Guns

Second Circuit to Second Amendment: Drop Dead…

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…you still don't apply to state and local regs. Well, the federal Second Circuit Court of Appeals has said it before (in the 2005 case Bach v. Pataki), and now they've said it again, in Maloney v. Cuomo. CrimProf Blog has some details:

The Second Amendment guarantee of the right to bear arms does not apply to override state firearms bans, the U.S. Court of Appeals for the Second Circuit declared Jan. 28. Under the incorporation doctrine, only certain provisions of the Bill of Rights apply to the states, and the Second Amendment is one of those that does not, the Second Circuit held….

The statute at the center of this case, N.Y. Penal Law §265.01(1), provides criminal penalties for possession of a broad range of items, including weapons used in martial arts. The plaintiff was charged under the statute after police found fighting sticks, or nunchaku, in his home. He ended up pleading guilty to a different charge and then filed a lawsuit against the county prosecutor and others seeking a declaration that the law offends his Second Amendment right to bear arms…..

Back before the incorporation doctrine took hold, the Supreme Court held, in United States v. Cruikshank, 92 U.S. 542 (1875), and Presser v. Illinois, 116 U.S. 252 (1886), that the Second Amendment is a limitation only on the power of the federal government and thus does not constrain state regulations…..Nevertheless, in a footnote in Heller, the Supreme Court had this to say:

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…..

The case on the nearest horizon that holds the most hope for generating a new, post-Heller, consideration of the Second Amendment incorporation question is the Ninth Circuit case Nordyke v. King. Damon Root wrote about it back in October

For a bunch of history on the incorporation question, and the whole story of Heller and the Second Amendment, read my new book, Gun Control on Trial, excerpted in the December 2008 issue of Reason magazine.

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  1. …only certain provisions of the Bill of Rights apply to the states

    So does that mean parts of the 1st amendment could be curtailed at the state level?

  2. Nunchaku are illegal in New York? WTF?

  3. Then why have the 10th Amendment at all?

  4. What parts are NOT curtailed at the state level?

  5. So can New York finally enshrine the FSM s the legal state church and begin collecting tithes?

  6. Wasnt it up to the writers of the 14th amendment to make this very fucking clear in their document?

  7. Nunchaku are illegal in New York? WTF?

    You didn’t know that? Most places they’re illegal. Part of the early 70’s hysteria with Bruce Lee films. Same group thinks for some reason automatic knives kill you worse than regular butcher knives.

    Rum. The only possible solution at this point in time is rum.

  8. My CCDW covers nunchaku and throwing stars and boards with a nail in them.

  9. I love the incorporation process. Completely arbitrary, and as far as I can tell, not the intent of the wording of the 14th. I’m sure when they drafted the 14th amendment they had in mind 100+ years of states slowly, maybe, at the whim of SCOTUS, acknowledging the bill of rights

  10. Then why have the 10th Amendment at all?

    It doesn’t exist.

  11. My CCDW covers nunchaku and throwing stars and boards with a nail in them.

    Sure about that? Most are only for a pistol of late. What state you have the permit in?

  12. If the 2nd amendment can be overridden by state or local regulations, it’s seemingly worthless and meaningless. As far as I know, we all live under the jurisdiction of state and local governments. If they can simply and easily curtail our rights, even rights specifically reserved to us in The Constitution, then what does The Bill Of Rights even mean?

  13. You didn’t know that? Most places they’re illegal.

    Really? I’ve only heard that they’re illegal in New York, Massachusetts, and California, maybe some other states. They’re definitely perfectly legal in North Carolina and Virgina, though they hold status similar to other concealed weapons like brass knuckles.

  14. I think that next Monday night, when thousands of municipalities meet to do the people’s bidding, gun confiscation should be the number one item on the agenda.

    Swift action should be taken by state, county, city, and township government to declare mandatory 48 hour firearm turn in programs.

    After the 2 day grace period, house to house search programs should be instituted.

    This is the only way to save us from ourselves.

  15. Other Matt,

    It’s illegal in my state to carry nunchaku on you, but you can have nunchaku in your home.

  16. Nunchaku are the most efficient mechanisms ever designed to get people to hit themselves in the nuts.

  17. Sugarfree-

    I hope you are not speaking from personal experience…

  18. So does that mean parts of the 1st amendment could be curtailed at the state level?

    This is the debate about “incorporation” of Bill of Rights protections such that states must protect them and whether the 14th Amendment guarantees such. Since DC v. Heller did not involve a state, the issue was not raised. On the one hand, this made for a simpler ruling, but it left the issue open.

