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Author Topic: 2nd amendment  (Read 7544 times)

charles3330

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2nd amendment
« on: April 30, 2009, 08:22:30 pm »

The other day I got into a debate with my government teacher (public high school). He said that the 2nd amendment does not apply to individuals and is only  a protection against the national government, but not the states. I was able to prove him wrong about it protecting individuals by showing him a summary of the case Heller v DC, but I am having a difficult time finding evidence that it has been incorporated with the 14th amendment due process clause. Does anyone have any ideas?

Also, I need to find a news article to write a summary of and share my opinion about. I have several ideas, but I'm open to suggestions. My teacher seems to love big government and I would love to find something to make him rethink his positions.
« Last Edit: April 30, 2009, 10:07:10 pm by charles3330 »
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crism

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Re: 2nd amendment
« Reply #1 on: April 30, 2009, 09:22:22 pm »

Every libertarian and constitutionalist needs to learn to spell “amendment.” I am not normally a spelling Nazi, but it makes it very easy to dismiss someone’s opinion when they can’t spell one of the key elements thereof.

I hope you don’t feel I am picking on you, Charles; I wouldn’t have posted this here if I did not see that you did spell the word correctly twice in your actual text. (-:

As for your actual question: Heller and his attorney are both, I believe, Free State Project members. They may be able to give you pointers, and might be receptive if you contact them. (Unfortunately, I do not have contact information for them.)

One of our lawyers here can explain this better, but my understanding is that the notion that the 14th amendment binds state governments within the scope of the Bill of Rights is a notion constructed by the judiciary; whether the 2nd amendment is part of that binding has not been explicitly addressed and is therefore not settled.
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rossby

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Re: 2nd ammendment
« Reply #2 on: April 30, 2009, 09:36:52 pm »

He said that the 2nd amendment does not apply to individuals and is only a protection against the national government, but not the states.

...

I was able to prove him wrong about it protecting individuals by showing him a summary of the case Heller v DC, but I am having a difficult time finding evidence that it has been incorporated with the 14th amendment due process clause. Does anyone have any ideas?

You've having a hard time finding it because it doesn't exist! It's a relatively new question, and the the Supreme Court has not addressed it. Very recently, a federal court in California held in Nordyke v. King that the 2nd Amendment is incorporated against the states via the 14th Amendment. Time will tell.
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Mark D

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Re: 2nd ammendment
« Reply #3 on: April 30, 2009, 09:39:12 pm »

... amendment ... is only  a protection against the national government, but not the states.

So, I suspect that your teacher wouldn't object to the State censoring the entire debate as undesirable political discussion, or requiring that he open each class with a prayer...In jesus' name of course.
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charles3330

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Re: 2nd amendment
« Reply #4 on: April 30, 2009, 10:12:06 pm »

"Every libertarian and constitutionalist needs to learn to spell 'amendment.' "
Considering I attend a public school, going two for three on anything isn't too bad.   :P

-

Thanks. I'll mention that case to him the next time I get an opportunity.

-

If he thought opening class with prayer was in some way good for the collective whole of society, he would definitely support it.
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Dreepa

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Re: 2nd ammendment
« Reply #5 on: May 01, 2009, 07:27:58 am »

... amendment ... is only  a protection against the national government, but not the states.

So, I suspect that your teacher wouldn't object to the State censoring the entire debate as undesirable political discussion, or requiring that he open each class with a prayer...In jesus' name of course.

I think that that was an allowed in the past.. .I think one state said that the BOR didn't apply to the states regarding Freedom of Religion or some such... I will have to look for that reference again.
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Mark D

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Re: 2nd ammendment
« Reply #6 on: May 01, 2009, 07:58:20 am »

... amendment ... is only  a protection against the national government, but not the states.

So, I suspect that your teacher wouldn't object to the State censoring the entire debate as undesirable political discussion, or requiring that he open each class with a prayer...In jesus' name of course.

I think that that was an allowed in the past.. .I think one state said that the BOR didn't apply to the states regarding Freedom of Religion or some such... I will have to look for that reference again.

It's an interesting academic discussion.  My point was that his (the teacher's) argument is likely one of convenience without any actual thought concerning the matter.  Normally, in these types of discussions, the same people that say that the 2nd A doesn't apply to States will get their panties all up in a bunch if you suggest that none of the other 9 A's apply either. 

Beware original poster...corner your teacher with the above and he'll then shift his focus to redefining the word "regulated" from its original meaning.
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charles3330

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Re: 2nd amendment
« Reply #7 on: May 01, 2009, 05:06:20 pm »

No, he'd refer me to the chart in my book that says

Provisions of the Bill of Rights that have been incorporated into the Due Process Clause

1st-Freedom of speech-Gitlow v New York
1st-Freedom of the press Near v Minnesota
1st-Freedom of assembly, petition Dejonge v Oregon
1st-Free Exercise Clause-Cantwell v Connecticut
1st-Establishment Clause -Everson v Board of Education (my emphasis)
4th-Unreasonable searches, seizures-Mapp v Ohio
8th-Cruel, unusual punishments-Robinson v California
6th-Right to counsel- Gideon v Wainwright
5th-Self incrimination-Malloy v Hogan
6th-Confront witnesses- Pointer v Texas
6th-Speedy trial-Klopfer v North Carolina
6th-Obtain witnesses-Washington v Texas
6th-Trial by jury in criminal cases-Duncan v Louisiana
5th-Double jeopardy-Benton v Maryland

Provisions NOT incorporated
2nd-Right to keep, bear arms
3rd-Quartering of troops
5th-Grand Jury
7th-Trial by jury in civil cases

I was just hoping that since the book was published a few years ago that the 2nd had been incorporated since then.

