pageok
pageok
pageok
"The Fact That Citizens Have a Constitutional Right To Bear Arms":

My post below about yesterday's Washington Supreme Court case reminded me that a week before the Kentucky Supreme Court expressed the same view:

Moreover, the statute provides that personal property is merely subject to forfeiture, meaning that the Commonwealth's argument in favor of automatic forfeiture [of the firearms] cannot be correct, especially in light of the fact that citizens have a constitutional right to bear arms and a right to due process of law. [Footnote: Ky. Const. ยงยง 1(7), 11; U.S. Const. amend. II, V, and XIV.]

Brewer v. Commonwealth, 2006 WL 3386645, *3 & n.5 (Nov. 22, 2006).

I should note that the dominant view in state courts remains that the Second Amendment is not applicable to the states, whether or not it secures an individual right. See Brewer v. State, 2006 WL 3345162, *2 (Ga. Nov. 20, 2006). The Court had indeed so held in the late 1800s, at a time when it was holding that most of the other Bill of Rights provisions don't apply to the states, even via the Bill of Rights. The leading case on this is United States v. Cruikshank, a 1875 case that held that neither the First nor the Second Amendments applied to the states; the Court reversed course on this in the 1920s and 1930s as to the First Amendment, but it hasn't revisited this question since 1900 as to the Second Amendment.

Kevin Baker (mail) (www):
12.1.2006 9:00pm
Clayton E. Cramer (mail) (www):
What is really astonishing is that almost all state courts that have considered the question have acknowledged that the Second Amendment protects an individual right. It might only limit the federal government, or it might allow of such substantial regulation as to render the right somewhat limited, but the idea popular in the federal courts--that the Second Amendment does not protect an individual right--has never been widely accepted by state courts. When I wrote For the Defense of Themselves, I was able to find a total of ten decisions of both federal and state courts that denied that the Second Amendment protected an individual right--and hundreds that found otherwise.
12.2.2006 12:50am
kentuckyliz (mail) (www):
The last legislative session, a new law passed and is now enacted that stands up against the "duty to retreat" when faced with an attacker/invader of one's home and automobile, in defense of person and property.

So yes...we citizens of the Commonwealth can pack heat and use it.
12.2.2006 9:03am
Peter Wimsey:
The last legislative session, a new law passed and is now enacted that stands up against the "duty to retreat" when faced with an attacker/invader of one's home and automobile, in defense of person and property.



I'm curious - did Ky previously have a "duty to retreat?" I ask because at least some states (i.e., Ind.) have recently passed no duty to retreat bills notwithstanding the fact that those states have never had a duty to retreat. And Ky. doesn't strike me as a "duty to retreat" state.
12.2.2006 12:12pm
M.E.Butler (mail):
It's been 25 years since law school, but I don't believe that there was at common law a duty to retreat in one's home. Outside the home, perhaps. But not at home.

Prof. Volokh: "applicated"??? You've been reading too many law reviews. [EV: Whoops -- thanks, corrected it.]
12.2.2006 10:14pm