Heller not incorporated against states

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tesla
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Heller not incorporated against states

#1

Post by tesla » Tue Jun 02, 2009 1:17 pm

In the challenge against the Chicago handgun ban (NRA v. City of Chicago), the 7th Circuit Court of Appeals has ruled against incorporation of the Heller decision against the states:

http://www.ca7.uscourts.gov/tmp/O01FGESW.pdf

Alarmingly, it appears that laws against lethal self defense could potentially be held constitutional using the logic from the 7th Circuits opinion in this case. Check out this post from Volokh Conspiracy.

http://volokh.com/archives/archive_2009 ... 1243963935

*edited to fix broken link... will replace with permanent link when available.
Last edited by tesla on Tue Jun 02, 2009 10:17 pm, edited 1 time in total.

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Purplehood
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Re: Heller not incorporated against states

#2

Post by Purplehood » Tue Jun 02, 2009 1:33 pm

Alarmingly, it appears that laws against lethal self defense could potentially be held constitutional using the logic from the 7th Circuits opinion in this case
If that should happen, it would be the perfect jumping-off point for the banning of private firearms.

I am sorry if I am stating the obvious.
Last edited by Purplehood on Tue Jun 02, 2009 2:22 pm, edited 1 time in total.
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Kalrog
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Re: Heller not incorporated against states

#3

Post by Kalrog » Tue Jun 02, 2009 1:50 pm

I haven't read the ruling yet, but I think it is correct - it hasn't been incorporated yet. This is exactly the type of case that was needed to be brought to SCOTUS in order for it to become incorporated though. This is the exact ruling that we wanted, I think. Yes?

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ELB
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Re: Heller not incorporated against states

#4

Post by ELB » Tue Jun 02, 2009 2:02 pm

Kalrog wrote:I haven't read the ruling yet, but I think it is correct - it hasn't been incorporated yet. This is exactly the type of case that was needed to be brought to SCOTUS in order for it to become incorporated though. This is the exact ruling that we wanted, I think. Yes?

Not having read the opinion or the Volokh post yet, but just off the top of my head, but...I believe the Ninth court just ruled that the 2A IS incorporated, and its ruling is binding within the states of its jurisdiction - California, and I think Nevada and a couple other states...

Thus a split in the Circuit courts, which makes it more likely for SCOTUS to pick up one of the cases and make a nation-wide ruling...
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Purplehood
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Re: Heller not incorporated against states

#5

Post by Purplehood » Tue Jun 02, 2009 2:24 pm

So this is potentially a good thing?

I am really really glad that I did not pursue a career in law.
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Who'sJohnGalt
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Re: Heller not incorporated against states

#6

Post by Who'sJohnGalt » Tue Jun 02, 2009 2:34 pm

Purplehood wrote:So this is potentially a good thing?

I am really really glad that I did not pursue a career in law.
I sure your potential clients are glad also. ;-) I opened the link, saw that it was nine pages of legal speak and one of my eyeballs started bleeding. I'm waiting for the "For Idiots" guides to come out.


Locke
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Re: Heller not incorporated against states

#7

Post by Locke » Tue Jun 02, 2009 2:44 pm

We do need this to go to SCOTUS for a decision. But it will take a while. Hopefully Obama will not have the oppurtunity to stack the court against this in the meantime.

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Re: Heller not incorporated against states

#8

Post by ELB » Tue Jun 02, 2009 2:54 pm

Purplehood wrote:So this is potentially a good thing?

...
If by "this" you mean SCOTUS picking up the case and ruling on incorporation... the answer is "yes" if you believe the SCOTUS will actually read and follow the Constitution, and for incorporation purpose under the Due Process clause, treat the 2A like the 1A. And all this with Sotomayer on board. We won Heller by the skin of our teeth, I am not terribly confident of cases that are not so direct, that allow a lot of "judgment" (based on "feelings"). Remember, we need five votes, and in Heller the fifth vote was a big question. I suspect in this case it would be an even bigger question.

I am a bit pessimistic by nature on these things...unfortunately I am not "disappointed" often enough...
:grumble

Wait and see, I guess...
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cling
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Re: Heller not incorporated against states

#9

Post by cling » Tue Jun 02, 2009 6:35 pm

ELB wrote:
Purplehood wrote:So this is potentially a good thing?

...
If by "this" you mean SCOTUS picking up the case and ruling on incorporation... the answer is "yes" if you believe the SCOTUS will actually read and follow the Constitution, and for incorporation purpose under the Due Process clause, treat the 2A like the 1A. And all this with Sotomayer on board.
Maybe we'll finally find out if the current government is the duly authorized by the constitution or if it's a coup made up of domestic enemies that can morally and constitutionally be opposed by any means necessary.
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Re: Heller not incorporated against states

#10

Post by ErnieP » Tue Jun 02, 2009 7:33 pm

The concluding comments in the Opinion appear to "invite" SCOTUS to take up the matter. Whether or not there are enough opposing Circuit Opinions to justify SCOTUS is a matter solely in the Court's discretion. Due to the amount of interest in the matter, I would bet they will take it. "Justice" Sotomayor will not likely change the composition, at least in her early days, but maybe we'll be surprised for the better??? There is just something about her that makes me think/hope that as the newest member, she will intelligently listen to others who have been there longer.......and maybe be open minded enough to consider whether they might be better reasoned. In any case, it will be interesting to watch. Better to have this Court decide 2A Incorporation, than one a few years from now.

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Re: Heller not incorporated against states

#11

Post by ClarkLZeuss » Wed Jun 03, 2009 2:18 am

ErnieP wrote:Better to have this Court decide 2A Incorporation, than one a few years from now.
:iagree:
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Re: Heller not incorporated against states

#12

Post by stroo » Wed Jun 03, 2009 3:29 pm

This is interesting because the judges involved are pretty solid judges. They seem to have written this with the intent of getting SCOTUS review. They almost invite it.

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