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Upcoming law review articles on Heller
Nelson Lund, Heller and Second Amendment Precedent argues that Heller erred in trying to reconcile its result with US v. Miller, when it should simply have recognized that Miller was wrongly decided.
Nelson Lund, Anticipating the Second Amendment Incorporation: The Role of the Inferior Courts argues that the 2nd Amendment should be incorporated into the 14th, and applied to the States, and that lower courts should not rely upon anti-incorporation case law and upon "it's up to the Supremes to change things."
Larry Chapman, Second Amendment Plumbing After Heller on the other hand, argues against 14th Amendment incorporation.
The 2A is becoming the one interesting field of con law. The First Amendment has been mined for, what, forty years or so. Debates over what is obscenity, what are fighting words, and whatnot are really getting to be a bit boring. But the 2A can keep scholars busy for another few decades. And the courts, as well.
UPDATE: Yep, in the 21st century we distinguish between "rights" and "privileges." But when the drafters of the 14th Amendment used the terms in 1868, they used "privileges and immunities" interchangeably with "rights." Sen. Jacob Howard, who introduced it in the Senate, gave a speech in which he listed the privileges and immunities of US citizens -- a list so long that the first eight amendments came at the end. (Remember the Constitution itself had some rights or protections, limits on suspending habeas corpus, enacting bills of attainder, etc.)
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"The demands of ordered liberty argue for leaving gun control policy at the state and local level." Well Mr. Chapman, until you amend the 2nd and or 14th Amendments, such a concept is clearly inconsistent with the plain meaning of the extant text of the Constitution. See there was this Supreme Court decision called Dred Scott, and it just happened to list the rights inherent in the "privileges and immunities" of American citizenship. Too bad for your concept that the right to keep and bear arms was one of those specifically enumerated. That's the true heritage of the 14th Amendment and why (among other reasons) the 2nd is incorporated. Thanks for playing. Have a great day.
The eighteenth-century conception of the right to bear arms has not fared particularly well in subsequent jurisprudential history, and, even more important, in many high-crime urban areas, it may be effectively impossible to create the type of "well-regulated militia" envisioned by the Second Amendment. The demands of ordered liberty argue for leaving gun control policy at the state and local level.
No militia means no free state. Do we consider Chicago to be occupied territory?
No militia means no free state. Do we consider Chicago to be occupied territory?
No, it was lost to the enemy long ago.
We should take it back but it will be extremly hard to overthrow King Daley and has Mighty DEM Machine. After all he has the dead and the invisible voting on his side.
Being unhindered by not having actually read the article yet, I'm having a hard time guessing how one could argue AGAINST incorporation of the Second Amendment, when there is plenty of substantial evidence that application of, at a minimum, the Bill of Rights against the states was exactly the intent of the 14th Amendment.
> We should take it back but it will be extremly hard to overthrow King Daley and has Mighty DEM Machine. After all he has the dead and the invisible voting on his side.
One "lesson of Obama" is that it's okay for the dead and invisible to vote in Chicago, but not to sign nominating petitions, at least not for his opponents.
> in many high-crime urban areas, it may be effectively impossible to create the type of "well-regulated militia"
Really? Why?
> By virtue of the underappreciated interaction between the constitutional rules governing search and seizure and the scope of firearms regulation, gun control laws enhance the ability of the police to utilize aggressive stop-and-frisk tactics when they suspect that a firearm is being carried unlawfully.
Unless the author is actually arguing that police suspicion is either a ruse or inaccurate, allowing the lawful to carry doesn't interfere with such tactics.
It's not often that you find "kill them all, let God sort it out" in a legal setting.
I'm off to work soon, so I only scanned Chapman's post. I noticed two common errors, both of which I expected.
First, he is confusing the meanings of "well regulated"; the 2ndA does not mean "lots of rules", it means "properly functioning", or, "not an untrained rabble". He uses the word one way and turns around and uses the word another way under the assumption that the there is not a completely different meaning.
