Obama's Supreme Court pick...

[Pressing-On]

Originally Posted by Baron1710

On Sotomayor, Obama Can’t Hide Behind the Bushes

In the past year, the biggest question courts now face is whether the Second Amendment applies to the states. That may sound crazy, but the reality is that the Bill of Rights only controls the federal government, it doesn’t apply directly to states or cities. Only the parts of the Bill of Rights that are “incorporated” through the Fourteenth Amendment apply to the states.

Since the Heller decision (D.C vs. Heller), only two federal appeals courts have written on the Second Amendment.

Of those six, three said the Second Amendment does apply to the states.

But not Judge Sonia Sotomayor. She is one of only three federal appellate judges in America to issue a court opinion saying that the Second Amendment does not apply to states. The case was Maloney v. Cuomo, and it came down this past January.

http://townhall.com/Columnists/KenBl...ind_the_bushes


I get the sense the lady is somewhat left of center, but there is plenty of reason for her to rule this way. 1. the Second Amendment has never been applied to the states before, nor had any of the Bill of Rights prior to the 14th Amendment. 2. This is why they went with the DC gun law and not NY or Chicago so they wouldn't have to answer this question.

The SC didn't answer the question because it wasn't asked. A strict constructionist would have answered the same way. That isn't to say that she didn't want it to come out that way I just think that is the fair answer until the SC says otherwise.

I understand your point #1.

What is confusing is that after the 14th Amendment was implemented, the 2nd Amendment and Bill of Rights, on the Federal level, would then be incorporated into state's rights.

What I am understanding is that the courts are weighing in which rights are fundamental to the states? Why doesn't the 15th make ALL fundamental? And didn't the 9th Circuit say that the 2nd Amendment was fundamental to state's rights?

I found my answer: "Way back in 1820, in Barron v. Baltimore, the Supreme Court unanimously held that none of the Bill of Rights applied to the states. That was not overturned for about a century, until the Supreme Court started holding that some (but not all) of the BOR were "incorporated" into the 14th Amendment and thus applied as against the States."

[Baron1710]

Originally Posted by Pressing-On

I understand your point #1.

What is confusing is that after the 14th Amendment was implemented, the 2nd Amendment and Bill of Rights, on the Federal level, would then be incorporated into state's rights.

What I am understanding is that the courts are weighing in which rights are fundamental to the states? Why doesn't the 15th make ALL fundamental? And didn't the 9th Circuit say that the 2nd Amendment was fundamental to state's rights?

I found my answer: "Way back in 1820, in Barron v. Baltimore, the Supreme Court unanimously held that none of the Bill of Rights applied to the states. That was not overturned for about a century, until the Supreme Court started holding that some (but not all) of the BOR were "incorporated" into the 14th Amendment and thus applied as against the States."

Look at all the time you saved me.

You are correct. Most states have similiar wording in their State Constitutions, which protects the individual from the State.

[Baron1710]

Originally Posted by Pressing-On

I understand your point #1.

What is confusing is that after the 14th Amendment was implemented, the 2nd Amendment and Bill of Rights, on the Federal level, would then be incorporated into state's rights.

What I am understanding is that the courts are weighing in which rights are fundamental to the states? Why doesn't the 15th make ALL fundamental? And didn't the 9th Circuit say that the 2nd Amendment was fundamental to state's rights?

The 15th was the right to vote regardless of race, that just gave Congress power to create legislation to enforce that right.

What the 9th Cir. says is only persuasive authority for the other Circuits not mandatory. Circuits are often split on how the interpret laws. Then the Supreme Court at some point accepts cert and then they all have to follow the SC precedent. But one Circuit cannot bind another Circuit

[Pressing-On]

Originally Posted by Baron1710

The 15th was the right to vote regardless of race, that just gave Congress power to create legislation to enforce that right.

Right and that was a typo. I meant the 14th.

What the 9th Cir. says is only persuasive authority for the other Circuits not mandatory. Circuits are often split on how the interpret laws. Then the Supreme Court at some point accepts cert and then they all have to follow the SC precedent. But one Circuit cannot bind another Circuit

Thanks for the explanation. What answer would there be if the SCOTUS says that the government cannot infringe upon a fundamental right except when necessary to promote a compelling governmental interest that cannot be achieved by less restrictive means.