    Of course, one ill-timed Supreme Court death or retirement in the next four years, and Heller is getting overturned anyway…

  19. if you live in a rural area like i do, go out in the woods somewhere and dig a hole. don’t fill it in. we’ll call it the plausible deniability hole.

    then, when the state comes for your guns (bullion, whatever), take the officers to the hole. when you get there, say “damn, somebody dug up my guns! they musta been watching me from the ridgetop! i had a funny feeling when i was digging it, but i didn’t see any people or cars, so i figured it was just nerves!”

  20. “Nunchaku are the most efficient mechanisms ever designed to get people to hit themselves in the nuts.”

    LOL.

    That’s why I’m suprised by this. How much damage can you really do with nunchaku? If someone threatened me with nunchaku I’d laugh at them.

  21. Observation only, Jay. But I did hit my quasi-step-brother in the shin with a throwing star. That was a fun trip to the emergency room. I didn’t whine half as much when he took off the tip of my right ring-finger with a hatchet.

  22. can the 16th amendment be overrridden by local laws too because i’m thinking of starting a town.

  23. Nothing screams “We produce these opinions ex rectum!” like the incorporation doctrine. Even so, there’s much to be said for some vestigial understanding that the Constitution is primarily a document vesting specific powers and imposing specific restrictions on the federal government and not the states. Federalism is a good idea even when the resulting marketplace of political ideas among the several states produces laws libertarians find anathema.

  24. It is called intellectual claptrap. The framers of the 14th amendment could not have been more clear. The language of the text of the 14th amendment, “No state shall..” is unequivocal. If one takes the time to examine the debates of the 38th and 39th Congress, one can not, with logic, argue that the framers of the 14th amendment did not intend for the bill of rights to be applied to the states.

    Furthermore, the chief architect of the civil rights amendments, Mr. Bingham, stressed that the amendment was necessary in order to overcome the Supreme Court’s Barron decision in 1833.

    I have always supported that the text of the bill of rights supports the proposition that they apply to the states. Of course, one might point to the First Amendment’s prohibition on Congress as support for the position that the bill of rights does not apply to the states. But, that position is weak. There is no preamble to the bill of rights that restricts their application to the federal government. Moreover, there is no reference to the federal gvoernment whatsoever in amendments 2 through 8.

    Furthermore, the constitution guarantees that each state shall provide a republican form of government. Gun control is utterly inconsistent with the principles of republican governance.

  25. Sure about that? Most are only for a pistol of late. What state you have the permit in?

    Yep. KY. It is why it is a CCDW and not a CCP or something. They specifically mentioned other deadly weapons in the class.

  26. “Nunchucks: Cool But Useless”

    My CCDW covers nunchaku and throwing stars and boards with a nail in them.

    Run, Kodos, run!

  27. That board with a nail in it may have defeated us. But the humans won’t stop there. They’ll make bigger boards and bigger nails, and soon, they will make a board with a nail so big, it will destroy them all!

  28. Sure, there is no question that the framers of the original constitution were primarily concerned with keeping the federal government in check. However, that is a long road to arguing that the framers did not intend to have the provisions of the bill of rights apply to the states. If the framers had so intended, they could have so written.. They chose otherwise. Checkmate.

    Federalism does not trump individual liberty and the constituional guarantee that each state shall provide a republican form of government.

  29. That board with a nail in it may have defeated us. But the humans won’t stop there. They’ll make bigger boards and bigger nails, and soon, they will make a board with a nail so big, it will destroy them all!

    Boards big enough to bring down an airplane in flight, perhaps? High capacity boards, with multiple nails? Scary black colored boards with plastic on them?

    It’s illegal in my state to carry nunchaku on you, but you can have nunchaku in your home.

    True, I should have been more clear. In VA, when I lived there, I could own stars (the particular martial art I studied used them), but I couldn’t transport them in my car. SOooo, as long as they magically appeared at my house, we were good.

    As for the nuts comment, hilarious.

  30. I had forgotten where the 2nd is, it’s NYC, no wonder.

  31. Criminals who use firearms to commit crimes fall over themselves trying to obey laws related to firearms.

    No, really.

  32. This has been a great day so far politically, hasn’t it.

  33. Epi,

    Maria Sharapova is coming out with her own line of handbags and shoes for Cole Haan, so speak for yourself.

  34. How do you even know that? Have you been checking the Style section in the NYT?

  35. I know all.

  36. Big Green Monkey
    If the 2nd amendment can be overridden by state or local regulations, it’s seemingly worthless and meaningless. As far as I know, we all live under the jurisdiction of state and local governments. If they can simply and easily curtail our rights, even rights specifically reserved to us in The Constitution, then what does The Bill Of Rights even mean?

    The Bill o’ Rights means the Federal Government cannot take action to violate your rights. That what it was written for. It was not in the original constitution because the constitution set limits on what the Federal Government can and cannot do. If the Federal Government was limited to those things, it would not violate anyone’s rights because it did not have the power to do so, so a bill of rights was in some way redundant.

