Skip to main content

The 9th Circuit (Pacific states plus) held today that the right to bear arms for self-defense applies to the states.  The 2nd Circuit (New York State plus) has held that states are not bound by the federal second amendment right to bear arms for self-defense established in the U.S. Supreme Court's recent Heller cases (which didn't resolve the issue since it involved the District of Columbia).

The resolution of this constitutional issue, called selective incorporation of the Bill of Rights, will dramatically impact state and local gun control laws in the U.S. for the foreseeable future.  (The 9th Circuit case has no immediate impact because it held that the ordinance challenged, which was inspired by the Columbine High School shooting in Littleton, Colorado whose 10th anniversary today, was valid despite the fact that the 2nd Amendment applied to the county government in question.)

The decision from the United States Court of Appeals for the 9th Circuit breaks from roughly a century of precedent under the controlling U.S. Supreme Court decisions which had held that the Second Amendment's right to bear arms did not apply to state and local governments.  The U.S. Supreme Court's recent Heller decision which for the first time authoritatively enunciated the Second Amendment as an individual right to bear arms for self-defense reopened, but did not resolve, that question as it arose in the District of Columbia.

It remains to be seen if the U.S. Supreme Court will itself address the issue.  The United States Court of Appeals for the 2nd Circuit reached the opposite conclusion earlier this year, so the two decisions have already established a clear split of authority between the circuits on the issue, a factor which makes the already likely issue for U.S. Supreme Court review (because it involves core issues regarding the status of a newly defined constitutional right) even more likely to be taken up by the nation's highest court.  The Second Circuit case poses a better vehicle for cert review than the Ninth Circuit case, however, because the Ninth Circuit went on to find reasonable and valid the fairground gun possession regulation, which it noted was inspired by "Columbine High School in Littleton, Colorado" (in a decision released on the 10th anniversary of that event), which makes the Ninth Circuit decision dicta to some extent while the question of applicability to the states could actually change the outcome in the Second Circuit case.

If the decision is affirmed, it opens the door to a wave of lawsuits challenging state and local gun control laws, although on the merits, the U.S. Supreme Court's standard for constitutionality enunciated in Heller and interpreted since then in lower federal courts sets a low bar that the vast majority of state and local gun control laws are likely to be upheld under as reasonable regulations of the individual right.

I am among those who think that siding against application of the Second Amendment to the states (a doctrine known as incorporation) would be the more legally correct ruling, because the standard for incorporation, which is essentially whether the right is "necessary to an Anglo-American regime of ordered liberty," is not met.  Many reasonably well functioning democracies, including Anglo-American ones (like Australia, Canada, Japan and the U.K.) have very strict gun control that would not survive Second Amendment review, even though other democracies (like Israel and Switzerland) have widespread private gun ownership.  Under similar reasoning, the right to a civil jury, the right to a unanimous criminal jury in non-capital felony cases, and the right to a grand jury indictment have been held to not apply to the states.  Then again, many functioning democracies have established religions, but the first amendment establishment clause does bind the states.

Eugene Volokh (a strong advocate for second amendment incorporation and well known libertarian leaning law professor) agrees that the Anglo part of the Anglo-American legal regime long ago abandoned the right to bear arms for self-defense, but argues that it is the articulation of the legal test (itself inconsistently applied in the past) that is wrong, rather than the application of the legal test to this question.

Originally posted to ohwilleke on Mon Apr 20, 2009 at 04:43 PM PDT.

Poll

Should The Second Amendment Apply To The States?

55%67 votes
27%33 votes
17%21 votes

| 121 votes | Vote | Results

EMAIL TO A FRIEND X
Your Email has been sent.
You must add at least one tag to this diary before publishing it.

Add keywords that describe this diary. Separate multiple keywords with commas.
Tagging tips - Search For Tags - Browse For Tags

?

More Tagging tips:

A tag is a way to search for this diary. If someone is searching for "Barack Obama," is this a diary they'd be trying to find?

Use a person's full name, without any title. Senator Obama may become President Obama, and Michelle Obama might run for office.

If your diary covers an election or elected official, use election tags, which are generally the state abbreviation followed by the office. CA-01 is the first district House seat. CA-Sen covers both senate races. NY-GOV covers the New York governor's race.