It sounds as though most of the liberals would back their opinion with - it's not a "fundamental" state right - haven't ruled it 100% across the board in all courts."

I suppose we would not want to infringe on states to make their own laws. Back and forth..... *sigh*

I do like what Ken Blackwell said, regardless:

"Second Amendment supporters will now be up in arms over this radical anti-Second Amendment nominee, and you should never underestimate the political power of American gun owners."

[Baron1710]

Originally Posted by Pressing-On

Right and that was a typo. I meant the 14th.


Thanks for the explanation.

I do like what Ken Blackwell said, regardless:

"Second Amendment supporters will now be up in arms over this radical anti-Second Amendment nominee, and you should never underestimate the political power of American gun owners."

No problem. I read Blackwells article and to be honest I looked ot se if he was employed by the NRA. She may be anti-Second Amendment however I don't think you get there from that one decision.

[Pressing-On]

Originally Posted by Baron1710

No problem. I read Blackwells article and to be honest I looked ot se if he was employed by the NRA. She may be anti-Second Amendment however I don't think you get there from that one decision.

That was a big decision to comment and take a stand on. Especially when only "3" weighed in and said the 2nd Amendment doesn't apply to state's rights. They are setting a precedent for their view on the issue, IMO. To me, that is concrete. I take that as concrete.

[Pressing-On]

Originally Posted by Baron1710

No problem. I read Blackwells article and to be honest I looked ot se if he was employed by the NRA. She may be anti-Second Amendment however I don't think you get there from that one decision.

He is a good writer. I read a lot of his stuff.

Here's one of his articles from February:

Obama, Ginsburg and Guns

In the aftermath of the Heller decision, there will be a handful of major Second Amendment cases over the next few years that will shape gun rights in this country forever. In fact, it was a pro-gun 2004 OLC opinion that laid the foundation for gun-rights advocates to win the Heller case.

Of all these issues, the most significant is whether the Second Amendment only protects gun owners from the federal government, or if it also applies to states and cities. Liberals argue that the amendment only limits the federal government. There are two major lawsuits underway right now, both of which could go to the Supreme Court.

So gun owners had better beware, and should be urging their senators to ask these nominees tough questions on the Second Amendment.

http://townhall.com/columnists/KenBl...nd_guns?page=2

[Baron1710]

Originally Posted by Pressing-On

That was a big decision to comment and take a stand on. Especially when only "3" weighed in and said the 2nd Amendment doesn't apply to state's rights. They are setting a precedent for their view on the issue, IMO. To me, that is concrete. I take that as concrete.

She didn't just comment and make a stand she ruled on it, the case was before her she had to pick which way she would rule. The SC doesn't care what the Circuits say they rule how they see it. The Precedent of the 2nd Circuit in that case applies only to cases out of NY. Also the reverse of what was said in the article is that 3 of the 6 judges ruled it wasn't incorporated.

[Pressing-On]

Originally Posted by Baron1710

She didn't just comment and make a stand she ruled on it, the case was before her she had to pick which way she would rule. The SC doesn't care what the Circuits say they rule how they see it. The Precedent of the 2nd Circuit in that case applies only to cases out of NY. Also the reverse of what was said in the article is that 3 of the 6 judges ruled it wasn't incorporated.

Thank you, much more concrete - she ruled on it.

She made her choice and stood with - it is NOT fundamental to state's rights. And - YES - a 50/50 split! Why couldn't she have ruled that it WAS incorporated.

I would say it was "fundamental" and should be "incorporated" because of the wording:

A 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.

[Baron1710]

Originally Posted by Pressing-On

Thank you, much more concrete - she ruled on it.

She made her choice and stood with - it is NOT fundamental to state's rights. And - YES - a 50/50 split! Why couldn't she have ruled that it WAS incorporated.

I would say it was "fundamental" and should be "incorporated" because of the wording:

A 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.

Think of it this way, since it is necessary for a state to remain free to have a militia, [who] will not infringe upon the right of the state? The obvious answer to me is the federal government. It is the security of the State we are talking about.