    Incorporation made the Federal Government the “Rights police.” On the lookout for violations of rights instead of looking out for its own affairs and making sure it itself was not violating any rights.

    The Federal Government does not have the capacity to be the Rights Police for the whole nation. They have to be selective and, in the meantime, people are looking to and relying the Federal Government to protect their rights when that is an impossible task for them. Unreasonable expectations. Why is a good idea to have the Federal Government be the Rights Police anyway?

    Any right that is unincorporated is a good thing. People will then have to work within the local systems to whip them into shape.

  37. It’s cute that after the last 9 years (and 12 months in particular) we can pretend the Constitution still matters.

  38. I believe this means we have an official Conflict of the Circuits on this issue, which makes it much harder for the Supremes to dodge cert.

    Pray that they get a case on this before the new President has the opportunity to appoint very many Justices.

  39. This has been a great day so far politically, hasn’t it.

    What do you mean? I’m suddenly feeling stimulated!

    All hail the great leader!

    All hail the people’s courts!

  40. libertymike
    one can not, with logic, argue that the framers of the 14th amendment did not intend for the bill of rights to be applied to the states.

    Maybe not, but I’m still unclear on what part incorporates the Bill of Rights.

    I always assumed it was the “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States” part but someone told me it was the “nor shall any State deprive any person of life, liberty, or property, without * due process of law” part.

    I’m still not sure.

    * missing word: substantive

  41. Episiarch | February 10, 2009, 2:21pm | #
    This has been a great day so far politically, hasn’t it.

    Shit… there’s another day starting at midnight! Will it never end?

  42. I think “substantive” is implied by the word “due.”

  43. Under the incorporation doctrine, only certain provisions of the Bill of Rights apply to the states, and the Second Amendment is one of those that does not, the Second Circuit held..

    IRRC, the incorporation doctrine is what allows the Federal government to overrule states on the issue of abortion. Even worse, the right-to-kill fetuses is an penumbra right i.e. one supposedly implied by the Constitution but not actually enumerated.

    If you say that an enumerated right does not apply to the States then by what logical basis could you say that an implied one does? In their rush to undermine the 2nd Amendment by any means, they are creating the legal framework to overturn Roe v Wade.

  44. “This has been a great day so far politically, hasn’t it.”

    Where I am, it’s cold, windy, snowing and raining, dark grey and generally dreary. I usually love days like this but it fits my mood due to all this bullshit perfectly.

    Bleak.

  45. “Under the incorporation doctrine, only certain provisions of the Bill of Rights apply to the states, and the Second Amendment is one of those that does not, the Second Circuit held…. ”

    And just exactly what actual words in the text of the 14th Amendment supports this picking and choosing version of “incorporation”?

  46. any chance this was done to get the question appealled to the SCOTUS quicker? It’s a helluva stretch, I know.

  47. I always assumed it was the “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States” part but someone told me it was the “nor shall any State deprive any person of life, liberty, or property, without * due process of law” part.

    Can’t it be both? Seems like the first clause would apply to “substantive” rights (free speech, keeping and bearing arms, etc.), and the second would pick up on the “due process” rights (search and seizure, trial, eminent domain, etc.).

  48. The Bill o’ Rights means the Federal Government cannot take action to violate your rights.

    So, let me get this straight: when the Founding Fathers wrote say, the Sixth Amendment saying “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State”…they only meant Federal Trials?

    I’m sorry, but that makes zero sense. The Bill of Rights, despite jurisprudence to the contrary, was meant to apply to the States in the first place, at least, that’s the only way it makes sense. Otherwise what you’re saying is that the Fathers were well aware that they were guaranteeing rights in one breath and immediately allowing them to be abridged in that same breath.

    I mean, six or so of the Amendments deal with trial procedures and rights in those proceedings…but there were so few federal crimes at the time that it makes very little sense to say that those protections were only meant to apply to Federal prosecutions.

  49. just because they say it, does not make it true. pharq em!

  50. I’m just trying to wrap my head around these folks who claim that it was not the intent of the Founders to apply the BoRights to the States. Does that mean that the only right the U.S. Constitution protected with respect to the Second Amendment was that you could carry guns in D.C. (or any other place under exclusive federal control)?

    Srsly…that defies logic.

  51. Then why have the 10th Amendment at all? –Nick @1:42pm

    This ignores the conflict between the rest of the Constitution, the 9th Amendment and the 10th.

    Some rights are guaranteed by the unamended Constitution, binding on the States AND/OR the Feds.

    Some amendments bound only the Feds, prior to the Civil War Amendments: frex, it was legal for the individual states to have Established Churches, even though they eventually gave them up.

