DMN today

[jimlongley]

LA Times/AP article in today's DMN, too long to quote here.

Here is my response, once again I forsake all rights to my content, you are freely able to copy and use my words in this letter without attribution.

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The anti-rights community has long claimed that the Second Amendment is settled law, based on those old decisions mentioned in the article, but a thorough reading of those decisions shows that they left many gaping holes, and it is about time those holes got closed.

It's interesting to note what a difference a decade or two makes, The so called "Brady Campaign to Prevent Gun Violence" originally Handgun Control Incorporated, which used to have the goal of total elimination of private ownership of firearms, and loudly proclaimed the Clinton Gun ban an "important first step" (after several other "important first steps") now merely expects limits to be fleshed out. They are in full retreat and laying down covering fire.

It's time for common sense to finally prevail, to recognize that our forefathers wrote the Bill of Rights with everyone in mind, as affirmed by the 14th Amendment, not only on a national level but right down to the smallest village and hamlet, no matter which right.

Time will tell, but the image of the minuteman, armed with his own weapons, standing ready to protect family, friends, and neighbors, resonates strongly in this chance to finally settle the facts for once and for all.

Jim Longley

[hheremtp]

Excellent post Jim, I don't think it could be said any better than that.

[C-dub]

I'm gonna play the devil's advocate for a minute. I read somewhere recently, maybe here, that the 2A intended to prevent the federal government from infringing on our RKBA, but did not prohibit the states from doing so. This was that author's opinion. Then the 14th only seemed to point this out. Minute's up.

What do ya'll think about this point of view? I disagree with it, but can see how it can be read that way.

[hheremtp]

I'm gonna play the devil's advocate for a minute. I read somewhere recently, maybe here, that the 2A intended to prevent the federal government from infringing on our RKBA, but did not prohibit the states from doing so. This was that author's opinion. Then the 14th only seemed to point this out. Minute's up.

What do ya'll think about this point of view? I disagree with it, but can see how it can be read that way.

That is an interesting take on the subject. However I offer this adjustment to your OP:

"I read somewhere recently, maybe here, that the 1A intended to prevent the federal government from infringing on our RFS, but did not prohibit the states from doing so. Then the 14th only seemed to point this out."

No what if some one came at you with that one. What would your reaction be? When it comes to the BOR it is all or none. Either they all apply to the states via the 14th or they don't. I have a hard time coming to grips with the idea that our founding fathers thought it wrong to deny the liberties afforded in the BOR by the federal govt., yet it would not be wrong for the states to trespass upon them. Your thoughts?

[mymojo]

That is the one they aren't going to be able to get around isn't it?

"if the second doesn't apply to the states, then neither do the 1st, 4th, 8th, etc."

It will be interesting to see how they try to counter that.

[Mithras61]

I'm gonna play the devil's advocate for a minute. I read somewhere recently, maybe here, that the 2A intended to prevent the federal government from infringing on our RKBA, but did not prohibit the states from doing so. This was that author's opinion. Then the 14th only seemed to point this out. Minute's up.

What do ya'll think about this point of view? I disagree with it, but can see how it can be read that way.

I suppose that's possible, but considering that all the writings of the time available by the founders and those who advocated for the Bill of Rights suggest exactly the opposite. Furthermore, the writings surrounding the 14th Amendment and the Civil Rights Act of 1866 both seem to indicate that these rights were recognized as universal unalienable rights, and that the problem motivating the need for the 14th was that some folks were trying to make out that they were more equal than others, and the 14th was intended to put a stop to that very thing.

This is the same nonsense as the "well, are you part of the militia" foolishness. Of COURSE I'm part of the militia. Every single one of us capable of bearing arms against all enemies, foreign or domestic, is part of the militia. Oh, some folks have tried to draw lines around 18-45, and around male instead of female, but IIRC, the youngest soldier to die in the Revolutionary War was 10, and the oldest was several decades older, and Molly Pitcher wasn't the only woman fighting alongside her menfolk...

[C-dub]

Okay. I really don't know the answer to this next one. If the Constitution and the BOR were meant to cover everyone then why did all of the states feel the need to write their own constitutions and further define rights already outlined by the BOR? I also realize that some of these rights, like Texan's RKBA, were changed after the Civil War for various reasons. My wife was asking why no one has challenged these infringements. I wasn't sure, but said that I'm sure someone did, but due to the times they were probably shot down. No pun intended.

