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Seventh Circuit Rules That, Under Supreme Court Precedent, the Second Amendment Is Not Incorporated Against the States:

The case is NRA v. City of Chicago, the challenge to the Chicago handgun ban. The core argument:

Cruikshank, Presser, and Miller [v. Texas] [late 1800s Supreme Court precedents -EV] rejected arguments [for applying the Second Amendment to the states -EV] that depended on the privileges and immunities clause of the fourteenth amendment. The Slaughter-House Cases, 83 U.S. (16 Wall.) 36 (1873), holds that the privileges and immunities clause does not apply the Bill of Rights, en bloc, to the states.... [P]laintiffs contend that we may use the Court's "selective incorporation" approach to the second amendment. Cruikshank, Presser, and Miller did not consider that possibility, which had yet to be devised when those decisions were rendered. Plaintiffs ask us to follow Nordyke v. King, 563 F.3d 439 (9th Cir. 2009), which concluded that Cruikshank, Presser, and Miller may be bypassed as fossils.... Another court of appeals has concluded that Cruikshank, Presser, and Miller still control even though their reasoning is obsolete. Maloney v. Cuomo, 554 F.3d 56 (2d Cir. 2009) [that's the nunchaku case in which Judge Sotomayor was on the panel -EV]. We agree with Maloney ....

Repeatedly, in decisions that no one thinks fossilized, the Justices have directed trial and appellate judges to implement the Supreme Court's holdings even if the reasoning in later opinions has undermined their rationale. "If a precedent of this Court has direct application in a case, yet appears to rest on reasons rejected in some other line of decisions, the Court of Appeals should follow the case which directly controls, leaving to this Court the prerogative of overruling its own decisions." Cruikshank, Presser, and Miller have "direct application in [this] case". Plaintiffs say that a decision of the Supreme Court has "direct application" only if the opinion expressly considers the line of argument that has been offered to support a different approach. Yet few opinions address the ground that later opinions deem sufficient to reach a different result. If a court of appeals could disregard a decision of the Supreme Court by identifying, and accepting, one or another contention not expressly addressed by the Justices, the Court's decisions could be circumvented with ease. They would bind only judges too dim-witted to come up with a novel argument.

Anyone who doubts that Cruikshank, Presser, and Miller have "direct application in [this] case" need only read footnote 23 in Heller. It says that Presser and Miller "reaffirmed [Cruikshank's holding] that the Second Amendment applies only to the Federal Government." The Court did not say that Cruikshank, Presser, and Miller rejected a particular argument for applying the second amendment to the states. It said that they hold "that the Second Amendment applies only to the Federal Government." The Court added that "Cruikshank's continuing validity on incorporation" is "a question not presented by this case." That does not license the inferior courts to go their own ways; it just notes that Cruikshank is open to reexamination by the Justices themselves when the time comes. If a court of appeals may strike off on its own, this not only undermines the uniformity of national law but also may compel the Justices to grant certiorari before they think the question ripe for decision. State Oil Co. v. Khan, 522 U.S. 3 (1997), illustrates the proper relation between the Supreme Court and a court of appeals. After Albrecht v. Herald Co., 390 U.S. 145 (1968), held that antitrust laws condemn all vertical maximum price fixing, other decisions (such as Continental T.V., Inc. v. GTE Sylvania Inc., 433 U.S. 36 (1977)) demolished Albrecht's intellectual underpinning. Meanwhile new economic analysis showed that requiring dealers to charge no more than a prescribed maximum price could benefit consumers, a possibility that Albrecht had not considered. Thus by the time Khan arrived on appeal, Albrecht's rationale had been repudiated by the Justices, and new arguments that the Albrecht opinion did not mention strongly supported an outcome other than the one that Albrecht announced. Nonetheless, we concluded that only the Justices could inter Albrecht. See Khan v. State Oil Co., 93 F.3d 1358 (7th Cir. 1996). By plaintiffs' lights, we should have treated Albrecht as defunct and reached what we deemed a better decision. Instead we pointed out Albrecht's shortcomings while enforcing its holding. The Justices, who overruled Albrecht in a unanimous opinion, said that we had done exactly the right thing, "for it is this Court's prerogative alone to overrule one of its precedents."

I don't think this reasoning (from Judge Frank Easterbrook, joined by Judge Richard Posner and Judge William Bauer) does justice to the plaintiffs' arguments. "Selective incorporation" isn't just a different "line of argument" for incorporation -- it is an argument under a different constitutional clause, the Due Process Clause of the Fourteenth Amendment (something the opinion doesn't mention). The late 1800s cases rejected direct application of the Second Amendment to the states, and incorporation via the Privileges and Immunities Clause of the Fourteenth Amendment. They didn't discuss in any detail whether state restrictions on the right to bear arms were potentially unconstitutional under the Second Amendment as incorporated via the Due Process Clause -- the very clause through which most of the Bill of Rights was later incorporated.

And I know of no precedents holding that lower courts must reject arguments against a statute under one constitutional clause just because similar statutes have been upheld against challenges under a different constitutional clause. Such arguments under different constitutional clauses don't call on the lower court "to overrule one of [the Court's] precedents," because the precedent deals only with an earlier clause. For instance, when the Court held that the mandatory federal Sentencing Guidelines generally violate the Jury Trial Clause, it wasn't overruling its past precedents that upheld the Guidelines against separation of powers challenge; it was considering a different constitutional challenge.

Likewise, when the Court held that closing a criminal trial, even with the defendant's permission, presumptively violated the First Amendment, it wasn't overruling the then-one-year-old precedent that upheld such a closure against a Public Trial Clause challenge. And when the Court held that preferences in city-funded construction contracts for city residents violated the Privileges and Immunities Clause of Article IV, it wasn't overruling the then-one-year-old precedent that upheld such preferences under a Commerce Clause challenge. And lower courts would similarly not have been barred from adopting such arguments, because they wouldn't have been trying to "overrule" a past precedent. See, e.g., Waters v. Churchill, 511 U.S. 661, 678 (1994) (plurality opinion) ("[C]ases cannot be read as foreclosing an argument that they never dealt with.") (citing United States v. L.A. Tucker Truck Lines, Inc., 344 U.S. 33, 38 (1952)); see also Miller v. California Pac. Med. Ctr., 991 F.2d 536, 541 (9th Cir. 1993) ("It is a venerable principle that a court isn't bound by a prior decision that failed to consider an argument or issue the later court finds persuasive.").

Moreover, the Court itself made clear, in roughly the era in which the cited cases were decided, that the two amendments might have separate coverage: "[Defendants] appeal to another clause of the 14th Amendment, and insist that the self-incrimination which they allege the instruction to the jury compelled was a denial of due process of law. This contention requires separate consideration, for it is possible that some of the personal rights safeguarded by the first eight Amendments against national action may also be safeguarded against state action, because a denial of them would be a denial of due process of law." Twining v. New Jersey, 211 U.S. 78, 99 (1908) (since reversed as to the substantive question whether the privilege against self-incrimination should indeed be applicable to the states via the Due Process Clause).

