BINGO! Circuit split

[Aguila Blanca]

http://my.att.net/s/editorial.dll?fromspage=ch/c.htm&categoryid=&only=y&bfromind=7775&eeid=6609379&_sitecat=1522&dcatid=0&eetype=article&render=y&ac=8&ck=&ch=ne

The Federal appeals court has upheld Chicago's gun ban, saying that Heller (and the 2nd Amendment) does not apply to the states. The 9th Circuit Court in California has previously ruled that the 2A does apply to the states. That puts two Federal courts squarely at odds with one another, and it is when that happens that the Supreme Court usually accepts a case to remove the split.

Stay tuned, it's going to get interesting.

[Patriotic]

Aguila, I believe the 2nd Court of Appeals of which Sotomayor was one of the justices also ruled the SC Heller decision does not apply to the states. Sad but most likely true that she may also be judging the case as a SC justice.

What I find interesting is that a state can abridge a Constitutional right. If it proves to be the case with the 2A then the entire US Constitution is meaningless because a state can then regulate and control all rights of US citizens. We may as well change the name of our country to the Independent States of America.

[kenhwind]

This would not apply if the Rights are guareented under a States Constitution.
For example the Florida Constitution has ARTICLE I Declaration of Rights; These rights pretty much follow the "Bill of Rights" in the U.S. Constitution, but is carried further by Admendents similar to the ones for the original "Bill of Rights"

SECTION 8. Right to bear arms.--

(a) The right of the people to keep and bear arms in defense of themselves and of the lawful authority of the state shall not be infringed, except that the manner of bearing arms may be regulated by law.

With this Section Florida does not need incorporation under 2A of the Bill of Rights to guareentee the RKBA.

[Levant]

That any court or judge would stand in defiance of the Supreme Court shows just how little regard there is to the Constitution in this country. I am just floored that anyone could twist Heller to say it doesn't apply to the states.

I miss the United States of America. It was good while it lasted.

[Levant]

I think it is important to remember that in both cases, it was only a 3 judge panel that made the rulings. There is almost no chance that the 7th Circuit would rule differently as a whole but there is a good chance that the 9th Circuit would overturn its panel. If the 9th Circuit reverses itself, then there is no split.

Just in case my opinion here doesn't make it self-evident, I am not a lawyer, I only play one on the Internet. :)

[Frank]

..That any court or judge would stand in defiance of the Supreme Court shows just how little regard there is to the Constitution in this country. I am just floored that anyone could twist Heller to say it doesn't apply to the states.... But it doesn't apply to the states (except in the 9th Circuit), and that conclusion is based on Supreme Court precedent.

In the early 19th century, the Supreme Court ruled that the Bill of Rights did not apply to the states. It applied only to the federal government. However, in the late 19th century, well after the adoption of the 14th Amendment, the Supreme Court began to apply the Bill of Rights in a piecemeal fashion to the states through the 14th Amendment. This process is known as "incorporation" -- selected rights enumerated in the Bill of Rights have been "incorporated" into the 14th Amendment and thus applied to the states.

Some provisions of the 1st Amendment were not applied to the states until the 1930s and 1940s. Many procedural protections available to criminal defendants in federal court under the Bill of Rights were not available to defendants in state courts until the 1960s. Some enumerated rights, like the 5th Amendment right to indictment by grand jury, and the 7th Amendment right to a jury trial in civil cases, have not been found applicable to the states.

So since Heller, the next order of RKBA business has been to obtain a court decision making the 2nd Amendment applicable to the states. We've just gotten that from the 9th Circuit Court of Appeals. So far it's law only in that Circuit.

Now to make things even more complicated:

In an 1873 case, United States v. Chruikshank, the Supreme Court ruled that the 2nd Amendment did not apply to states; and Chruikshank came after the adoption of the 14th Amendment. The 9th Circuit in recently finding incorporation distinguished Chruikshank, i. e, concluded that the facts and bases for the decision in Chruikshank (it relied on one portion of the 14th Amendment) weren't applicable in the Nordyke case before it; and incorporation was thus found based on other provision of the 14th Amendment.

