This is the "incorporation" question, and it's raised in Nordyke v. King, a case now pending before the Ninth Circuit; the pro-incorporation and the anti-incorporation briefs are now both available.
Note, though, that the issue in this case relates only to a ban on possession on government-owned nonresidential property: Alameda County banned firearms possession in county-owned "parks, recreational areas, historic sites, parking lots of public buildings (the State prohibits gun possession within the same buildings), and the County fairgrounds." The Ninth Circuit might well conclude that it need not decide whether the Second Amendment is incorporated, because even if it is incorporated it doesn't apply to the government's restrictions on the use of its own nonresidential property.
I'm not sure whether such a result would be right or wrong, but I want to flag the possibility that the Circuit will reach it. The First and Fourth Amendments often (though not always) apply differently to the government as proprietor than to the government as regulator of what happens on private property; likewise as to the right to an abortion; the circuit may well hold that the Second Amendment does so, too, and that it gives the government broad authority to control gun possession.
Note, by the way, that it's also possible that there may be a right to possess a gun in self-defense on government property, but no right to possess a gun for purpose of selling it. (The right to keep and bear arms necessarily includes the right not to have the government stop everyone from selling you such guns, just as the right to use contraceptives includes the right not to have the government stop the sales of contraceptives. But it need not include the right to buy a gun on government property, just as the right to have an abortion does not include the right to get an abortion in a county-owned hospital.)
This is infuriating. First, the SCOTUS doesn't accept any 2A certs for 75 years, allowing the circuits to do as they please. Then, Scalia doesn't announce a standard of review in Heller because he claims that the law in question fails any such standard. Now, we want a simple test case that goes to SCOTUS to decide incorporation and they are going to do the same dodge. I understand the abstract notions of 'case or controversy' as it applies to jurisdiction but it ought to yield, in some practical sense to getting important legal doctrines settled. This ambiguity is killing me.
. The dual questions of incorporation and standard of review in the 2A (which are highly intertwined, IMO -- the more strict the standard, the more likely it is to be incorporated) are, in every sense questions of federal law that should be decided by the court.
Hope springs eternal...
*thud*
No court before the adoption of the 14th ever said the privileges and immunities belonging to United States citizens included any of the first eight amendments. It was universally agreed by all involved that the 14th added nothing new to the privileges and immunities of U.S. citizens... and these P&I's had nothing to do with citizens of under their own state constitutions.
The real problem is that Alameda will probably repeal the regulations just before the court returns their opinion, and thus forestall setting precedent they dislike until they can get more liberal judges on the Supreme Court to stop incorporation. The only laws that will make it to the Supreme Court for incorporation with the court's current composition, are laws that the gun banners can't stand to live without in the interim.
I wish they hadn't compared gun shows to the Highland Games. Alameda County's easiest way out is to ban weapons at the Highland Games.
Don Kilmer is bringing this appeal as a labor of love, I'd guess. He is a graduate of a Calbar accredited law school by the way.
The trial judge denied leave to amend under the holding of Hickman v. Block. (i.e., individuals don't have standing under the Second Amendment.) Assuming arguendo that we ultimately lose the 2A claim because counties can ban gun shows on county property (a proposition that is not a foregone conclusion) the court still has to address the 2A incorporation issues in the context of a motion to amend a complaint.
The First Amendment issues were briefed in a prior filing, the briefs posted herein are supplemental briefs ordered by the court after Heller came down in June.
In fact the county has taken the obtuse position that they are not even trying to ban gun shows, they just insist that gun shows (and sales) take place without guns actually being present at the gun shows or during the sale.
Go figure.
The First amendment reads (in part), "Congress shall make no law . . . ." so it follows that some magic sauce is needed to make it apply to an entity other than Congress, like a state university, right?
But the Second reads (in part), "The right of the people . . . shall not be infringed," without any attempt to enumerate who is constrained from attempting to enact any such infringement.
So why does the Second need help to be "incorporated." Can you explain, please?
2 answers:
1. The Bill of Rights was held inapplicable to the states, in its entirety, under 19th Century pre-civil war caselaw. And it actually makes some sense; while I know the provisions other than the First Amendment don't refer to Congress, it's pretty clear that, for instance, the grand jury clause wasn't intended to bar the states from bring charges on an information or criminal complaint. So, after the 14th Amendment was enacted, what parts of the Bill of Rights would be incorporated became a live issue.
2. Even if your view were accepted, it would still take a court decision to announce it. So, even then, the Second Amendment would need "help" to be incorporated.
The federal bench is a far more reliable guarantor of individual rights than the state bench in almost all regards (VT search and seizure law is one exception I can think of off the top of my head).
You mean like segregation, capital punishment, etc? I'm a seeker of truth, not a seeker of falsehoods.
Also, you might be shocked to find out that they haven't 100% followed my preferred interpretations either.
