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Maryland court refuses to incorporate the 2nd Amendment
News story here. The critical parts of the ruling:
"To begin, we note that there is no Maryland corollary of the federal constitutional right codified in the Second Amendment.*fn4 Furthermore, we have held previously that the Second Amendment is not applicable to the states. See Onderdonk v. Handgun Permit Review Board of Dep't of Public Safety & Correctional Services, 44 Md. App. 132, 135 (1979); see also Scherr v. Handgun Permit Review Bd., 163 Md. App. 417, 443 (2005). This is significant because it means that appellant must hang his musket, so to speak, on Heller's interpretation of the federal constitutional right. Heller filed a lawsuit in U.S. District Court for the District of Columbia seeking to enjoin the city from enforcing the bar on the registration of handguns, the licensing requirement insofar as it prohibited the carrying of a firearm in the home without a license, and the trigger-lock requirement insofar as it prohibited the use of "functional firearms within the home." Heller, 128 S.Ct. at 2788. The Supreme Court held that the Second Amendment guaranteed the individual right to possess and carry weapons in case of confrontation. Id. at 2797. As a consequence of this interpretation, the Court held that the District's ban on handgun possession in the home violated the Second Amendment, as did its prohibition against rendering any firearm operable for the purpose of immediate self-defense, if it is lawfully within the home. Id. at 2822.
Of more immediate concern for the issue before us, and ultimately fatal to appellant's argument, is the fact that the Heller Court reaffirmed the holding in United States v. Cruikshank, 92 U.S. 542 (1875), that "[t]he [S]econd [A]mendment . . . means no more than that it shall not be infringed by Congress." Id. at 553. While parenthetically noting the weakness of Cruikshank's argument regarding non-incorporation of the right, the Court found that its later decisions in Presser v. Illinois, 116 U.S. 252 (1886), and Miller v. Texas, 153 U.S. 535 (1894), reaffirmed that the Second Amendment applies only to the federal government. Heller, 128 S.Ct. at 2813. Appellant can cite to only one case subsequent to Heller in which a court has held that the right established in Heller applies against state and local governments. In that decision, Nordyke v. King, 563 F.3d 439 (9th Cir. 2009), reh'g granted, 575 F.3d 890 (9th Cir. 2009), a panel of judges in the Ninth Circuit held that the right to bear arms was a fundamental right warranting substantive due process protection through the Fourteenth Amendment. However, an en banc rehearing was granted for this case in July with the express instruction that "[t]he three-judge panel opinion shall not be cited as precedent by or to any court of the Ninth Circuit." Nordyke, 575 F.3d at 890. After rehearing the case on September 24, 2009, the Court issued an order postponing judgment until the Supreme Court's disposition of three similar cases which had certiorari petitions pending.
. . . . . . . .
Even if the Second Amendment did apply, it would not invalidate the statute at issue here. CL § 4-203 provides that a person may not "wear, carry, or transport a handgun, whether concealed or open, on or about the person" or "in a vehicle traveling on a road or parking lot generally used by the public, highway, waterway, or airway of the State." CL § 4-203(a)(i), id. at (a)(ii). This blanket prohibition is modified by subsection b of the statute, which provides eight exceptions to the general rule outlined above. One of these exceptions is for possession of a gun by a person on real estate that the person owns or leases or where the person resides. CL § 4-203(b)(6). Thus, even if the right articulated in Heller, namely the right to keep and bear arms in the home for the purpose of immediate self-defense, were to apply to the citizens of Maryland, this statute does not infringe upon that right."
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This is what you get when a judge, ignorant of the Constitution , "interprets", contrary to any logical understanding of our form of government, i.e. fundamental law theory wherein the subordinate cannot define the superior, that Constitution. Judge Marshall was doing his damnedest to undo what the Framers has done in creating a limited weak federal government. Rawle stated it, the Constitution states it: The BoR applies to the States regardless of the ignorance of the judiciary. Other than the First Amendment, which is solely a federal proscription, all the other amendments bind ALL governments. To say differently is to not grasp the differentiation of the First Amendment from the others. Because the Constitution is the Supreme Law of the Land, any clauses not explicitly written to limit applicability can only logically be held to be binding on all governmental bodies.