However, just yesterday, the 7th Circuit declined to find incorporation, ruling in effect that Cruikshank was controlling precedent. There is now a conflict between Circuits, laying a foundation for the Supreme Court to accept the case and settle the matter. The Supreme Court could overrule Chrukshank.

And now I've just seen that the NRA has filed its petition for certiorari to the U.S. Supreme Court in that 7th Circuit case. A petition for certiorari is the request to the Supreme Court to hear the case and includes legal arguments why the Supreme Court should hear the case, since hearing an appeal is at the discretion of the Court. Since preparation of a petition for "cert" can take some time, I suspect that the NRA expected the result in the 7th Circuit and was ready.

[Frank]

...I miss the United States of America. It was good while it lasted. BTW, a United States in which the Bill of Rights might apply directly to the states hasn't been around since about 1833, when the Supreme Court, in Barron v. Baltimore, ruled that it didn't.

[Patriotic]

Interesting to see that in less than 100 years the very institution created to ensure our Constitution was followed has destroyed it. I can only think of the hard work and diligence our founding fathers went through to create this nation and how the “political hacks” have minimized their efforts.

I guess Thomas Jefferson considered this happening when he said that periodic revolution, “at least once every 20 years,” was “a medicine necessary for the sound health of government.”

[Frank]

Interesting to see that in less than 100 years the very institution created to ensure our Constitution was followed has destroyed it. I can only think of the hard work and diligence our founding fathers went through to create this nation and how the “political hacks” have minimized their efforts... I think that's an extreme and excessive view.

First, if you're referring to the 1833 decision, some of the judges and participants in that litigation may have been contemporaries of the Founding Fathers and indeed have participated in various aspects of the formation of this nation. And indeed the Chief Justice at the time that Barron was decided was John Marshall. He had an illustrious career of service to our fledgling country, by, among other things, serving on the Virginia Convention responsible for ratifying or rejecting the Constitution proposed by the Philadelphia Convention and working with James Madison and Edmund Randolf to lead the fight for ratification. Mr. Chief Justice Marshall hardly deserves the appellation "political hack."

Second, there are a variety of ways of viewing the Constitution. There is indeed a body of conservative thought today that the 2nd Amendment should not be incorporated and that states need to be free to chart their own course without interference at the federal level. In fact that was a point of view very much in evidence at the time the Constitution was written. Its predecessor, the Articles of Confederation resulted in a looser union which proved unworkable. But still many felt that the Constitution as proposed concentrated too much power in the federal government. An argument can be made that the historical purpose of the Bill or Rights was to answer that concern by restraining the federal government.

Third, just as Mark Twain once said, "The reports of my death are greatly exaggerated" so fear of the death of our Constitution are overblown. Indeed this nation has survived for almost 250 years.

[kenhwind]

We will let them decide:
http://www.jbs.org/jbs-news-feed/4956

[Old Fashioned]

The NRA has petitioned the court to hear the case NRA vs city of Chicago and city of Oak Grove and are asking the court to incorporate the 2nd Amendment. You can read the petition and download it on the NRA's web site.

[daveohno]

I wouldn't be surprised that the Supreme Court might do something that we would find abhorrent.

[Chilo45]

Only a very few truly understand the Constitution and how it is applied across our states and territories. But there are so many opinions based on so little knowledge.

The SC will decide and set down another politically tainted decision (as seen by all sides as is there every a decision that all agree with?).

Until then, keep making sure that everyone knows that our rights are ours and they should be as concerned as we are about how they are being eroded by those who think they can speak for us.

[daveohno]

Chilo45, I like your signature! Too bad so many of our elected representatives either never read that or, just know that now in modern times, that is an outdated notion. You know the Constitution is a living, breathing document that they can alter without amending it. That's how they justify skirting the intent of the founders.

[Patriotic]

http://news.yahoo.com/s/ynews/ynews_pl699

Coburn vs. Sotomayor

46 mins ago
It was a battle of wits between GOP Sen. Tom Coburn, one of the most conservative senators, and the nominee. Who won? Tell us: @reply us on @AP_Courtside on Twitter.

Here's a capsule: Coburn, a strong advocate of individual gun ownership, found an intriguing way to question Sotomayor on that issue. First, he asked her how she could consider that the right to privacy (not mentioned in the Constitution) is settled law but the right to keep and bear arms (the Second Amendment) as unsettled.

