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« Anti-stabbing knife on sale in Britain | Main | An interesting auction »

NY Times on incorporation

Posted by David Hardy · 16 June 2009 08:18 PM

Article here. It's ... almost balanced. Of course the problem the MSM has is that while one can give a knee-jerk label of conservative to gun rights, the opposite label attaches to incorporation.

"Incorporation fell out of favor after the 1960s, but a new generation of largely liberal scholars of law and history have brought it back into the intellectual mainstream, said Akhil Reed Amar, a law professor at Yale University, who supports the process.

“The precedents are now supportive of incorporation of nearly every provision of the Bill of Rights,” Professor Amar said. “Now what’s odd is that the Second Amendment doesn’t apply to the states.”

Sanford Levinson, a law professor at the University of Texas, said he would be surprised if the Supreme Court accepted these gun cases, because some of the conservative justices on the court had scoffed at incorporation arguments in the past and might not want to set a precedent.

Professor Amar, however, argued that the justices would not only take up the case but would also ultimately vote for incorporation of the Second Amendment."

· 14th Amendment

12 Comments | Leave a comment

Pete | June 16, 2009 9:02 PM | Reply

Umm....why does the article mention automatic weapons in the caption and main article? Was there a challenge to the NFA also?

Carl in Chicago | June 17, 2009 7:36 AM | Reply

David, thanks for blogging this. I communicated some comments to the author.

Dear Mr. Schwartz:

If I may, I'd like to point out some rather serious errors in the article linked below ("Gun Rulings Open Way to Supreme Court Review" from 16 June 2009).

http://www.nytimes.com/2009/06/17/us/17guns.html?bl&ex=1245384000&en=fa20d05c929c9e32&ei=5087%0A

First, in the photo caption and fourth paragraph, you stated that the [7th circuit] court upheld Chicago’s ban on automatic weapons and concealed handguns. Yet at question was not a ban on automatic firearms or on concealed carry of handguns. At issue was Chicago's ban on the mere possession of a handgun in the home. Automatic weapons are banned by federal law, while concealed carry is banned (in Illinois) by state law. Chicago and Oak Park are municipalities unique to the United States for banning the mere possession of handguns in the home.

If you wish to confirm, please read the decision. But what you stated is definitely in error.

http://www.scotusblog.com/wp/wp-content/uploads/2009/06/7th-ca-nra-6-2-09.pdf

Second, you stated in the first paragraph that in DC v. Heller, the SCOTUS issued a landmark decision establishing the constitutional right of Americans to own guns. In truth, they did no such thing. They affirmed what is considered by scholars to be the "standard model" of the second amendment (the individual rights model). Contrary to your statement, the court took pains to explain that the right to arms was pre-existing ... it was not established by the constitution, nor by the Supreme Court. Again, you can confirm by reading the decision.

http://www.scotusblog.com/wp/wp-content/uploads/2008/06/07-290.pdf

With all due respect, these glaring errors suggest to me a fundamentally flawed view of these cases on your part. I truly hope you will consider fixing these errors, and being more accurate in future articles.

Carl in Chicago | June 17, 2009 8:39 AM | Reply

Update ...

Author contacted me with a warm message, saying he and his editors will go over these issues.

fwb | June 17, 2009 11:07 AM | Reply

Fourteenth amendment related law is entrenched jurisprudence.

As well as some think this to be, this statement is no different than saying slavery was fine for 100,000 years so there is nothing wrong in having slaves.

What is wrong is wrong. No amount of time ever makes it right. The 14th was not ratified properly (certain states were denied equal suffrage in the senate) AND the 14th DOES NOT deal with RIGHTS. A lie is a lie is a lie, no matter who tells it or how often it is told.

Due process applies to method.

Equal protection can't be used for incorporation UNLESS the state groups people. Equal protection may be absent (doing nothing), positive (supporting), or negative (banning) but so long as it applies equally to all persons, it meets all 14th amendment requirements.

