Smitty-48 wrote:nmoore63 wrote:Smitty-48 wrote:The 2nd has to stand, the states can't deny the right to bear arms anymore than the feds can, but they can decide what the definition of "arms" is for their state militia, if a state decided that was bolt action rifles only, I don't see anything in the constitution to stop them.
How the bill of rights was supposed to apply to the states is pretty shaken.
Originally the second amendment was not supposed to be a constraint on the states at all.
But the dynamic you have now is the states rights of the militias trying to stave off federal overreach, the states want to have AR-15s for their militias or whatever, the militia is the source of the paramilitary firepower mandate, but if a state decides it doesn't want that, what mechanism is there in the constitution to prevent them from legislating breed bans, magazine restrictions, no automatics, special licensing requirements and so on?
It's indeed a bit of a murky pool left by
McDonald.
The estimable Lyle Dennison's contemporaneous take:
Analysis: Gun rights go national
As Breyer noted, “countless gun regulations of many shapes and sizes are in place in every state and in many local communities.” He then catalogued some of the questions that will now arise as many of those laws are tested: “Does the right to possess weapons for self-defense extend outside the home? To the car? To work? What sort of guns are necessary for self-defense? Handguns? Rifles? Semi-automatic weapons? When is a gun semi-automatic? Where are different kinds of weapons likely needed? Does time-of-day matter? Does the presence of a child in the house matter? Does the presence of a convicted felon in the house matter? Do police need special rules permitting patdowns designed to find guns? When do registration requirements become severe to the point that they amount to an unconstiutional ban? Who can possess guns and of what kind? Aliens? Prior drug offenders? Prior alcohol abusers? How would the right interact with a state or local government’s ability to take special measures during, say, national security emergencies?…These are only a few uncertainties that quickly come to mind.”
Justice Alito’s opinion did repeat some of the limitations on gun rights that the Court had said, in its Heller decision, that it was not disturbing. The Court had said there, Alito noted, that the right it was newly protecting was not “a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.” And Alito repeated, from the Heller opinion, the assurance that “our holding did not cast doubt on such longstanding regulatory measures as ‘prohibitions on the possession of firearms by felons and the mentally ill,’ ‘laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.”
However, as to the incorporation question, the majority was clear and unequivocal (both as to incorporation limiting the state and locals and as to the nature of the right as "fundamental").
Justice Samuel A. Alito, Jr., in the Court’s main opinion, did make one thing unmistakably clear to lower court judges: the right to have a gun for self-defense in the home is a “fundamental” constitutional right. That one-word label carries enormous import. Ordinarily, if a right is deemed to be fundamental, any law that seeks to limit it will be judged by the stiffest constitutional test there is: it must satisfy “strict scrutiny,” meaning that it will be struck down if the government’s need for it is not “compelling” and if the approach it takes is not the narrowest possible way to get at the problem. Some laws can survive “strict scrutiny,” but not a great many do.
The Court had a great chance to revive the Privileges and Immunities Clause in its incorporation holding, but as always has been the case so far, took a powder.
From Alito's majority opinion (
https://www.bloomberglaw.com/public/des ... 1522332117):
As previously noted, the Seventh Circuit concluded that Cruikshank, Presser, and Miller doomed petitioners' claims at the Court of Appeals level. Petitioners argue, however, that we should overrule those decisions and hold that the right to keep and bear arms is one of the "privileges or immunities of citizens of the United States." In petitioners' view, the Privileges or Immunities Clause protects all of the rights set out in the Bill of Rights, as well as some others, see Brief for Petitioners 10, 14, 15-21, but petitioners are unable to identify the Clause's full scope, Tr. of Oral Arg. 5-6, 8-11. Nor is there any consensus on that question among the scholars who agree that the Slaughter-House Cases' interpretation is flawed. See Saenz, supra, at 522, n. 1 (THOMAS, J., dissenting).
We see no need to reconsider that interpretation here. For many decades, the question of the rights protected by the [**3031] Fourteenth Amendment against state infringement has been analyzed under the Due Process Clause of that Amendment and not under the Privileges or Immunities Clause. We therefore decline to disturb the SlaughterHouse holding.
At the same time, however, this Court's decisions in [***909] Cruikshank, Presser, and Miller do not preclude us from considering whether the Due Process Clause of the Fourteenth Amendment makes the Second Amendment right binding on the States. See Heller, 554 U. S., at ____, n. 23 (slip op., at 48, n. 23). None of those cases "engage[d] in the sort of Fourteenth Amendment inquiry required by our later cases." Ibid. As explained more fully below, Cruikshank, Presser, and Miller all preceded the era in which the Court began the process of "selective incorporation" under the Due Process Clause, and we have never previously addressed the question whether the [*759] right to keep and bear arms applies to the States under that theory.
Indeed, Cruikshank has not prevented us from holding that other rights that were at issue in that case are binding on the States through the Due Process Clause. In Cruikshank, the Court held that the general "right of the people peaceably to assemble for lawful purposes," which is protected by the First Amendment, applied only against the Federal Government and not against the States. See 92 U. S., at 551-552. Nonetheless, over 60 years later the Court held that the right of peaceful assembly was a "fundamental righ[t] . . . safeguarded by the due process clause of the Fourteenth Amendment." De Jonge v. Oregon, 299 U. S. 353, 364 (1937). We follow the same path here and thus consider whether the right to keep and bear arms applies to the States under the Due Process Clause.
. . .