Tags do not compound: that is, "education reform" is a completely different tag from "education". A tag like "reform" alone is probably not meaningful.

Consider if one or more of these tags fits your diary: Civil Rights, Community, Congress, Culture, Economy, Education, Elections, Energy, Environment, Health Care, International, Labor, Law, Media, Meta, National Security, Science, Transportation, or White House. If your diary is specific to a state, consider adding the state (California, Texas, etc). Keep in mind, though, that there are many wonderful and important diaries that don't fit in any of these tags. Don't worry if yours doesn't.

You can add a private note to this diary when hotlisting it:
Are you sure you want to remove this diary from your hotlist?
Are you sure you want to remove your recommendation? You can only recommend a diary once, so you will not be able to re-recommend it afterwards.
Rescue this diary, and add a note:
Are you sure you want to remove this diary from Rescue?
Choose where to republish this diary. The diary will be added to the queue for that group. Publish it from the queue to make it appear.

You must be a member of a group to use this feature.

Add a quick update to your diary without changing the diary itself:
Are you sure you want to remove this diary?
(The diary will be removed from the site and returned to your drafts for further editing.)
(The diary will be removed.)
Are you sure you want to save these changes to the published diary?

Comment Preferences

    •  You might want to reclassify Japan (2+ / 0-)
      Recommended by:
      enhydra lutris, whaddaya

      I don't think they would consider themselves Anglo-American.

      The FOX is a common carrier of rabies, a virus that leaves its victims foaming at the mouth and causes paranoia and hallucinations.

      by Calouste on Mon Apr 20, 2009 at 04:48:54 PM PDT

      [ Parent ]

      •  They are a democracy . . . (1+ / 0-)
        Recommended by:
        whaddaya

        and the scope of the parathetical is clear enough.  

        Interestingly enough, Japan's criminal law is actually much more Anglo-American than its civil law, a development arising due to American occupation.  For example, Japan was one of the first civil law countries to have criminal jury trials, and is also similar in retaining a death penalty while many other modern democracies have not.

        There is good reason to think, however, the Japan has among the most ancient traditions of limitations on bearing arms with "sword control" likely accounting for the development of its martial arts.

        "Learn from yesterday, live for today, hope for tomorrow." -- Albert Einstein

        by ohwilleke on Mon Apr 20, 2009 at 04:56:02 PM PDT

        [ Parent ]

        •  Japan may have been one of the first civil law (1+ / 0-)
          Recommended by:
          whaddaya

          countries to introduce the jury, but they suspended it during WWII, and are only now reinstating it, and only for certain serious crimes.

          I want to win. You want to beat him, and that's a problem for me, because I want to win. -The West Wing

          by AnnArborBlue on Mon Apr 20, 2009 at 04:57:50 PM PDT

          [ Parent ]

    •  Great Job (1+ / 0-)
      Recommended by:
      whaddaya

      Explaining a very difficult concept.  Most people do not believe you when you explain it to them and their eyes glaze over.  People assume that the Bill of Rights always applied to the states.

  •  How did Bybee rule? (4+ / 0-)
    Recommended by:
    Uberbah, Tetris, Nada Lemming, whaddaya

    out of curiosity, no intent to hijack the diary.

    BTW, good job. Karma and a rec are yours.

    The 8th Amendment is NON-Negotiable! If no one goes to jail, we are all guilty.

    by MinistryOfTruth on Mon Apr 20, 2009 at 04:46:18 PM PDT

  •  Link to the case please. (5+ / 0-)

    Please, President Obama, remember the ladies and be more generous and favorable to them than your ancestors.

    by Kaili Joy Gray on Mon Apr 20, 2009 at 04:49:10 PM PDT

  •  The problem is (2+ / 0-)
    Recommended by:
    GreenSooner, whaddaya

    that if you're going to argue that the Second Amendment does not apply to the states, you also have to argue that the remaining Amendments don't.

    I think that I have had enough of you telling me how things will be. Today I choose a new way to go ... and it goes through you!

    by Norbrook on Mon Apr 20, 2009 at 04:55:02 PM PDT

    •  That's not true (2+ / 0-)
      Recommended by:
      Elwood Dowd, whaddaya

      incorporation happened in a piecemeal fashion. There's no "take one, take 'em all" requirement to any of this.

