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Article on Heller incorporation
At SSRN. One of the core ideas is interesting to us grunts in the trenches who have to persuade courts -- that a right can be incorporated, yet not identical at State and Federal levels. The idea of "reasonable regulation," that is to say, may be more like "shall not be infringed" at the Federal level, and "reasonable regulation (subject to strict standards)" at the State level.
Understand, from the standpoint of those in the legal trenches, that you are trying to work out theories that can persuade judges at home on the driving range but not the rifle range, who associate guns with the latest newspaper article about crackheads shooting at each other instead of with shooters who are ashamed to get a moving violation, and live in gated communities where the closest approach to self defense is complaining about the golf ball that hit your windshield...
UPDATE: Effect of the election. (1) The Solicitor General will certainly file a brief, in any case that gets to the Supremes, opposing incorporation. An SG's brief gets more consideration than briefs by other folks. He might also file a motion to argue it, as he did in Heller. (2) In the longer term, Obama's going to be appointing Justices. The most likely to retire is Stevens, next to him Ginsberg. They both dissented in Heller, so those wouldn't change the vote count. The Heller majority was from the younger end of the Court. The risk is that young here means 70 or less, and there's always risk of a heart attack or cancer taking out one of the five over the next 4 years.
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Every time one compromises away inalienable rights, one leaves holes in the right large enough to drive a battelship through. (Sorry for the incorrect grammar.)
The BoR was not intended solely to apply against the feds. I have found nothing in the framing/ratification discussions implying such. I may have missed it but the only restriction I've found applied only to the third (now first) amendment wherein the congress/framers of the BoR remarked that authority over religion, the press, speech, etc should not and would not be restricted by the amendment. Once more the figment of imagination concerning the lack of applicability of the BoR against the states came out of the dark recesses of some judge's mind. Rawle, and possibly others, in their texts on the Constitution stated the exact opposite of Barron prior to Barron.
Then We the People must also shove back into our brains the fact that We the People are superior to ALL judges and ALL courts and have the authority to override any and all decisions with a simple majority. A greater mind than I said it thus:
For, whenever a question arises between the society at large and any magistrate vested with powers originally delegated by that society, it must be decided by the voice of the society itself: there is not upon earth any other tribunal to resort to.Sir William Blackstone, Blackstone's Commentaries on the Laws of England, Book I, Chp3, pg.205/6
There are probably many reasons the judges have ruled as they have, none of them a valid read of the Constitution. In this case, the judges want incorporation because it allows them to usurp authority that was not delegated. And in the process, the judges leave holes in the rights so the government can use its "compelling interest" BS to alienate our Rights. I still cannot find "compelling interest" any where in the Constitution. The phrase is another of those imaginary authorities those in power grab for when they want to usurp that which was not delegated.
Dominus providebit!
Looks like you folks (including OShea, Walker, etc.) are gearing up for the pending incorporation and scrutiny litigation.
Good. And thank you. I am finding OShea's paper lucid and sensible, and his ideas tractable.
@FWB,
What a timely quote from Blackstone. This is a quote that judges and a vocal minority in California need to hear and take to heart concerning Prop. 8.
I am not a lawyer but given the Obama win, what are the chances of incorporation now??
"I am not a lawyer but given the Obama win, what are the chances of incorporation now??"
I AM a lawyer (though not a 2nd Amendment or Constitutional one), and I don't know. What I DO know is that the composition of the Supreme Court hasn't changed, yet. The Court that ruled in Heller is still intact. Also, the most likely to retire or be carried out are Stevens and Ginsberg, both in the minority in Heller - so, if things go as statistics say they will, it should remain no more or less likely than at present - at least for a while.
The irony is that tactically, the smartest thing for Obama & Co. to do would be to punt on incorporation...concede it. The case to be made for incorporation is very strong, I think.
The real fight is over "reasonable" restrictions...and even there, the smart thing to do would be to stay away from outright gun bans.
What has me worried are environmental restrictions on lead and ammunition.
There's also the risk that Chief Justice Roberts has another seizure and doesn't recover:
http://www.webmd.com/brain/news/20070731/chielf-justice-john-roberts-has-seizure
Maybe it's time to start a "Take a Judge Shooting Day".