    A proper interpretation of the 9th Amendment would make the incorporation doctrine redundant.

    Googul up the writings of Randy Barnett.

    Kevin

  52. The Bill of Rights, despite jurisprudence to the contrary, was meant to apply to the States in the first place, at least, that’s the only way it makes sense. Otherwise what you’re saying is that the Fathers were well aware that they were guaranteeing rights in one breath and immediately allowing them to be abridged in that same breath.

    But they were obviously well aware of that, at least in the case of “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof;” in the First Amendment. Several states had established churches at the time, which the Founding Fathers were certainly aware of. Many were disestablished around the time of the Constitution, but not all. So the point is quite arguable.

  53. Bingo called out:

    It’s cute that after the last 9 years (and 12 months in particular) we can pretend the Constitution still matters.

    Aren’t Reasonoids cute that way?

    As for you, do you really mean to limit the causative scope of your disillusionment to merely the last nine years?

    Ah, well, perhaps you’re simply a young person.

  54. I’m just trying to wrap my head around these folks who claim that it was not the intent of the Founders to apply the BoRights to the States.

    How can you explain the Congregational Church remaining established in Connecticut until 1818?

    There’s certainly indications that (most of) the Founders believed that all the rights in the Bill of Rights ought to be respected, and ought to be part of each state’s Constitution. But there’s certainly considerable evidence that at the time of its adoption it did not apply to the states individually.

  55. How can you explain the Congregational Church remaining established in Connecticut until 1818?

    I’m not much on Early Con Law, but was it ever challenged as unconstitutional? Like I said, jurisprudence notwithstanding the point, the Second Amendment (for example) doesn’t make any sense unless it applies to the states. Where was your right to keep and bear arms protected, if we assume that the Second Amendment did not apply to the States? Just federal districts?

  56. Other Matt | They’ll make bigger boards and bigger nails, and soon, they will make a board with a nail so big, it will destroy them all!

    Boards big enough to bring down an airplane in flight, perhaps? High capacity boards, with multiple nails? Scary black colored boards with plastic on the

    He was referencing one of the greatest of the Simpsons Hallowe’en specials

  57. Where was your right to keep and bear arms protected, if we assume that the Second Amendment did not apply to the States? Just federal districts?

    First, you were protected everywhere against a federal law.

    Second, almost all states had similar provisions protecting the right to bear arms in their state constitutions.

  58. First, you were protected everywhere against a federal law.

    ???

    That statement confuses me. Are you saying that you were protected everywhere, but just against federal agents? Were there even federal agents who could realistically take your weapons at that point?

    And, of course, what I was saying was, where, in theory, would the RKBA not be infringed? Certainly, under the “pre-incorporation” theory, the RKBA was just extra language, because the vast majority of the nation didn’t have to comply with it.

    Regardless, a federal law proscribing gun sales and use would have been unconstitutional on its face (as an overextension of the Commerce Clause and a violation of the Tenth Amendment), so…why the Second Amendment?

  59. I’m not much on Early Con Law, but was it ever challenged as unconstitutional?

    Barron v. Baltimore (1833) is considered the landmark Supreme Court case that stated that the Bill of Rights applied only to the Federal government, not the states.

    It’s true that that’s a considerable lag after the adoption Constitution, so it’s possible that the Founders thought differently. But the point does not seem to have been controversial in 1833 (Chief Justice John Marshall wrote for a unanimous Court), nor does anyone seem to have brought it up before then.

    US v. Cruikshank (1875) was the first such case after the adoption of the Fourteenth Amendment. Incorporation was rejected at that time, essentially ending Reconstruction. (Well, one of the important events.)

  60. That statement confuses me. Are you saying that you were protected everywhere, but just against federal agents?

    Yes, you were protected everywhere against federal agents, or a federal law deputizing state agents.

    Were there even federal agents who could realistically take your weapons at that point?

    Yes, the United State Army hypothetically could. Remember, this was before the Posse Comitatus Act. The Federal Army had been used against citizens, for example in the Whiskey Rebellion. (It would be used again against the Bonus Army due to D.C. lying outside the Posse Comitatus Act’s jurisdiction.)

    Also note the irony that while the Posse Comitatus Act is somewhat beloved of libertarians now, it has its origin in, like many other things, ending Reconstruction.

  61. Regardless, a federal law proscribing gun sales and use would have been unconstitutional on its face (as an overextension of the Commerce Clause and a violation of the Tenth Amendment), so…why the Second Amendment?

    Certainly many who argued against the Bill of Rights did so for exactly that reason. They argued that protecting specific rights would imply that all other rights were not actually protected, or that the federal government could do anything that wasn’t specifically prohibited.