I suppose the states could have tried to limit our 1A rights, but I guess they thought better about that.

Again, just spit-balling here. I believe that the Constitution and BOR apply to all and not just the Fed as implied by some author from my OP.

[jimlongley]

I'm gonna play the devil's advocate for a minute. I read somewhere recently, maybe here, that the 2A intended to prevent the federal government from infringing on our RKBA, but did not prohibit the states from doing so. This was that author's opinion. Then the 14th only seemed to point this out. Minute's up.

What do ya'll think about this point of view? I disagree with it, but can see how it can be read that way.

I don't see any way that it can be read that way.

The First says "Congress shall make no . . ." and clearly applies only to the Federal Government, and yet, through the 14th is now applied universally , right down to that hamlet that I mentioned.

The Second has no such restriction to Congress, thus it would appear to already to be intended universally, EXCEPT if you include a reaading of the preamble to the Bill of Rights (remember this for later.) Now if you include the preamble's language, then it reads that Congress was self limiting their power in order to instill confidence in the Federal government, which implies that it is only a limit on the Federal government.

But since there is no "Congress shall make no . . ." clause in the Second, and since the various amendments have always been treated as stand alone entities, then there is absolutely no way that it should NOT be incorporated under the Fourteenth.

Okay. I really don't know the answer to this next one. If the Constitution and the BOR were meant to cover everyone then why did all of the states feel the need to write their own constitutions and further define rights already outlined by the BOR?

Some of those state constitutions were written before the US version, and some shortly after, and at that point in time it was not clear that the "union" would last, so some were covering their options, and yet others were just expressing their opinions of the way things should be.

[C-dub]

Ah ha. Thanks Jim.

[SA-TX]

Ah ha. Thanks Jim.

I addition to what Jim said, even those written in the decades immediately after the civil war (when the 14th Amendment had been ratified), like Texas', included RKBA and other clauses because the United States Supreme Court had not yet applied the BOR to the States through the 14th. That was yet to come in the 1920's (http://facultyweb.wcjc.edu/kituah/Govt2 ... erties.htm" onclick="window.open(this.href);return false;).

As originally constructed, the Constitution did only bind the federal government. However, post-war Congresses wanted were concerned that the states formerly in rebellion might not treat all of their newly minted citizens (who used to be slaves) equally. The 13th, 14th, and 15th Amendments spoke to these concerns. So did the Freedman's Bureau. So did the relatively slow pace of reconstruction where Federal troops still occupied and ran Southern states into the mid-1870s (in Texas, it didn't end until E.J. Davis was evicted from office in January 1874, nearly 9 years after the end of the war -- http://www.lib.utexas.edu/taro/tslac/40016/40016-P.html" onclick="window.open(this.href);return false;). You'll notice that as soon as Reconstruction in Texas ended, the constitution adopted during that time of Federal rule was replaced by the one we have today (see http://www.tshaonline.org/handbook/onli ... /mhc7.html" onclick="window.open(this.href);return false;).

In conclusion, state constitutions include "overlapping" provisions because holding the States to the federal BOR didn't happen until at least the 1920's and even then was selective. Now, the concept is almost complete and the 2nd Amendment is the next logical step. I believe that the SCOTUS will rule for incorporation but I also think that only the most onerous laws like DC and Chicago's will be thrown out. Possession in your home is, IMHO, a no brainer. Localities that ban that will be overturned.

The much more interesting cases will be those that touch not on "keeping" but "bearing" arms. Will a state like Illinois where there is no CC and no practical OC be forced to change their law? I hope so. What about somewhere like Texas where OC is banned, but a CHL is relatively easy to get? I don't know. As an OC supporter, I can only hope that the SC simply adopts the same level of review for violations of the 2nd as for other fundamental rights. If it does, laws much be narrowly tailored to serve the overriding government interest and must the be least restrictive approach. Under such a circumstance, I think that a full OC ban might not pass muster, but that a ban on carry in certainly areas (airports, government buildings, etc.) probably will be allowed.

SA-TX