2A Doesn't Apply to the States
 

Uh oh, don't look now, but this could be used to deny any right to We, The People. This is absolutely nuts.

http://waronguns.blogspot.com/

2A Doesn't Apply to the States
And no Fourteenth Amendment incorporation for you, either. [More]

So say the robed ones occupying the U.S. Court of Appeals for the Second Circuit.

We keep trying to do this nicely.

http://westernrifleshooters.blogspot...-to-court.html

Heller: Uh, We Can't Take 'Em to Court??
From CrimProfBlog via Reason:

***
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 (Maloney v. Cuomo, 2d Cir., No. 07-0581-cv, 1/28/09)...
***

Remember that while the Second Circuit, which covers New York, Vermont, and Connecticut, is but a single Circuit and in theory can be overruled by SCOTUS, it is nonetheless a highly-influential Federal bench. Accordingly, its decision in Maloney will be persuasive and will be cited by other District and Circuit Courts in ruling against the Second Amendment.

Once the idea that the Second Amendment is not binding against state and local government becomes the law of the land via the adoption of Maloney by other Circuits and SCOTUS' refusal to look at the issue, "multijurisdictional task forces" will have a green light to bring down the hammer of "gun terrorists".

The fuse is lit.

Alea iacta est.

UPDATE 0830 est 11 Feb 09: Please take the time to read the comments below as well.


posted by Concerned American | 10:58 PM

12 Comments:
Spartacus said...
Opinion found here http://www.ca2.uscourts.gov:8080/isy...rl839/1/hilite

February 11, 2009 12:18 AM
Anonymous said...
Well folks, which fuse is lit, their gun grabbing one, or our cannons in reply? How much longer do we roll over and play peaceful doofusses, while they set up camps for us, take our weapons (or at least try), and eventually take our homes, our food, our livelihoods, and our families, especially our kids for overseas wars for which there is no definition of victory, be it realistic or pure fantasy?? But then, if we revolt, what is our definition of victory? And, is it even possible? Or do we only have the practical (and moral?) choice of resistance?

February 11, 2009 12:22 AM
High Plains Lawyer said...
Frankly, even if the courts were to apply Heller to the states (remember, it will be the weasel word mumblings of Scalia that will be applied, not the ACTUAL Second Amendment) Heller is such a mess (intentionally) that the same crafty federal judges who "interpreted" the Second to mean whatever they wanted for decades can do the same with Heller.

They could uphold nearly anything short of an absolute DC style ban - and they could probably even find a way to uphold that (that's what judges do).

A state version of AWB? OKey dokey under Heller.

Banning of all center-fire rifles over a certain muzzle energy? Just fine.

Mandatory registration, fingerprinting, photographing, and tracking of gun owners just as if they were pedophiles? Again, just fine under Heller.

Prohibitions against public carry (open or concealed)? Ditto.

Mandatory ammo tagging and prohibitive taxes? Ditto.

I really can't think of anything that cannot be "found" to be constitutional under Heller, especially in the hands of a gun-hating judge. It really was a joke.

But since Heller declined to "incorporate" the Second Amendment, the anti-gun judges will use that failure to NOT EVEN HAVE TO BOTHER with cases challenging state laws.

That's what your so-called Second Amendment rights mean in federal court - zero.

While not even having to bother with state law challenges, they can then use Heller to strike down whatever few challenges to federal laws come up.

See the Fincher decision in the Eight Circuit for an example of how that works.

In addition to federal judges just thumbing their noses at us because Heller says they can, this is also the next stage in the battle, since the anti-gun judges will NEVER admit that the Second Amendment protects a fundamental right essential to well-ordered liberty (the court created "test" for incorporation), and that is why they will never apply it to a state.

We all know their eventual goal is to gut even Heller (as weak as it is, they still don't like it), and Heller contains the seeds of its own destruction ("common use," "unusual and dangerous," etc).

Till they can pack the court, they will use Heller to strike down any federal challenges, leaving both the feds and the states free to regulate the crap out of everything even remotely related to guns or gun ownership, till nothing is in "common use" and just about anything can be made to be "unusual and dangerous" and then they can do Heller II, which may only uphold .22 target rifles as being in "common use," if that.

Or they can just brazenly overturn Heller at that point.