    But, how good a job are the Commerce Clause and Tenth Amendment doing these days? Sometimes it’s nice to have a few things down boldly in writing. I suspect that the doctrine of limited powers would, unfortunately, have run into issues regardless.

  62. Like I said, jurisprudence notwithstanding, I think that, at least as it pertains to certain Amendments, the proper reading would have them apply to the States.

    Look at the Sixth Amendment:
    In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district where in the crime shall have been committed

    Or the Eight Amendment:

    Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

    Given that there was only one federal crime at the time, is it really reasonable to state that these rights, with respect to one’s interaction with the government, only applied to treason trials? That’s it?

  63. Like I said, jurisprudence notwithstanding, I think that, at least as it pertains to certain Amendments, the proper reading would have them apply to the States.

    Well then you certainly still have to omit the First Amendment, then. The one that starts with “Congress shall make no law…”

    Anything in Article IV clearly applies to states. The Bill of Rights is more difficult because some clauses are clearly restricted to the federal government, the Tenth specifically mentions states, and most of the rest are general. Does “any court of the United States” in the Seventh mean just Federal courts?

    There were (and are) state constitutions providing most of these liberties. The Virginia Constitution had the text on which the Eighth Amendment was based.

    However you would think to read it, it does appear that people at the time read it somewhat differently.

  64. Since the first 10 amendments were one package, the bill of rights, I would say that the founding fathers meant for them to be equally applied to whomever they apply.

  65. The first 10 amendments were orginally a package of twelve. (similar to how the 10 commandments were a package of 15 until Moses dropped one of the tablets)

  66. Funny how they have no problem incorperating the 2nd when it applies to state’s militias.

  67. TAO-

    Great post at 4:46pm. Now you are thinking!

  68. Folks, look at the writings of Justice Bushrod Washington.

  69. “Under the incorporation doctrine, only certain provisions of the Bill of Rights apply to the states, and the Second Amendment is one of those that does not, the Second Circuit held….”

    Why? Because they say so? This process has no resemblence to anything like “law”.

  70. “The Bill of Rights, despite jurisprudence to the contrary, was meant to apply to the States in the first place, at least, that’s the only way it makes sense. Otherwise what you’re saying is that the Fathers were well aware that they were guaranteeing rights in one breath and immediately allowing them to be abridged in that same breath.”

    That’s a mistaken way of looking at things. They were not “guaranteeing rights” at all. They were trying to limit the power of the Federal government. Full stop.

    It was widely understood that the several states could and would (and did) make laws not in accordance wth the US Constitution. Hence “federalism”. Limiting the power of the Feds was for the protection of the states which created the Feds in the first place, and, indirectly, those states people.

  71. All I know is that if the Second Circuit says the Bill of Rights does not apply to me, then neither does the Second Circuit.

    These days I’m learning how to safely put together tar & feather. And wondering how many Democrats don’t bother to pay taxes.

  72. “Any right that is unincorporated is a good thing. People will then have to work within the local systems to whip them into shape.”

    Well, no. If the Feds are going to go around enforcing their own laws on us, it would be nice if they were at least consistent in the matter. This crap about how certian amendments are “incorporated” and others are not would make a monarch blush. If the so-called judges cannot show ther work and justify it in the text of the law, they need to be tossed out.

    Now, I think the entire body of “incorporation” doctrine is bogus. But if they are going impose this bogus conception of the law on us, they at least need to impose it consistently. Otherwise it’s hard to escape the conclusion that they are merely saying “The law is whatever we say it is. Now shut up.”

  73. There is no preamble to the bill of rights that restricts their application to the federal government. Moreover, there is no reference to the federal gvoernment whatsoever in amendments 2 through 8.

    That’s absurd. The Constitution defines the Federal governemnt – what it can do, how it’s to do what it can do, and what it cannot do. The notion that it’s in any way binding on the states only surfaced in the 1950’s -60’s.

    The 14th Amendment, one of the most poorly written of all the amendments, was never legally ratified.

  74. DeSoto:

    You are right and wrong. The Constitution doesn’t overule the states own laws till the Civil War, but the Founders 1st Amendment didn’t force states to give up their official religions nor religious requirements for office holders.

    On the other hand all rights of Englishmen were reserved to the people even if not mentioned specifically and these rights were protected by the much ignored 9th and 10th amendments.

    The courts demonstrating that they are in the main composed of village idiots fail the test for village idiot yet again.

    Though I predict Whacky Barracky will attempt to disarm the citizenry. He might get the same results the British had at Lexington.

  75. @Mike DeSoto

    The founders were certainly interested with limiting the reach of federal power. But, I think it wrong, by definition, to say that states have created laws at variance with the US Constitution: Either the laws created stand within the scope of the constitution and the privileges accorded to states, or they don’t and are unconstitutional.

