Second Circuit to Second Amendment: Drop Dead...

This is a discussion on Second Circuit to Second Amendment: Drop Dead... within the The Second Amendment & Gun Legislation Discussion forums, part of the Related Topics category; Second Circuit to Second Amendment: Drop Dead... Brian Doherty | February 10, 2009, 1:33pm ...you still don't apply to state and local regs. Well, the ...

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Thread: Second Circuit to Second Amendment: Drop Dead...

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    Member Array bbernard's Avatar
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    Second Circuit to Second Amendment: Drop Dead...

    Second Circuit to Second Amendment: Drop Dead...
    Brian Doherty | February 10, 2009, 1:33pm

    ...you still don't apply to state and local regs. Well, the federal Second Circuit Court of Appeals has said it before (in the 2005 case Bach v. Pataki), and now they've said it again, in Maloney v. Cuomo. CrimProf Blog has some details:

    The Second Amendment guarantee of the right to bear arms does not apply to override state firearms bans, the U.S. Court of Appeals for the Second Circuit declared Jan. 28. Under the incorporation doctrine, only certain provisions of the Bill of Rights apply to the states, and the Second Amendment is one of those that does not, the Second Circuit held....

    The statute at the center of this case, N.Y. Penal Law §265.01(1), provides criminal penalties for possession of a broad range of items, including weapons used in martial arts. The plaintiff was charged under the statute after police found fighting sticks, or nunchaku, in his home. He ended up pleading guilty to a different charge and then filed a lawsuit against the county prosecutor and others seeking a declaration that the law offends his Second Amendment right to bear arms.....

    Back before the incorporation doctrine took hold, the Supreme Court held, in United States v. Cruikshank, 92 U.S. 542 (1875), and Presser v. Illinois, 116 U.S. 252 (1886), that the Second Amendment is a limitation only on the power of the federal government and thus does not constrain state regulations.....Nevertheless, in a footnote in Heller, the Supreme Court had this to say:

    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.....

    The case on the nearest horizon that holds the most hope for generating a new, post-Heller, consideration of the Second Amendment incorporation question is the Ninth Circuit case Nordyke v. King. Damon Root wrote about it back in October.

    For a bunch of history on the incorporation question, and the whole story of Heller and the Second Amendment, read my new book, Gun Control on Trial, excerpted in the December 2008 issue of Reason magazine.

    ----

    It's funny how the federal government picks and chooses what laws apply to a states sovereignty and an individuals right...

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    Member Array swaggs's Avatar
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    Great. At least I know that cases won't be thrown out of court because of improper searches, and no longer can criminals "plead the fifth."

    I am all for state's rights, but there are certain protections to which representatives from the states agreed when they approved the bill of rights, and to which every state joining the union since then has known and agreed, that form baseline freedoms for all people. This is atrocious, but of course, WE all know that...
    "Do your duty in all things. You cannot do more, you should never wish to do less."
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    If only NY could incorporate some type of RKBA clause in their State Constitution, it would kill these types of arguments completely.

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    Restricted Member Array SelfDefense's Avatar
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    Quote Originally Posted by bbernard View Post
    Second Circuit to Second Amendment: Drop Dead...
    Brian Doherty | February 10, 2009, 1:33pm

    ...you still don't apply to state and local regs. Well, the federal Second Circuit Court of Appeals has said it before (in the 2005 case Bach v. Pataki), and now they've said it again, in Maloney v. Cuomo. CrimProf Blog has some details:

    The Second Amendment guarantee of the right to bear arms does not apply to override state firearms bans, the U.S. Court of Appeals for the Second Circuit declared Jan. 28.
    As it should be.

    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.....
    Apparently, Mr. Doherty's scholarship is lacking. The Cruikshank opinion most definitely considered the Fourteenth Amendment, which has nothing to do with the Bill of Rights.

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    Senior Member Array Shadowsbane's Avatar
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    Incorporation is a newish concept. Sure it sucks for those who live in NYC but perhaps they should either get more involved in their governmental dealings or leave.
    Now, we must all fear evil men. But there is another kind of evil which we must fear most, and that is the indifference of good men.

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    Well, all we need now is for another circuit to rule the other way, the right way in my opinion, that all of the BOR applies to all and that the cases mentioned are bizarre leftovers from reconstruction, which they are.

    Then, the SC will have to settle the difference between the circuits eventually. But don't bet on how they will rule. The conservatives on there usually uphold government's power against the citizens.

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    Restricted Member Array SelfDefense's Avatar
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    Quote Originally Posted by Hopyard View Post
    Well, all we need now is for another circuit to rule the other way, the right way in my opinion, that all of the BOR applies to all and that the cases mentioned are bizarre leftovers from reconstruction, which they are.
    Is the Constitution a bizarre leftover from the Revolutionary War?