      I want to win. You want to beat him, and that's a problem for me, because I want to win. -The West Wing

      by AnnArborBlue on Mon Apr 20, 2009 at 04:55:46 PM PDT

      [ Parent ]

      •  How So? (2+ / 0-)
        Recommended by:
        wu ming, whaddaya

        Incorporation happens via the 14th Amendment.  It may have taken place in piecemeal fashion in terms of the legal history, but the theory behind incorporation is anything but piecemeal. Either federal rights are incorporated or they or not.

        I do not believe that the 2nd Amendment confers an individual right to bear arms outside of the context of a well-regulated militia. But whatever rights it does confer ought to apply to states, too.

        Self-styled progressives who call for balanced budgets are not merely parroting conservatives; they are parroting dead conservatives. - James Galbraith

        by GreenSooner on Mon Apr 20, 2009 at 05:06:10 PM PDT

        [ Parent ]

        •  As has been mentioned below (1+ / 0-)
          Recommended by:
          whaddaya

          not all Constitutional rights have been applied to the states, and incorporation was a process that took decades.  

          I want to win. You want to beat him, and that's a problem for me, because I want to win. -The West Wing

          by AnnArborBlue on Mon Apr 20, 2009 at 05:08:36 PM PDT

          [ Parent ]

        •  There are even amendments like the 6th that (1+ / 0-)
          Recommended by:
          whaddaya

          have been applied only partially to the states.

          The parts that do apply are applied in the same way, which isn't logically necessary, but does save a lot of litigation by providing precedents right away that can be trusted.

          "Learn from yesterday, live for today, hope for tomorrow." -- Albert Einstein

          by ohwilleke on Mon Apr 20, 2009 at 05:23:34 PM PDT

          [ Parent ]

    •  Some of the others don't apply. (1+ / 0-)
      Recommended by:
      whaddaya

      The right to a grand jury, the right to a jury in a civil case, and the right to a unanimous jury in a non-capital criminal case among them.

      "Learn from yesterday, live for today, hope for tomorrow." -- Albert Einstein

      by ohwilleke on Mon Apr 20, 2009 at 05:01:43 PM PDT

      [ Parent ]

      •  That's because you're reading into (1+ / 0-)
        Recommended by:
        whaddaya

        the Constitution some things that aren't there.  Amendements.

        There is no enumerated right to a unanimous jury for example.  Not even in capital offenses.  It's traditional, and by law, but not in the constitution.  

        Basically, it's a very shaky argument you're trying to make in this diary - that some amendments apply at all levels, while this particular one doesn't.  You'd be on firmer ground arguing that the states have the "well regulated militia" portion, since more traditionally, the militia is under the control of the state.  

        I think that I have had enough of you telling me how things will be. Today I choose a new way to go ... and it goes through you!

        by Norbrook on Mon Apr 20, 2009 at 06:18:00 PM PDT

        [ Parent ]

        •  The 6th Amendment grand jury right and 7th Amend (0+ / 0-)

          are expressly state in the constitution and the right to a unanimous jury in federal cases under the 6th Amendment is well settled law going back to days even before there was a right to a direct appeal of a criminal guilty verdict in federal criminal cases.

          There is nothing at all shaky about the notion that incorporation of the Bill of Rights via the states via the 14th Amendment due process clause is selective.  The doctrine is at the root of almost every single case based upon on federal individual rights in the state and federal courts.

          It is well settled that the Bill of Rights did not apply to the states at any time from the adoption of the Bill of Rights in 1791 until the 14th Amendment was adopted in 1868.  It wasn't intended to do so.  The Bill of Rights was originally an instrument of federalism, not absolute protections of individual rights.

          There has never been a time when any federal court has held that all of the amendments in the Bill of Rights apply to the states.

          "Learn from yesterday, live for today, hope for tomorrow." -- Albert Einstein

          by ohwilleke on Mon Apr 20, 2009 at 06:32:05 PM PDT

          [ Parent ]

  •  On the subject of selective incorporation, (1+ / 0-)
    Recommended by:
    pico

    James Madison actually proposed a rights amendment that would have applied to the states: "No state shall violate the equal rights of conscience, or the freedom of the press, or the trial by jury in criminal cases." However, like several other proposed Bill of Rights amendments, it got cast aside somewhere between proposal and ratification.

