jimlongley wrote:The Annoyed Man wrote:Kythas wrote:I don't agree with this. While it sounds good on its face, because I'm in favor of gun rights, this is another example of the federal government mandating behavior to the states on issues that belong to the states. States should have the ability to determine which other states' CHLs they'll recognize within their borders.
Just because it's pro-gun doesn't mean further federal encroachment on states' rights is acceptable.
Anti gun activists say that the 2nd Amendment isn't incorporated, and use that as justification for a state's right to severely control firearms - as in California or Illinois. Just out of curiosity, do you feel that it (the 2nd)
should be incorporated, given that incorporation would remove a state's right to regulate the possession, bearing, and ownership of firearms?
Just wondering, is all...
I, personally think that the 2nd should not be incorporated, it should be recognized as applicable to all government entities without the need for incorporation, just as the 1st "seems" to be now.
If the 2nd protects a fundamental and pre-existing right, then it doesn't matter if it's the village board (just about our smallest level of government) the right is universal and does not depend on the Constitution for its existence, merely for a codified protection.
If the 2nd does not protect a fundamental and pre-existing right, in other words if the 2nd only exists to protect the "right" from interference by the federal government, then it's not truly a right and lower entities can abrogate that right at will, and it needs to be incorporated.
I don't think the state, district, county, borough, parish, city, town, or village has a right to infringe on my right to keep and bear arms, or yours, or anyone else's.
Jim, I see your point, but the reason that the 1st "seems" to be protected at the national level is precisely because of the SCOTUS doctrine of incorporation. What your point does is put us back at the old federalist/anti-federalist arguments as to whether or not a bill of rights should be included in the Constitution. It may be arguable for federalist reasons that it
should not have been included, but for better or for worse, it
was included - even if after the fact. So, today, we have to deal with the
reality of a 2nd Amendment; and although everything we have today with regard to a RKBA perhaps
should flow from a philosophical agreement with the federalist notion of a natural right which does not need to be enumerated to be protected, the actual and existent fact remains that it
actually flows from the existence of the 2nd Amendment as a guarantee of that right - and 218 years of jurisprudence is based upon that fact. The only way to return ourselves to a federalist interpretation of the proper role of government to our natural rights would be to overturn the bill of rights. Even if there existed the political will to do so, this would set us down an almost certain path to severe oppression because the government is A) no longer made up of men of the same character as the founders; and B) the history of our government - particularly in the last 100 years or so - has been to place increasing limits on our natural rights, not to expand them, and there is no reason to expect that to change on its own initiative.
My understanding of the 14th (and please feel free to correct me if I'm wrong) with regard to our rights is that it declares the intent that A) "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States;" and B) that the "privileges or immunities" referred to at the time (07/09/1868) in that amendment are codified in Amendments 1 through 13.
According to
encyclopedia.com, the incorporation doctrine is defined thusly:
Incorporation Doctrine By the incorporation doctrine, the United States Supreme Court has held that most, but not all, guarantees of the federal Bill of Rights limit state and local governments as well as the federal government through the Due Process Clause of the Fourteenth Amendment. States have been required to respect freedom of speech, press, and religion, and most of the other guarantees. They have not been required to provide jury trials in civil cases or indictment by grand jury, however (see Second Amendment; Third Amendment).
Therefore, incorporation is another reality that we are forced to deal with in which the SCOTUS has held (
since 1833, BTW) that the 14th Amendment does not apply to
all of the Bill of Rights at the state level.
I would argue that, philosophical
ideals aside, and given the combined
realities of the Bill of rights, the 14th Amendment, and the SCOTUS doctrine of incorporation, the 2nd Amendment
ought to be incorporated so that it enjoys the same protections at both the federal and state levels as those rights which
are incorporated. And if the 2nd is incorporated, then, just maybe, the national concealed-carry proposal becomes moot because our right to carry any
way we want to, any
where we want to, is then guaranteed at both the federal and the state/local level.
IANAL, YMMV, etc., etc.
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