Nor does the quotation from footnote 23 of Heller fully dispose of the plaintiffs' arguments. That "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" doesn't speak to whether the Due Process Clause applies the right to bear arms to state laws, under

This having been said, figuring out the exact scope of the Court's precedents on this matter isn't easy. Heller did start the quoted footnote with the phrase, "With respect to Cruikshank's continuing validity on incorporation, a question not presented by this case, we note that Cruikshank also said that the First Amendment did not apply against the States and did not engage in the sort of Fourteenth Amendment inquiry required by our later cases." This could reasonably be read as saying that Cruikshank was indeed dispositive of the incorporation question (though that it might no longer be valid, which is to say might merit overruling). It also treats the Fourteenth Amendment as a unitary basis for incorporation, rather than treating the two clauses separately. Other Court decisions have likewise spoken in broad terms, see, e.g., Knapp v. Schweitzer, 357 U.S. 371, 378 n.5 (1958) ("By 1900 the applicability of the Bill of Rights to the States had been rejected in cases involving claims based on virtually every provision in the first eight Articles of Amendment," citing among other things Cruikshank as to the "right to keep and bear arms"), overruled as to the substantive question of incorporation of the privilege against incrimination, Murphy v. Waterfront Comm'n, 378 U.S. 52 (1964). (Presser also said in passing that, "The argument of the plaintiff in error that the legislation mentioned deprives him of either life, liberty, or property without due process of law, or that it is a bill of attainder or ex post facto law, is so clearly untenable as to require no discussion," but not having the briefs in front of me it's hard to tell whether this was a rejection of the incorporation-via-due-process argument or of a separate procedural claim.)

So it's not implausible, I think, to treat the Court's precedents as stare decisis on the question of incorporation via the Fourteenth Amendment generally, rather than solely of incorporation via the Privileges or Immunities Clause (though I'd probably be inclined to the other position). But it seems to me that the case is not nearly as clear as the Seventh Circuit's analysis suggests, and that the opinion's not discussing the difference between the two Clauses of the Fourteenth Amendment is a significant weakness.

Nelson Lund (mail):
For further discussion of the inadequacy of the rationale in Easterbrook's opinion, see Anticipating Second Amendment Incorporation: The Role of the Inferior Courts, 59 Syracuse L. Rev. 185 (2008):
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1239422
6.2.2009 1:34pm
zippypinhead:
Wow, THAT was fast... as suggested during oral argument, the Court of Appeals panel pretty much viewed itself as a speed bump on the road to the Supreme Court.

Now a decision for the plaintiffs: Petition for rehearing en banc, essentially making the arguments you make, Professor Volokh, or just file for cert and have at it on the incorporation issue before the Justices? I'd recommend the latter approach, with a suggestion that cert should also be granted in Maloney and that the cases should be consolidated (which might have the side benefit of leading to soon-to-be-Justice Sotomayor being recused as having sat on the lower panel in one of the cases?).
6.2.2009 1:37pm
ruuffles (mail) (www):

ARGUED MAY 26, 2009—DECIDED JUNE 2, 2009

Only a week?

Another court of appeals has concluded that Cruikshank, Presser, and Miller still control even though their reasoning is obsolete. Maloney v. Cuomo, 554 F.3d 56 (2d Cir. 2009). We agree with Maloney, which followed our own decision in Quilici v. Morton Grove, 695 F.2d 261 (7th Cir. 1982).

How about that, two conservative Reagan appointees and one Ford appointee reaching the same conclusion as a racist gun-grabbing Clinton appointee. Sotomayor might be "wrong" after the Supreme Court rules, but not only is she in the mainstream, she's in the conservative mainstream.
6.2.2009 1:37pm
Bart (mail):
Presumably, NRA will immediately petition for cert based upon the conflict between the circuits. Hopefully, the Supremes will take the case next session. I presume a new Justice Sotomayor would then be compelled to recuse herself.
6.2.2009 1:38pm
ruuffles (mail) (www):

I presume a new Justice Sotomayor would then be compelled to recuse herself.

Would that hold true if they only took up the 7th (or 9th) circuit decision, and not the 2nd?
6.2.2009 1:41pm
Bart (mail):
ruufles:

The appalling holding in Maloney is the application of the rational relationship test to an abridgment of a fundamental right.
6.2.2009 1:46pm
CrazyTrain (mail):
" For instance, when the Court held that the mandatory federal Sentencing Guidelines generally violate the Jury Trial Clause, it wasn't overruling its past precedents that upheld the Guidelines against separation of powers challenge; it was considering a different constitutional challenge."

Funny you mention that. Judge Easterbrook dissented on precisely those grounds when the 7th Circuit found the Sentencing Guidelines unconstitutional based on the Jury Clause. Easterbrook said that the 7th Circuit was bound by Mistretta. Posner wrote the lead opinion disagreeing -- wonder why Posner thinks differently for the 2nd Amendment.

The case by the way was US v. Booker, -- http://www.ca7.uscourts.gov/tmp/O01FG2UK.pdf --- which the Supreme Court then took up as the vehicle to examine Blakely's effect on the Sentencing Guidelines.
6.2.2009 1:50pm
hawkins:
Im waiting for the post titled "Easterbrook/Posner/Bauer v. The Second Amendment"
6.2.2009 1:51pm
zippypinhead:
Fascinating opinion - Judge Easterbrook holds up the Seventh Circuit's approach in Kahn v. State Oil and the application of the theoretically-bankrupt per se rule in vertical RPM as the proper way to proceed, noting,
"we concluded that only the Justices could inter Albrecht. . . . Instead we pointed out Albrecht's shortcomings while enforcing its holding. The Justices, who overruled Albrecht in a unanimous opinion, said that we had done exactly the right thing, "for it is this Court's prerogative alone to overrule one of its precedents." 522 U.S. at 20. See also, e.g., Eberhart v. United States, 546 U.S. 12 (2005).
But instead of pointing out Presser's and Cruikshank's "shortcomings," the remainder of the opinion - almost entirely dicta starting at the first full paragraph of the slip op. at 5 - works hard to speculate as to why the Second Amendment might nevertheless properly not be subject to incorporation.

If I were a cynic rather than a pinhead, I might suspect that the panel really meant to pen a "brief in opposition" to the substantive arguments in favor of incorporation set forth in Nordyke for the benefit of the only nine readers who really count (or eight if Sotomayor is recused).
6.2.2009 1:55pm
Kopel's Sock Puppet:
Im waiting for the post titled "Easterbrook/Posner/Bauer v. The Second Amendment"
I'm sure Dave Kopel will get right on it... unless he can think of an even more inflammatory and pejorative title.
6.2.2009 2:02pm
Nunzio:
Does anyone think Easterbrook and Posner are judicial conservatives? Seriously
6.2.2009 2:11pm
ruuffles (mail) (www):

Does anyone think Easterbrook and Posner are judicial conservatives? Seriously

Liberals? Sandra Day O'Connors? Anthony Kennedys? Inquiring minds want to know.
6.2.2009 2:20pm
ruuffles (mail) (www):
Is there a similar case in the more conservative 4th, 5th, or 6th circuits? Or is it only 2nd, 7th, and 9th due to NY, Chicago, and SF?
6.2.2009 2:21pm
Bart (mail):
Many "conservative" jurists believe in stare decisis even when that precedent is contrary to the Constitution.

