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Total baloney. "Incorporation" is baloney (I agree with you on that), and so is the idea that the Second Amendment doesn't apply to State government. The First Amendment talks about what Congress can't do; the Second Amendment is in the passive voice with no implied subject: "shall not be infringed".
Prior to Incorporation, the 2nd Amendment absolutely DID NOT apply to the States:
"The second amendment declares that it [the right to bear arms] shall not be infringed; but this, as has been seen, means no more than that it shall not be infringed by Congress. This is one of the amendments that has no other effect than to restrict the powers of the national government"
- The Supreme Court a long time ago, prior to Incorporation
None of the Bill of Rights Amendments did:
"The first amendment to the Constitution prohibits Congress from abridging ‘the right of the people to assemble and to petition the government for a redress of grievances.’ This, like the other amendments proposed and adopted at the same time, was not intended to limit the powers of the State governments in respect to their own citizens, but to operate upon the National government alone."
- The Supreme Court, from the same case quoted earlier
I just browsed through the California State Constitution.
I could find no mention of any "right to keep and bear arms".
If it is there, would somebody please point it out to me?
If it isn't there, that's just another reason for me to NEVER move to California!
Of course, for SOME people, that would be a GOOD reason TO move there!
The California Constitution actually defines it better than the US constitution does.
CALIFORNIA CONSTITUTION ARTICLE 1 DECLARATION OF RIGHTS SECTION 1. All people are by nature free and independent and have inalienable rights. Among these are enjoying and defending life and liberty, acquiring, possessing, and protecting property, and pursuing and obtaining safety, happiness, and privacy. All people have the inalienable rights to:
defend life,
protect property, and,
pursue safety.
A right which is fettered with unreasonable restrictions and infringements on its exercise is no right at all, hence we can reasonably assume that the People of California would not intend that a person be prevented from preparing, equipping and training themselves to exercise these rights to the best of their abilities and as their condition allows.
Therefore, it is submitted that the following amendment be made to the California State Constitution to clarify this intent: add the following section to Article 1:
CALIFORNIA CONSTITUTION ARTICLE 1 DECLARATION OF RIGHTS SECTION 32.
The right of the People of the State of California to keep and bear arms shall not be infringed.
(a) No article, section or clause of this constitution nor law, statute or rule shall infringe a lawful persons right to buy, sell, transfer, own, possess, manufacture, carry or use arms and/or their ammunition or any other components necessary for their operation, possession or carriage.
(b) Any article, section, clause, law, statue or rule in contravention of Section 32 shall be considered null and void and without effect.
(c) It is the intent of this section to preempt all state laws and legislation and that this section occupies the field of arms related regulation in California
(d) The presence of arms during commission of an unlawful act does not provide any shield or immunity by virtue of this section to any person for the criminal or civil liability of said unlawful act.
Here’s the key part of Judge Diarmuid O’Scannlain’s opinion:
We therefore conclude that the right to keep and bear arms is “deeply rooted in this Nation’s history and tradition.” Colonial revolutionaries, the Founders, and a host of commentators and lawmakers living during the first one hundred years of the Republic all insisted on the fundamental nature of the right. It has long been regarded as the “true palladium of liberty.” Colonists relied on it to assert and to win their independence, and the victorious Union sought to prevent a recalcitrant South from abridging it less than a century later. The crucial role this deeply rooted right has played in our birth and history compels us to recognize that it is indeed fundamental, that it is necessary to the Anglo-American conception of ordered liberty that we have inherited. We are therefore persuaded that the Due Process Clause of the Fourteenth Amendment incorporates the Second Amendment and applies it against the states and local governments.
Another victory of Federal power over State's rights and sovereignty.
Um no, this is about individual rights guaranteed by the Constitution. The Constitution is the law of the land, it can't be preempted by any part of government whether it's Federal, State or local. .
Um no, this is about individual rights guaranteed by the Constitution. The Constitution is the law of the land, it can't be preempted by any part of government whether it's Federal, State or local. .
So you're an Uncle Tom conservative who cheered at the Federal power grab and usurpation of States' rights and sovereignty under the so-called "Incorporation Doctrine."