Rights are NOT privileges and immunities, except in the mind of the ignorant. RIGHTS ARE ENDOWED BY GOD. Privileges and immunities come from government and can be given, taken away, or modified at the whim of the government.

The Court DOES NOT incorporate the exact Bill of Rights RIGHT but makes the RIGHT into a privilege or immunity AND puts holes along with it so the government can skirt the edges. See probable cause for an example. Probable Cause in the 4th amendment is an absolute requirement for obtaining a warrant, NOT for conducting a search. Read the amendment. The courts have muade up this crap. They pulled it out their arse.

Barron v Baltimore is/was proof of Marshall's ignorance and his unbridled quest for power. BvB was a lie. BvB was contrary to established teaching at the time. BvB is contrary to the BoR wordings. BvB is contrary to the discussion and ratification of the BoR. Madison's ideas were repudiated, meaning NOTHING Madison had to say about the BoR has any bearing on their applicability except to people who don't understand repudiation.

The BoR ALWAYS bound the states. There is no question of that except in the tiny minds of those who would usurp power.

Don's idea about the supremacy clause is excellent. Since there are ABSOLUTELY no markers in the 2nd and following BoR, the Rights embodied in those amendments "OF", they were not amendments "to", the Constitution must be read as applying to ALL governmental entities through the supremacy clause. If this is not true then the supremacy clause carries no weight in any instance.

Instead of fighting over piecemeal crap, invented by the courts to mollify or pacify the idiots, one should always stand up for that which is right. Accepting bad law with the idea of making it good law is plain stupid.

Whenever the courts pull this crap it is up to We the People to demand their removal. When the courts decide contrary to public demands, they are exhibiting "bad" behavior and may be removed from office. We the People, not the government, decide what is acceptable in our judges. Majority rule!

Tir gan teanga, tir gan anam!

Hank Archer | June 17, 2009 11:40 AM | Reply

Here is the e-mail I sent:

Dear Mr. Schwartz:

It troubles me to write this, but I noticed some rather serious errors of fact in your article "Gun Rulings Open Way to Supreme Court Review" from 16 June 2009.

As a former short-time journalist and the holder of a journalism degree I would like to defend the journalism profession. However, I was also a fireman for 30 years and during the course of that career I found that almost every fire or emergency-related story I read was, basically, inaccurate. This was even more pronounced when the stories were about incidents of which I had personal knowledge.

I fail to understand how reporters can get simple, basic facts wrong, especially given the ease of research due to the internet.

First, in the photo caption and fourth paragraph, you stated that the court upheld Chicago’s ban on automatic weapons and concealed handguns. This is wrong and neither of these issues were even in dispute. The issue the court had before it was Chicago's ban on the mere possession of a handgun in the home. Automatic weapons are banned by federal law, while concealed carry is banned (in Illinois) by state law. Chicago and Oak Park are municipalities unique to the United States for banning the mere possession of handguns in the home.

If you wish to confirm this, please read the decision.

http://www.scotusblog.com/wp/wp-content/uploads/2009/06/7th-ca-nra-6-2-09.pdf

Your second error is your statement in the first paragraph that in DC v. Heller, the SCOTUS issued a landmark decision establishing the constitutional right of Americans to own guns. The court did not do this. The court clearly explained that the right to arms was pre-existing ... it was not established by the constitution, nor by the Supreme Court.

Again, you can confirm my statement by reading the decision.

http://www.scotusblog.com/wp/wp-content/uploads/2008/06/07-290.pdf

It pains me that the Times, probably the most respected and influential news organization in the world can't get basic facts correct. It makes me wonder what other misinformation is reported as fact in facets of life that I have little personal knowledge of.

Hank Archer | June 17, 2009 12:23 PM | Reply

Here is the Times response to the above e-mail:

Thanks very much for your note. I will be talking with my editors about the characterization of the Chicago laws before the 7th Circuit. As for the question of whether the right was pre-existing or granted by Heller, the right was not recognized by the Court before the case.

Again, thank you for taking the time to write. I would much rather have people respond to a story they dislike for some reason than not to respond at all -- or worse, to not read the story in the first place.

