3 ms·

To other child post: FUD. What the heck does NY have to do with the federal constitution? It takes 3/4 of states to pass a new amendment, so it's not like NY ca

by Osiris 14y ago

To other child post: FUD. What the heck does NY have to do with the federal constitution? It takes 3/4 of states to pass a new amendment, so it's not like NY can do it on it's own. The second amendment limits the federal government from passing certain kinds of laws.

elliptic 14y ago
Completely false. Like much of the rest of Bill of Rights, the second amendment has been incorporated (see Chicago vs McDonald), and thus held to apply to the states. It slightly irritates me when people say this, because usually those people have no problem accepting that other amendments that they hold to be more important (e.g, the 1st) apply to the states.
- nthj 14y ago
  > It slightly irritates me when people say this, because usually those people have no problem accepting that other amendments that they hold to be more important (e.g, the 1st) apply to the states. Heck, people try to apply the 1st amendment to private corporations & online forums set up by 14 year olds.
- strlen 14y ago
  Exactly. A sensible position is: "Second amendment recognized an individual right, but I don't think New York's gun laws infringe on it any more than their copyright right laws infringe on first amendment rights." Of course, now you'll need a rational argument to back that position up. I personally think this will be a rather difficult case to argue, whereas most parts of a less restrictive assault weapon ban (like the one they had on books before) could probably withstand immediate scrutiny. Similarly, gun enthusiasts can't claim that all gun control is unconstitutional. The easy days of magical thinking (whether one side arguing "Second amendment does not protect an individual right!" or the other side arguing "Thomas Jefferson wrote ``Thou needeth an HK-416 with a magazine of thirty cartridges lest black helicopters invade thy farm''!") are done.
bdunbar 14y ago
I believe the poster is referring to Cuomo's press conference this morning (1/15) where he announced his intention to enact a ban on rifles, sales of rifles, ammunition, restrict magazine capacity and so on. http://open.nysenate.gov/legislation/bill/S2230-2013 http://open.nysenate.gov/legislation/bill/S2230-2013
pc86 14y ago
Oh, so I guess there would be no recourse should NY pass a law outlawing newspapers, or barring the assembly of more than two people at any time? The Constitution absolutely does limit federal and state (and county, and municipal, and every) government. It clearly limits the federal government more but to say the second amendment isn't limiting states (either via text or SCOTUS case law) is not true.
strlen 14y ago
> To other child post: FUD. What the heck does NY have to do with the federal constitution? It takes 3/4 of states to pass a new amendment, so it's not like NY can do it on it's own. The second amendment limits the federal government from passing certain kinds of laws. This is completely wrong. Not just for the second amendment, but for pretty much every other Bill of Rights amendment that guarantees a "fundamental right" (including the first, which begins with "congress shall pass no law"). Whether or not you like the idea of private gun ownership (if you don't, you have a lot of room to argue about what is protected under the second amendment)[1], doing away with 14th amendment incorporation would be a horrible idea (Remember Jim Crow? Remember when women could not obtain an abortion, period?) See: http://en.wikipedia.org/wiki/Incorporation_of_the_Bill_of_Rights http://en.wikipedia.org/wiki/Incorporation_of_the_Bill_of_Ri... -- The doctrine http://en.wikipedia.org/wiki/McDonald_v._Chicago http://en.wikipedia.org/wiki/McDonald_v._Chicago -- The ruling that incorporated the second amendment. Interestingly Justice Thomas' opinion (in favour of McDonald, but opposed to due process incorporation) is interesting in that it demonstrates an originalist constitutional view (opposed to the view everyone else uses) which is typically associated with conservative politics, despite the fact that joining the majority in a "due process" incorporation would mean probably mean less gun-control laws (a typically conservative opinion) than in using "equal protection" incorporation. tl;dr 14th amendment incorporation is probably the most important evolution of US constitutional law in terms of expanding actual civil liberties as experienced by US citizens. It is not okay to be ignorant of it. [1] Second amendment as an individual right is fairly new: first such reading in 2008 (Heller) as opposed to 1919 for first amendment -- despite, of course, both amendments dating back to the 18th century. As a result, there's not much good case law on books: it's very hard to argue a second amendment case from a criminal trial and yet it's also hard to find civil litigants with standing to sue such as Heller. It's safe to say that complete weapon bans or bans that make self-defense impossible are unconstitutional and that bans on fully automatic weapons (like the 1934 National Firearms Act) are constitutional. However, that's not where most of the debate is happening, so a clear standard has not yet evolved (but there are more cases working their way up through the federal courts).