If, for the sake of argument, one granted that incorporation of the bill of rights against the states is valid, why would granting incorporation against "municipals" (municipalities?) be "more extreme." Aren't municipalities creatures of the state and isn't a state forbidden from delegating/assigning powers it does not possess?
I now return you all your daily court propaganda doctrine discussion.
The libs, however, will be perfectly content to hamstring the second amendment in any way they can. So they will have no problem voting against incorporation even though ordinarily they would have a knee jerk reaction in favor of any sort of incorporation.
As a result, unless Scalia decides to show just how much of a hypocrite he is (and I admit that is possible), I would think that at best there might be a couple of votes in favor of incorporation.
This is an issue where the irony may end up being very startling. If the Court decides in favor of incorporation, it will have to do so with the support of self-proclaimed originalists. If it decides against incorporation, it will be in part because of the complete lack of principles of Stevens/Souter et al...
1. Incorporation's pretty well accepted. There's every reason to think that Scalia, and probably Thomas, will give it stare decisis effect.
2. In any event, there's plenty of historical evidence that the Second Amendment was intended to be incorporated by the Privileges and Immunities Clause of the 14th Amendment.
Long story short, I see no reason why he wouldn't support incorporation of the 2A. Hopefully, he'll have the votes to make it stick.
Raich is the case that makes me think that Scalia might just swallow his principles to get the result he wants. Because its pretty clear he did the same sort of thing there. So you could be right, but if you are, it will be because Scalia is much less principled than he proclaims himself to be.
Do you want the 2A to become incorporated because you think its the correct interpretation of the Constitution, or simply because its the policy you favor?
BS? I'll bet there were some blacks in the south around the time the 14th Amendment was ratified that thought the right to own and carry guns was implicit to the idea of ordered liberty.
On the other hand, Presser says, "the States cannot, even laying the constitutional provision in question out of view, prohibit the people from keeping and bearing arms, so as to deprive the United States of their rightful resource for maintaining the public security, and disable the people from performing their duty to the general government". If citizens are barred from carrying their guns onto government property, including courthouses, then how can they "maintain() the public security" and do their duty?
I propose that the fact that changes to our society may have rendered these duties superfluous does not alter the fact that neither state or federal governments have the power to interfere with the people's ability to perform these duties.
They cannot maintain public security outside the sanction of law. This is why there were militia laws governing the arming of people for security.
The first thing blacks did after the Black Codes Andrew Johnson sanctioned were cast aside was form black militias under state militia laws and armed themselves.
2A would be a relatively straightforward application of the current doctrine on incorporation. With only one exception, it's been a virtually automatic process -- what the BoR forbids to Congress it forbids the States.
Or am I missing something in their argument?
Thanks for the interesting explanations. I'd no idea how recently BofR constraints were extended to the states.
Thanks again.
The County dug up that Scalia quote from his book on constitutional interpretation. They repeat it two or three times in their brief. Of course a judge's extra-judicial writings are not law. So the quote is not intended as constituional authority, but as a way to preempt a conservative justice from taking a position the government opposes by trying to pre-load the hypocricy argument. I don't think that Scalia upholding 14th Amendment Due Process incorporation of the Second Amendment would make him a hypocrite, assuming the issues even gets to SCOTUS.
"Arms control" is just another word for regulation; and regulation does not mean prohibition. Nobody, not even the NRA, makes the argument that guns are not an appropriate item for regulation. "But the enshrinement of constitutional rights necessarily takes certain policy choices off the table." [from the Heller conclusion written by Scalia] That includes irrational prohibitions of the possession and sales of guns at gun shows.
It is clear to me that the County's lawyers have not written a brief to persuade the court. It looks rather like they addressed their brief to their clients. It reads like a homily to gun control activists lamenting the Heller decision who wish it wasn't the law now; but that approach does nothing to address the 14th Amendment issues. They ignore that even their most reliable judge on Second Amendment issues in the Ninth Circuit thinks that 2A incorporation is a forgone conclusion. See: Silveira, 312 F.3d at 1067.
Take a look at the Firearm Owners Protection Act of 1986 for an instance when Congress prohibites States from interfering in the interstate travel of firearm owners traveling with their guns, even if the firearm was illegal in the state the shooter was passing through.
Take a look at the Protection of Lawful Commerce in Arms Act of 2005 in which Congress prohibits federal and state courts from entertaining frivolous lawsuits designed to bankrupt the firearms industry.
Neither act mentions the commerce clause, but both specifically invoke the Second Amendment and declare it to be an individual right.
An honest reading of the 14th Amendment ratification debates and the debates supporting the Freedmans' Bureau Act practically compel support for the proposition that the Second Amendment was specifically intended to extend the "right to keep and bear" arms to newly freed slaves against state and local governments.
Of course it is possible to argue that the South's point of view wasn't well represented in the post-Civil War Congress. That is why state and local goverments in the South enacted the "black codes." Yes, state and local goverments have an ugly history of disarming victims with the wrong skin color and/or the wrong ideas; all the more reason history, constitutional case law and good policy are on the side of Second Amendment incorporation.