The 7th Circuit decision appears to fall in this category.
6.2.2009 2:24pm
Anderson (mail):
Im waiting for the post titled "Easterbrook/Posner/Bauer v. The Second Amendment"

They're not wise Latinas.

The irony here, according to Tom Freeland, is that "the two justices most hostile to the incorporation doctrine are Scalia and Thomas." THAT should be an interesting opinion? ... concurrence? ... dissent?
6.2.2009 2:32pm
Anon321:
Setting aside the question of whether we'd like a Justice Sotomayor to recuse herself (because we think her vote would be contrary to gun rights), is it really clear that she'd be obligated to do so, even if Maloney were taken up? It seems that there is a convention for new Justices to recuse themselves when the Court reviews a case coming from a panel on which the Justice sat. But those cases typically involve decisions on the merits, and I take it that the logic of the convention is something like (a) Justices shouldn't pre-judge cases (b) a ruling on the merits indicates that the Justice has already decided the case before briefing and argument. (I could be wrong about this, and I don't particularly find the logic persuasive, but my impression is that this is the reasoning underlying the convention.)

But didn't Maloney just conclude (like NRA v. City of Chicago) that it was not at liberty to consider the merits of the incorporation question? If so, why would it be necessary for Sotomayor to recuse herself? She hasn't already decided that the Second Amendment isn't incorporated; she's merely decided that the incorporation decision was made by the Supreme Court and may only be unmade by the Supreme Court. Even if you think she (and Easterbrook) are wrong about that, why would that a basis for recusal?
6.2.2009 2:38pm
Anderson (mail):
Good logic, Anon.
6.2.2009 2:42pm
Tony Tutins (mail):

Wow, THAT was fast

The decision reads like they wanted to dispose of the case ASAP. You would expect a Posner-Easterbrook opinion to offer a little something for the ages, but not here.

Did Gura write the brief, or someone for the NRA? Putting my conspiracy hat on, I could speculate that incorporating the Second Amendment would be bad for the NRA's cash flow.
6.2.2009 2:47pm
Melancton Smith:
I'm really interested in seeing how SCOTUS can, without appearing to be lunatics, find against McDonald/NRA in this case.

How can they rationally say, on one hand, that the residents of the urban metropolis of DC need the ability to own handguns to defend themselves but the residents of the urban metropolis of Chicago do not?

I know I am not a lawyer, but on some level the law has to make sense.
6.2.2009 2:51pm
Melancton Smith:

Did Gura write the brief, or someone for the NRA? Putting my conspiracy hat on, I could speculate that incorporating the Second Amendment would be bad for the NRA's cash flow.


The NRA filed a pretty good brief, but I feel Gura did the heavy lifting in his briefs and in the oral arguments.

You'd be hard pressed to find it in the various accounts, but there are separate cases, joined together. Gura with backing of the Illinois State Rifle Association and the Second Amendment Foundation filed on behalf of Chicago residents. See http://www.chicagoguncase.com

That said, I disagree with your conspiracy statement. Incorporation only makes the legal challenges more prevalent, which leads to more fund-raising.
6.2.2009 2:54pm
Prof. S. (mail):
The Minnesota Court of Appeals just reached the same conclusion.
6.2.2009 3:00pm
hawkins:

The irony here, according to Tom Freeland, is that "the two justices most hostile to the incorporation doctrine are Scalia and Thomas." THAT should be an interesting opinion? ... concurrence? ... dissent?


If Raich is any indication, one will stick to his principles and the other will not.
6.2.2009 3:07pm
Anon321:
I'm really interested in seeing how SCOTUS can, without appearing to be lunatics, find against McDonald/NRA in this case.

How can they rationally say, on one hand, that the residents of the urban metropolis of DC need the ability to own handguns to defend themselves but the residents of the urban metropolis of Chicago do not?


To oversimplify slightly, it comes down to whether than law in question was passed by the federal government or a state (or local) government, not whether residents of one urban metropolis are in a different position than residents of another. Before the Fourteenth Amendment, the general consensus was that the U.S. Constitution only limited the power of the federal government, not state governments. The District of Columbia, unlike other cities, is under the control of the federal government. So, prior to 1868, if Chicago had passed a law criminalizing speech critical of the mayor, people would have said, "That might be unconstitutional under the Illinois Constitution, but it's not a violation of the First Amendment to the federal Constitution." If D.C. had done likewise, it would have been struck down under the First Amendment. After 1868, people began to debate the extent to which the Fourteenth Amendment had made the Bill of Rights applicable to the states (that is, whether those rights were incorporated). That debate has generated sharp disagreements over the past 140 years, to say the least.

If the Court concludes that the ban is valid, it will be because they decide that the Second Amendment is not incorporated against the states -- meaning that while the federal government cannot infringe the right to keep and bear arms, a state's ability to do so would be limited by its own constitution. Of course, the court would also have to explain why the right isn't a fundamental one protected by Due Process. But my point is that the decision would depend on the fact that, unlike in Heller, the law at issue was passed by a local government, whose actions are less constrained by the federal constitution than the federal government's are.
6.2.2009 3:14pm
Melancton Smith:

If the Court concludes that the ban is valid, it will be because they decide that the Second Amendment is not incorporated against the states -- meaning that while the federal government cannot infringe the right to keep and bear arms, a state's ability to do so would be limited by its own constitution. Of course, the court would also have to explain why the right isn't a fundamental one protected by Due Process. But my point is that the decision would depend on the fact that, unlike in Heller, the law at issue was passed by a local government, whose actions are less constrained by the federal constitution than the federal government's are.


I know that basic Incorporation stuff. My question is, how are the local government of Chicago's interests any different than the local government of DC? Don't both governments provide the same function (or lack thereof) for their residents? Don't both classes of residents have the same inherent rights?

Does the CPD do that much better of a job than the MPD?

What I am saying is you can't square there being two different outcomes and live in a rational world. Such would be utterly ridiculous and could not be allowed to stand.
6.2.2009 3:18pm
cboldt (mail):
-- I know I am not a lawyer, but on some level the law has to make sense. --
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If you don't understand it, it's your fault. The only sense you need to have is the good sense to follow the law as set forth by your betters. Now get back to work.
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Seriously, law is all about power and control. If you had the power and control, you would understand.
6.2.2009 3:23pm
ctd:
It's simply a matter of rejecting a right as "fundamental".
Unintended consequences, of course, follow.
6.2.2009 3:28pm
Tony Tutins (mail):

The Minnesota Court of Appeals just reached the same conclusion.