Power corrupts and absolute power corrupts absolutely.
RE: the 14th. Contrary to Court decisions and too many people wrong reading, the 14th was/is not about Rights. It is about privileges and immunities. There is a great difference between Rights and P&I. Rights are endowed by THE Creator and are inalienable. P&I are controllable by government. Reread the 14th. Look at what is says. It DOES NOT say Rights. It says privileges and immunities. So when one uses the 14th one agrees that the the government can control "rights" because one is talking about P&I not the Rights of the BoR.
BTW: As I go back and read through the Heller decision, it is clearly apparent, that the meanings of "bear" will come into full question upon successful incorporation.
As Justice Scalia so carefully iterates in his majority opinion, "bear" means to wear about the person or carry for the purpose of offense or defense. Further, Scalia notates that even the liberal justices acknowledge the general meaning of the word "bear" in the context of the 2A.
Additionally, Scalia also notes that at the time of founding, the right had become "fundamental" for English subjects. This is one of the big issues with the incorporation litmus test, and one that has already been proven in Heller by dicta.
From the majority opinion: "As the most important early American edition of Blackstone’s Commentaries (by the law professor and former
Antifederalist St. George Tucker) made clear in the notes to the description of the arms right, Americans understood the “right of self-preservation” as permitting a citizen to
“repe[l] force by force” when “the intervention of society in his behalf, may be too late to prevent an injury.”" This obviously, showing that most believed it a fundamental right to not only own, but to carry, for personal defense, their weapons. This "dicta" further illustrates that the Maryland Special Court of Appeals fails to rule properly on the true meaning of the 2A. However, I can understand them refusing to affirm such rights, until SCOTUS has ruled on in themselves, especially in this backwards state.
Scalia even went further to illustrate that other states (our northern neighbor Pennsylvania, and further north Vermont) make no mention of militia service for such display of arms.
As I see this, the Chicago case (McDonald v. City of Chicago) will probably go in favor of the plaintiff and thus incorporate the individual right to apply to the states and municipalities. The next legal challenge will be over reasonable restrictions. Considering the Heller opinion ideals portrayed above, it'll be yet another, interesting legal fight, which means, our best prayer for relief, should be the legislative process to change the law!
Thats an, ah... interesting interpertation of the Heller decision...
Does the same logic hold for the 13th amendment?
Do all 50 states have prohibition against slavery in their state
constitutions? I do not know, but perhaps Hawaii or Alaska
does not, being very late at statehood.
Reread the 13th. You can be sentenced to slavery if you have
committed a crime. Can Maryland ignore the federal law and
decide that without being convicted of a crime, one-handed
people are made slaves? What about people with a certain
skin color?
Or does the 14th bind the 13th to the states?
Regarding the argument that the Bill of Rights was originally intended to limit the states, there is considerable historical evidence to the contrary.
The first attempt to obtain a Bill of Rights as part of the U.S. Constitution occurred in the Federal Convention and came from George Mason, author of Virginia's 1776 Declaration of Rights, America's first such Declaration. Mason wanted the protections found in the state bills of rights to be placed in the Constitution because the new government's powers endangered those rights. There was no indication whatever in this situation that such a Federal Bill of Rights apply to the states. Most of the states had their own bill of rights. Some did not.
Mason was a major player in obtaining the current U.S. Bill of Rights. That he proposed the model for the U.S. Bill of Rights in the Virginia Ratifying Convention with any intention of limiting state governments is not supported by a single piece of period evidence I am aware of.
Madison voted for Virginia's proposed Bill of Rights for the Constitution and also promised to support addition of its provisions in the future (he went on to Congress and carried out his promise).
All of the amendments Madison took to Congress came from those proposed by the Virginia Ratifying Convention except one. That was a provision protecting freedom of religion, freedom of the press, and jury trials in criminal cases from violation by the state governments. It had not been requested by any state ratifying convention and it did not pass Congress. Also, this provision indicates that the protection of freedom of religion and the press elsewhere in Madison's proposals, which did not have language specifying limtis on Congress at that time, had nothing to do with limting the states.
