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Second Circuit Holds 2nd Amendment Not Applicable to States
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Dave Pendleton
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Post subject: Second Circuit Holds 2nd Amendment Not Applicable to States Posted: Tue Feb 10, 2009 9:08 pm |
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Senior Member |
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Joined: Wed May 07, 2008 4:05 pm Posts: 312 Location: SE Metro
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Quote: Second Circuit Holds Second Amendment Not Applicable to States
The Second Amendment guarantee of the right to bear arms does not apply to override state firearms bans, the U.S. Court of Appeals for the Second Circuit declared Jan. 28. Under the incorporation doctrine, only certain provisions of the Bill of Rights apply to the states, and the Second Amendment is one of those that does not, the Second Circuit held (Maloney v. Cuomo, 2d Cir., No. 07-0581-cv, 1/28/09).
The statute at the center of this case, N.Y. Penal Law §265.01(1), provides criminal penalties for possession of a broad range of items, including weapons used in martial arts. The plaintiff was charged under the statute after police found fighting sticks, or nunchaku, in his home. He ended up pleading guilty to a different charge and then filed a lawsuit against the county prosecutor and others seeking a declaration that the law offends his Second Amendment right to bear arms.
Incorporation Doctrine
For the first half of its life, the U.S. Constitution's Bill of Rights was interpreted as constraining only the federal government—not the states. However, in the late 1800s and early 1900s, the U.S. Supreme Court began ruling that certain rights were incorporated into the limits on state governments imposed by the 14th Amendment's due process clause. The provisions selected for incorporation so far include most, but not all, of the rights that come into play in criminal cases. For example, the right to indictment does not apply to the states.
Back before the incorporation doctrine took hold, the Supreme Court held, in United States v. Cruikshank, 92 U.S. 542 (1875), and Presser v. Illinois, 116 U.S. 252 (1886), that the Second Amendment is a limitation only on the power of the federal government and thus does not constrain state regulations. The Supreme Court's subsequent Second Amendment cases, United States v. Miller, 307 U.S. 174 (1939), and District of Columbia v. Heller, 76 U.S.L.W. 4631 (U.S. 2008), both involved federal regulations, so the incorporation issue was not really in play. Nevertheless, in a footnote in Heller, the Supreme Court had this to say:
With respect to Cruikshank‘s continuing validity on incorporation, a question not presented by this case, we note that Cruikshank also said that the First Amendment did not apply against the States and did not engage in the sort of Fourteenth Amendment inquiry required by our later cases. Our later decisions in Presser v. Illinois, 116 U.S. 252, 265 (1886) and Miller v. Texas, 153 U.S. 535, 538 (1894), reaffirmed that the Second Amendment applies only to the Federal Government.
The Second Circuit, in contrast, has directly addressed the incorporation issue in recent years. In Bach v. Pataki, 408 F.3d 75, 73 U.S.L.W. 1677 (2d Cir. 2005), the court rejected a challenge to a state gun-control law on the ground that the states' power to regulate firearms is not limited by the Second Amendment right to bear arms.
http://lawprofessors.typepad.com/crimpr ... rcuit.html
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1911fan
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Post subject: Posted: Wed Feb 11, 2009 12:39 am |
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On time out |
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Joined: Mon Aug 22, 2005 10:18 pm Posts: 1689 Location: 35 W and Hiway 10
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So does this mean taking the fifth or hiding behind the First for a news paper only protects from federal law? BS. The protection MUST be overriding or it has no value at all
_________________ molan labe
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joelr
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Post subject: Posted: Wed Feb 11, 2009 7:33 am |
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The Man |
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Joined: Sun Aug 07, 2005 5:43 am Posts: 7970 Location: Minneapolis MN
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Well, we'll see the incorporation issue handled at some point; we kinda have to. Given that Gura et al are working the Chicago case, I'd prefer to see it pushed there than over some guy wanting to play ninja in his basement -- even though he seems to be a thick-skinned enough, nice enough guy -- but I guess we'll see.
_________________ Just a guy.
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Carbide Insert
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Post subject: Posted: Wed Feb 11, 2009 9:30 am |
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Poet Laureate |
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Joined: Sat Aug 19, 2006 11:36 am Posts: 760 Location: Hutchinson, MN
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As infuriating as this is, it is not the least bit surprising. Take one look at the geographical region of Second Circuit Jurisdiction and it's easy to see why they hate their rights.
Maybe they'll come around when New York gets shall issue, and open carry for the commoners in NYC.
This "opinion" by a bunch of black robed ninnies is pure BS.
_________________ It's not always easy these days to tell which of our two major political parties is the Stupid Party and which is the Evil Party...
But it remains true that from time to time they collaborate on something that's both stupid and evil and call it bipartisanship. -Thomas E. Woods Jr.
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AGoodDay
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Post subject: Posted: Wed Feb 11, 2009 10:31 am |
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Joined: Fri Dec 30, 2005 1:06 pm Posts: 666 Location: St Cloud
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Look how long it took to get incorporation of all of the other incorporated amendments. It will take a while, but I'm sure it will happen.
_________________ Try not. Do or do not, but do not try. - Yoda
Never give up. Never, never, never. - Churchill
Stand on the shoulders of your giant.
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sigman
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Post subject: Posted: Wed Feb 11, 2009 10:59 am |
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Joined: Sun Aug 07, 2005 10:20 am Posts: 1317 Location: Racine, MN
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Apparently, freedom does not ring nationwide.
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Scott Hughes
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Post subject: Posted: Wed Feb 11, 2009 1:16 pm |
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Longtime Regular |
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Joined: Wed Oct 04, 2006 10:44 pm Posts: 1525 Location: Isanti, MN
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IIRC many of the States adopted the language of the BOR in their State Constitutions, or similar language. And I believe that one of the Amendments that has not been adopted in the MN Constitution is the 2nd. Of course I think that it should be
_________________ “Socialism is a philosophy of failure, the creed of ignorance, and the gospel of envy, its inherent virtue is the equal sharing of misery.”
- Winston Churchill -
WITHOUT LIBERTY THERE IS NO FREEDOM
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Mosin
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Post subject: Posted: Wed Feb 11, 2009 1:46 pm |
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Eagle-eyed watcher of legislation |
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Joined: Fri Dec 26, 2008 2:34 pm Posts: 185 Location: Bloomington
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Mr. Jefferson I wish you were here. Thinks have changed a lot in 230 years. An I don't think it's working like you planned. Mr. Jefferson we sure could use a hand.
Quote: "A bill of rights is what the people are entitled to against every government on earth, general or particular; and what no just government should refuse, or rest on inferences." --Thomas Jefferson to James Madison, 1787. ME 6:388, Papers 12:440
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Mosin
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Post subject: Posted: Wed Feb 11, 2009 1:49 pm |
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Eagle-eyed watcher of legislation |
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Joined: Fri Dec 26, 2008 2:34 pm Posts: 185 Location: Bloomington
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