The plaintiff here fell into an exception acknowledged in Heller. I don't think the Second Amendment protects the right to arms of someone who, as a juvenile, was determined by a judge to have committed a drive-by shooting.
6.2.2009 3:28pm
cboldt (mail):
-- My question is, how are the local government of Chicago's interests any different than the local government of DC? Don't both governments provide the same function (or lack thereof) for their residents? Don't both classes of residents have the same inherent rights? --
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The Court's rationale is that RKBA is not an inherent (fundamental) right. And as discussed in another post, the right to self defense is also possibly not an inherent right. Anyway, since the 2nd affords no protection against state or local governments, one must look to the 14th, which is held to protect ONLY fundamental rights. Other than the limited set of things that represent inherent (fundamental) rights, states and municipalities are encouraged to differ and experiment. What works in DC doesn't necessarily work in Chicago. That people in DC have the direct protection of the Bill of Rights is just their good fortune. The rest of us have to depend on those in power to decide which rights we will have, and which we will not have. That's just the way it it.
6.2.2009 3:29pm
dmv (www):

That people in DC have the direct protection of the Bill of Rights is just their good fortune. The rest of us have to depend on those in power to decide which rights we will have, and which we will not have. That's just the way it it.

And yet, oddly enough, most of us who live in D.C. would rather be living in Maryland or Virginia. ;)
6.2.2009 3:37pm
ctd:
in another post, the right to self defense is also possibly not an inherent right.

Government exists by the consent of the governed. Deny the governed the fundamenal right of self defense, and the consent will evaporate.

These courts are following an extremely dangerous path.
6.2.2009 3:41pm
Greg Dodge:
CrazyTrain re Booker: Easterbrook thoughts Edwards, not Mistretta compelled the conclusion that the Guidelines were constitutional. Posner thought it didn't apply, and the Supre Court agreed. It did not have to be overruled to find the guidelines unconstitutional.
6.2.2009 3:43pm
cboldt (mail):
-- I'm really interested in seeing how SCOTUS can, without appearing to be lunatics, find against McDonald/NRA in this case. --
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It can limit the extent of damage by denying certiorari - give the Circuits more time to develop the underlying issue.
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Nordyke is about whether or not the 2nd amendment provides a right to a gun show - the incorporation doctrine is irrelevant to the outcome. That leaves the other Circuits in agreement as to how to construe Presser (with rhetoric from SCOTUS that appears to support this reading; and no objection as multiple Circuits took up this reading), and thereby find the states empowered to prohibit RKBA, at least for now.
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I don't think the public would be any more upset about it now than it has been in the past. Nobody is affected by withholding a decision, status quo prevails. The legitimacy of the Courts is not in serious question.
6.2.2009 3:48pm
Anon321:
I know that basic Incorporation stuff. My question is, how are the local government of Chicago's interests any different than the local government of DC? Don't both governments provide the same function (or lack thereof) for their residents? Don't both classes of residents have the same inherent rights?

Does the CPD do that much better of a job than the MPD?

What I am saying is you can't square there being two different outcomes and live in a rational world. Such would be utterly ridiculous and could not be allowed to stand.


The argument that D.C. and Chicago provide the same basic functions and that, therefore, the same laws must apply in both places has some intuitive appeal, but is contrary to basic principles of American law. Why is it that a criminal suspect in D.C. is entitled to indictment by grand jury, while a criminal suspect in Chicago is not -- unless IL law provides for it. Or, for that matter, that someone indicted for a federal crime in Chicago is entitled to that right, while someone indicted for a state crime in Chicago is not? We've lived in a world with different outcomes in different cities since the founding without it being utterly ridiculous. In fact, we've even held these differences up as triumphs of federalism and separated powers. It is not absurd to say that the federal government cannot do X, but a state government may be able to (so long as its state constitution allows).
6.2.2009 3:49pm
cboldt (mail):
-- Government exists by the consent of the governed. --
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ROTFL. How quaint. You just try withholding your consent, and see what happens, grasshopper. "Government by the people" is a myth.
6.2.2009 3:49pm
Melancton Smith:

It can limit the extent of damage by denying certiorari - give the Circuits more time to develop the underlying issue.


The 7th treated it like a hot potato...they aren't interested in developing the issue. Ditto the 2nd. Are we supposed to dig up some kind of gun control law in the 5th to challenge?
6.2.2009 4:10pm
cboldt (mail):
-- The 7th treated it like a hot potato...they aren't interested in developing the issue. Ditto the 2nd. --
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My crystal ball says none of them want to develop the issue, and that there is safety in numbers. If all of the Courts "get it wrong," it becomes right. When unconstitutional infringement persists long enough, it becomes constitutional. See treatment of Miller and Presser over the years, and Heller's conclusions (contra Miller) that the 1934 NFA is constitutional. Very few people read the cases cited, let alone analyze if the cases are properly applied.
6.2.2009 4:19pm
Officious Intermeddler:
The court wrote:

Federalism is an older and more deeply rooted tradition than is a right to carry any particular kind of weapon.


O RLY?
6.2.2009 4:30pm
Calderon:
EV -- great post.

Also, did anyone else catch the Anarchy, State, and Utopia cite at the end? I wonder how many times (if ever) that's been cited in judicial opinions.

In any case, moving to the semi-substantive part of this post, I don't think there's any reason to believe that the 7th Circuit spent too little time on this case or treated it as a "hot potato." Easterbrook is the Chief Judge, so he gets first pick in what opinions he wants to write, and could have been working on this opinion for weeks or even a few months. Thus, the period between oral argument and decision doesn't necessarily reflect an unwillingness to delve into the issues. (And he's capable of drafting opinion on PI appeals and so forth in very short time frames anyway) Moreover, most of Easterbrook's opinions tend to be short and to the point without a lot of wasted space or in-depth explanation of his holdings. He states the law and his holdings, and he's done.

I do think he may have wanted to get this opinion out quickly to get his views on the Second Amendment in circulation among the judiciary, and build up support for his view when this issue goes to the Supreme Court, which likely is inevitable. But there's no indication that he or the 7th Circuit panel gave this shorter shrift than they normally would.
6.2.2009 4:39pm
Jim at FSU (mail):
Reading this, I got the distinct impression that they issued an intentionally flawed opinion so the supreme court would be compelled to settle the question. Too much of it seems obviously mistaken or a flight of fancy. Are they trolling the supreme court?

For example, characterizing the incorporation era 14th amendment cases as being a different analytical gloss on the post-war cases (that essentially ignored the 14th amendment) seems supremely disingenuous. It's so obviously wrong that it begs correction.

The hypothetical about states outlawing the use of deadly force in a home seems, quite frankly, to be deranged. It's an irrelevant asspull at best, incompetent lawyering at worst. I also love how they argue backwards- because there are laws that infringe on a right to self defense (by limiting it to non-lethal force), therefore it cannot possibly exist as a constitutionally protected right.