    The fact is that your scenario is highly unlikely. Lower courts MUST adhere to higher court precedents. As Justice Frankfurter opined in Adamson, it is settled law.

    Then, the SC will have to settle the difference between the circuits eventually. But don't bet on how they will rule. The conservatives on there usually uphold government's power against the citizens.
    No, conservatives understand the importance of respecting the intent and content of the Constitution. It is liberals who espouse an ever changing Constitution based on the political whims of the appointed elite.

    I'm certain you understand that the citizens are the government. Right?

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    BAC
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    Quote Originally Posted by Shadowsbane View Post
    Incorporation is a newish concept. Sure it sucks for those who live in NYC but perhaps they should either get more involved in their governmental dealings or leave.



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    RIP, Jeff Dorr: 1964 - July 17, 2009. You will be missed.


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    Quote Originally Posted by Hopyard View Post
    Then, the SC will have to settle the difference between the circuits eventually. But don't bet on how they will rule. The conservatives on there usually uphold government's power against the citizens.

    Let's see, I'm trying to remember how the votes went in the 'Kilo' decision..... Oh yeah, it was the libs on SCOTUS that voted against the peoples 'private property rights'. They voted to allow government entities to take private property against the owners wishes and transfer the property to private business.

    And for Heller, I would summize that it was the conservatives on the court that defended the peoples 'right to keep and bear arms'. I might be wrong........ no, don't think so.
    Probably has something to do with that 'living and breathing' concept of the U.S. Constitution that the liberals have.



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    You are right about Kelo but

    Quote Originally Posted by P7fanatic View Post

    Let's see, I'm trying to remember how the votes went in the 'Kilo' decision..... Oh yeah, it was the libs on SCOTUS that voted against the peoples 'private property rights'. They voted to allow government entities to take private property against the owners wishes and transfer the property to private business.

    And for Heller, I would summize that it was the conservatives on the court that defended the peoples 'right to keep and bear arms'. I might be wrong........ no, don't think so.
    Probably has something to do with that 'living and breathing' concept of the U.S. Constitution that the liberals have.



    You are right about Kelo.

    There are exceptions and sometimes the votes are out of character.

    That certainly was not one of the SC 's finer moments.

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    No, they'll move to Texas and Florida

    Quote Originally Posted by Shadowsbane View Post
    Incorporation is a newish concept. Sure it sucks for those who live in NYC but perhaps they should either get more involved in their governmental dealings or leave.
    No, they'll move to Florida and Texas and vote the same way, against gun ownership rights.

    Some things, basic rights, can't be left to the states when they are in open contradiction with the BOR. It is folly, and those advocating such a path are harming all of us.

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    The Second Amendment guarantee of the right to bear arms does not apply to override state firearms bans, the U.S. Court of Appeals for the Second Circuit declared Jan. 28. Under the incorporation doctrine, only certain provisions of the Bill of Rights apply to the states, and the Second Amendment is one of those that does not, the Second Circuit held....
    What amazes me is the simplicity of it all: if the Bill Of Rights doesn't apply to the People, then to whom does it apply?
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    Quote Originally Posted by ccw9mm View Post
    What amazes me is the simplicity of it all: if the Bill Of Rights doesn't apply to the People, then to whom does it apply?
    Of course it applies to the People. It prohibits infringement by the Federal government. It amazes me that some think its scope is more expansive.

    Are the words 'Congress shall make no law' difficult to understand?

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    Quote Originally Posted by Hopyard View Post
    Some things, basic rights, can't be left to the states when they are in open contradiction with the BOR. It is folly, and those advocating such a path are harming all of us.
    I'll add to the end of that: ...and the country.

    Our founders and the architects of the Constitution specifically wrote the document in simple, direct english for the lay person. And some people believe the 9th and 10th amendments are as important as the 1st and 2nd. The point they made is that the BOR's are for all American citizens. Rights not enumerated in the Constitution are delegated to the states and the people. The 'right to keep and bear arms' is not delegated to the states by definition in the Constitution.
    Case law, space law. The Kelo decision is not the first insane decision made by SCOTUS. IMO, Case law is simply an invention of activist judges and those that want to change the constitution unconstitutionally. It's an absurdity to pick and choose which of the BOR's apply to the nation and which apply to states as is done by those activists.
    Thomas Jefferson was right when he spoke of the justices becoming despotic.



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    BAC
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    Quote Originally Posted by Hopyard View Post
    No, they'll move to Florida and Texas and vote the same way, against gun ownership rights.
    Yeah, how successful have they been.


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