Their decision in the case - that banning gun shows from county property is justified under Heller isn’t one I necessarily agree with, but it certainly seems that weasling out of Heller isn’t going to work in the court system.
I know there isn’t really much of a debate here, but I kind of guessed this would end up in GD. I guess I should ask if any of the non-gun-rights supporters can make a rational argument against incorporating the second, or if any of the pro-gun rights people who are also against substantive due process have any qualms about the second being applied to the states in this way?
Meh. I’m not heartened by any of these decisions, including Heller. So the 2nd confers and individual right and it is binding on the states, but what teeth does it have? It seems that the only thing any court will strike down is an outright and total ban on ownership of handguns. Anything else seems to be a “reasonable” restriction.
Not sure I follow…they said the 2nd is incorporated but that banning gun shows on county property is ok?
Anyway, to your question, I am no fan of gun ownership but the 2nd is there whether I like it or not and as such should be respected. While I think it can and should be read much more narrowly than it has I cannot see how it could not be incorporated against the states. It says the “the right of the people to keep and bear Arms, shall not be infringed.”
Right of the PEOPLE. How could it be otherwise that only the Feds cannot restrict gun ownership but the states could?
Because of some (utterly idiotic) decisions, the Bill of Rights is not held as binding against state action in entirety. Each right has to be individually determined to prevent state action.
There are two different questions the court addressed.
In Heller, the Supreme Court held that the District of Columbia government, a part of the federal government, is bound by the Second Amendment and under the Supreme Court’s analysis, the regulation at issue was invalid because it violated the Second Amendment.
As Heller was a case on the power of the federal government to regulate arms, it did not answer the question of whether a state government could regulate arms without restriction, or whether state governments were restricted by the Second Amendment in what they could legislate. Although most federal Constitutional rights are held “incorporated” in the Fourteenth Amendment, which provides that states cannot restrict the privileges or immunities of citizens nor deprive life, liberty or property without due process of law, some rights are not. Thus, for most (but not all) Constitutional rights, a state government cannot do what the federal government is prohibited from doing (one counterexample would be the Fifth Amendment right to a Grand Jury, which is a federal requirement, but which the courts have held not to be a requirement of the states).
The Ninth Circuit held that under Heller, the Second Amendment was incorporated by the Fourteenth Amendment, so the ordinance of the county government (an arm of the state) prohibiting firearms at the county fairground would have to be analyzed under the Second Amendment and Heller. In other words, if the ordinance violated Heller, it would be found invalid.
Having determined that they needed to do a Heller analysis, the Ninth Circuit proceeded to do so. They found that, given the language in Heller which specified that governments could properly restrict firearms in government buildings, a provision that firearms could not be brought onto a county fairground did not violate the Second Amendment.
I think even gun advocates are ok with prohibitions on carrying guns on school property and in court rooms and such (the SCOTUS is ok with it). How is it any different to say you can’t have a gun in their park? It’s their park, not yours. If you are a local and want that changed then lobby your local government to do so.
The problem was, Whack-a-Mole, that there was a gun show traditionally held on the park. Which was prevented by the ordinance (and some evidence suggests this was the express purpose of the ordinance). Exceptions were also made for groups such as the Hibernian Society to hold reinactments.
And if it is a right, it isn’t simply a matter of saying it’s the county’s park, so they can do what they want. They can’t, for example, stop black people enjoying it.
Well, just because you could do something last year is not an argument for doing it this year.
Seems to me usage of the park is not simply open to anyone who wants to use it. Fill out a form, pay a fee and have at it. Or are they? Do they have no ability to regulate usage of their property and set terms of that use? (I do not know how this works.) Seems they should but then I remember the KKK winning some case ages ago to get the right to march and have a rally despite the city (Skokie in Illinois I think) not wanting them. Then again they restrict the times I can use their property and prohibit me from having alcohol on their property.
What control does a local government have over the usage of their property? What control do you think they should have? Do they have to allow a XXX-Porno Fair?
As for restricting black people the difference there is no one chooses to be black (or white or whatever). You can choose to carry a gun or not.
They have a right to regulate usage of the park. And they even have a right to restrict constitutionally protected activity on the park. For example, they can say no rallies with amplified speech after 7 pm. What they cannot say is no political rallies with amplified speech after 7 pm.
If a constitutionally protected right is to be limited, then certain procedures must be followed. With speech, one of the main requirements is that the restrictions on speech must not be content related. As for your example of an XXX-fair, I would certainly have an issue with it being prohibited if it met otherwise in force laws regarding access of minors/public display. For example, if it were held in a tent, with bouncers requiring ID, I think it would be a constitutional violation for the county to ban it because it was selling pornography (that was not obscene, of course).
Now with guns, the standards are different, and not yet fully developed. You are going to see a lot of cases where the Heller standards are hashed out. I think a blanket ban in parks is not justifiable. One in courts is, and I think one in schools most probably is. But given that individual possession of firearms is now recognized as a constitutionally protected right, and one enforceable against the states, the state needs a much better reason than “because we want to” or “because carrying a gun is a choice” to ban a person from doing it on state property. Preaching religion is a choice, but locking people up for testifying in a public park is more than a little disturbing.