    Is it then the opinion of the Second Circuit that state constitutions, presently guaranteeing an individual right to firearms ownership, trump any future modification of DC v Heller – even its invalidation?

  76. Nothing screams “We produce these opinions ex rectum!” like the incorporation doctrine. Even so, there’s much to be said for some vestigial understanding that the Constitution is primarily a document vesting specific powers and imposing specific restrictions on the federal government and not the states. Federalism is a good idea even when the resulting marketplace of political ideas among the several states produces laws libertarians find anathema.

    Ah, once again we find ourselves stuck in the dead-end that lies at the end of the conservatives’ “states rights” road.

    It makes absolutely no sense whatsoever to restrict the federal government, only to leave the individual states free to become tyrannies over their citizens.

    The Civil War was the result of that kind of thinking; it is no accident that federalism is a key component of the fig leaf that Southern historical revisionists use to paint the Civil War as the “War against Northern Aggression”.

  77. can the 16th amendment be overrridden by local laws too because i’m thinking of starting a town.

    Alas, the statists were way ahead of you. Local authority is only permitted to be *more* restrictive than federal law. That’s why “dry” counties can still exist, and why California can still ban the importation of full-cap magazines now that the AWB is dead (for now), but Texas could not liberate full-cap mags when the AWB was in force.

  78. “The Bill of Rights, despite jurisprudence to the contrary, was meant to apply to the States in the first place, at least, that’s the only way it makes sense.”

    At the time, most states had a bill of rights incorporated into their state constitutions. Having the federal bill of rights appply to the states was considered redundant and possibly an unacceptable compromise of state sovereignty over their internal affairs.

  79. Look. Laws are in conflict with each other, as they are made up by different people to solve different ‘problems’ at different times. For example, if you want to kill someone, take that person to the part of Yellowstone Park in Idaho. There is no state court for that part of Idaho, as it is under federal administration. There is no federal court as the federal court for Yellowstone park is in Wyoming, across the state boundary. Noone lives in that section of Idaho/Yellowstone park. Of course you could be prosecuted for violation of other laws on your way to or from the Idaho part of Yellowstone park.

    Congress could fix that by realigning either the state boundary (with permission of the states) or by moving the boundary of the federal court district (which predates the statehood of Idaho).

    The 14th Amendment comes after the 2nd Amendment, and thus acts on that amendment.

    Nunchucks were the asian variant of the Flail, used for knocking the husk off rice. It was used as a replacement weapon for the unarmed peasantry who were not permitted sharp sticks. For those of us who are permitted sharp sticks, the SS gives superior reach advantage against mounted samurai, and as part of a team, can poke armed samurai with some success if you can get some team work with your fellow rice pickers. Of course vs. a firearm either sharp stick or nuchaku would be worse than useless.

    You could be

  80. State charters, approved by Congress make states artifices of Congress just as the judiciary whose circuits, districts and members is also an artifice of Congress.
    As articies of Congress these bodies by definition are controlled by the Bill of Rights.

  81. nunchaku is chinese for numb nuts.

  82. I’ve become convinced from life experience that I’m smarter than any dozen lawyers who ever lived. Rights are simple things to me. They are given to us by God, and one of the most basic God-given rights is the right to be at all times armed and prepared to defend your property, family, and life. Any government that in any way restricts this right, is illegitimate, regardless of whether the representatives are elected or not. Even a majority of men may not decide to limit God-given rights. That’s why they are called rights, and not privileges.

    Evidently, things like this are too deep for lawyers to wrap their brains around. Fuck the “rule of law” and kill all the damned lawyers. There’s not a single problem in this country that lawyers aren’t directly responsible for. Lawyers are the most worthless form of human life: Lawyers create nothing, produce nothing, and provide no essential service. Every penny that goes into the pocket of a lawyer is stolen. A pox would be too good for a lawyer.

    Hmmm… I went into rant mode at some point there.

  83. Actually, the states may not create any laws or take any actions that are in violation of constitution, any more than the federal government can. The same Tenth Amendment that guarantees to the states whatever rights are not enumerated elsewhere in the Constitution also guarantees them to the people, as well. The framers didn’t give the several states any more ability to become despotic than they did the feds. Now, however, comes the question of what any of this will actually mean once the Constitution has been suspended. Then we’re on our own, so, keep your powder dry.

  84. “Actually, the states may not create any laws or take any actions that are in violation of constitution, any more than the federal government can.”

    It’s a recent innovation that this is so. It only began with the “incorporation” doctrine, which is of highly dubious origins.

    “The same Tenth Amendment that guarantees to the states whatever rights are not enumerated elsewhere in the Constitution also guarantees them to the people, as well.”