In debating the Fourteenth Amendment, the 39th Congress referred to the right to keep and bear arms as a fundamental right deserving of protection. Senator Samuel Pomeroy described three "indispensable" "safeguards of liberty under our form of Government." 39th Cong. Globe 1182. One of these, he said, was the right to keep and bear arms:
"Every man . . . should have the right to bear arms for the defense of himself and family and his homestead. And if the cabin door of the freedman is broken open [*776] and the intruder enters for purposes as vile as were known to slavery, then should a well-loaded musket be in the hand of the occupant to send the polluted wretch to another world, where his wretchedness will forever remain complete." Ibid.[***920]
Even those who thought the Fourteenth Amendment unnecessary believed that blacks, as citizens, "have equal right to protection, and to keep and bear arms for self-defense." Id., at 1073 (Sen. James Nye); see also Foner 258-259.[fn25]
Evidence from the period immediately following the ratification of the Fourteenth Amendment only confirms that the right to keep and bear arms was considered fundamental. In an 1868 speech addressing the disarmament of freedmen, Representative Stevens emphasized the necessity of the right: "Disarm a community and you rob them of the means of defending life. Take away their weapons of defense and you take away the inalienable right of defending liberty." "The fourteenth amendment, now so happily adopted, settles the whole question." Cong. Globe, 40th Cong., 2d Sess., 1967. And in debating the Civil Rights Act of 1871, Congress routinely [**3042] referred to the right to keep [***921] and bear arms and decried the continued disarmament of blacks in the South. See Halbrook, Freedmen 120-131. Finally, legal commentators from the period [****18] emphasized the fundamental nature of the right. See, e.g., T. Farrar, Manual of the Constitution of the United States of America § 118, p. 145 (1867) ([*777] reprint 1993); J. Pomeroy, An Introduction to the Constitutional Law of the United States § 239, pp. 152-153 (3d ed. 1875).
The right to keep and bear arms was also widely protected by state constitutions at the time when the Fourteenth Amendment was ratified. In 1868, 22 of the 37 States in the Union had state constitutional provisions explicitly protecting the right to keep and bear arms. See Calabresi & Agudo, Individual Rights Under State Constitutions when the Fourteenth Amendment was Ratified in 1868: What Rights Are Deeply Rooted in American History and Tradition? 87 Texas L. Rev. 7, 50 (2008).[fn26] Quite a few of these state constitutional guarantees, moreover, explicitly protected the right to keep and bear arms as an individual right to self-defense. See Ala. Const., Art. I, § 28 (1868); Conn. Const., Art. I, § 17 (1818); Ky. Const., Art. XIII, § 25 (1850); Mich. Const., Art. XVIII, § 7 (1850); Miss. Const., Art. I, § 15 (1868); Mo. Const., Art. I, § 8 (1865); Tex. Const., Art. I, § 13 (1869); see also Mont. Const., Art. III, § 13 (1889); Wash. Const., Art. I, § 24 (1889); Wyo. Const., Art. I, § 24 (1889); see also State v. McAdams, 714 P. 2d 1236, 1238 (Wyo. 1986). What is more, state constitutions adopted during the Reconstruction era by former Confederate States included a right to keep and bear arms. See, e.g., Ark. Const., Art. I, § 5 (1868); Miss. Const., Art. I, § 15 (1868); Tex. Const., Art. I, § 13 (1869). A clear majority of the States in 1868, therefore, recognized the right to keep and bear arms as being among the foundational rights necessary to our system of Government.[*778] [fn27]
In sum, it is clear that the Framers and ratifiers of the Fourteenth Amendment counted the right to keep and bear arms among those fundamental rights necessary to our system of ordered liberty.
. . .
In Heller, we recognized that the codification of this right was prompted by fear that the Federal Government would disarm [***927] and thus disable the militias, but we rejected the suggestion that the right was valued only as a means of preserving the militias. 554 U. S., at ____ (slip op., at 26). On the contrary, we stressed that the right was also valued because the possession of firearms was thought to be essential for self-defense. As we put it, self-defense was "the central component of the right itself." Ibid.
And, if you want to take the time to learn a little more history, Justice Thomas knocks it out of the park in his concurring opinion.
JUSTICE THOMAS, concurring in part and concurring in the judgment.
I agree with the Court that the Fourteenth Amendment makes the right to keep and bear arms set forth in the Second Amendment "fully applicable to the States." Ante, at 1. I write separately because I believe there is a more straightforward path to this conclusion, one that is [**3059] more [*806] faithful to the Fourteenth Amendment's text and history.
Applying what is now a well-settled test, the plurality opinion concludes that the right to keep and bear arms applies to the States through the Fourteenth Amendment's Due Process Clause because it is "fundamental" to the American "scheme of ordered liberty," ante, at 19 (citing Duncan v. Louisiana, 391 U. S. 145, 149 (1968)), and "`deeply rooted in this Nation's history and tradition,'" ante, at 19 (quoting Washington v. Glucksberg, 521 U. S. 702, 721 (1997)). I agree with that description of the right. But I cannot agree that it is enforceable against the States through a clause that [***939] speaks only to "process." Instead, the right to keep and bear arms is a privilege of American citizenship that applies to the States through the Fourteenth Amendment's Privileges or Immunities Clause.
Really, to quote any part of his analysis without putting up a crazy looking wall of text would not do it justice. Do yourself a favor and read all of Thomas' concurrance, if you want to get an idea of what was afoot immediately after the War, and still burdens us today.
