th Circus (a squirrel especially blind to the meaning and intent of the Constitution if there ever was one) chose this particular one to finally get right.
I have read much of the ratification materials, newspaper editorials, etc, that were written at the time of the 14th amendment.
there are many that say that the 14th binds the BOR to the states, many say that it will protect the rights of the citizens, others say that guarantees the "privelages and immunities"- the point is, many had opinions as to what the 14th amendment was about. Even Bingham sometimes said it would bind the BOR, and other times said it was something different. A lot depended on the audience. As with any other part of the constitution, even at the time of ratification, there were differing opinions as to sepcific clauses, amendments, etc. Everybody says something different, which is why at the end one must rely on what it actually says. I have serious problems, considering the text of the 14th, assuming that the purpose of the amendment was to bind the BOR to the states.
The text of the 14th amendment reads :
"....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 any person within its jurisdiction equal protection of the laws"
Notice the part that I capitalized. That phrase can also be found in the fifth amendment. The problem I have with the incorporation theory, is if the intent of the 14th amendment was to bind the BOR to the states, why do they include that clause from the fifth amendment, in the 14th amendment? Assuming that the bill of rights is now binding, isnt including the clause of the fifth amendment redundant? Why single out the 5th, and not the other amendments and clauses of the amendments from the bill of rights?
If the clause from the fifth amendment was not included, one may make the argument that "priveleges and immunities, are those rights specified in the bill of rights. If all of the rights mentioned in the BOR were also mentioned in the 14th amendment, one could certainly say that those rights are binding. But when they include only one clause of one amendment, I have a difficult time seeing the logic that ALL of the clauses of the BOR dealing with protecting rights are now protected from state infringement.
The way I read it only one right from the BOR is protected from state infringement, and that one right is the one that can be found in the text of the 14th amendment.