So you're an Uncle Tom conservative who cheered at the Federal power grab and usurpation of States' rights and sovereignty under the so-called "Incorporation Doctrine."
Why do you keep calling people Uncle Tom?
Do you get this upset about the south not being able to succeed from the union as well?
So you're an Uncle Tom conservative who cheered at the Federal power grab and usurpation of States' rights and sovereignty under the so-called "Incorporation Doctrine."
This is not a Federal vs. States issue, this is an individual vs. <insert any government entity> issue. Nor is this a Federal power grab, it's the exact opposite because it's an individual power grab. The individual rights we enjoy are paramount if you want a free country.
You'd be singing a different tune if California were trying to make it impossible to obtain a printing press.
Without the diminishment of State Rights and the expansion of Federal Control under the 14th Amendment, the 2nd Amendment would not and could not apply to the States, and laws like the California one here could not be struck down by Federal Courts.
I wonder how many people realize that it was only in 2010 - yes, you heard me right, 2010 - that the 2nd Amendment was deemed to apply to the States as well as the Federal government.
You act as if California was in a vacuum, innocently acting all on its own, in some sort of "state's right" purity before it was befouled by federal law interference (McDonald v Chicago).
Problem with that is that California, without a RKBA provision in its own constitution, just lazily relied on 1942 and later, lower federal court "collective right" decisions to sustain its unconstitutional gun control laws (Cases, Tot, Warin, Hickman etc).
I don't see you complaining about that federal pollution of California right to arms jurisprudence which resulted in illegitimate legal finality, leaving the citizen without any means of appeal. Once the 9th spoke in Hickman v Block (1996), the illegitimate perversion flowing from the federal courts known as the "state's right" interpretation was set in stone and served to destroy any and all citizen claims of ANY arms rights in California (because dispensing with citizen rights claims --even under state law-- was then as simple as the denial of standing, no merits need ever be heard).
You fail to recognize that even without "incorporation" by SCOTUS, the illegitimate federal reasoning that California used to sustain their state gun laws would be invalidated with any simple "individual right" holding by SCOTUS, because California leaned on the 9th Circuit with no other reasoning to fall back on.
Even before McDonald, the 9th Circuit recognized that Heller invalidated Hickman:
.
". . . we must first decide whether Heller abrogated Hickman. It did. Hickman rested on our conclusion that the Second Amendment protects only a collective right; Heller squarely overruled such conclusion. . . . Thus the basis for Hickman’s holding has evaporated, and the opinion is clearly irreconcilable with Heller. In such circumstances, we consider our prior decision abrogated by higher authority."
Nordyke v King, (April 20, 2009)
.
You can protest all you want about "incorporation" but the incorrect, illegitimate, unconstitutional basis for upholding California's "state's right" experiment with draconian gun control was/is going to fail because it so heavily relied on completely invalid FEDERAL reasoning to sustain it.
What's wrong is wrong and even without McDonald it would have crumbled . . .
Last edited by Jeerleader; 03-06-2014 at 03:12 AM..
In the end the 9th followed the earlier precedent set by the Supreme Court which is what they are supposed to do.
Well, that's kind of a cryptic statement. It is unclear whether you are speaking about before Heller (thus perpetuating a myth) or post Heller (thus agreeing with me ) so I'll just go out on a limb and make a definitive, unambiguous statement . . .
SCOTUS has never embraced, in any manner, any variation of the "militia right", "state's right" or "collective right" interpretations.
The 1st and 3rd Circuits went off the rails in 1942, dismissing and ignoring SCOTUS, inserting those interpretations in the federal courts in U.S. v. Tot, 131 F.2d 261 (3rd Cir. 1942) and Cases v. U.S, 131 F.2d 916 (1 st Cir. 1942).
All SCOTUS did in Heller was slap the lower federal courts back into the constitutional fold.
Well, that's kind of a cryptic statement. It is unclear whether you are speaking about before Heller (thus perpetuating a myth) or post Heller (thus agreeing with me ) so I'll just go out on a limb and make a definitive, unambiguous statement . . .
Sorry, my quote was just a general statement that wasn't addressing what you said.
Last edited by pknopp; 03-06-2014 at 02:59 AM..
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) so I'll just go out on a limb and make a definitive, unambiguous statement . . . 