Sotomayor started with her usual answer that judges don't make law. And she noted that the federal government and many states have laws restricting guns, such as possession of firearms by felons. Then the sparing got more interesting.

"Do I have a right to personal self-defense?" Coburn asked.

Sotomayor: "That's an abstract question."

Coburn: "That's what the public wants to know. Yes or no? Do we have that right?"

The judge thought for a moment, then came up with an answer based on her experience as a New York City prosecutor: "If there's a threat of serious injury you can use force. How imminent is the threat? If the threat is in this room and I go home get a gun and come back and shoot you, that may not be legal under New York law."

Coburn: "What the American people want to see is what your gut says."

Sotomayor said that's not how judges decide cases.


Interesting dialogue regarding Judge Sotomayer and her appointment to the SC. The individual right to self-defense is not an abstract question, it is Natural Law and an inalienable right guaranteed by our Constitution. We have a right to life, liberty and the pursuit of property (goals, happiness, profit etc.)

Her response was more of a justification for the way she thinks rather than an objective view of your right to self-defense. I feel that sensible and intelligent individuals would agree that her scenario of escaping a serious injury threat and having the ability to retreat from the threat to your home would not be justification to arm yourself and return to shoot the attacker. There are laws regarding this and the venue for deciding guilt or innocence rests in the court.

It would appear her justification for supporting NY State’s pre-emptive view on handgun ownership with their “may issue” stance is not in line with our rights as law abiding citizens. Along with our individual right to self-defense comes the right to have the means of defending ourselves. I believe this was pointed out in the Heller decision by the SC. Apparently she doesn’t feel the SC decision has any relevance in her point of view. Should one be guilty of a crime just for having a means of protecting self and family?

[DanR]

An interesting footnote in history is that some of the men who worked on our (U.S.) constitution expected it to last no more than 30 to 35 years before it would be rewritten. The surprise is that it has lasted as long as it has.

[daveohno]

I suppose that we should jog 3 to 4 hours each day so that when confronted by someone intent on doing you harm, you can run away rather than fight back.

Something is very wrong when you get some very serious indoctrination at these centers of higher education and for some reason, most of the graduates don't have the common sense that a turnip has. They seem to forget about human nature and would prefer to allow someone else to protect them and cower in the corner when confronted by dangerous people. The only good thing about people like that is that they generally don't have any children so the stupidity ends with them.

[Patriotic]

How many times a day would you have to jog to get up to 850 fps?

[jman527]

No you just have to get in good enough shape to carry a police officer on you all day.

[daveohno]

No you just have to get in good enough shape to carry a police officer on you all day.
But the cops have been hamstrung by the second guessers out there that know better because they can analyze things in the comfort of their easy chairs without any danger.

[d90king]

An interesting footnote in history is that some of the men who worked on our (U.S.) constitution expected it to last no more than 30 to 35 years before it would be rewritten. The surprise is that it has lasted as long as it has.



Wouldn't you agree that they believed things would be added but NOT taken away...? I also believe that they believed many of your rights were not given to you by the government but given to you at birth as basic human rights.

[daveohno]

I believe the reason they believed that your rights came from a deity is because then the government couldn't take them away because they didn't give them to you in the first place.

[Aguila Blanca]

I believe the reason they believed that your rights came from a deity is because then the government couldn't take them away because they didn't give them to you in the first place.
Right idea, but I believe you have reversed cause and effect.

The Founders did not believe human rights came from a deity because then government could not take them away. Quite the contrary. They believed that governments should not be allowed to take away those right because those rights came from a deity. The reason for the belief was not the Bill of Rights they authored. The Bill of Rights was written because they held that belief. The belief came first.

Nitpicking, I admit. However, here we are among (I hope) friends. If we expect to successfully debate the enemy, it is IMHO important that we keep our lines of thought clear and succinct so they can't attack our arguments on technical grounds when they can't find fault with the moral/ethical basis.

[Dial 1911 for Help]

How many times a day would you have to jog to get up to 850 fps?
It's like with bears. You don't have to be able to outrun the bear, just fast enough to outrun your buddy.