No Cecil said it applies to the states, which is not true. The reason it is not true is because it has not been incorporated.
And your are incorrect in saying that it has not been addreses, it has been addressed, as of today it has not been incorporated. this does not stop it from being incorporated in the future. But as already mentioned, numerous times, as of today it has not been incorproated and applies only to the Federal government.
No, you did take the quote out of context, and in doing so you changed its meaning. “Previous courts reaffirmed X” is very different from simply saying “X,” especially when the subject of X is specifically not being addressed.
Secondly, where in Cecil’s column does he claim that the Second Amendment applies to the states? He made a case for it being so, on the grounds that other amendments are held to apply. He then called the legal precedents “far from clear” and “sparse” which is entirely the truth. If you’re reading something that says the amendment applies against the states, you must be reading a different document.
Just so we’re clear, this is the column I’m reading.
You’ve convinced me. You guys are dense.
From
http://www.law.umkc.edu/faculty/projects/ftrials/conlaw/incorp.htm
http://www.google.com/search?hl=en&rls=com.microsoft%3Aen-us&q=define%3A+reject
Definitions of reject on the Web: refuse to accept or acknowledge
Your playing useless word games without meaning.
yes the first part says that previous courts have re-affirmed, as a result Scalia specifically states that the second ammendment applies only to the federal governemnt. The previous wording is only as to the backing for his statement, his statement however is “the second ammendment applies only to the federal.” The rational for this is irrelevant.
the sky is blue. There is all sorts of reasoning for this, but none if it changes the fact.
I have no argument that the precedents are sparse, they are, the last time the court looked at this was in 1876, that’s sparse in my book. But it is clear that it has not been incorporated. In order for it to be incorporated the Supreme court would have to do so. Please show me where the Supreme court has incorporated the 2nd ammendment. Since you apparently believe it has been incorporated, I’d like to know the bassis for your claim.
:dubious:
I take this simply to mean that almost all of the Bill of Rights has been incorporated. Cecil was using this to suggest that the Second Amendment probably should be applied against the states as well, but he was not suggesting that this was currently the case.
On the contrary, the distinction does have meaning. Or are you suggesting that observing that someone else affirmed something is the same as so affirming yourself? The distinction is not unimportant, nor do I think it is particularly subtle.
No, this is certainly not true, as the simplest analysis of the structure of the sentence will tell you.
“Our later decisions in Presser v. Illinois, 116 U. S. 252,
265 (1886) and Miller v. Texas, 153 U. S. 535, 538 (1894), reaffirmed
that the Second Amendment applies only to the Federal Government.”
All Scalia is saying here is that the named decisions reaffirmed the concept that the Second Amendment applies only to the Federal Government – nothing more. In fact, in specifically stating that incorporation is not at issue in Heller, he is deliberately avoiding making such a statement himself. It is true that the Second Amendment is not yet incorporated. However, the ruling in Heller and Scalia’s words, including the reference to previous cases, have absolutely no bearing upon incorporation.
Please. Nobody here is arguing that the Second Amendment has been incorporated! We’ve said this multiple times - see my post and Bricker’s. Where do you get the idea that we’re claiming the 2nd to be incorporated?
Cecil is talking about all of the non second amendments in the Bill of Rights, as is indicated by the word “other”.
He seems to be arguing in favor of the same treatment for the second amendment, which seems to imply that he (Cecil, the author of the quote) feels that it is in effect not currently treated as being incorporated.
I think you may have misinterpreted that…
Then what is it you are arguing? My only argument is that it has not been incorporated, you seem to disagree with me, since its an either or proposition if you disagree with me then you must take the opposite side.
I never said that the Heller case affected incorporation, please show where I stated this if you are to hold this position, it was not incorporated before, with no change to that status due to Heller it remains un-incorporated, as Scalia said.
I completely disagree with your interpretation of Cecil’'s comment. Cecil was arguing against those that say the 2nd does not apply to the states, he used in his arguent against that statement <paraphrasing> of course it does, the 1st applys to the states doesn’t it?</paraphrase> this is not a valid argument, since the test of whether or not an ammendment applies to the states is incoporporation, which the 1st has been, and the 2nd has not.
