Heller: Uh, We Can't Take 'Em to Court??
From CrimProfBlog via Reason:
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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 (Maloney v. Cuomo, 2d Cir., No. 07-0581-cv, 1/28/09)...
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Read it all, including the opinion here.
Remember that while the Second Circuit, which covers New York, Vermont, and Connecticut, is but a single Circuit and in theory can be overruled by SCOTUS, it is nonetheless a highly-influential Federal bench. Accordingly, its decision in Maloney will be persuasive and will be cited by other District and Circuit Courts in ruling against the Second Amendment.
Once the idea that the Second Amendment is not binding against state and local government becomes the law of the land via the adoption of Maloney by other Circuits and SCOTUS' refusal to look at the issue, "multijurisdictional task forces" will have a green light to bring down the hammer of "gun terrorists".
The fuse is lit.
Alea iacta est.
UPDATE 0830 est 11 Feb 09: Please take the time to read the comments below as well.
posted by Concerned American | 10:58 PM
26 Comments:
Opinion found here http://www.ca2.uscourts.gov:8080/isysnative/RDpcT3BpbnNcT1BOXDA3LTA1ODEtY3Zfb3BuLnBkZg==/07-0581-cv_opn.pdf#xml=http://www.ca2.uscourts.gov:8080/isysquery/irl839/1/hilite
Well folks, which fuse is lit, their gun grabbing one, or our cannons in reply? How much longer do we roll over and play peaceful doofusses, while they set up camps for us, take our weapons (or at least try), and eventually take our homes, our food, our livelihoods, and our families, especially our kids for overseas wars for which there is no definition of victory, be it realistic or pure fantasy?? But then, if we revolt, what is our definition of victory? And, is it even possible? Or do we only have the practical (and moral?) choice of resistance?
Frankly, even if the courts were to apply Heller to the states (remember, it will be the weasel word mumblings of Scalia that will be applied, not the ACTUAL Second Amendment) Heller is such a mess (intentionally) that the same crafty federal judges who "interpreted" the Second to mean whatever they wanted for decades can do the same with Heller.
They could uphold nearly anything short of an absolute DC style ban - and they could probably even find a way to uphold that (that's what judges do).
A state version of AWB? OKey dokey under Heller.
Banning of all center-fire rifles over a certain muzzle energy? Just fine.
Mandatory registration, fingerprinting, photographing, and tracking of gun owners just as if they were pedophiles? Again, just fine under Heller.
Prohibitions against public carry (open or concealed)? Ditto.
Mandatory ammo tagging and prohibitive taxes? Ditto.
I really can't think of anything that cannot be "found" to be constitutional under Heller, especially in the hands of a gun-hating judge. It really was a joke.
But since Heller declined to "incorporate" the Second Amendment, the anti-gun judges will use that failure to NOT EVEN HAVE TO BOTHER with cases challenging state laws.
That's what your so-called Second Amendment rights mean in federal court - zero.
While not even having to bother with state law challenges, they can then use Heller to strike down whatever few challenges to federal laws come up.
See the Fincher decision in the Eight Circuit for an example of how that works.
In addition to federal judges just thumbing their noses at us because Heller says they can, this is also the next stage in the battle, since the anti-gun judges will NEVER admit that the Second Amendment protects a fundamental right essential to well-ordered liberty (the court created "test" for incorporation), and that is why they will never apply it to a state.
We all know their eventual goal is to gut even Heller (as weak as it is, they still don't like it), and Heller contains the seeds of its own destruction ("common use," "unusual and dangerous," etc).
Till they can pack the court, they will use Heller to strike down any federal challenges, leaving both the feds and the states free to regulate the crap out of everything even remotely related to guns or gun ownership, till nothing is in "common use" and just about anything can be made to be "unusual and dangerous" and then they can do Heller II, which may only uphold .22 target rifles as being in "common use," if that.
Or they can just brazenly overturn Heller at that point.
But what they don't count on is having the "time-table" of events sped up faster than they want.
Some of the frogs in the slowly heating pot just might "jump" prematurely and then turn up the heat intentionally, causing all the other frogs to feel the heat and jump before the "bipartisan" cooks can slowly cook them all.
Do you feel froggy?
PS- I could not agree more with your statement that:
"multijurisdictional task forces" will have a green light to bring down the hammer o[n] "gun terrorists"."
Very astute observation - all kinds of federal funds, assistance, weapons and gear can be funneled to state law enforcement to help them fight the "war on "gun crime" and "gun criminals" (the new catch phrase, as Mike V. pointed out).
And Heller is useless as a legal shield against any of it, in large part because it was meant to be useless - all full of sound and fury, Signifying nothing - and because it is still in the hands of lying robed lawyers.