But what they don't count on is having the "time-table" of events sped up faster than they want.

Some of the frogs in the slowly heating pot just might "jump" prematurely and then turn up the heat intentionally, causing all the other frogs to feel the heat and jump before the "bipartisan" cooks can slowly cook them all.

Do you feel froggy?

February 11, 2009 12:27 AM
High Plains Lawyer said...
PS- I could not agree more with your statement that:

"multijurisdictional task forces" will have a green light to bring down the hammer o[n] "gun terrorists"."

Very astute observation - all kinds of federal funds, assistance, weapons and gear can be funneled to state law enforcement to help them fight the "war on "gun crime" and "gun criminals" (the new catch phrase, as Mike V. pointed out).

And Heller is useless as a legal shield against any of it, in large part because it was meant to be useless - all full of sound and fury, Signifying nothing - and because it is still in the hands of lying robed lawyers.

February 11, 2009 12:32 AM
Anonymous said...
Growing hemp may be illegasl, even the non canniboid type, but it's still a good source of rope. Maybe stringing up a few of the would be enforcers when they comne around, some of the pols, a few judges and all the Wall Street gangsters and fraudsters would send a message they'd not forget until long after they wiped out the very last one of us, if ever.

There are 80-90 million guns in this country. Even if they managed to sieze or destroy 90% of them (a high estimate in my opinion since even with all the restrictions neither our government nor that of GB can keep guns out of the hands of convicted violent felons) there would still be 8-9 million in private hands, some albeit hidden, but something they'd have to deal with for a many, many years to come.

I am reminded of "The Guns of Sierra madre" - "We don' wantcher money senor, chust your guns, gonna run the federales out of Mexico."

February 11, 2009 12:49 AM
Shambhala said...
If we were to use this reductio ab absurdum, NO ammendment to the constitution applies to states.

February 11, 2009 3:08 AM
Anonymous said...
The 2nd Circuit said "unless it affects a fundamental right" Hmm, one important enough to be listed in the Bill of Rights as a right that shall not be infringed, is less fundamental than the one (Roe v. Wade) not found listed anywhere. Hey Judge! Do you have a RECTAL CRANIAL INVERSION?

February 11, 2009 3:52 AM
Anonymous said...
How can you have an "individual" right thats only recognized by the federal government? A right is a right! Is what their saying that the rule against infringement only applies to the feds? We know which is right. Time to double up on the AQT drills......mthead

February 11, 2009 4:26 AM
drjim said...
Well Whiskey Tango Foxtrot!
How's about we start requiring "journalists" to register their pens, pencils, notepads, and word processors?
And have each state require them to be licensed?
Jim

February 11, 2009 4:39 AM
Anonymous said...
are not most of the original 10 rights enumerated in the B.O.R already incorporated?
That we have to fight so dang hard for a basic civil right is infuriating, an affront to what so many have died for.
Hopefully, Nordyke V King in the 9th Circuit will incorporate.

February 11, 2009 5:44 AM
hairy hobbit said...
Where the hell is the logic in this?

The framers put it there, IN THE HIGHEST LAW, for a very specific reason.


The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.

It was DELEGATED to the feds and included in the federal constitution, the one that applies to ALL states of the union, read it carefullyA well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed. for a reason.

Including it here was specifically to prevent states from doing what they just claimed they could do. The language there, shall not be infringed makes no mention of congress, or in a manner to be prescribed by law, it says what it means and by placing it there it means ANY level of government that is a signatory to this constitution. Period.

February 11, 2009 7:54 AM
CorbinKale said...
Ready.

Re: 2A Doesn't Apply to the States
 

I realize there's a mountain of bullshit spewed around here about the Fourteenth Amendment, but, sorry, the 2A does apply to the States -

"No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."

Wholesale rejection of the Fourteenth Amendment means that, yes, you personally agree with this Circus Court of Appeals.

Re: 2A Doesn't Apply to the States
 

The BOTTOM LINE -

Buy them NOW, and buy them in sufficient quantities to last you the rest of your life!

Re: 2A Doesn't Apply to the States
 

Wrong. The Constitution is document the enumerates 11 powers which are being ceded to the federal government by the states. It is not a limit or hindrance on the states at all, except as defined by the 10th Amendment.

