2 Challenge Gun Cases, Citing Bush Policy

[Lucky Green]

Steve Schear wrote:
> I think whether the 2nd is enforceable against states and 
> municipalities 
> will depend upon the SC deciding to apply the 14th Amendment. 
>  The Supreme 
> Court has long held that the 14th Amendment does not make all 
> of the Bill 
> of Rights applicable to the States. Only those rights the 
> Court finds to be 
> "fundamental" apply. To this day, several portions of the 
> Bill of Rights, 
> including the right to indictment by grand jury, to a jury 
> trial in any 
> common-law suit over $20, and to the rules of the common law 
> in judicial 
> review of jury fact-finding, have not been held to be 
> fundamental and to 
> this day are not applicable to the states.

Steve is correct that the question if the 2nd Amendment imposes limits
on the ability of the States to regulate arms closely relates to whether
the Supreme Court holds that the 14th Amendment extends 2nd Amendment's
reach to the States.

However, the answer to this question is not one that will need to be
decided in the future. It has been decided over 125 years ago in one of
the first test cases of the then new 14th Amendment

In United States v. Cruikshank, 92 U.S. 542 (1876), the Supreme Court
held that:

"The government of the United States, although it is, within the scope
of its powers, supreme and beyond the States, can neither grant nor
secure to its citizens rights or privileges which are not expressly or
by implication placed under its jurisdiction. All that cannot be so
granted or secured are left to the exclusive protection of the States."

"The right to bear arms is not granted by the Constitution; neither is
it in any manner dependent upon that instrument for its existence. The
second amendment means no more than that it shall not be infringed by
Congress, and has no other effect than to restrict the powers of the
national government." 

As you can see by reading the entire case, the Court held not only that
the 14th Amendment does not extend the 2nd Amendment to the States, but
also held that the States are free to regulate firearms at their
leisure, in effect, the Court held that the 2nd Amendment solely
constrains Congress from infringing upon the right to keep and bear arms
while leaving the Executive free to infringe upon this right, or deny
its exercise entirely, at will.

In their ruling, the Supreme Court of course utterly ignored the
legislative history of the 14th Amendment that shows that the 14th
Amendment was put in place precisely to ensure, amongst other civil
rights, that the newly freed blacks would be able to arm themselves as a
protection from their militarily beaten, but no less racist, white
neighbors.

Under Cruikshank, Congress may not pass a bill infringing on the right
of the citizens to keep and bear arms, but a Presidential Executive
Order that all private citizens are to turn in their guns tomorrow
passes Constitutional muster.

The Supreme Court slightly soften their contention that the 2nd
Amendment was not worth the parchment it is written on (at least when it
comes to, horrors, blacks with guns) ten years later in Presser v.
Illinois, 116 U.S. 252 (1886).

"The provision in the Second Amendment to the Constitution, that 'the
right of the people to keep and bear arms shall not be infringed,' is a
limitation only on the power of Congress and the national government,
and not of the States. But in view of the fact that all citizens capable
of bearing arms constitute the reserved military force of the national
government as well as in view of its general powers, the States cannot
prohibit the people from keeping and bearing arms, so as to deprive the
United States of their rightful resource for maintaining the public
security." 

Unfortunately, while at first glance being rather favorable to the right
to keep and bear arms, Court in Presser did not overturn the Court's
earlier determination in Cruikshank that the 14th Amendment does not
extend the 2nd Amendment to the States. While the Court has in the well
over 100 years that have since passed extended virtually the entire Bill
of Rights to the States via the 14th Amendment, it has failed to so with
the 2nd Amendment. The decision in Cruikshank that the 14th Amendment
does not extend the 2nd Amendment to the States stands has not only been
made by the Supreme Court, the decision stands to this day.

--Lucky (IANAL)