And so on. I'm pretty confident this is a troll. Either they want to provoke a cert petition or they feel one is inevitable so they want to have fun while they're at it.
6.2.2009 4:43pm
Ira Brad Matetsky:
Anon321 et al.:

On the question of recusal, 28 U.S.C. sec 47 provides that "[n]o judge shall hear or determine an appeal from the decision of a case or issue tried by him." (This represented a change from earlier practice in which Supreme Court Justices frequently sat when the Court reviewed their own earlier rulings on circuit.) The provision may not apply literally to a Supreme Court Justice promoted from a Court of Appeals, because the Court of Appeals would not have "tried" the case being reviewed, but nonetheless, no contemporary Justice would sit in review of a decision made by a panel of which he or she was a member. The recusal, however, would apply only to that specific case; it would not extend to another case decided by another circuit or panel raising the same or similar legal issues, and it is possible that the Supreme Court in deciding which case to accept on certiorari would take into account the desirability of having a full bench address the question presented.
6.2.2009 4:50pm
pintler:

It is not absurd to say that the federal government cannot do X, but a state government may be able to (so long as its state constitution allows).


I would posit two reasons why selective incorporation baffles non-lawyers:

1)because it is selective; if none of the Bill of Rights had been incorporated, people wouldn't even talk about their 'First Amendment rights', they would talk about their 'Section 5 rights' (if they were WA residents). Since so much has been incorporated, people assume all of it has, particularly because the parts other than the 2nd that have not been incorporated aren't controversial - no state is trying to quarter troops in private homes, for example. People assumed the 2nd couldn't be used against the states because the meaning of the 2nd was in dispute; with the meaning clarified, people expect it to apply to the states.

2)The legal differences between states tend to be minor - the speed limit or drinking age may be a little different, or the law of self defense may be more or less restrictive, but gun laws vary dramatically - what is perfectly legal in one state may not be legal at all in another. When there are large differences between states (e.g. WA state only recently outlawed sex with animals, following a much publicized incident), the numbers of people affected (e.g. heterospeciests) is small. I think most non lawyers view things like whether a grand jury is required as minor procedural differences. Gun laws have large differences between states, and affect a broad swath of the population.


Gun laws also have drastic differences in consequences - what is perfectly legal in one state may be a felony in the next. If I go to a neighboring state and run a red light, the ticket may be more or less than in my home state; if I take a gun there that is perfectly legal at home I might get a multi year mandatory minimum.
6.2.2009 4:52pm
NaG (mail):
Seems to me that the panel simply wanted to get this opinion out as soon as possible so that it can be sent to the U.S. Supreme Court for a definitive ruling on the incorporation issue.

For what it's worth, I think this ruling is correct in that a circuit appeals court cannot anticipate what the Justices are going to overrule. I also think Prof. Volokh is correct that this opinion gives extremely short shrift to the plaintiff's arguments. However, that may be because Chief Judge Easterbrook wasn't interested in providing ammunition to the Justices that might want to rule against incorporation. Just get it in front of SCOTUS and let them make the call.
6.2.2009 4:53pm
Gene Hoffman (mail) (www):
Because the point of the 14th Amendment was to continue to allow states and cities to disarm freedmen!

-Gene
6.2.2009 4:57pm
cboldt (mail):
-- Either they want to provoke a cert petition or they feel one is inevitable --
.
A cert petition was inevitable regardless of which way the appeal ran. There will a petition for rehearing, then a petition for cert.
.
I think the more interesting speculation is along the lines of whether or not SCOTUS will grant cert. As I noted above, I don't think it will.
6.2.2009 5:06pm
Applekeys:
Calderon: I agree with several things you mentioned.


Also, did anyone else catch the Anarchy, State, and Utopia cite at the end? I wonder how many times (if ever) that's been cited in judicial opinions.


I caught that too. That's really funny. I enjoyed it for the "laboratories" discussion.



In any case, moving to the semi-substantive part of this post, I don't think there's any reason to believe that the 7th Circuit spent too little time on this case or treated it as a "hot potato." Easterbrook is the Chief Judge, so he gets first pick in what opinions he wants to write, and could have been working on this opinion for weeks or even a few months. Thus, the period between oral argument and decision doesn't necessarily reflect an unwillingness to delve into the issues. (And he's capable of drafting opinion on PI appeals and so forth in very short time frames anyway) Moreover, most of Easterbrook's opinions tend to be short and to the point without a lot of wasted space or in-depth explanation of his holdings. He states the law and his holdings, and he's done.

I do think he may have wanted to get this opinion out quickly to get his views on the Second Amendment in circulation among the judiciary, and build up support for his view when this issue goes to the Supreme Court, which likely is inevitable. But there's no indication that he or the 7th Circuit panel gave this shorter shrift than they normally would.


I agree about this and the speed. Also, for those that listened to the oral argument, almost everything in the opinion was mentioned there. My guess then is that Easterbrook may have actually floated his opinion before the argument. It also raises the question of how much influence Posner had on it, because several of these issues -- the Albrecht discussion and much of the self-defense stuff -- was mentioned by him. Either Posner was just floating what he'd read in Easterbrook's opinion or Easterbrook quickly integrated Posner's comments at argument (or maybe they had been exchanging views for some time), I don't know. But comparing the argument to the opinion -- with the opinion being like a condensed version of exactly what they said at argument -- is fascinating to me.
6.2.2009 5:06pm
Tony Tutins (mail):
Speaking of circuit splits: Where does Emerson fit into the post Heller world? And regarding the issue of one panel overturning a ruling made by the same circuit: how did the Nordyke panel's ruling fit into the previous no-individual-rights decisions in the Ninth Circuit?
6.2.2009 5:09pm
Applekeys:
Also, I could be wrong, but from the oral argument and the opinion I get the impression that the court (mostly Easterbrook and Posner) really resented the NRA aspect to this case. The idea that this is a gun rights group looking for a political ruling.

At the end of argument, Easterbrook just said to Alan Gura: "Why does this even matter to you? You're not going to win on this point. You've got your circuit split. You need to make these arguments to a different body." -- or something close to that. It was like they didn't enjoy being used as an instrument in this meta-debate.

I guess I could be wrong but that's what I took from it.
6.2.2009 5:10pm
Anon321:
The provision may not apply literally to a Supreme Court Justice promoted from a Court of Appeals, because the Court of Appeals would not have "tried" the case being reviewed, but nonetheless, no contemporary Justice would sit in review of a decision made by a panel of which he or she was a member.

It seems to me that section 47 doesn't apply to a Supreme Court Justice. Title 28, Part I is divided into chapters, with Chapter One concerning the Supreme Court and Chapter Three concerning the Courts of Appeals. Section 47, which is called "Disqualification of trial judge to hear appeal," is part of Chapter Three. So I don't think that a Supreme Court Justice would be disqualified by this section. But I haven't investigated this point thoroughly, so there might be case law on the subject contrary to what seems to me to be the natural reading of the section in context.