by Osiris 14y ago

elliptic 14y ago

Completely false. Like much of the rest of Bill of Rights, the second amendment has been incorporated (see Chicago vs McDonald), and thus held to apply to the states. It slightly irritates me when people say this, because usually those people have no problem accepting that other amendments that they hold to be more important (e.g, the 1st) apply to the states.

nthj 14y ago
> It slightly irritates me when people say this, because usually those people have no problem accepting that other amendments that they hold to be more important (e.g, the 1st) apply to the states. Heck, people try to apply the 1st amendment to private corporations & online forums set up by 14 year olds.
strlen 14y ago
Exactly. A sensible position is: "Second amendment recognized an individual right, but I don't think New York's gun laws infringe on it any more than their copyright right laws infringe on first amendment rights." Of course, now you'll need a rational argument to back that position up. I personally think this will be a rather difficult case to argue, whereas most parts of a less restrictive assault weapon ban (like the one they had on books before) could probably withstand immediate scrutiny. Similarly, gun enthusiasts can't claim that all gun control is unconstitutional. The easy days of magical thinking (whether one side arguing "Second amendment does not protect an individual right!" or the other side arguing "Thomas Jefferson wrote ``Thou needeth an HK-416 with a magazine of thirty cartridges lest black helicopters invade thy farm''!") are done.

bdunbar 14y ago

I believe the poster is referring to Cuomo's press conference this morning (1/15) where he announced his intention to enact a ban on rifles, sales of rifles, ammunition, restrict magazine capacity and so on. http://open.nysenate.gov/legislation/bill/S2230-2013 http://open.nysenate.gov/legislation/bill/S2230-2013

pc86 14y ago

Oh, so I guess there would be no recourse should NY pass a law outlawing newspapers, or barring the assembly of more than two people at any time? The Constitution absolutely does limit federal and state (and county, and municipal, and every) government. It clearly limits the federal government more but to say the second amendment isn't limiting states (either via text or SCOTUS case law) is not true.

strlen 14y ago

> To other child post: FUD. What the heck does NY have to do with the federal constitution? It takes 3/4 of states to pass a new amendment, so it's not like NY can do it on it's own. The second amendment limits the federal government from passing certain kinds of laws. This is completely wrong. Not just for the second amendment, but for pretty much every other Bill of Rights amendment that guarantees a "fundamental right" (including the first, which begins with "congress shall pass no law"). Whether or not you like the idea of private gun ownership (if you don't, you have a lot of room to argue about what is protected under the second amendment)[1], doing away with 14th amendment incorporation would be a horrible idea (Remember Jim Crow? Remember when women could not obtain an abortion, period?) See: http://en.wikipedia.org/wiki/Incorporation_of_the_Bill_of_Rights http://en.wikipedia.org/wiki/Incorporation_of_the_Bill_of_Ri... -- The doctrine http://en.wikipedia.org/wiki/McDonald_v._Chicago http://en.wikipedia.org/wiki/McDonald_v._Chicago -- The ruling that incorporated the second amendment. Interestingly Justice Thomas' opinion (in favour of McDonald, but opposed to due process incorporation) is interesting in that it demonstrates an originalist constitutional view (opposed to the view everyone else uses) which is typically associated with conservative politics, despite the fact that joining the majority in a "due process" incorporation would mean probably mean less gun-control laws (a typically conservative opinion) than in using "equal protection" incorporation. tl;dr 14th amendment incorporation is probably the most important evolution of US constitutional law in terms of expanding actual civil liberties as experienced by US citizens. It is not okay to be ignorant of it. [1] Second amendment as an individual right is fairly new: first such reading in 2008 (Heller) as opposed to 1919 for first amendment -- despite, of course, both amendments dating back to the 18th century. As a result, there's not much good case law on books: it's very hard to argue a second amendment case from a criminal trial and yet it's also hard to find civil litigants with standing to sue such as Heller. It's safe to say that complete weapon bans or bans that make self-defense impossible are unconstitutional and that bans on fully automatic weapons (like the 1934 National Firearms Act) are constitutional. However, that's not where most of the debate is happening, so a clear standard has not yet evolved (but there are more cases working their way up through the federal courts).