Best wishes,

John Schwartz

Don Hamrick | June 17, 2009 12:59 PM | Reply

FOR THE REASON WHY THE FOURTEENTH AMENDMENT IS UNCONSTITUTIONAL SEE THE CONGRESSIONAL RECORD, HOUSE OF REPRESENTATIVES. June 13, 1967, Starting at Page 15641 for OFFICIAL GOVERNMENT PROOF. Available online at www.sweetliberty.org/fourteenth.amend.htm

Anonymous | June 17, 2009 1:17 PM | Reply

ERROR: Cleaifiekl

CORRECTION: Clearfield

Paladin | June 17, 2009 1:34 PM | Reply


The 14th Amendment “incorporation doctrine” is a scam on the American people perpetrated by the corrupt judiciary!

The original language of the Constitution clearly indicates the framers intent that restrictions on infringing the people’s rights applied against all levels of governments!

Art IV, states, "Full faith and credit shall be given in each State to the public Acts, Records and judicial Proceedings of every other State." AND, "The citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.".

Art VI states, "This Constitution...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.", and further states, "...Senators and Representatives...and all executive and judicial Officers, both of the U.S. and of the several States, shall be bound by Oath or Affirmation, to support this Constitution;..."

I'm no lawyer but I am a College Graduate and that language is quite plain and clear to me. It’s just another example of another branch of government’s corruption and violations of their authority.

The framers of the US Constitution absolutely intended the Judges – whether Federal, State or Municipal Magistrates – to uphold the US Constitution as the “Supreme Law of the Land.” That one statement shoots holes all in the scam known as the “Incorporation Doctrine.” Do the judges really believe the framers were referring to the District of Columbia as “the Land”? Give me a break!

What this means is that if an American citizen is brought before ANY Judge/Magistrate charged with violating a law which “any reasonable person would believe violated any provision of the US Constitution”, the judge is constitutionally obligated to dismiss the charges and free the defendant immediately. An example might be an American charged with “unlawfully possessing a firearm.”

The framers did NOT intend that Americans would be harassed for exercising their rights by having to hire expensive, but mostly incompetent, lawyers to defend them against unconstitutional laws for years and years only to get to the SCOTUS and have them deny hearing the matter. Local judges were intended to be the “line of defense” between an overreaching government and its victims – “the people”.

The corrupt judiciary are tyrants and deserve a tyrant’s due.

Anonymous | June 17, 2009 2:39 PM | Reply

Please tell me Don you didn't write to the NYT guy.

fwb | June 17, 2009 4:47 PM | Reply
Thanks very much for your note. I will be talking with my editors about the characterization of the Chicago laws before the 7th Circuit. As for the question of whether the right was pre-existing or granted by Heller, the right was not recognized by the Court before the case.

Typical uneducated attempt to obfuscate the truth. "The Court has not recognized" is a far cry from the the Constitution or the Court grants. The Court in Cruikshank emphatically stated that the right preexisted the Constitution and would exist even without the 2nd amendment.

Tiocfaidh ar la!

Andy Freeman | June 19, 2009 8:06 AM | Reply

>> Thanks very much for your note. I will be talking with my editors about the characterization of the Chicago laws before the 7th Circuit. As for the question of whether the right was pre-existing or granted by Heller, the right was not recognized by the Court before the case.

>Typical uneducated attempt to obfuscate the truth. "The Court has not recognized" is a far cry from the the Constitution or the Court grants.

True but counterproductive.

The whole pre-existing right argument is rarely a good thing to add to one of these arguments. It doesn't actually matter and it's a huge distraction.

Yes, it doesn't actually matter. The last time I looked there's no special treatment of pre-existing or "God given" rights.

This stuff does not help you persuade these people about gun rights. It merely tells them that you're an "other" that they're trained to ignore. It's dumb to handicap yourself and your argument that way.

As always, the question is whether you want to win or want to rant about moral purity and lose. You can't do both. (You can rant about moral purity and maybe have some effect after you win.)

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