I agree with your basic point that "no contemporary Justice would sit in review of a decision made by a panel of which he or she was a member," but I still wonder if that general principle extends to a case in which the panel merely said that it could not consider the merits of the incorporation argument. In essence, the Court would be considering a drastically different question than the one the panel decided. To put it another way, is there a good reason for a Justice Sotomayor to recuse herself from Maloney if it's taken up? Would there even be an appearance of impropriety?
6.2.2009 5:17pm
cboldt (mail):
-- how did the Nordyke panel's ruling fit into the previous no-individual-rights decisions in the Ninth Circuit? --
.
I predict "temporarily." The 9th Circuit is entertaining rehearing, and may well come out in agreement with the 2nd and 7th Circuit post-Heller decisions, vis-a-vis application of Presser.
.
End result, Circuits in perfect harmony, no incentive to grant cert.
6.2.2009 5:18pm
David E. Young (mail) (www):
Regarding the statement at the end of the opinion:


Federalism is an older and more deeply rooted tradition than is a right to carry any particular kind of weapon.


Oh really?

Madison based his Second Amendment related language on the Virginia Convention's proposed Bill of Rights of 1788. It consisted of an exact quote of Virginia's 1776 Declaration of Rights "well regulated militia" of the people provision along with a quote of Pennyslvania's 1776 "people have a right to bear arms" Declaration of Rights provision with "keep and" added to it. Seems to me that 1776 came well before 1787 making the older concept, you know, older.

And, since all eight existing state bills of rights at the time contained a Second Amendment predecessor, that certainly seems to indicate something more deeply rooted in tradition, you know, what people always did, than a brand new concept just starting out fresh in 1787.

And then again, the fact that the people just would not accept the brand new federalism concept without the older and more deeply rooted traditional right being added to it in a U.S. Bill of Rights ought to stand for more than federal judges just wishing it did not exist and making completely preposterous statements about it.

Then again, what do I know. I'm just sayin.
6.2.2009 5:29pm
Melancton Smith:

I predict "temporarily." The 9th Circuit is entertaining rehearing, and may well come out in agreement with the 2nd and 7th Circuit post-Heller decisions, vis-a-vis application of Presser.


They did not vote to go en banc.
6.2.2009 5:55pm
Perseus (mail):
Federalism is an older and more deeply rooted tradition than is a right to carry any particular kind of weapon.

I suppose that could be correct if the emphasis is placed on any particular kind of weapon. But it would be equally true that the right to bear arms--inherited by the American colonists from the English Bill of Rights of 1689--is much older than any particular form of American federalism.
6.2.2009 6:00pm
cboldt (mail):
-- They did not vote to go en banc. --
.
Agreed. They did not vote. Yet. I'm working off this comment, granted not authoritative as coming directly the CA9 docket/website.
Late the afternoon of Monday May 18th, the 9th Circuit informed all parties in Nordyke that a judge of the 9th Circuit has called for a vote to determine whether the case will be reheard en banc. Both sides have 21 days from the 18th to file briefs on whether the case should be heard en banc.
Briefs due June 8.
6.2.2009 6:02pm
Smokey Behr:
If the 9th goes en banc, I predict that not only with the First Amendment decision stand, but the Second Amendment Decision will be overturned. Again, my IANAL disclaimer inserted here. I've been following Nordyke and the other SCOCa and CA9 firearms-related stuff for a while now.
6.2.2009 6:25pm
James Gibson (mail):
I'm surprised Posner didn't recluse himself. He is on record as not supporting the individual right to bare arms and has stated he will not accept any other method of operating a militia in the time of the founders then by having all the amrs in a central storage facility (arsenal). Of course this is so the units he has in combat can acquire quickly additional arms, the only necessary action since military systems he supports don't need additional men. His view is that only additional guns will be needed not the men to operate them, or replace men injured or killed in combat.

Some one should read to him the sworn statement in the congressional record regarding the unarmed volunteers for the battle of Bladenburgs. Its a perfect example of what Posner views as the only rational systems for an organized militia. The men went into the field without flints for their guns: a little matter of paperwork.
6.2.2009 7:16pm
CJColucci:
I'm surprised Posner didn't recluse himself. He is on record as not supporting the individual right to bare arms

I know Posner is prolific and writes about many and varied things, but I hadn't heard that he'd weighed in on Michelle Obama's fashion sense.
6.2.2009 7:32pm
Brett Bellmore:
Selective incorporation doesn't baffle non-lawyers who are the least bit well read. What's baffling about it? When incorporation was first addressed, the Court didn't want the 14th amendment to have any effect, so they deliberately ruled in bad faith to pull it's teeth. Later on, they came around to the view that it would be nice if some parts of the Bill of Rights applied to the states, so they came up with "selective" incorporation. The only difference between the amendments that get incorporated, and the ones that don't, is which ones 5 justices happen to approve of. It's all a crock, the 14th was supposed to incorporate them all.

Understanding the law doesn't require agreeing with lawyers. Sometimes it requires understanding that BS rationalization is the life of the law.
6.2.2009 8:01pm
Prof. S. (mail):
I'm surprised Posner didn't recluse himself. He is on record as not supporting the individual right to bare arms

I know the 7th Circuit just had a big uproar over what women should and should not wear to court, but I don't recall one of the issues being how short their sleeves were.
6.2.2009 8:05pm
Sonia:
With the unanomous 2nd, 7th and Minn. Ct. App. all ruling the same way re incorporation, it does seem that Sotomayor was on pretty solid legal ground.
6.2.2009 8:11pm
Carl in Chicago (mail):
Perhaps Posner was bitten on his bare arm by a brown recluse?
6.2.2009 8:22pm
Brett Bellmore:

With the unanomous 2nd, 7th and Minn. Ct. App. all ruling the same way re incorporation, it does seem that Sotomayor was on pretty solid legal ground.


Or that she's got a lot of company in playing Wile E. Coyote, as she marches off the cliff pretending she's treading solid ground.
6.2.2009 8:50pm
Jim March (mail) (www):
First, people are talking about Thomas being anti-incorporation. Not so! Read his dissent in Saenz v. Roe (1999):

http://www.law.cornell.edu/supct/html/98-97.ZD1.html

He argues strongly that full incorporation via the Privileges and Immunities clause is the way to go, ripping Slaughter-house a new orifice in the process.

Remember, Saenz was the case that revived a very limited understanding of the P&I clause in which it acts as a barrier to state discrimination against visiting residents of other states (similar to Ward v. Maryland 1872). Thomas argued that Saenz didn't go anywhere far enough in reviving the 14th Amendment P&I clause.