    I wanna quote another British poet.

    by Lazar on Mon Apr 20, 2009 at 04:55:09 PM PDT

  •  Incorporation is extremely important (3+ / 0-)
    Recommended by:
    pico, shrike, FishOutofWater

    People do not understand that prior to the 14th Amendment, most of the protections in the Bill of Rights only applied to federal action and not the states.  There were huge arguments in the 1930s through 1960s as to whether these rights were incorporated through the 14th Amendment to apply to the states.  The Conservatives normally took the position that the rights protected by the Bill of Rights were not incorporated by the 14th Amendment.  Occasionally, conservative scholars will still take this position.

    While I think Heller was not necessarily correctly decided, I would hate to see the incorporation doctrine read too narrowly.  

    •  I'd put the start date in the nineteen teens or (0+ / 0-)

      nineteen twenties, but otherwise largely agree.

      "Learn from yesterday, live for today, hope for tomorrow." -- Albert Einstein

      by ohwilleke on Mon Apr 20, 2009 at 05:00:12 PM PDT

      [ Parent ]

    •  Also, selective incorporation is largely a done (1+ / 0-)
      Recommended by:
      lawboy

      deal.  This is basically the last open selective incorporation question, and it is open only because it has been arguably reopened (the 9th argues that theories other than selective incorporation were considered in the old precedents so they don't apply).

      "Learn from yesterday, live for today, hope for tomorrow." -- Albert Einstein

      by ohwilleke on Mon Apr 20, 2009 at 05:05:46 PM PDT

      [ Parent ]

      •  Given the Current Court (0+ / 0-)

        I am not confident that they would necessarily respect the precedent.  Thomas, in particular, has made statements that seem to reject some of the incorporation precedent.

        •  that's an understatement (0+ / 0-)

          Thomas thinks the Court was wrong when it said the Establishment Clause applied to the states.

          I want to win. You want to beat him, and that's a problem for me, because I want to win. -The West Wing

          by AnnArborBlue on Mon Apr 20, 2009 at 05:14:57 PM PDT

          [ Parent ]

          •  There is a legitimate argument for that (1+ / 0-)
            Recommended by:
            burrow owl

            which sustains selective incorporation (as I note), which is the Anglo-American ordered liberty argument.  Thomas would be more likely to prevail by hewing to that standard than by fighting it.

            "Learn from yesterday, live for today, hope for tomorrow." -- Albert Einstein

            by ohwilleke on Mon Apr 20, 2009 at 05:16:13 PM PDT

            [ Parent ]

        •  The Second Amendment is a big incentive to (0+ / 0-)

          keep selective incorporation for conservatives.  I don't think that the votes are there to ditch incorporation for purposes of 4th Amendment exclusionary rule and 6th Amendment Miranda rights.  They are too much a part of our constitutional character now.

          Also, the looming fact of Democratic control of Congress by large margins and an Obama Presidency also discourages this kind of bold play.  The Court doesn't want to replay the end of the Lochner era.

          "Learn from yesterday, live for today, hope for tomorrow." -- Albert Einstein

          by ohwilleke on Mon Apr 20, 2009 at 05:15:02 PM PDT

          [ Parent ]

          •  The other big one for conservatives (0+ / 0-)

            Is the takings clause in the 5th Amendment. The Supreme Court had held in the 1800s that the takings clause did not apply to the states.  We all know how they feel about eminent domain.

    •  Not an expert (0+ / 0-)

      However, I thought Scalia at least gave lip service to "original intent" when interpreting the constitution.  Hence, his opinion in Heller seemed strained.

      Under "original intent" shouldn't we look to what the framers meant by "arms"?  At the time, arms were sharp edged cutting instruments and muzzle loaders.  So, how in Heller (sorry couldn't resist!) could Scalia find a right to private ownership of semi-automatic handguns that fire cartridges loaded into the breach from a magazine?

      •  The 9th Circuit opinion is very social science (0+ / 0-)

        and policy driven (see particularly the Nordyke concurrence), very much like Brown v. Board of Education, a decision universally praised for reaching the right result, and widely criticized for being less than the best reasoned decision.

