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Hell, I'm not sure the Second Amendment was fully incorporated against the states until McDonald v. Chicago in 2010. Doesn't matter a bit to me, though - it's

Hell, I'm not sure the Second Amendment was fully incorporated against the states until McDonald v. Chicago in 2010. Doesn't matter a bit to me, though - it's incorporated now.

hga 13y ago
It wasn't. Although it remains to be seen if this means much of anything, the changes on the ground to date are minimal to nothing. They recently denied cert in an appeal of NY's capricious concealed carry laws, and have given Illinois extra time to appeal an opposite direction decision against it. Keep and bear arms, after all.
rayiner 13y ago
I don't disagree that the 2nd Amendment is now incorporated, and I'm actually not a proponent of gun control. My point is that talking about how it's a "Constitutional issue" is, while technically true now, also a little misleading, in the sense that the Founders would not have considered state gun control laws to be a Federal Constitutional issue. The whole process of incorporation has been a modern attempt at redrawing the boundaries of federalism to address things the Founders got wrong. The most decisive revision was with regards to slavery/civil rights, where the Constitution was revised at the point of sword with the 13th, 14th, and 15th amendments. A lot of other things have come along for the ride (from free speech to abortion), but all of that is rooted in a modern understanding of what states can be trusted to do. Consider a hypothetical where 90% of the population was in favor of state-level gun bans. If you held up the 2nd Amendment in opposition to that consensus, you'd be in the position of arguing that states should be constrained in a way that neither the framers nor contemporary consensus contemplates them being constrained.
- twoodfin 13y ago
  You are far more knowledgeable about this than I, but wouldn't Heller suggest that the "contemporary consensus" (at least as far as SCOTUS can mold it) is that states are indeed constrained from instituting what amount to gun bans, no matter how popular they might be locally? You already acknowledged that the 2nd Amendment is incorporated, so I'm sure I just don't follow the point you're making with the hypothetical.
  - rayiner 13y ago
    Right, I agree. The point of my alternate hypothetical is to get to the fact that incorporation of the 2nd amendment rests on contemporary consensus, rather than centuries old Constitutional dictate. If that contemporary concensus did not exist, you couldn't fall back to a "the Founders intended" argument.
- sageikosa 13y ago
  To be fair to the Founders, they would not have expected the states to ban guns, as their historical context was that the states needed citizens to have guns to be reasonably certain they (the states) could deal with threats; not least of which was "foreign invasion" like the War of Independence. At the time of the ratification of the Constitution and Bill of Rights, the states were more concerned with a central (and remote) government having too much power over them than they were with its citizens running amok.
  - hga 13y ago
    Just got my revised and updated edition of Halbrook's groundbreaking That Every Man Be Armed, and on pages 69-70 he confirms that prior to the conditional ratification of the Constitution, 7 of the 13 states had declarations acknowledging the RKBA, and 2 that didn't "later demanded protection for the right to keep and bear arms in the new federal Constitution." He goes on to add that "with the defeat of the British [for whom gun grabbing was a major strategy and what sparked the war], no one feared that the natural and common-law right to have arms was any longer in danger."

Hell, I'm not sure the Second Amendment was fully incorporated against the states until McDonald v. Chicago in 2010. Doesn't matter a bit to me, though - it's incorporated now.

hga 13y ago

It wasn't. Although it remains to be seen if this means much of anything, the changes on the ground to date are minimal to nothing. They recently denied cert in an appeal of NY's capricious concealed carry laws, and have given Illinois extra time to appeal an opposite direction decision against it. Keep and bear arms, after all.

rayiner 13y ago

I don't disagree that the 2nd Amendment is now incorporated, and I'm actually not a proponent of gun control. My point is that talking about how it's a "Constitutional issue" is, while technically true now, also a little misleading, in the sense that the Founders would not have considered state gun control laws to be a Federal Constitutional issue. The whole process of incorporation has been a modern attempt at redrawing the boundaries of federalism to address things the Founders got wrong. The most decisive revision was with regards to slavery/civil rights, where the Constitution was revised at the point of sword with the 13th, 14th, and 15th amendments. A lot of other things have come along for the ride (from free speech to abortion), but all of that is rooted in a modern understanding of what states can be trusted to do. Consider a hypothetical where 90% of the population was in favor of state-level gun bans. If you held up the 2nd Amendment in opposition to that consensus, you'd be in the position of arguing that states should be constrained in a way that neither the framers nor contemporary consensus contemplates them being constrained.

twoodfin 13y ago
You are far more knowledgeable about this than I, but wouldn't Heller suggest that the "contemporary consensus" (at least as far as SCOTUS can mold it) is that states are indeed constrained from instituting what amount to gun bans, no matter how popular they might be locally? You already acknowledged that the 2nd Amendment is incorporated, so I'm sure I just don't follow the point you're making with the hypothetical.
- rayiner 13y ago
  Right, I agree. The point of my alternate hypothetical is to get to the fact that incorporation of the 2nd amendment rests on contemporary consensus, rather than centuries old Constitutional dictate. If that contemporary concensus did not exist, you couldn't fall back to a "the Founders intended" argument.
sageikosa 13y ago
To be fair to the Founders, they would not have expected the states to ban guns, as their historical context was that the states needed citizens to have guns to be reasonably certain they (the states) could deal with threats; not least of which was "foreign invasion" like the War of Independence. At the time of the ratification of the Constitution and Bill of Rights, the states were more concerned with a central (and remote) government having too much power over them than they were with its citizens running amok.
- hga 13y ago
  Just got my revised and updated edition of Halbrook's groundbreaking That Every Man Be Armed, and on pages 69-70 he confirms that prior to the conditional ratification of the Constitution, 7 of the 13 states had declarations acknowledging the RKBA, and 2 that didn't "later demanded protection for the right to keep and bear arms in the new federal Constitution." He goes on to add that "with the defeat of the British [for whom gun grabbing was a major strategy and what sparked the war], no one feared that the natural and common-law right to have arms was any longer in danger."