Oregon's proposed new class of terrorists

[Lucky Green]

Tim wrote:
> A good example, one of many, being the bullshit about the 
> "incorporation doctrine" and whether the Second Amendment prevents 
> _states_ from violating the Bill of Rights in the same 
> way--it has been 
> accepted--that the states may not establish official churches or deny 
> due process, blah blah. Not being a law student, it has always seemed 
> clear to me that the states agreed to support the Constitution of the 
> United States as a condition for joining the Union and they clearly 
> cannot impose their own press censorship, official religions, 
> etc., nor 
> can they violate the Fourth Amendment and just raid houses as they 
> wish. Nor can their courts ignore jury trial and other constitutional 
> issues. So, somehow the Second Amendment is deemed to be 
> "unincorporated" (??). How con-veeeenient!
> 
> The Supreme Court should issue a simple and concise statement:
>
> "The Second Amendment is no different from the First, Third 
> (quartering 
> troops), Fourth, Fifth, Sixth, etc. amendments. Some of the states do 
> not seem to have grasped this. And we have been remiss in not making 
> this abundantly clear a long time ago. .... We hereby instruct the 
> Federal Marshals Service to visit the various prisons in states which 
> have gun laws violating the Second Amendment and release the 
> prisoners. 
> We further order...and we order...and those officials which 
> ignore this 
> order shall be charged...."
> 
> But of course the Supreme Court is unwilling to rock the 
> boat.

The Supreme Court won't rock the boat because it built the boat in Dread
Scott, part II, known amongst lawyers as "United States v. Cruikshank".
(Most of the following is from a post to this list I made in 2002).

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. 


[...]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 which 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. As would any State laws banning any and
all possession of firearms by civilians.

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 Green


--Lucky (IANAL)