Second, the Heller court criticized Cruikshank as bad law TWICE - there's the footnote about it not respecting the 1st Amendment either, but a stronger blow is found in the positive reference to the book "The Day Freedom Died" by Lane, in which "the day" in question was the day the Cruikshank decision came down the pipe. Cruikshank is a really ghastly pro-KKK decision that effectively legalized well over 4,000 lynchings that we know of and countless more civil rights abuses in general.

Presser and Miller just re-hash Cruikshank.

So the TWO strong warnings about Cruikshank found in Heller are being ignored in the 7th Circuit. Interesting.
6.2.2009 8:58pm
cboldt (mail):
-- Presser and Miller just re-hash Cruikshank. --
.
Presser applies Cruikshank to a case involving a state law.
.
Miller makes no reference to Cruikshank.
.
This seems an opportune time to reiterate my suggestion that SCOTUS nominees be asked to summarize certain cases, without being asked to judge whether or not the outcome was correct. I'd ask about Miller, for sure. I'd ask the questions in writing and give them time to read the cases before answering. IOW, no "snap" or "memory" test, just a simple assignment of legal study. What were the facts? What was the holding? What was the issue in the case?
.
If a nominee can't perform that simple activity, then they have no business sitting on the bench.
6.2.2009 9:15pm
Jim March (mail) (www):
Quoting:


Presser applies Cruikshank to a case involving a state law.


Sure, but otherwise it does no new analysis. In other words, if a state is allowed to commit mass murder to further disarmament as was tolerated in Cruikshank, tolerating a law as per Presser is nothing.

Presser does surprisingly cite to Barron v. Baltimore which marks it clearly as a pre-incorporation case. Likewise Miller v. Texas just continues with the "2nd Amendment doesn't apply to the states" line which of course starts with Slaughter-house but is fully fleshed out in Cruikshank.

Look, the fact is Cruikshank was an evil decision at the time it was drafted and remains visibly so today. When any judge (including Sotomayor!) cites Presser as authority that the states don't have to obey the 2nd, it's a cop-out. It's cowardice. The real precedent is Cruikshank which is so alarmingly disgusting they don't want to ADMIT supporting it. The Cruikshank decision said that there was nothing the Federal government could do about the murders of at least 100 people in three days of racist riots, arson, murder, rape and civil rights violations.

In contrast, another wildly Liberal judge who hated the 2nd Amendment still had to admit that Cruikshank was a festering mess. That was Judge Reinhardt in the 9th Circuit, writing the decision in Silveira (three judge panel in the 9th). Reinhardt tried to draft a whole new structure for gun-grabbing that unlike prior 9th Circuit decisions in Hickman v. Block and Fresno Rifle and Pistol v. Van De Camp, didn't rely on Cruikshank as underpinnings. So he came up with something entirely new, a blend of theory derived from his wife (an ACLU chapter leader) and Michael Bellesiles' "Arming America".

Reinhardt's whole new theory was burned at the stake in Heller of course, but it was a hell of a try and it at least didn't try and rely on Cruikshank.

Sotomayor is neither as gutsy or as honest in her beliefs as Reinhardt.
6.2.2009 10:17pm
Quixotic (mail):
Jim at FSU,

Jim, if it's a "troll," as you put it, then they did a pretty good job acting in oral argument, when the tag-team of alleged geniuses Posner and Easterbrook paraded the moronic arguments you cite. Posner was particularly irritating. They actually believe this crap.

Listen here: http://www.ca7.uscourts.gov/tmp/O01FGFAC.mp3
6.2.2009 11:30pm
Melancton Smith:

Jim, if it's a "troll," as you put it, then they did a pretty good job acting in oral argument, when the tag-team of alleged geniuses Posner and Easterbrook paraded the moronic arguments you cite. Posner was particularly irritating. They actually believe this crap.


It was pretty obvious as well by their facial expressions and body language. Bauer was sitting there grinning like a monkey in vindication.
6.2.2009 11:47pm
James Gibson (mail):
It seems we have three comedians in this group:CJColucci, Prof S. and Carl in Chicago. So be it, it just shows that some people on this blog are not here for a true discussion.

Posner made a statement a while back that showed he has no regard for even the concept of people "Bearing Arms". He also showed that he didn't care for the truth on this matter, just his concept of what history had to be regardless of evidence to the contrary. I have since had as little regard for this judge as I have for Keith Olberman: who I have not watched since the night he disavowed the existence of the Special Atomic Demolition Munition for political reasons.
6.3.2009 1:01am
Andrew Hyman (mail) (www):
Professor Volokh wrote: "'Selective incorporation' isn't just a different 'line of argument' for incorporation -- it is an argument under a different constitutional clause, the Due Process Clause of the Fourteenth Amendment."

I disagree somewhat respectfully.

It seems to me that if the Court really revives the Privileges or Immunities Clause of the 14th Amendment, then the Court would be perfectly entitled to incorporate less than all of the rights enumerated in the Bill of Rights. Why? Because the Court might reasonably conclude that they are not all "fundamental."

See Corfield v. Coryell (6 Fed. Cas. 546, no. 3,230 C.C.E.D.Pa. 1823): "We feel no hesitation in confining these expressions to those privileges and immunities which are, in their nature, fundamental." Also see Baldwin v. Montana Fish and Game Comm'n 436 U.S. 371 (1978): "Whatever rights or activities may be 'fundamental' under the Privileges and Immunities Clause…elk hunting by nonresidents in Montana is not one of them." These citations involve the Privileges and Immunities Clause.
6.3.2009 1:26am
cboldt (mail):
-- It seems we have three comedians in this group: CJColucci, Prof S. and Carl in Chicago. So be it, it just shows that some people on this blog are not here for a true discussion. --
.
I don't have a conscious awareness of the history of any of those three, as to posts here - which means they haven't impressed me as being fabulists.
.
Even if they were fabulists, their riffing from your typographical errors is a typical friendly and momentary diversion from serious discussion. It's not an unhealthy break, and I'm confident they meant no personal offense to you.
6.3.2009 6:52am
PubliusFL:
Andrew Hyman: I disagree somewhat respectfully.

It seems to me that if the Court really revives the Privileges or Immunities Clause of the 14th Amendment, then the Court would be perfectly entitled to incorporate less than all of the rights enumerated in the Bill of Rights. Why? Because the Court might reasonably conclude that they are not all "fundamental."


That means that P&I incorporation might not result in incorporation of all of the Bill of Rights. What it DOESN'T mean is that precedent in a P&I clause case is necessarily binding in a due process clause case, because they are still (as Prof. Volokh pointed out) different constitutional provisions.
6.3.2009 10:12am
CJColucci:
-- It seems we have three comedians in this group: CJColucci, Prof S. and Carl in Chicago. So be it, it just shows that some people on this blog are not here for a true discussion. --
.
I don't have a conscious awareness of the history of any of those three, as to posts here - which means they haven't impressed me as being fabulists.
.
Even if they were fabulists, their riffing from your typographical errors is a typical friendly and momentary diversion from serious discussion. It's not an unhealthy break, and I'm confident they meant no personal offense to you.