        "Learn from yesterday, live for today, hope for tomorrow." -- Albert Einstein

        by ohwilleke on Mon Apr 20, 2009 at 05:12:22 PM PDT

        [ Parent ]

      •  some Amendments don't make sense (0+ / 0-)

        unless you allow things to evolve over time. The most obvious example is the 4th Amendment; even Scalia wouldn't say we could wiretap phones or use infrared cameras to spy on people just because the founders didn't know about phones or infrared technology. Scalia himself wrote an opinion saying that the test for privacy in the home basically comes down to whether the technology being used to intrude on the home is in general public use. I can't imagine he'd view the 2nd Amendment differently.

        I want to win. You want to beat him, and that's a problem for me, because I want to win. -The West Wing

        by AnnArborBlue on Mon Apr 20, 2009 at 05:13:40 PM PDT

        [ Parent ]

      •  Arms: things that can kill. (0+ / 0-)

        You're being unnecessarily restrictive in limiting it to rifles and the like.

        We are building a team that is continuously being built. - Sarah Palin

        by burrow owl on Mon Apr 20, 2009 at 05:23:11 PM PDT

        [ Parent ]

      •  My take on arms: (0+ / 0-)

        the sidearms issued to troops during that time.

        Carry that forward:

        you're talking about rifles, shotguns, and pistols.

        Abolish gun control, marriage, and helmet laws. -7.62, -3.44

        by KVoimakas on Mon Apr 20, 2009 at 11:00:34 PM PDT

        [ Parent ]

      •  Arms (0+ / 0-)

        At the time of writing the term arms as it was used in the 2nd amendment meant "weapons used to wage war".  While yes the weapons used to wage war at the time were sharp cutting isntruments, muskets, and hand loaded canons the term itself applied today reveals a very close association to the Heller majority view.

  •  Interesting ruling (1+ / 0-)
    Recommended by:
    OMwordTHRUdaFOG

    in the Second Circuit which controls Connecticut.  The Connecticut Constitution has always been explicitly broader than the federal constitution re: the right to bear arms.

    SEC. 15. Every citizen has a right to bear arms in defense of himself and the state.

    I am not going to sit here and be an idle spectator to the diminution, the subversion, the destruction of the Constitution. -- Barbara Jordan, 1974

    by gchaucer2 on Mon Apr 20, 2009 at 05:02:40 PM PDT

    •  One of the big incorporation issues is the (1+ / 0-)
      Recommended by:
      wu ming

      relevance of state constitutions.  There are 44 of them with some sort of right to bear arms.  This could argue that the right is fundamental.  

      But, it could also argue that state constitution writers understood that state constitutional protection was necessary because the federal constitution didn't apply and that the variations in language represent the value of having a laboratory of democracy to flesh out the gun control issue.

      Connecticut's provision may be a close match to the right enunciated in Heller, but is also narrower, in that it does not carry with it an implication that there is a right to violent insurrection, which is found in the federal second amendment and is probably one reasons that the federal second amendment was dormant so long and remains impotent due to reasonable restrictions on the right even under Heller as the 9th Circuit case (Nordyke) shows.

      "Learn from yesterday, live for today, hope for tomorrow." -- Albert Einstein

      by ohwilleke on Mon Apr 20, 2009 at 05:10:22 PM PDT

      [ Parent ]

      •  States regularly have reduplicative clauses. (0+ / 0-)

        By your logic, equal protection or the free speech shouldn't be incorporated because of the existence of identical state provisions.

        We are building a team that is continuously being built. - Sarah Palin

        by burrow owl on Mon Apr 20, 2009 at 05:21:27 PM PDT

        [ Parent ]

        •  Many state constitutions were pre-14th Amendment (0+ / 0-)

          when the federal bill of rights clearly didn't apply to the states.

          Also, while judicial review of the constitutionality of state laws is very old, actual applications of that by state courts vis-a-vis state laws under state constitutions was extremely rare until the later 20th century.  Before then, they were mostly horatory, like the U.N. Declaration of Rights and Freedoms.

          At any rate, my argument is basically that state constitutions provide weak and contradictory evidence, so we should look elsewhere for guidance.

          "Learn from yesterday, live for today, hope for tomorrow." -- Albert Einstein

          by ohwilleke on Mon Apr 20, 2009 at 05:32:33 PM PDT

          [ Parent ]

  •  Forgot to thank you (1+ / 0-)
    Recommended by:
    pico

    for the diary.