Growing hemp may be illegasl, even the non canniboid type, but it's still a good source of rope. Maybe stringing up a few of the would be enforcers when they comne around, some of the pols, a few judges and all the Wall Street gangsters and fraudsters would send a message they'd not forget until long after they wiped out the very last one of us, if ever.
There are 80-90 million guns in this country. Even if they managed to sieze or destroy 90% of them (a high estimate in my opinion since even with all the restrictions neither our government nor that of GB can keep guns out of the hands of convicted violent felons) there would still be 8-9 million in private hands, some albeit hidden, but something they'd have to deal with for a many, many years to come.
I am reminded of "The Guns of Sierra madre" - "We don' wantcher money senor, chust your guns, gonna run the federales out of Mexico."
If we were to use this reductio ab absurdum, NO ammendment to the constitution applies to states.
The 2nd Circuit said "unless it affects a fundamental right" Hmm, one important enough to be listed in the Bill of Rights as a right that shall not be infringed, is less fundamental than the one (Roe v. Wade) not found listed anywhere. Hey Judge! Do you have a RECTAL CRANIAL INVERSION?
How can you have an "individual" right thats only recognized by the federal government? A right is a right! Is what their saying that the rule against infringement only applies to the feds? We know which is right. Time to double up on the AQT drills......mthead
Well Whiskey Tango Foxtrot!
How's about we start requiring "journalists" to register their pens, pencils, notepads, and word processors?
And have each state require them to be licensed?
Jim
are not most of the original 10 rights enumerated in the B.O.R already incorporated?
That we have to fight so dang hard for a basic civil right is infuriating, an affront to what so many have died for.
Hopefully, Nordyke V King in the 9th Circuit will incorporate.
Where the hell is the logic in this?
The framers put it there, IN THE HIGHEST LAW, for a very specific reason.
The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.
It was DELEGATED to the feds and included in the federal constitution, the one that applies to ALL states of the union, read it carefullyA 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. for a reason.
Including it here was specifically to prevent states from doing what they just claimed they could do. The language there, shall not be infringed makes no mention of congress, or in a manner to be prescribed by law, it says what it means and by placing it there it means ANY level of government that is a signatory to this constitution. Period.
Ready.
The constitution says Judges can hold their offices for life as long as they exhibit "good behavior." I consider this to NOT be "good behavior." They have a Constitutional duty to apply the BOR and Constitution as the "Supreme Law of the Land." What's the procedure for removing a Judge from office for not conducting themselves with "good behavior." Can't one of the 2A defense organizations like NRA or K&BA start proceedings to have the judges removed for violating their Constitutional obligation AND Oath of Office (which is req'd for them to swear to uphold the US Constitution as the Supreme Law.)
Someone with the resources and knowledge needs to challenge this ruling immediately BEFORE it gets too established as "precedent."
Additionally, we need to start working to reform the so-called "justice" system so "wrong" or "incorrect" rulings DO NOT become precedent and judges who are overturned more than once automatically lose their position.
Just out of New Jersey
http://www.nj.gov/governor/news/news/2009/approved/20090205b.html
From The Huffington Post. I'm sure an unbiased and fair look at Gun Laws, with the bonus of the Brady Gun Law checklist for evaluating where your kiddos will be safe to live.
America's Gun Laws: How Did Your State Score?
http://news.yahoo.com/s/huffpost/20090211/cm_huffpost/165825
Y'know I was trying to warn people about Heller:
http://freedomguide.wordpress.com/2009/01/27/you-will-give-up-your-guns/
Let the lawyers handle the law, what do you get? modern 'murika.
Most of you need to go read this book:
http://davekopel.org/2A/GCGR.htm
http://www.amazon.com/exec/obidos/ASIN/0814747604/davekopel-20/
Read the chapters concerning SCOTUS and the Constitution. You will then understand how the system really works. Some of you are there already, but Federal application of the RKBA has not existed since Barron v. Baltimore (1833).
The preamble to the Bill of Rights shows that the purpose of the Amendments is to place restrictions on the Government.
These restrictions not only apply to the federal government, but apply equally to all state and local governments.
Article VI of the Constitution of the United States clearly states that the Constitution and the Laws of the United States written in accord with the Constitution are the supreme Law of the Land. That everything that the Constitution pertains to, including the Amendments, overrules all state constitutions, laws, and ordinances and all lower jurisdictions’ laws and ordinances that are contrary to this Law of the Land.
This principle was re-affirmed during May 2007, when U.S. District Judge Sam A. Lindsay wrote that the community of Farmers Branch, Texas, can not “pass an ordinance that conflicts with federal law" -- citing the Supremacy Clause of The Constitution of the United States as the grounds.
Therefore, the Supremacy Clause of The Constitution, as written and upheld by the Court, states that no laws may be enacted or enforced by any State or local governments that are contrary to the Law of the Land.
The rights in the BOR are incorporated and applied to the states under the 14th amendment.
