Heller Decision discussion thread

[sanzo87]

yes sadly mcCain is the only real choice boy do i hope he has changed since running az strange things happened when he first got elected in az

 

[Fletch]

Sadly, I find myself coming around to McStain as well.

 

[JetGirl]

Tally one more for John McChain-Me-to-Iraq.

 

[Coach]

Need a little help. I have seen several posts here and have heard similar things elsewhere that the states can regulate the 2nd amendment any way they want. Last time I heard in this federal republic the consititution and the federal laws were supreme. We fought a Civil War in the 1800's to prove it. The individuals in all the states won a second amendment victory with this decision.

 

[Episcopus]

Need a little help. I have seen several posts here and have heard similar things elsewhere that the states can regulate the 2nd amendment any way they want. Last time I heard in this federal republic the consititution and the federal laws were supreme. We fought a Civil War in the 1800's to prove it. The individuals in all the states won a second amendment victory with this decision.

Originally, the Constitution regulated only the federal government. It was written as the rules for the Fed, and it granted certain powers and responsibilities to the federal government. The 14th amendment changed that and said that State's cannot deprive anyone any of the privileges and immunities which come with citizenship. The doctrine of incorporation was eventually born out of this, as those privileges and immunities were defined. The Second Amendment has not yet been incorporated, so it still applies only against the federal government, and not state or local governments. However, the holding that the Second Amendment guarantees an individual right has opened the door for incorporation, in my opinion.

Still, even with incorporation, federal laws and state laws do not have to match, and neither federal or state law "trumps" the other. You can be in compliance with federal law and break state law, and you can be in compliance with state law while breaking federal law. The power behind the law just determines which court you go in and which punishment scheme you fall under.

Yes, Heller was a win for us, but it was not the end of the fight. It is the beginning; the foundation upon which to build.

 

[Coach]

"Originally, the Constitution regulated only the federal government. It was written as the rules for the Fed, and it granted certain powers and responsibilities to the federal government."

What about individual rights such as in the Bill of Rights? What about the Supremacy Clause? The judges in the states are bound by the constitution.

Article 4 Section 2 Clause 1 US Constitution:
The citizens of each state shall be entitled to all priviliges and immunities of citzens in the several states.

Article 6 US Constitution:

This Constitution and the laws of the United States which shall be made in pursuance thereof; all treaties made, or which shall be made, under authority of the United States shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the constitution or laws of any state to the contrary nothwithstanding.

Reading these pieces of the Constitution would make one call ******** on this incorporation nonsense. Some and I stress some, of these rights were listed in the Bill of Rights, and that is all that needs defining and the SC just made it clear that the 2nd amendment applies to individuals. State governments and local governments do not have a right to limit any citizens civil right or liberties.

The 14th amendment was partly put in place to reverse the Dred Scott Decision, and grant citizenship to freed slaves. The amendment goes on to enumerate due process and equal protection.

Heller goes farther than most people are granting in my opinion. I also agree that it is not the end but the beginning of getting us to where we belong with respect to the 2nd amendment.

 

[hoosiertriangle]

Coach,

I appreciate your reading and interpretation of the Constitution. Your reasoning is essentially solid in application of the Heller decision to state laws, but the law is far from certain. Even those things which logically follow cannot be a certainty when it comes to courts. The Supreme Court would probably find that the 2nd Amendment should be incorporated and applied to the states just as well as the Federal Government. However, the Heller decision doesn't say that it would, it really only says that is a question for a different day.

The Supreme Court is a fickle thing often not adhering to logic or principles of legal progression. The court finds rights where the Constitution is silent (right to privacy). Heller does much to lay the proper track for another case (like the one coming from Chicago) to clearly define that the 2nd Amendment is applicable to the states. The Heller court in following good legal principle only made a holding on the issue before it, whether the 2nd Amendment was an individual right not to be infringed by the Federal Government.

It is particularly important that the Supreme Court interpret the 2nd Amendment as applying to states to create precedent as opposed to just stating what it believes should happen. Patience will give us this ruling likely within the next year or so as the Chicago case will have that question answered.

 

[Episcopus]

State governments and local governments do not have a right to limit any citizens civil right or liberties.

I agree with this, but it is going to take the Supreme Court ruling that the 2nd is incorporated to make it so. Nothing in Heller did that. Scalia did spend so much time comparing the 2nd to the 1st and 4th, both of which are incorporated, that it is almost certain, to me anyway, that the 2nd will be incorporated. The question is when. The Court will hear a case on it. They will have to. There are so many suits flying now that there is bound to be a split among the Circuits. I am thinking the big split will be between the 7th and 9th, with the 9th saying no incorporation and the 7th saying yes, but we will see. Other than saying the 9th will be against it, I don't really know how to predict the different outcomes in the different circuits. Hopefully this question and a few others are decided within 5 years, but who knows. It takes time to get to the SCOTUS.