Second error is one an overwhelming majority of people in the legal professions and law enforcement make. He forgets that laws can be changed. By the very nature of human society, the people who make laws are in a position to make laws that make the law makers a privileged class, and makes a tyranny possible. If you set aside the moral issues, the difference between a criminal, or criminal gang, and a citizen carrying to protect himself, or a militia resisting tyranny, is simple intent, and the laws can be written so intent is ignored. So, any laws aimed at criminals /can/ be used against patriots and every day citizens.
Barron V Baltimore was flat out wrong. The discussion around the BoR, the wording of the First, the fact the First was the Third and was singled out, all demonstrate the fallacy of the decision. The 2nd through 9th applid to all governments as part of the constitutional requirement to guarantee to all states a republican form of government.
The 14th DOES NOT involve Rights. It speaks to privileges and immunities which are not Rights.
So long as one clings to the idea that the Court has any authority to interpret the Constitution, to "incorporate" Rights but through that incorporation makes those Rights privileges and immunities, one accepts the incorrect and invalid decisions of the SC as valid. And once one accepts incorporation, making Rights privileges and immunities, one accepts that the government may control, or even remove, those privileges and immunities. If you wish to know from whence come Rights try reading the Decl. of Ind.
The supreme Court (and all government) is subordinate to the Constitution. Under fundamental law theory and under an understanding of Creator/created, the subordinate cannot define the superior. The meanings of all Constitutional clauses were established by We the People. One who accepts that the Court may interpret even a single phrase, or that Congress may define a term, or that President has any other powers beyond the 10 or so enumerated in the Constitution has no ground to stand upon when criticizing the actions of any branch. If one lets through a single drop, one cannot be upset by the ensuing flood.
BILL WROTE: "The 14th DOES NOT involve Rights. It speaks to privileges and immunities which are not Rights."
What is a "right" if it is not an "immunity"? A right "is" an immunity from arrest and prosecution. Isn't it?
Bill wrote: The 14th DOES NOT involve Rights. It speaks to privileges and immunities which are not Rights.
Those most responsible for the U.S. Bill of Rights and the provisions from which it was developed, the state declarations of rights, clearly understood that privileges and immunities were simply references to all of the rights of the people.
For historical examples, check out the "Privileges and Immunites" index entry in The Founders' View of the Right to Bear Arms.
“...argues that Heller erred in trying to reconcile its result with US v. Miller, when it should simply have recognized that Miller was wrongly decided.”
Exactly!! That’s what I’ve been saying for years. Miller completely supports the collective model. I mean really...when the people who think otherwise read, “With obvious purpose to assure the continuation and render possible the effectiveness of such forces the declaration and guarantee of the Second Amendment were made. It must be interpreted and applied with that end in view”...what exactly do they think that means??
Another grossly misunderstood passage is, “In the absence of any evidence tending to show that possession or use of a 'shotgun having a barrel of less than eighteen inches in length' at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument.”
People who don’t know how to read an appellate opinion refuse to read any further than the above passage, and insist that it means that the Court couldn’t figure it out, and so sent the case back to the lower court to be decided there. Nothing could be further from the truth. Of course, the ringer is that the Court did not vacate the decision, but reversed it. By replacing the lower court’s decision with their decision, the issue is considered settled and could not have been raised again.
It’s also, clear that the phrase “absence of any evidence” is referring to the legislative history of militia weapons. In the opinion the Court included three excerpts from past militia acts. Each one clearly indicated that militiamen were expected to bear long guns...not short guns. And the Trench Gun of WWI had a barrel length of 21 inches. There simply was no evidence at all that Miller could have presented to show that a short-barreled rifle was ever a common weapon of the militia...just like the court said. Miller would have lost, no matter what.
I find the Miller decision to be well written, straightforward in its presentation, and crystal clear in its meaning. It’s 100% wrong, but it’s clear.