Until the 14th, they did not apply to state governments. It would have been up to the individual citizens of each state to make sure their state constitution had a 2A equivalent. Or not. This is part and parcel of state's rights and letting local governments decide how to go to hell in their own fashion, which is a fundamental part of the freedoms the USA was founded to secure.
The reason the federal 2A was more important is simply that the federal government had the potential to be a lot more powerful and thus required more in the way of attempted restraints. (Which is exactly how it turned out)
DrJim: "Well Whiskey Tango Foxtrot!
How's about we start requiring "journalists" to register their pens, pencils, notepads, and word processors?
And have each state require them to be licensed?
Jim"
And require a separate instant-check of their background for EACH new article they write, and arrest them for unpaid parking tickets if they attempt to publish, and arrest the victims of plagiarism for "straw publishing"...
Sounds fair to me!
I left a comment earlier that never made it to publish.???
This "incorporation doctrine" is a farse committed upon "the people" by the Judiciary and Congress. The Constitution included "incorporation" language upon inception, as follows:
Article IV: Section 1:
"Full faith and credit shall be given in each STATE to the public acts, Records, and judicial proceedings of EVERY OTHER STATE.
Section 2. The Citizens of each STATE shall be entitled to ALL THE PRIVILEGES AND IMMUNITIES of Citizens in the SEVERAL STATES."
Article VI: This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, ..., SHALL BE THE SUPREME LAW OF THE LAND; and the JUDGES IN EVERY STATE shall be bound thereby, any thing in the Constitution or Laws of ANY STATE to the CONTRARY NOTWITHSTANDING."
There's more substantiation but I think you guys get the point.
The 14th Amendment "incorporation" requirement is BS perpetrated by corrupt officials!!! Therefore, any Judge that rules contrary should be removed from office for NOT conducting themselves with "good behaviour." In other words, they will have violated their Constitutional obligations AND their Oath of Office.
Any lawyers out there courageous enought to take this up in the courts.
I'm NOT a lawyer but I can read and understand plain English.
Paladin
I think it's time to both PREPARE and to organize a march on Washington D.C. (maybe an *armed* one, this time)
Bruce
http://www.internet-grocer.net/product.html
Re: supreme law of the land and the judges bound thereby: sure. No problem. The judges in, say Maryland, are bound by the outcome of a federal case in South Carolina, they can't wave away a murder conviction, for example. "the laws of any state to the contrary notwithstanding" - that means a state can't overrule federal law in federal matters. It does not make federal law and state law one and the same. This is a very important point, and fundamental to the states' ability to act as semi-autonomous restraints on the federal government, which is essential to the structure of the Republic as it was originally designed.
Remember the saying "don't make a federal case out of it"?
The Bill of Rights was a set of restrictions on the federal government's actions. It does not say a thing about the state governments. The state governments are bound by it to the extent that they cannot liberate federal agents from the BoR's restrictions. That's it. If the founders had meant the BoR to apply to state governments, they would have said "Neither Congress nor any State shall make any law restricting ..." etc, instead of the phrasing they actually used.
Incorporation is the 14th. Before that, the states were free to do as they pleased - to the extent their citizens would allow them to.
OK, Rollory, then why the question as the incorporation of the Second?
Didn't the section 1 of the 14th take care of that?
14A:
AMENDMENT XIV
Passed by Congress June 13, 1866. Ratified July 9, 1868.
Note: Article I, section 2, of the Constitution was modified by section 2 of the 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.
Section 2.
Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice-President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age,* and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.
Section 3.
No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.
Section 4.
The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any State shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void.
Section 5.
The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.
*Changed by section 1 of the 26th amendment.
We have allowed the lawyers to ensure the words of our Forefathers to be twisted and ignored for too long. The 10th Amendment has been ignored since FDR and that fact is key to our on-going death. We are witnessing the demise of the free US! I personally thought it would take a couple more generations, but alas the last election accelerated that timetable.
If the founders had meant the BoR to apply to state governments, they would have said "Neither Congress nor any State shall make any law restricting ..." etc, instead of the phrasing they actually used.
Rollory, your argument fails. As I said in my earlier comment, the 2nd lacks any language that would apply it solely to congress as the first did, no language allowing for "reasonable restrictions"
It does state that a militia is necessary to a free state, seeing how they considers states superior to the federal government it seems to reason that this was an absolute prohibition by both the federal as well as state governments, since the militia would have to be comprised of state citizens.
If we follow your logic states would have been able to ban firearms at will depriving the federal government the very militia that was mentioned in the amendment.
I'll also direct you to the 3rd amdt. At the time of adoption, were there any folks living in DC? Would they be the only people prevented from housing soldiers?
Were there any federal police forces who would carry out unreasonable search and seizure?
This isn't rocket science, it's basic english where the words actually carry the definition found in a dictionary, not some convoluted form of newspeak or lawyerese that can mean whatever is needed at the time.
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