    I am not going to sit here and be an idle spectator to the diminution, the subversion, the destruction of the Constitution. -- Barbara Jordan, 1974

    by gchaucer2 on Mon Apr 20, 2009 at 05:05:42 PM PDT

  •  Who is going to protect honest citizens (0+ / 0-)

    from the gun nuts?  We seem to have been written out of the Constitution at some point.  

    Their cause, if they had one, is nothing to them now. They hate for hate's sake. (W.H. Auden)

    by dotalbon on Mon Apr 20, 2009 at 05:09:50 PM PDT

  •  My Village (1+ / 0-)
    Recommended by:
    Its any one guess

    Morton Grove, Illinois, has already rescinded its handgun ordinance after being sued in the Northern District of Illinois.  Other municipalities in the area, such as Wilmette, have also rescinded their ordinances.  Only Chicago has the money to fight on.  Heller included a foot note on the topic of incorporation.  Unless there is a change in the Supreme Court's make-up, I think Heller will be applied to the states.

  •  News, but totally unsurprisingly. (0+ / 0-)

    One would have to do an MC Escher-like twisting of logic to come to any other conclusion post-Heller.

    We are building a team that is continuously being built. - Sarah Palin

    by burrow owl on Mon Apr 20, 2009 at 05:19:56 PM PDT

    •  The Second Circuit did. (1+ / 0-)
      Recommended by:
      whaddaya

      And, actually, given the state of SCOTUS precedent and the very weak indications of any kind in Heller, the Second Circuit is probably the better reasoned ruling.

      The better course in terms of jurispruential logic, would be to rule against incorporation and then to give SCOTUS a chance to overrule its past precedent if it was so inclined.

      Nordyke decided today in the 9th Circuit has multiple problems with it from a drafting/logic perspective, but as Judge Traynor of the California Supreme Court was fond of observing, if an appellate judge can get a majority of the judges on the panel to agree with him, then he is ipso facto correct.

      "Learn from yesterday, live for today, hope for tomorrow." -- Albert Einstein

      by ohwilleke on Mon Apr 20, 2009 at 05:36:06 PM PDT

      [ Parent ]

      •  There is or should be a strong presumption (1+ / 0-)
        Recommended by:
        whaddaya

        in favor of incorporation, and there's nothing at all in the 2nd to suggest any kind of limitation.  Well, despite their deeply stupid ruling, at least the 2nd circuit guaranteed imminent SCOTUS ruling by creating a circuit split.

        We are building a team that is continuously being built. - Sarah Palin

        by burrow owl on Mon Apr 20, 2009 at 05:40:32 PM PDT

        [ Parent ]

  •  This was pretty unequivocal. And correct. (4+ / 0-)
    Recommended by:
    shrike, VClib, bythesea, KVoimakas

    We therefore conclude that the right to keep and bear
    arms is “deeply rooted in this Nation’s history and tradition.”
    Colonial revolutionaries, the Founders, and a host of com-
    mentators and lawmakers living during the first one hundred
    years of the Republic all insisted on the fundamental nature
    of the right. It has long been regarded as the “true palladium
    of liberty.
    ” Colonists relied on it to assert and to win their
    independence, and the victorious Union sought to prevent a
    recalcitrant South from abridging it less than a century later.
    The crucial role this deeply rooted right has played in our
    birth and history compels us to recognize that it is indeed fun-
    damental, that it is necessary to the Anglo-American concep-
    tion of ordered liberty that we have inherited.   We are
    therefore persuaded that the Due Process Clause of the Four-
    teenth Amendment incorporates the Second Amendment and
    applies it against the states and local governments.

    Having credibility when making an argument is the straightest path to persuasion.

    by SpamNunn on Mon Apr 20, 2009 at 05:33:46 PM PDT

    •  I agree. n/t (1+ / 0-)
      Recommended by:
      SpamNunn

      Your political compass Economic Left/Right: -6.50 Social Libertarian/Authoritarian: -6.67

      by bythesea on Mon Apr 20, 2009 at 05:40:19 PM PDT

      [ Parent ]

    •  Flowery but not too impressive. (1+ / 0-)
      Recommended by:
      whaddaya

      It is ahistorical, because most other Anglo-American jurisprudential systems have adopted strict gun control without notable declines in ordered liberty, and because there are very few cases in U.S. history upholding a right to bear arms at any level, while there are a great many that did not judicially honor this right.