Cecil is talking about here and now, not the future, the 2nd DOES NOT apply to the states until incorporation, that argument is not valid.
Heller has no effect on any gun bans outside of DC. T take down those gun bans, we first have fight them at the individual state constitution level. If upheld there, then it needs to be taken to federal court. Where, hopefully, we can finally get what the people of the US deserve, and that is full incorporation of the 2nd.
But as a point of law the 2nd does not apply to the states as of this date, meanwhile the 1st does apply, Cecil comparing the two in his article is incorrect.
And thankfully my state constitution has a clear and un ambiguous right to bear arms, guaranteeing my freedom, others need to fight for theirs, I would do so but I have no standing.
Your analysis is incorrect. Until the Court says one way or the other, then we cannot know if it is “incorporated.”
The things which are “incorporated” under the meaning of the word “liberty” in the due process clause of the Fourteenth Amendment aren’t just decided upon one day by the Supreme Court. Justice Scalia doesn’t wake up one morning and say, “By gosh, let’s get that pesky right to civil jury trials incorporated today!” What happens is that a case is presented to the Court where a state action contrary to some asserted right is under scrutiny, and the Court then decides if the right in question is a fundamental part of the term “liberty” as used in the Fourteenth Amendment’s due process clause. But they base this upon their understanding of the meaning of “liberty” as that was redefined following the demise of “substantive due process” in the mid-1930s.
So until the Court has the issue before it, it’s not known whether or not it’s an incorporated part of the meaning of “liberty.” Since the Court has never had a Second Amendment case in front of it that addressed the effort of a state to limit a person’s right to keep and bear arms, we have no data on whether or not it’s part of the meaning of “liberty.”
Now as to your assertion that Cecil said that the Second Amendment was incorporated. No, he said nothing of the sort. What he said (in FULL) was:
What he is saying here is that, since almost everything else from the Bill of Rights has been “incorporated,” it’s hard to see how the Second Amendment’s protections wouldn’t be incorporated, too. He is NOT saying that the Court has actually incorporated it. This isn’t that difficult a difference to comprehend, though if you are dense, I suppose it might escape notice.
Part of what you may be failing to understand, SidV, is that this notion of “incorporation” does not mean that, for example, the First Amendment applies to the states. Too many people use this sort of loose language (sometimes even Justices on the Supreme Court! :eek: ). But the first eight amendments apply only to the federal government. So, when the Court in Cruikshank said the Second Amendment applied only to the federal government, they were absolutely correct.
“Incorporation,” however, is the concept that certain of the rights and guarantees found in the Bill of Rights have been “incorporated” into the meaning of the term “liberty” in the due process clause of the Fourteenth Amendment.
The First Amendment, for example, applies only to the federal government. BUT, starting in the 1940s, the Court, looking to replace the failed concept of “substantive due process,” began interpreting the meaning of the word “liberty” to include certain of the guarantees from the Bill of Rights. These include, inter alia, the freedom of speech, the freedom of religion, etc. So when someone says that California, for example, cannot take away your right of free speech, what they are saying is that California is precluded by law from depriving you of “liberty” (meaning the ability to speak freely) without due process (interpreted to mean that they have to have a compelling reason to do it, and they have to use the least restrictive means they can to address that reason). The First Amendment is not being applied.
This is what is left to be decided by the Court after Heller. Cruikshank isn’t on point, because it is from prior to the incorporation doctrine. Miller didn’t touch the issue, because it didn’t have to (and it, too, was decided prior to the incorporation rush). And that’s all Justice Scalia is saying: “we haven’t touched incorporation, and I’m not doing so now, either.”
No frankly, you are the one who is misunderstanding; the first amendment does apply to the states, as do all of the other incorporated amendments. If you think otherwise, please cite a source, any source that says so.