    Which is a tautology. The peoples rights are the peoples rights and they get to decide what they are, not the Supreme Court. Saying that the Tenth, which explicitly reserves powers to the states and their people, actually is a grant of power to the Feds, is …. words fail me.

    “The framers didn’t give the several states any more ability to become despotic than they did the feds.”

    Actually, they did. Read the Constitution they created. The states did not create a Federal government which could run their internal affairs. So some states had religious tests for office, others had slavery, etc.

    “Now, however, comes the question of what any of this will actually mean once the Constitution has been suspended.”

    The Constitution has been suspended for quite some time now.

  85. “State charters, approved by Congress make states artifices of Congress just as the judiciary whose circuits, districts and members is also an artifice of Congress.”

    You are badly in need of some remedial history lessons. The states created Congress, not the other way around. The states approved the charter of Congress and the entire Federal government at this little thing called the Constitutional Convention of 1787.

  86. “It makes absolutely no sense whatsoever to restrict the federal government, only to leave the individual states free to become tyrannies over their citizens.”

    Obviously if made sense to the Founders, since that is the system they created. Why not simply say “It makes absolutely no sense to me that … “?

    And it made sense to the Founders because they were not modern left-wingers who regarded mankind as some identical mass body which all needed to be ruled by identical laws.

    All of which is immediately obvious to anyone who bothers to open a fucking history book.

    “The Civil War was the result of that kind of thinking”

    So you would deprive people of their liberty on the grounds that they would abuse it. You’re just a routine statist then.

  87. Curious George

    “On the other hand all rights of Englishmen were reserved to the people even if not mentioned specifically and these rights were protected by the much ignored 9th and 10th amendments.”

    Yes, but they were protected against encroachment by the Federal Government. As was made crystal clear in the Federalist Papers, the guardians of our liberty in the final analysis is supposed to be … us! Not any court anywhere and most certainly not any Federal Court.

    Libertarians are wading out into quicksand when they want to give judges the authority to pronounce on our rights, beyond what is spelled in in the text of the law. In several states the judges have raised taxes to subsidize schools based on “creative” readings of state constitutions.

    An Obama packed SCOTUS might easily announce a “right” to free health care for all Americans. The supporters of an expansive definition of judge defined individual rights will have no basis for complaining if that happens.

    The “rights of Englishmen” is not a static concept, as many libertarians like to think. Witness the rights which actual Englishmen have (or don’t have) today. Ask yourself if that’s really want you want to call for.

  88. Someone needs to write an amazon review on your book. It looks weird not having any,

  89. Angry Optimist: you need to read a bit more about the history of the Bill of Rights. My book For the Defense of Themselves and the State: The Original Intent and Judicial Interpretation of the Right to Keep and Bear Arms (Praeger Press, 1994) is a good place to start.

    James Madison would have very much liked some of the provisions of the Bill of Rights to limit state power as well, but he was unable to persuade other members of Congress of this, so as written, the Bill of Rights was only a limitation on federal power. The assumption for limiting only federal power included:

    1. The states are close to the people, and are less likely to become tyrannical.

    2. State constitutions often had significant limitations on state power (although only a few had right to keep and bear arms provisions at this time).

    3. The requests for a Bill of Rights had largely been because of concern that this new, much more powerful federal government might become a monster about 1/10th the size and power of the one we now have. Hence, the primary focus was on limiting federal power.

    4. At least two provisions of the Bill of Rights–the establishment clause and freedom of religious worship clause of the First Amendment–would have been in conflict with several state constitutions. The Massachusetts Constitution of 1780 not only provided for state funding of the the Congregational Church (later expanded on a local option basis to allow communities to fund through taxes whatever church a majority picked), but it also directed the legislature to pass mandatory church attendance laws. In addition, most states still had laws limiting holding office to Christians (sometimes just Protestants).

  90. “An Obama packed SCOTUS might easily announce a “right” to free health care for all Americans.”

    If they do, they’ll probably point to Blackstone’s Commentaries on the Laws of England:

    “THE law not only regards life and member, and protects every man in the enjoyment of them, but also furnishes him with every thing necessary for their support. For there is no man so indigent or wretched, but he may demand a supply sufficient for all the necessities of life, from the more opulent part of the community, by means of the several statutes enacted for the relief of the poor…”

  91. yandus yillib | February 10, 2009, 1:52pm | #

    “I think that next Monday night, when thousands of municipalities meet to do the people’s bidding, gun confiscation should be the number one item on the agenda.

    Swift action should be taken by state, county, city, and township government to declare mandatory 48 hour firearm turn in programs.

    After the 2 day grace period, house to house search programs should be instituted.

    This is the only way to save us from ourselves.”

    When you’re ready…

    ????? ????

  92. How big of a police force did the feds have back in 1791? Who, in the fed back in that day, would be searching people to which the 4th amendment would apply?