      In truth ambivalence about a right to bear arms and its proper purpose is long standing, and "deeply rooted in our Nation's history and traditions" is not the established legal test for selective incorporation --- see, e.g., the various cases on the right to trial by jury in various circumstances in Louisiana which emphasized that functional ordered liberty continued in lots of places that had no such right, even though every other American state honored the right.

      "Learn from yesterday, live for today, hope for tomorrow." -- Albert Einstein

      by ohwilleke on Mon Apr 20, 2009 at 05:42:15 PM PDT

      [ Parent ]

      •  I know some UK citizens, afraid to go out at (1+ / 0-)
        Recommended by:
        whaddaya

        night, who would beg to differ:

        ...most other Anglo-American jurisprudential systems have adopted strict gun control without notable declines in ordered liberty...

        Though I take the point.

        •  I know some US citizens, afraid to go out at (0+ / 0-)

          night in places where gun ownership for self-defense is fully legal.

          Indeed, what I would call the best theory of the second amendment sees it as an imperfect compliment to the lack of a privately enforceable duty on the part of prosecutors and law enforcement to protect individuals from crime.

          With or without a right to bear arms, the threat to ordered liberty that arises from inadequate enforcement of criminal laws greatly exceeds that from the threat from inability to bear arms.

          "Learn from yesterday, live for today, hope for tomorrow." -- Albert Einstein

          by ohwilleke on Mon Apr 20, 2009 at 06:36:06 PM PDT

          [ Parent ]

          •  I agree with your last point, but the problem (0+ / 0-)

            arises when proponents seem to believe harsh gun control will solve their tabloid-worthy law enforcement problems. Not only that, but it turns the "common sense" aspect of justice on its head when offenders have dominion over victims in the courts because the victim accrues liability through disobeying one or another gun control law.

            I also note that inextricably intertwined here, as I believe Volokh discusses, is the very existence of the right to self defense. I personally believe that is the root of the UK's problem. Virtual gun ownership prohibition is just the natural follow-on to government assertion there is no such right; they'll take care of it for you, except sometimes. Place your bets.  

            •  Violations of gun laws are not a criminal defense (0+ / 0-)

              and very rarely give rise to civil liability if the weapons are used in bona fide self-defense which is a defense to both tort liability, and criminal liability for using the gun.

              Yes, more than one person can be guilty of a crime from the same incident, but prosecutors also have discretion and can plea bargain in exchange for cooperation in a prosecution.

              The most common place where this kind of issue comes up is one that Heller expressly finds valid, self-defense by an armed felon.  In those cases we may very well want to put both the aggressor and the armed felon victim in prison before innocents end up hurt.

              "Learn from yesterday, live for today, hope for tomorrow." -- Albert Einstein

              by ohwilleke on Mon Apr 20, 2009 at 07:03:56 PM PDT

              [ Parent ]

              •  Yes, I think that is the state of play in the US (0+ / 0-)

                now, but I believe it is worthy of skepticism that it will always be thus. Particularly if the reverence for external national standards takes hold.

                But this isn't a gun control debate. I've enjoyed your comments throughout the thread.

      •  Please note (0+ / 0-)

        That we are not "other Anglo-Ameircan" jurisprudential systems.  We are our own beholden to nothing more than the nature of our highest document at the time of its creation and the belief of what those words held by the men who wrote and approved it.

        The history of both the State Constitutions and the inherent right to protect one's other rights combined with the declaration in Heller that the 2nd amendment protects an individual right shows that incoporation is the only logical judicial outcome.

        •  There is almost never only one logical outcome. (0+ / 0-)

          One of the big lessons of law school is that it is frequently (indeed usually) possible given the facts and legal arguments to make any of a number of conclusions look like the inevitable judicial outcome.

          "Learn from yesterday, live for today, hope for tomorrow." -- Albert Einstein

          by ohwilleke on Wed Apr 22, 2009 at 03:57:18 PM PDT

          [ Parent ]

  •  Nice diary and comments. I'm surprised that (1+ / 0-)
    Recommended by:
    whaddaya

    the 9th Circuit disagrees with the 2nd Circuit on this.

Subscribe or Donate to support Daily Kos.

Click here for the mobile view of the site