Most of Madison's individual rights protections, including the Second Amendment predecessor, were to be inserted into the Constitution in Article 1, Section 9, which specifically contains limits upon the Federal government. This clearly indicates there was no intention for them to apply to the states even though none of them specified what governmental entity was being limited.
The article specifying limitation (re: religion, the press, and criminal jury trials) on the states mentioned above was to be inserted in Article 1, Section 10, which contains the Constitution's limtis on state authority.
The alteration of the amendments in Congress appending them as a list at the end of the Consitution and specifying Congress in the First Amendment's language both occurred later in House action on the amendments. There is no evidence that it was the intention of Congress in making these changes to alter the application of the amendments by extending them to include limiting the states. It is inconceivable that such a major change of intent would pass by unnoticed and unmentioned in Congress.
Today, the wording of the Frist Amendment may invite some to decide that all the other rights protections were intended to limit the states and this may seem like a logical argument. The history uniformly contradicts that interpretation, however.
Interestingly, Madison noted, I beleive in a letter of the period, that the alteration adding the amendments as a list appended to the end of the Constitution would probably produce some ambiguities regarding their intent. This current argument is one that results from those ambiguities.
The very clear developmental history of the amendments make understanding their intent much more clear.
Also, a comment regarding the privileges and/or immunities language used in American constitutional and other early documents. My research indicates such terminolgy, as used by George Mason for example, was merely intended as a way of expressing all rights in different language.
Read the period sources. No one has ever regretted doing so. And, as I always like to emphasize, since they are written in English, you don't even have to learn a foreign language to do so.
How is that legal, i though there was a Federal law that gave safe passage to people with fire arms(86 law right?) how could they say you cant "provides that a person may not "wear, carry, or transport a handgun, whether concealed or open, on or about the person" or "in a vehicle traveling on a road or parking lot generally used by the public, highway, waterway, or airway of the State."
I thought as a gun owner you were protected if you were legal where you started out, your house, and legal where you ended up, i.e. the range? how are you to transport the firearm if you cant have it on your person or in a vehicle on the roads?
Until incorporation of the 2A has been decided, MD stands on the argument that the 2 A does not apply.
As to carry it does and has always allowed the ability to carry on private property and at a business for the owner.
MD just disallows public carry unless one has a permit. Getting MD to must issue versus maybe issue is the proper tactic in MD. That will be a long hard road to get through the MD state House which is majority Democratic. So far MD has been stalemated on guns. No pro gun laws and no anti guns laws.
Hopefully incorporation will occurr and get leglislation in MD to allow public carry.
Getting wins in courts are iffy and depend too much on the judge. Vote in pro gun delegates and get it through the law is better.
That is how CCW has been done in most of the states.
From the Constition of Maryland
Art. 2. The Constitution of the United States, and the Laws made, or which shall be made, in pursuance thereof, and all Treaties made, or which shall be made, under the authority of the United States, are, and shall be the Supreme Law of the State; and the Judges of this State, and all the People of this State, are, and shall be bound thereby; anything in the Constitution or Law of this State to the contrary notwithstanding
How can any judge in Maryland claim that the 2nd amendment is not incorporated and applicable in Maryland given this unambiguous statement?
MD Constitution: Art. 44. That the provisions of the Constitution of the United States, and of this State, apply, as well in time of war, as
in time of peace; and any departure therefrom, or violation thereof, under the plea of necessity, or any other plea, is subversive of good
Government, and tends to anarchy and despotism.
Key words " provisions of the Constitution of
the United States, and of this State, apply" The 2nd Amendment applies because MD's Constitution also says so.
My comment to the CBS story:
Three points:
In the 2nd Amendment there is a period located immediately after the word "infringed". That period cannot be debated.
Heller confirmed the individual right, as opposed to a collective right, to keep and bear arms.
The 14th Amendment was written to forbid government, specifically state governments and subdivisions of the state governments, from denying rights to citizens of the United States. Read it. It is written in plain easily understandable English.
Additionally, hungry, NOTHING in the US Constitution has been rendered "unnecessary" except for the prohibition amendment and it took another amendment to achieve that end.
W-III