Finally I open the question of why restrict weapons, but again I do so historically. Why in 1840? 1866? 1876? 1900? 1933? Now? Of the
cases assigned only Salinas offers no help -- maybe it is just Marshal Matt Dillon cleaning up Dodge City. But the others are terrific: Presser,
with gun controls targeting organized labor; Stone v. Watson, African-Americans; Miller, gangsters; Morton Grove, post Kennedy-King America
Even more particularly, I also use this as the opportunity to focus on the "incorporation" debate, itself a standard part of most constitutional
law courses. The Court has, in this century, incorporated most of the various requirements of the Bill of Rights into the Fourteenth Amendment as
limits on state governments. The Second Amendment, of course, stands, with the Seventh, outside of the incorporationist embrace. Why?
The answer seems deceptively easy if the Amendment is only, as some argue, a protection of state governments themselves. But an obvious
embarrassment, for some, is that one can easily argue that the original meaning of the First Amendment's Establishment Clause was a similar
protection of state establishment, even as it rigorously forbade any national establishment. 47 Few scholars today, though, reject the incorporation of
the Establishment Clause on such grounds -- so why should this argument work in regard to the Second Amendment? It should be clear,
incidentally, that the argument about incorporation is independent of the extent to which one reads the Amendment as a significant limit on
governmental regulation of firearms, at least if one rejects the view that the Amendment is just a simple federalism provision.
law.ucla.edu
I'm surprised you quote U.S. v Cruickshank in your favor. It merely states that the right was pre-existant to the Constitution. Cruickshank stated
plainly that the right would exist even without the 2nd.
The gist of this portion of the Cruickshank decision is that the Constitution did not create or grant a right to keep and bear
arms; it merely acknowledged and recognized a prior, existing, inalienable right. or as the Court said, expanded slightly..
The right there (in the Second Amendment) specified is that of 'bearing arms for a lawful purpose.'
This is not a right granted by the Constitution. Neither is it in any manner dependent upon that
instrument for its existence. The second amendment declares that it shall not be infringed; but this,
as has been seen, means no more than that it shall not be infringed by Congress. This is one of the
amendments that has no other effect than to restrict the powers of the national government, leaving
the people to look for their protection against any violation by their fellow- citizens of the rights it
recognizes, to what is called... the 'powers which relate to merely municipal legislation, or what was,
perhaps, more properly called internal police,' [powers] 'not surrendered or restrained' by the
Constitution of the United States." -- U.S. Supreme Court Chief Justice Waite, writing in U S v.
CRUICKSHANK, 92 U.S. 542 (1875)
Some take this to mean that States may infringe this but the 14th Amendment seems to put the same injunctions on the State. |
