Reply #26: Incorporation... and some thoughts [View All]

[jmg257]

"Incorporation (of the Bill of Rights) is the American legal doctrine by which portions of the Bill of Rights are applied to the states through the Due Process Clause of the Fourteenth Amendment, although some have suggested that the Privileges or Immunities Clause would be a more appropriate textual basis. Prior to the ratification of the 14th Amendment and the development of the incorporation doctrine, in 1833 the Supreme Court held in Barron v. Baltimore that the Bill of Rights applied only to the Federal, but not any State, government. Even years after the ratification of the Fourteenth Amendment the Supreme Court in United States v. Cruikshank, still held that the First and Second Amendment did not apply to state governments. However, beginning in the 1890's, a series of United States Supreme Court decisions interpreted the Fourteenth Amendment to "incorporate" most portions of the Bill of Rights, making these portions, for the first time, enforceable against the state governments."

From wiki - pretty much explains the picking and choosing of which rights are secured against infringement by states. Incredibly, we the people allow that the stricter level of law is usually the more valid one.


It is utterly amazing that the right to arms guaranteed in the constitution and explicitly secured by the 2nd can be..."further" restricted by the states, or the feds, or ANY level of govt. When the original intention of the constitution with regards to the Militias of the several States is considered, there should be no way a State would be able to render the militias less effective/ineffective by denying the people the most effective arms(guns) available. The role of the Militias is extremely vital, because when in federal service they are "to execute the Laws of the Union, suppress Insurrections and repel Invasions" (which BTW is in perfect harmony with the very reasons given in the preamble - to "establish Justice, insure domestic Tranquility, provide for the common defence"). When states restrict the right to arms, as in NY, they are denying the federal government an entity which MUST exist - the effective Militia, a well regulated militia being necessary, because the guarantees in the constitution and our freedom depends on it. And when one considers that "the Militia" are the Militias of the Several States, then it can also be seen why NO federal power was given to restrict the people's arms, and why federal power is explicitly restricted via the 2nd - because they could deny the States and the people their best security - the effective Militia. This is why an AWB at any level SHOULD be deemed unconstitutional.

Of course the role and the definition of the Militia has changed (or has been recreated from broadcloth) by federal usurption of power via the Dick Act, etc., but the intention, the guarantee and security of the constitution is still there - is still the law of the land.

Further, the militia is only the primary reason for the securities in the 2nd. When the private right of the people to have arms, for self-defense, for sport, for all lawful purposes, is considered, as it certainly was when ratified, it is clear that most other restrictions are also unconstitutional (i.e handgun bans, gun free zones, etc.).


A1,S8
The Congress shall have Power

To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;

To provide for organizing, arming, and disciplining the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;
...
A2,S2
The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States;
S4
"The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic Violence.