"My hope stemmed from this quote: The 2nd Amendment was added to the Constitution to protect the right of each state to keep a militia. The Amendment's aim was to preserve the concept of a citizen-soldier. Many-including the Bush administration today-insist that the 2nd Amendment also sets out an individual right. They say that it guarantees a right to keep and bear arms just as, for example, the 1st Amendment guarantees the freedom of speech. The Supreme Court has never accepted this interpretation of the 2nd Amendment. The only important 2nd Amendment case is United States v Miller, 1939...."

Since a recent case, Heller v DC, has made it an individual right, I was hoping more of the book was wrong than just the above quote.
« Last Edit: May 01, 2009, 05:08:21 pm by charles3330 »
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sj

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Re: 2nd amendment
« Reply #8 on: May 01, 2009, 05:18:50 pm »

The other day I got into a debate with my government teacher (public high school). He said that the 2nd amendment does not apply to individuals and is only  a protection against the national government, but not the states. I was able to prove him wrong about it protecting individuals by showing him a summary of the case Heller v DC, but I am having a difficult time finding evidence that it has been incorporated with the 14th amendment due process clause. Does anyone have any ideas?

Also, I need to find a news article to write a summary of and share my opinion about. I have several ideas, but I'm open to suggestions. My teacher seems to love big government and I would love to find something to make him rethink his positions.

You need to be clear that you're talking about two different issues.

The 2nd Amendment does absolutely protect individuals from governmental incursions on their right to keep and bear arms.  Legislative history, quotes from the Founders, and GRAMMAR all point in the same direction.  The Heller case settled it.

The 2nd Amendment has not (yet) been incorporated against the states.  It currently only applies to the federal government.  That will probably change very shortly, and the 9th Circuit Court of Appeals recently incorporated the Heller decision in their own circuit. 
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rossby

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Re: 2nd amendment
« Reply #9 on: May 01, 2009, 05:21:29 pm »

The 2nd Amendment has not (yet) been incorporated against the states.  It currently only applies to the federal government.  That will probably change very shortly, and the 9th Circuit Court of Appeals recently incorporated the Heller decision in their own circuit. 

I cross my fingers and hope they don't! :-\ ... though it's likely coming...
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charles3330

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Re: 2nd amendment
« Reply #10 on: May 01, 2009, 05:24:57 pm »

I know they are separate issues. I have already demonstrated to my teacher that he, and the book, were wrong about it protecting individuals. I was just hoping that i was protected from the state as well as the national government.

Why wouldn't it be a good thing if the 2nd amendment applied to the states?
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Mark D

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Re: 2nd amendment
« Reply #11 on: May 01, 2009, 06:22:42 pm »

ooops ::)  Clearly, I missed the tenor of this conversation.  I'll politely withdraw before I embarrass myself any more than I already have.  Catch you later folks.
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rossby

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Re: 2nd amendment
« Reply #12 on: May 01, 2009, 08:08:50 pm »

Why wouldn't it be a good thing if the 2nd amendment applied to the states?

Good? Depends on what you think the role between the federal governments is supposed to be.

I think the right to keep and bear arms is good. As are the other items listed in the Bill of Rights. In the constitutional scheme, I do not believe for a moment that that states originally meant to grant a power to enforce the amendments against the states to the federal government (for example, see Federalist Nos. 41 & 42). Nor that the 14th amendment granted those new powers either. In addition, I question any claims that the rights enumerated in the BoR are in the category of mere "privileges and immunities" or are created by the Constitution itself. Absolutely NOT!

When a state treats a citizen poorly, that is unfortunate. But it probably wasn't mean to be the federal government's purpose to intervene. Too often, when we desire justice for a person wronged by our state, rather than acting at the state level, we turn to the biggest, baddest enforcer of them all. In doing so, we actually empower the federal government to ignore the Constitution. Unfortunately, even the Supreme Court Justices tend to ignore the Constitution from time to time.

---edit---
I cleaned up my original post.
« Last Edit: May 01, 2009, 11:00:51 pm by B.D. Ross »
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charles3330

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Re: 2nd amendment
« Reply #13 on: May 01, 2009, 08:36:22 pm »

Thanks for clearing that up.
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rabbit20

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Re: 2nd ammendment
« Reply #14 on: May 01, 2009, 08:41:38 pm »

Beware original poster...corner your teacher with the above and he'll then shift his focus to redefining the word "regulated" from its original meaning.

I like this explanation of the 2nd Amendment from Penn and Teller
http://www.youtube.com/watch?v=1GNu7ldL1LM

and gun control
http://www.youtube.com/watch?v=joBMq6b4MmE&feature=related
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