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this post was submitted on 24 Apr 2024
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I’m no ConLaw expert, but AFAIK the doctrine remains that the Bill of Rights restricts primarily the federal government, save for 5A and 7A and using either clause to use 2A to override state gun control by all accounts remains a jurisprudential Faustian bargain no justices have yet been willing to make.
No, that isn't how it works at all. That is a view before the Civil War and partially up till the 1960, but SCOTUS has made it clear. The rights are for everyone, state/federal. The states cannot violate your rights in the constitution.
One of the arguments in Miranda is that the state did not have to follow the 5th Amendment. As you can tell, that did not work as the state thought.
Hmm maybe my information is out of date or I just need to review. Which case incorporated 2A? Was it more recent than DC-Heller?
Miranda is from the 1960’s.
Heller is fairly recent but the only reason scotus took the case is states can’t violate the amendments.
Unless you were born in the 1860’s, it’s been fairly well known that the constitution cannot be violated by states on their citizens.
Just so I’m on the same page, we’re still talking about the first 10 (not 13-15, 19, etc.) and the question is whether 2A renders state gun control unconstitutional?
~~Edit: Also assuming the latter is true, are we then to read 2a as a guarantee to possession of these weapons to citizens carte blanche?~~
The whole Constitution is applied to the states.
Then we need to overhaul the court systems and multiply their bureaucratic size and process to satisfy the grand jury requirement of 5A and the civil jury trial right of 7A.
And assuming 2a renders state gun control unconstitutional, I presume then we read 2A as a carte blanche guarantee to possession of these weapons to citizens.
This is what we propose, yes?
By default, it doesn't render it unconsotitional. It means you can't violate it by restricting rights.
We already meet the requirements for 5th and 7th. WHy do you think plea bargains are so popular?
States do not because as of yet, 5’s grand jury requirement, 6’s criminal jury trial right, and 7’s civil jury trial right have not been interpreted as binding upon the states.
I agree that’s the precedent, but I’m unclear where we should place that threshold of violation. Presumably somewhere on the scale of TX to NY? Perhaps… IL?
Well I learned something new today. I always thought we could ask for a jury in a civil state case. I’ve done federal and you can do bench or jury.
The courts determine and then it rolls up. Also in district appears to radically differ on what is allows or not. To be clear I’m pro-second amendment but I do believe in reasonable restrictions. No felons. Background checks. Etc.
Other people feel any restriction is wrong and I disagree with that.
(Apologies, got busy at work.) Yes I’d have thought so too. There might be a list which jurisdictions where it’s available.
I suspect the lack of precedent for their incorporation among the amendments binding the states comes down to just the budgetary requirements for expansion. As long as it remains unreasonable or impossible to enforce without effectively being taken over by federal, these exceptions remain.
2A might be similar in principle, since there’s no one-size-fits-all doctrine that can be realistically applied besides either zero regulation or a complete ban, both of which would risk a great deal of legitimacy.
I’m with you re: gun control. Tools not toys. Many tools are dangerous enough to require proof of competency or purpose, and some can only be used in certain situations. Surely a tool whose purpose is danger shouldn’t be the exception.
A gun should be dangerous. That’s its job.
I’m for reasonable restrictions and I’ll admit that’s a hard term to define without seeing the law proposed. I have no issue with a background check being required for all purchases. With the internet. It’s not that hard now.
I am not against permits for CCW. As long as it’s an easy process that doesn’t make overly difficult. In Nevada I had to take a class , shoot a couple of times and apply for the permit.
I don’t mind bump stocks being banned.
Things like that I find reasonable. Banning assault rifles I do not think is reasonable.
Yeah I avoid debating weapon class bans because it always amounts to an arbitrary threshold on the scale of potential kill rate, and people sporting desert storm kits at the grocery store do all the talking anyway.
Training is the regulation I think my fellow progressives should back. Do that correctly and the rest takes care of itself. Anti-gun messaging clearly isn’t working. Instead, embrace gun ownership as a public service wed to demonstrated responsibility and discipline, since safety is the actual goal.
By discipline I mean require training, make it rigorous and cheap, and make regular shooting mandatory for permit renewal. Require inspections for proper maintenance and adherence to storage safety protocols. Offer specialist certifications for more exotic equipment. Basically, make sure would-be gun owners respect the weapon, understand the responsibility they’re taking on, and are equipped to use them safely and proficiently. Done right, civilians seeking military outfitting would face the same requirements as equivalent military personnel, so that they might as well just become a reservist.
Every hooah 2a person I’ve known would be all for this. But they take guns seriously and aren’t contributing to the statistics. The actual unsafe assholes, who make guns a national problem, wouldn’t bother owning guns if there was work involved. It may not be popular (yet) among “liberals” but lots of countries with high rates of gun ownership and low gun violence handle regulation this way.