Re: 2A Doesn't Apply to the States
 

Re: 2A Doesn't Apply to the States
 

Uh, Right. Piss and moan all you want about the 14th Amendment, it passed, and it forces the States to comply with the Bill of Rights. The 2A guarantees the right to keep and bear arms, and that right must be abided by all the States to the same degree the Congress "shall not infringe" upon it.

In case you need remedial math, 14 comes after 10...the 14th amended all before it.

Re: 2A Doesn't Apply to the States
 

Piss and moan all you want about the fraudulent enforcement of the 14th.
To quote a SCOTUS judge:
"A legislative act contrary to the Constitution is not law." �Justice John Marshall
the 14th was never constitutionally ratified. Your logic needs to keep up with your math.

Re: 2A Doesn't Apply to the States
 

I have to agree that the 2nd Amendment does not apply to the states despite the 14th amendment. Of course, the Supreme Court selectively applies parts of the Bill of Rights to the states when it suits their ideology so it's hard to guess in advance what they might decide.

It was no coincidence that the Supreme Court took the case from DC! They were intentionally side-stepping this issue. As the Bill of Rights continues to be understood less and less, the provisions are applied to the states general, as if it were intended to limit the powers of the states (it wasn't). The justices on the SC understand this issue perfectly, however.

Each state has its own constitution with its own limitations on the state, which are likely to be interpreted away into oblivion by each state's judiciary. If you are concerned about your rights, read your state's constitution, and never ever trust the federal government to protect you. If you don't like what you see, move to another state.

Re: 2A Doesn't Apply to the States
 

Re: 2A Doesn't Apply to the States
 

OK, smart one, tell us how you know this to be fact.

No 14th Amendment = NO GUN RIGHTS in most states.

Re: 2A Doesn't Apply to the States
 

The Bill of Rights guarantees (i.e., recognizes) rights which exist apart from government power, Federal or State.

It is sheer fantasy to claim the 14th Amendment was not properly ratified. And because it was properly ratified, it's plain language applies, just as the plain language of the Bill of Rights applies. The 2A means what it says, the 14A means what it says - the States must comply with the Bill of Rights.

I shall remain where God "planted" me. My rights are the same here as anywhere else - it's just that government claims otherwise.

Re: 2A Doesn't Apply to the States
 

:rofl:

"Free" state...LOL.

Free states don't issue LICENSES to practice a RIGHT.

Save maybe Vermont, all the rest are tyranny States as pertains to gun rights.

Re: 2A Doesn't Apply to the States
 

As long as you got that cold steel in your hands or resting on your shoulder.

YOU ARE FREE ..........AND NOBODY IS GOING TO SAY OTHERWISE.

T

Re: 2A Doesn't Apply to the States
 

That may be your impression... it certainly isn't mine.

I was not, here, claiming the 14th amendment was not ratified properly. I was simply stating that notwithstanding the 14th amendment, the Bill of Rights in its entirety has not been interpreted to apply to the states. Certainly not by SCOTUS. They took the DC case precisely so they could decide on the 2nd Amendment without dealing with the fact that they have never ruled that the 2nd Amendment applies to the states.

I wish you the best of luck! Take a stand where and when you think it is right to do so...

Re: 2A Doesn't Apply to the States
 

Bill of Rights Article 2 is an individual right, and a court, state or any other entity which rules against or says otherwise is a usurper of liberty.

No BoR meant no United States of America, and anything after the first ten is "an amendment."

The Bill of Rights can only be exercised and enforced by free individuals, and the rights found therein are inalienable.

If your state secedes from the union, then the U.S. Bill of Rights no longer provides individual protection from government tyranny, and at that point if your state has no BoR, it may be time to leave for a "free" state.

IMO, this is the primary risk of national break-up into independent, sovereign states.

Re: 2A Doesn't Apply to the States
 

You are correct sir, there is a difference between an article and an ammendment

Re: 2A Doesn't Apply to the States
 

No State's Constitution can be repugnant to the Constitution of the Union�s Constitution.

All laws which are repugnant to the Constitution are null and void." (Marbury v Madison) 5 U.S. 137 (1803)
BUT that was before 1938!
The �Bill of Rights� and �The Constitution�
Are not our �Rights� They are the cages the government is to live in.

14th amendment was not ratified properly look in to it and you will see.