From: Incorporation Doctrine legal definition of Incorporation Doctrine
What I think what you don’t understand is that until the 2nd amendment is incorporated, it isn’t incorporated. Something cannot be before it is. I understand fully how something is incorporated; I also understand that the process has not happened yet. Therefore until the process does happen, it is not incorporated. A case has not been put forth that the court has had to make that decision. So the decision has not been made, so it is not yet incorporated, if it is not yet incorporated, by your definition, then it is not incorporated (man how many times can I say the same thing).
I don’t know why you would think that the court wakes up one day and just decides to incorporate something. That is ludicrous, why would you propose such a thing. Clearly shows you don’t understand the process. Oh wait, you were creating a straw man argument, trying to paint me of having that opinion, so you could knock it down. I said no such thing, please stop trying to say I have said things that I have not, and then argue against things I have not said.
I have said only one thing, the 2nd amendment has not been incorporated. No please tell me why you think this is untrue.
Actually that is a rather poor paraphrasing.
a better paraphrasing would be. “We haven’t ruled on incorporation yet, and we aren’t now because this case did not reference incorporation” Which of course means, that it hasn’t been incorporated yet, the only thing I have been saying all along.
Please stop with the straw man arguments, address only those things that I have said, do not attribute to me opinions which I do not have.
Your density councilor comes from the fact my point was that Cecil compared it to the first, an amendment that has been incorporated. therefore the states cannot pass laws that abridge the first amendment.
States and cities have however passed laws that abridge the second amendment, however this is irrelevant because the 2nd has not yet been incorporated. In DC however it is relevant because DC falls under federal jurisdiction.
Comparing the 1st and the 2nd is an invalid argument at this time, my only point in my original post, one that many here have steadfastly attacked me on, while presenting no evidence to the contrary.
Since you manifestly fail to understand the “incorporation” doctrine, and how it is implemented, I’m not going to bother with further discussion on this topic with you. If you insist upon sticking your finger in your ears and saying, “I’m right, you are wrong!” to everything said to you, there’s not much point in discourse.
If you are truly interested in how “selective incorporation” works (including the fact that the rights are incorporated, but not the Amendments), I recommend going to your library and getting a text on Constitutional Law. Read the part on “due process,” especially the descriptions of “substantive due process” and the aftermath.
Argent? Or 'Merkins in general?
Well, AT was the one who said he was hopping on the first flight over here, so I’m guessing the “don’t want” was specific to him. In general, Brits recognise that some Americans are assholes, and some assholes are Americans, but the one doesn’t imply the other; and there are some Brits who hate all Americans, but the rest of us think they (the haters, not Americans) are eejits.
I understand it just fine. Since you don’t seem to be able to understand what I have said I’m not real sure where to point you to help you with that.
Currently the 2nd is not incorporated, and it needs to be to stop these bans in other parts of the nation. A case needs to be brought to the Supreme Court to do so. Happily a variety of court cases are currently being filed that may do so. This is being done by attorney’s that do understand the situation. Now that we have the Supreme courts position on individual rather than group, hopefully we can get a case to the Supreme Court that will incorporate it.
But this has not happened yet, until we do so all current un-constitutional bans stand on the books.
It really surprises me that a supposed attorney can misunderstand such simple wording here that I have put forward. Happily there are many lawyers including Mr. Mr. Gura and Mr. Neily who understand the situation and are working in our behalf to get this done. Moving forward on incorporation before the court stated an individual right would have been difficult. Luckily things are now in place to move on this.
But it still isn’t done; all bans currently in place are legal, if not constitutional.
Does sadden me that so many here, where I hoped for some intelligence, don’t get it. Nice to see though that Cecil has the right perspective even if he missed a detail.
Moderator’s Warning: SidV, please refrain from insulting other posters in this forum.
SidV, before you utter any more incorrect statements about the meaning of “incorporation,” I suggest that you:
a) read one or two cases where one of the rights found in the Bill of Rights was selectively “incorporated” into the meaning of “liberty” in the due process clause. You might try starting with Gitlow v. New York, 268 U.S. 652 (1925), which was the first case to specifically refer to the fact that a right the Court was considering part of “liberty” in the Fourteenth Amendment was being considered was the same as a right contained in the Bill of Rights. Said the Court:
id. at 664 & 666
Notice the language. The Court did not say that the First Amendment was applicable to the states. It simply incorporated the rights of freedom of speech and the press into the meaning of “liberty,” as that term is used in the Fourteenth Amendment.
