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Thread: Will the Supreme Court apply the 2nd Amendment to States?

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    Senior Member thereom4's Avatar
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    Will the Supreme Court apply the 2nd Amendment to States?

    Is it March 2nd already? Today's the big day. McDonald v. Chicago is going to be argued in front of the Supreme Court. I so wish I could be there. I made plans to go months ago but it's just not going to happen. Oh well. I was ready to camp out (if they'd let me) so I could ensure I got a seat to see this case being argued. The six plus hour bus ride would've been so be worth it. I was glad I was able to see one case argued in the Michigan Supreme Court while I was in MI. It was literally 3 blocks from my apartment! To me that was the coolest thing ever. Now I gotta go to Harrisburg and see a case argued in the Pennsylvania Supreme Court.

    What conclusion do you think the Supreme Court will (or should) come to in this case? What overall impact do you think it'll have?

    http://online.wsj.com/article/SB1000...s_opinion_main
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    Senior Member EldRick's Avatar
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    Keep your fingers crossed that they apply the Constitution to state law by incorporation!
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    Needs to get Outside Inquartata's Avatar
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    Considering that the court has ruled against applying it to the states before, and that this conservative court doesn't much like the idea of pulling anything and everything imaginable out of the 14th, I'm guessing it will not do so here.

    Luckily, many states already have the same sort of protections in their own constitutions. People who live in the others will just have to be content living as subjects rather than free citizens.
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    Senior Member Philistine's Avatar
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    Quote Originally Posted by thereom4 View Post
    Is it March 2nd already? Today's the big day. McDonald v. Chicago is going to be argued in front of the Supreme Court. I so wish I could be there. I made plans to go months ago but it's just not going to happen. Oh well. I was ready to camp out (if they'd let me) so I could ensure I got a seat to see this case being argued. The six plus hour bus ride would've been so be worth it. I was glad I was able to see one case argued in the Michigan Supreme Court while I was in MI. It was literally 3 blocks from my apartment! To me that was the coolest thing ever. Now I gotta go to Harrisburg and see a case argued in the Pennsylvania Supreme Court.
    Don't know if you were aware, but the transcript will be posted shortly after the argument (probably today).

    What conclusion do you think the Supreme Court will (or should) come to in this case? What overall impact do you think it'll have?
    Personally, I think it pretty likely it'll be incorporated. The kind of odd thing is that the Court granted cert on both the issue of due process incorporation (the way it's been done for the past 100 years) and the privileges or immunities clause--which is probably the way incorporation should be done, but hasn't been viable in a hundred years. People are kind of scratching their head on that--though I can't imagine the Court actually going for the P&I argument.

    --Philistine

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    Senior Member Philistine's Avatar
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    Quote Originally Posted by Inquartata View Post
    Considering that the court has ruled against applying it to the states before, and that this conservative court doesn't much like the idea of pulling anything and everything imaginable out of the 14th, I'm guessing it will not do so here.{snip}
    I don't think anyone is actually going to rely on the previous opinions on the 2nd amendment, none of them used the actual incorporation framework currently being used.

    It should be interesting. Thomas and Scalia, at least, are not big fans of incorporation, whereas the "liberal wing" generally is. So you generally have members of the Heller majority lukewarm at best on incorporation and the dissenters in Heller for it.

    Personally, I think it likely the Court will incorporate it--with the conservative justices saying they are bound by stare decisis to the principal of incorporation, though they wouldn't necessarily agree to it if it were a blank slate, and at least some of the dissenters disagreeing that the 2nd Amendment guarantees a fundamental right, but agreeing that Heller says it does and if so, it should be incoroprated.

    This is pretty much the last significant incorporation battle to be fought, as nobody really seems all that concerned about state grand juries, excessive bail/fines, quartering of soldiers in peacetime, or the right to civil jury trials.

    As a footnote, the Washington State Supreme Court held that the 2nd Amendment is incorporated on the States two weeks ago.

    --Philistine

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    Senior Member thereom4's Avatar
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    Quote Originally Posted by Philistine View Post
    Don't know if you were aware, but the transcript will be posted shortly after the argument (probably today).
    I wasn't aware. But I did just find the link. I won't be the same though.


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    Senior Member Philistine's Avatar
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    Here is the transcript.

    Based on it, I'll stand by my prediction, though I suspect it may be 9-0 (or close) on the actual issue of incorporation and (my guess) 5-4 or 6-3 on the scope of incorporation, with (probably) the majority going for a full incorporation, with the dissent arguing only the "core" is incorporated.

    --Philistine

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    Senior Member thereom4's Avatar
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    Quote Originally Posted by Philistine View Post
    Here is the transcript.

    Based on it, I'll stand by my prediction, though I suspect it may be 9-0 (or close) on the actual issue of incorporation and (my guess) 5-4 or 6-3 on the scope of incorporation, with (probably) the majority going for a full incorporation, with the dissent arguing only the "core" is incorporated.

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    In class reading it now.
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    Senior Member Sins of the Fleche's Avatar
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    As a corollary to this, I find it kinda interesting that the Obama administration hasn't made any real, concerted push on tighter gun restrictions, at least to my knowledge, which is usually a pretty stereotypical/standard action for a good number of the modern Democratic presidents. Even Clinton, who in my opinion was more middle-of-the-road than Obama is, had the Brady legislation passed under his direction.

    Then again, the proposed healthcare reform bill(s) have become the equivalent of political trench warfare, so that might be a wee bit engrossing.
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    Senior Member I_luv_saber's Avatar
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    Quote Originally Posted by Philistine View Post
    Here is the transcript.

    Based on it, I'll stand by my prediction, though I suspect it may be 9-0 (or close) on the actual issue of incorporation and (my guess) 5-4 or 6-3 on the scope of incorporation, with (probably) the majority going for a full incorporation, with the dissent arguing only the "core" is incorporated.

    --Philistine
    I just finished reading the transcript (thanks for the link).

    I also believe they will incorporate, and will probably fully incorporate. Feldman's arguments seemed weaker and more easily picked apart - but this is coming from someone with no training in law. Just a layman's observation.
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