Didn't then. Do now. Humorless twit.
6.3.2009 10:26am
The Sarcastic One (mail):
Isn't it great three conservative judges refused to apply that awful, biased, unsupported, nonoriginalist, Warren-Court, liberal doctrine called incorporation? And they even cited to the ideologue Sotomayor's Second Circuit ruling too. Kudos!

Sincerely,

The Sarcastic One.
6.3.2009 12:10pm
The Sarcastic One (mail):
To the person who thinks the justices would be lunatics if they denied to Detroit what DC residents can have - how is that different from denying representation in Congress for DC residents? If DC is not a state for purposes of voting, it is not a state on the Bill of Rights issue.
6.3.2009 12:14pm
Melancton Smith:

To the person who thinks the justices would be lunatics if they denied to Detroit what DC residents can have - how is that different from denying representation in Congress for DC residents? If DC is not a state for purposes of voting, it is not a state on the Bill of Rights issue.


It was Chicago...

At any rate, I've long argued that the residental portion of DC should be ceded back to Maryland. There is no point in having permanent residents in a federal district.
6.3.2009 1:49pm
PubliusFL:
The Sarcastic One: Isn't it great three conservative judges refused to apply that awful, biased, unsupported, nonoriginalist, Warren-Court, liberal doctrine called incorporation?

Yes, it is a little known fact that Gitlow v. New York, 268 U.S. 652 (1925) was decided not by the Supreme Court but by Earl Warren, who was then Alameda County District Attorney.
6.3.2009 1:56pm
incredulous guest:
What is really sad is that incorporation is still, as has been accurately pointed out, the subject of continued debate.

If the average American citizen understood these absurd debates that take place in the judiciary and legal academia , they would be stupified. "Hey average Joe, here's how it works; back in the early 1800's Justice John Marshall forever tarnished his magnificent career, by issuing his magnificently flawed opinion (Barron v. Baltimore) finding that the Bill of Rights had no application to the states - none (some poor soul had his land confiscated by the City of Baltimore, without compensation, which was the subject of the case). He made this decision based upon preposterously flawed logic that one can only surmise was influenced either by southern slave states' concern over expanding federal authority or because he was going senial in his old age (it was the last decision he ever issued). In any event, in 1868 the Fourteenth Amendment was adopted, which one would think had finally disposed of Justice Marshall's abomination in Barron. But alas, subsequent courts have found that the Bill of Rights STILL is not fully incorporated (or integrated) - meaning binding upon the states. What this means Joe is that states can still pass laws that violate certain of the Bill of Rights - if those rights haven't been "incorporated" - and it is perfectly legal. But take comfort cause the federal government cannot pass any law that violates any of the Bill of Rights, which certainly must give you great consolation when the state you live in violates the right in question instead. Yes, yes, in lawyer-speak this means that for federal purposes you may possess a firearm, but for state purposes you may not, meaning that you may not possess a firearm at all in certain states rendering the federal right utterly meaningless. This may be hard to understand Joe, but in the legal community - unlimited as to its arrogance - this makes perfect sense as they view the law as akin to gnosticism, with lawyers, of course, stewards of the secret knowledge of the law that has been rendered - by their arrogance - more illogical than a 5-year old when demanding something that he or she wants. And whatever you do, don't try and take these legal gnostics to task for the absurdity of their views because they will invoke whatvere is necessary; stare decisis, English Common Law, the Magna Charta, presumption of Constitutionality, and an endless array of tools and artifices to convey to you that you just aren't equipped to swim in the Talmudic soup, known as "case law", which is essential for your enlightenment. Oh, and by the way, the common American delusion that we have a right to pursue happiness, as virtually every conservative believes (unless they wear a black robe), well that right doesn't exist at all. In other words for that one there isn't even anything to incorporate. You see Joe, that bit about pursuit of happiness, that was in the Declaration of Independence, not the Constitution. Notwithstanding the fact that every single Founder of this nation believed that the pursuit of happiness was one of the unalienable rights for which governments are instituted to secure, once they had rallied the troops to obtain our independence, and then presumably institute a government to secure these sacred rights, they instead - according to the judiciary - proceeded to establish a government that has little ability to protect these rights unless the majority does so through legislation or unless they were fortunate enough to be enumerated (that's a whole nother subject). The irony is that the judiciary - originator of this Constitutional emasculation as to its ability to protect unenumerated/unalienable rights - was intended to serve as a check on the other two branches of government - which are the promulgators of laws, statutes and adminstrative orders that infringe upon them constantly. I could go on and on Joe, but hopefully you get the idea. In sum Joe, sadly, this country is profoundly influenced by a legal elite whereby the ability to strain out a gnat and swallow a camel is perceived as a virtue."
6.3.2009 10:50pm
cboldt (mail):
-- Yes, yes, in lawyer-speak this means that for federal purposes you may possess a firearm, but for state purposes you may not, meaning that you may not possess a firearm at all in certain states rendering the federal right utterly meaningless. --
.
Except that is NOT what the Supreme Court said about the RKBA in Presser, a case about whether or not the 1st or 2nd amendment protects a right to parade without obtaining a parade permit. The Supreme Court said, in Presser, that the states may NOT prohibit keep and bear arms. They said so DIRECTLY. It's the Circuit Courts and nearly all lawyers who read Presser, and then confidently and with no hesitation assert a lie: "this case stands for the proposition that the states MAY prohibit keep and bear arms."
.
Their entire house of cards stands, in part, on a foundation that is a lie.
.
The other part of their foundation is a blatant lie about what the Miller case stands for.
6.4.2009 3:37am
incredulous guest:
Cboldt: the point of my whole tongue in cheek is that the whole mess that has been made of the Constitution's ability to protect our rights from governmental infringement is a lie built on lies, wrapped inside lies and perpetuated by lies. My gosh my friend, we are still debating incorporation in the judiciary. It is ABSURD. (for that matter, Barron v Baltimore was ABSURD in the first instance) Bottom line is this, notwithstanding what you believe to be the proper analysis of the case law, folks in certain states can be prohibited from keeping and bearing arms.
6.4.2009 6:58am
cboldt (mail):
-- Bottom line is this, notwithstanding what you believe to be the proper analysis of the case law, folks in certain states can be prohibited from keeping and bearing arms. --
.

I agree. The reason I harp on Presser and Miller is that those cases are a concrete example of where and how the liars are lying; and if the public understands how they've been lied to by the Courts (and both side of the gun debate) they will find the proper amount of respect for those institutions.

.

One reason folks in certain states can be prohibited from keeping and bearing arms is that the pro-gun lobby has deliberately avoided pointing out the foundational fiction.

.

I said in another thread, I think the country would have been better off if Heller had been decided the other way. Heller, as it stands, is the 2nd amendment equivalent of Dred Scot. It's based on a corruption of binding precedent.

.

I hope SCOTUS denies cert in the Maloney/Nordyke/Chicacgo cases.
6.4.2009 9:04am

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