In understanding how this is different from actually applying the amendment as a whole, read Hurtado v. California, 110 U.S. 516 (1884), which specifically refused to apply the grand jury clause of the Fifth Amendment to the sates. This has not been reversed. Therefore, it is inaccurate to say that the Fifth Amendment applies to the states, because it does not. All but one of the “rights” protected therein, however, are selectively incorporated into the meaning of “liberty” in the Fourteenth Amendment.
And, lastly, you could read Chicago, B. & Q. R.R. Co. v. City of Chicago, 166 U.S. 226 (1897), where the Supreme Court held that states could not take private property for public use without just compensation. The Court did not state that it was applying the similar provision of the Fifth Amendment; it simply stated that the due process clause protected private citizens from such state action. The lesson from this case is that the term “liberty” in the Fourteenth Amendment contains protections that are independent of the Bill of Rights. Some things you are protected from the federal government doing, you are not protected from state governments doing, and some things the states cannot do as violative of due process, the federal government may well be able to do.
As my Constitutional Law text put it (Nowack, Rotunda & Young, authors),
So, sir, you are wrong in your assertions. Justice Scalia’s statements in Heller are spot on in this regard.
Again, read what I have said, not what you think I am saying.
I have never once disagreed with, in any way, anything said in Heller.
Just the fact that you think I disagree with him, shows how little you understand what I have said. My comment was to agree with Scalia’s comment, not to disagree with. I don’t know why you continue to argue with me on this point.
Your disseratation on incorporation also shows how little you understand what I have said, not with some pre-conceived notion you have of what I said.
Please re-read my comments and if you want to respond to me, respond to what I said, not to what you think I said.
Your points are completely off mark.
To clarify, I don’t disagree wth anything said in the majority opinion.
There is plenty I disagree with in the dissenting opinion.
I did not say you were in agreement with anything with regard to Heller. I said that Justice Scalia’s notation on incorporation is precisely correct, because he notes that Cruikshank said that the Second Amendment only applies to the federal government, and that Presser and Miller agreed with this, but that this doesn’t address whether or not states can violate the “right to keep and bear arms,” since that issue has yet to be addressed by the Court since it began analyzing the due process clause of the Fourteenth Amendment through the lens of “selective incorporation.”
YOU, however, have asserted that “the first amendment does apply to the states, as do all of the other incorporated amendments.” This is an incorrect statement. It makes the fundamental mistake of equating the incorporation of the rights protected by the amendments that make up the Bill of Rights with the application of the amendments themselves against the states. It is this fundamental error of Constitutional Law that I have been asserting since post #88 makes your statements about the “incorporation” of the Second Amendment incorrect.
To wit: The Supreme Court has not directly addressed the issue of whether or not “liberty” as used in the 14th Amendment includes a “right to keep and bear arms,” as protected from infringement by the federal government in the 2d Amendment. Until that question is presented, we do not know if such a right is “incorporated” into the meaning of “liberty” or not. It may be that it is, in which case the Court will decide that it is when they address the issue (note that I’m not naive enough after Heller to think it won’t be addressed). Or, it may be that it is not, in which case, again, the Court will say so when the issue is presented.
In the meantime, states, state courts, and lower federal courts are free to act however they please on the issue. This means that the Northern District Court of California, for example, would be perfectly free to invalidate a law in San Francisco limiting handgun ownership on the basis that it violates the 14th Amendment. They do not have to wait for the Supreme Court to “incorporate” the Second Amendment’s right.
Cecil was saying that, in his opinion, given the selective incorporation of the rights of the other amendments in the Bill of Rights into the meaning of “liberty” in the 14th Amendment, it seems unlikely that the right to “keep and bear arms” isn’t also a part of the meaning of that word, that is, that it is “incorporated.” He did not state that the Court had addressed the issue. Thus, his statement is not wrong in any way.