Send Lawyers, Guns and Money (Was RE: [lbo-talk] Kinky... Why the hell not?)

[Michael Hoover]

>>> andie_nachgeborenen at yahoo.com 02/01/06 12:16 AM >>>
Btw, Miller's not the only case that would have to go.
The BoR on its face, including the 2A, only restricts
what the federal govt can do. To get the BoR to apply
to the states, the Court has to rule that an amendment
is "incorporated," that it applies to the states via
the 14A.  There are specific cases on each of the
applicable amendments in the BoR. Thus the 1A, the 4A,
the 5A, the 6A, the 7A, and the 8A are all
specifically incorporated.  (The 3A, the 9A, and the
10A don't call for incorporation, though the 3A might
if the states started quartering the National Guard in
our homes . . . .) 
Back in the 1880s, the S.Ct ruled that the 2A is NOT
incorporated, and so does not apply to state
regulation of guns. So even if the 2A prohibits
federal gun control, it doesn't prohibit state gun
control.
However, if the gun nuts want to get rid of state gun
control,I say fine, give them that too. Having to
incorporate the 2A and overrule the old case, the name
of which I forget, is just an extra impediment that I
point out because I'm a lawyer and therefore boringly
legalistic.
<<<<<>>>>>

incorporation is interesting, by time s.c. modified 'palko
test' (from explanation of  doctrine by cardozo in '47
case re. criteria by which court determines state violation
of amendment 14) in '68 _duncan v louisana_ case 
facilitating incorporation of additional provisions,
incorporation 'era' - which began with gitlow case in '25,
and which  accelerated in mid-'60s - was about over, in
large part, no doubt, because bill of rights had largely
been incorporated, except for numbers cited above 
(although some scholars cite *second*, third, & tenth as 
those not applicable), number 14 imposes on states
all requirements of bill of rights except indictment for
serious crimes by grand jury and trial by jury in all
civil cases involving more than $20)...

william o. douglass, whose dissents often expressed
concern about 'watering down' of bill of rights
protections, wrote in '72 _adams v williams_ dissent
something to the effect pistols could be banned for
everyone except the police while indicating that if 
choice was between watering down #2 or #4, he 
would choose former...

btw: recall reading piece some time ago asserting that
madison intended for amendment 2 to enable southern 
slavers to protect/enforce institution/practice of slavery
(neither recall author's name nor where article appeared)...
mh