Quit reading the holdings of Cruikshank and Presser and read the facts. The Supreme Court's failings in those two cases are as repugnant as the Dred Scot case.
The hypocricy allegation is more appropriately made against modern liberals who want to constrict rights they don't like and expand those they endorse. Go back and read Kozinki's dissent from rehearing en banc in the Silveira case.
And where is the constitutional text for the following rights: privacy, contraception, abortion, parent/child relationship, marriage, sex (of any kind), etc....
A principled liberal (like Stephen Reinhardt) accepts the expansion of rights, once it is recognized as a right. Take a look at his opinion in Silveira, 312 F.3d at 1067.
So at last count we have: the Executive Branch, Congress, and now the Judiical Branch (of the federal govt.) agreeing with more than 3/4 of the States that the Second Amendment protects an individual's "right to keep and bear arms."
14th Amendment due process incorporation of the Second Amendment should be a foregone conclusion.
To keep and bear arms for what? Congress feared blacks would be displaced or abused by white militias and they wanted militia laws to allow for the arming of black militias so they could better protect themselves. The U.S had its own black prohibition to bear arms that they had to remove in 1867.
And it worked... many all black militias were formed under state militia laws.
You keep wanting to argue that Heller was wrongly decided. Get over it.
Glenalxndr's point is the more relevant one:
You also keep missing the point that the 14th Amendment contains language that permits Congress to enact legislation to enforce whatever rights the 14th Amendment now protects against state abridgments.
Is it necessary to list all of the legislation that Congress has enacted that limits state power vis-a-vis the individual rights protected under the federal bill of rights:
Starting with (off the top of my head):
The Civil Rights Act of 1866,
The Civil Rights Act of 1870,
The Civil Rights Act of 1871,
The Freedmans' Bureau Act,
42 USC s 1981,
42 USC s 1983,
42 USC s 1985,
The Civil Rights Act of 1964,
Title VII,
Title IX,
Title X,
Firearm Owners' Protection Act of 1986,
The Protection of Lawful Commerce in Arms Act of 2005,
How about to keep the Klan from lynching their loved ones in the dead of night? Even assuming that a black militia was "a" purpose of the post-civil war legislation outlined above, self-defense was/is an equally valid purpose. Maybe a more important purpose.
And as a practical matter, how do you propose to stop hooded murderers from lynching a man at the nearest tree, while you call for a muster of the local militia so you can retrieve your government issued rifle?
BTW, those black militia policies didn't really help the victims in the Cruikshank case, did they?
J. Aldridge just doesn't like expansive civil rights - including freedom of speech. In fact he has a rather unique view of the entirety of the law...
-Gene
The later civil rights bills mentioned used the commerce clause!
Excerpt from here:
Sen. Reverdy Johnson, considered one of the most ablest constitutional lawyers among congressional members involved in the adoption of the Fourteenth Amendment, was asked during the Joint Select Committee on the Condition of Affairs in the Late Insurrectionary States in 1871 the following:
"[If] a militia company organized in York County, a combination and conspiracy to rob the people of their arms, and to prevent them from keeping and bearing arms furnished to them by the State government. Is not that a conspiracy to defeat the rights of the citizen secured by the Constitution of the United States and guaranteed by the fourteenth amendment?"
Sen Johnson replied:
"What does the Constitution of the United States say about bearing arms? Nothing. What does the fourteenth amendment say upon the same subject? Nothing. The latter is as silent upon the topic as the former, and if the former cause for silence does not cover such a case as this, the latter, for the same reason, does not embrace it. … Has not the State in a case like that the right to take arms from the militia company? I think there can be no doubt of that. And if the right exists to take the arms out of their hands in such a case as that, then it is because the right to bear arms is not a right given by the Constitution of the United States; but exists under the local law of the State."
Also, pretty interesting woman were never allowed bear arms, but they could freely purchase firearms and keep them. Get it?
So what you are saying is that I have been debating an apologist for Leviathon?
I thought we were discussing Congressional intent, not current legal status of Reconstruction legislation.
And went on to say:
Yes, and that was real power grab of the Article I branch. Congress had/has the power under Amendment 14 to do all those things it has done under a "commerce clause" pretext. But here I admit that I am discussing policy/philosophy and not law.
I must be dense, Huh?
Not so. Johnson was not a senator at that time and did not testify before that committee. The report of the Joint Select Committee included transcripts from the South Carolina KKK trials, and Johnson was one of the defense attorneys representing the Klansmen. The question you quoted was not posed to Johnson directly, but was part of the district attorney's argument. Johnson opposed the theory of incorporation as part of the defense theory, which was to reject the idea that the Klansmen could be guilty of conspiring to deny blacks various rights because those rights were not incorporated by the 14th Amendment.