Supreme Court to Overturn DC Gun Ban once and for all

[elwoodblues]

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Should the federal government be able to tell a state (or in this case DC) that it can't ban guns?

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Yes, the federal government should be able to intervene anytime the Constitution is being trampled on. What if a state decided to disregard the 13th?

I'm sure most (reasonable people, not ACists) would agree that if, for example, Tennessee decided to round up all black people and enslave them tomorrow, the federal government should get involved.

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They can't because the 13th, 14th and 15th Amendments all specifically apply to the states.

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So does the 2nd. Unlike the 1st, the 2nd doesn't say it applies only to Congress.

On the other hand, I don't think the Feds should be involved regardless and wouldn't mind seeing an amendment that let states ban guns if they want and more clearly barred the federal government from doing so (although I dunno how it could be more clear).

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Only those Amendments that have been incorporated into the due process clause of the 14th Amendment apply to the states. Note that few of the original bill of rights specifically refer to the Federal government even though none of them have applied to the states until incorporation through the 14th Amendment began.

Examples:

No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.


No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

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All of those things applied to the states from the very beginning as far as I know.

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Nope. In fact, several of them still don't. You still don't have, for example, the right to a Grand Jury indictment in state criminal cases.

As far as wanting evidence, your best bet would be to do a search on the incorporation doctrine (the doctrine by which many of the rights found in the bill of rights were incorporated into the due process clause of the 14th Amendment.) The process began in the 1920's. A decent overview is found in wikipedia or here

*Just a note of politics, the incorporation doctrine is generally one area where liberals and conservatives disagree. Conservatives generally believe that 14th Amendment was never meant to extend Bill of Rights protections to the states(which is why, for example the Honorable Dr Grand Poobah Paul is against the civil rights act.)

[AlexM]

Hmm, you're definitely right about the Grand Jury clause it seems. Weird that that stuff didn't apply to the states, but then I'm all for that anyway. [img]/images/graemlins/tongue.gif[/img] OTOH, I would say the selectivity of what is and is not applied just makes the incorporation doctrine look even more contrived and stupid.

[elwoodblues]

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Hmm, you're definitely right about the Grand Jury clause it seems. Weird that that stuff didn't apply to the states, but then I'm all for that anyway. [img]/images/graemlins/tongue.gif[/img] OTOH, I would say the selectivity of what is and is not applied just makes the incorporation doctrine look even more contrived and stupid.

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I tend to agree that it should be all or none. Basically the courts have said that fundamental liberty interests are incorporated. The first question they ask is whether the interest to be protected is fundamental. In the case of grand jury indictments, they explicitly ruled that it is not. So far, they have not ruled one way or the other on gun rights (to my knowledge.)