  93. When is the first time anyone successfully took a state or local government to Federal court for a 4th Amendment violation? If it was always binding on the whole country it should have happened very early.

  94. Obviously these justices do not realise how tight a noose can get on the neck of those who would curtail OUR ownership of OUR Freedoms guaranteed by OUR Constitution. It will be bloody and it will be noted in the history of the world, but, The Next civil war will settle it conclusively whether “We the People” have inalienable rights or the criminal class will tell us how to live.
    Death to Tyrants, Swindlers, Embezzlers and Corrupt Politicians and Judges.
    This opinion is expressed under the protections of the 1st and 2nd Amendments as ratified Jan.15 1791

  95. “An unarmed people is an enlsaved People”.

    “A disarmed people is a conquered People”.

    I will not be enslaved or conquered.

  96. Just another reason not to visit the big apple, no wonder they have a financial crisis.

  97. who the hell said the court makes the law of the land ,that is what the congress is for so you go ahead and ban our right to keep and bear arms and when you come to get them you will have battles all over america,you know if you liberal idiots dont like the freedom we have in this country then get out leave the usa we dont need communists in america,do you realize how many people fought and died to give us our rights from the revolt against the british for doing just what you fools are trying to do to us now ,if you dont want freedom then go live in china or some other commie state because if you want our rights you will start a civil war. second circut you can drop dead

  98. “How much damage can you really do with nunchaku? If someone threatened me with nunchaku I’d laugh at them.”

    I once saw a guy get an arm broken in three places, a leg broken in two places, his skull cracked in by a pair, and his eye damaged so bad it had to be removed. He was in the hospital for several weeks.

  99. “Nunchaku are the most efficient mechanisms ever designed to get people to hit themselves in the nuts.”

    Quite right. In fact, I carry several of them with me, to hand out to anyone who approaches me with hostile intent.

  100. Bored at home:

    Wow… Hitting yourself in the nuts, I can easily see, but how the hell did he manage to do *that* to himself?

    (Assuming you’re not talking about Jackie Chan.)

  101. “When is the first time anyone successfully took a state or local government to Federal court for a 4th Amendment violation? If it was always binding on the whole country it should have happened very early.”

    I think it may have been the Twinings case in 1908, against New Jersey.

  102. Look, this doesn’t seem to be a newsworthy case. The decision could not have come down any other way but the following: “The Supreme Court (in the Slaughterhouse Cases) ruled that the Bill of Rights do not override state law unless and until they say so, individually, by specific right. We’re just the Second Circuit. The Supreme Court hasn’t yet incorporated the Second Amendment. We can’t do it for them. You lose. Of course, you can appeal, and maybe the Supreme Court will find some balls this time.”

  103. It is because of these constant attacks against our constitutional rights that so many true Americans are preparing for WAR to defend our rights. Most are ex-military, and they are slowing prepping to fulfill their oath to defend the constitution against all enemies foreign and domestic. As our forefathers fought the British and defied their attempts to confiscate powder and arms, these true patriots are also readying for a similar conflict. The tree of liberty must be watered with blood to keep tyrants and dictators in check. “To arms, to arms! The RED coats are coming” RED as in socialists. The winds of war are growing.

  104. TO: All
    RE: If THIS Is the Case….

    …., that state law trumps federal law, let alone the Bill of Rights, THEN….

    ….we can throw out the Supremes on the Texas law against sodomy that was overthrown by the Supremes in 2007.

    Then, looking further back, we can throw out Baker v. Carr (1962) and Reynolds v. Simms (1964) and return the state Senates to be elected based on geographic areas instead of being an over-paid version of the state house of representatives.

    This would be a good thing as the way it is today, the metroplexes dominate ALL legislation. Having destroyed the Great Compromise we enjoy at the federal level.

    Regards,

    Chuck(le)
    [These farking idiots can’t have it both ways…..]

  105. Well then the Patriots of 1775 had no RKBA
    and therefore becasue they acted illegally, we are not a legitimate nation.

    If the RKBA existed in 1775, then it must exist today for if one right can be revoked, then all rights can be revoked as they exists by whim of government.

    Oh, the Supreme Court in South v Maryland, 59 US 396 in a 7 page opinion, said that no one has the right of expectation of protection by government.
    You cannot sue the police if you are a victim of crime.

    So how can we have no RKBA and no expetation of protection by the police?

    These are mutually exclusive.

    If the police are there to protect us as we have no RKBA, why then can’t we sue them when they fail us?

  106. I plan to petition for cert, hopefully with the help of a large DC law firm. See my site, nunchakulaw.com, for updates.

    Jim Maloney

  107. Genius is an infinite capacity for taking pains.Live beautifully, dream passionately, love completely.

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