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Bump on the Road

The Second Circuit seems to have ignored some important dicta in regards to the Second Amendment and ruled that the Second Amendment doesn’t apply to the states, citing Cruikshank.  In Heller, The Court said:

With respect to Cruikshank‘s continuing validity on incorporation, a question not presented by this case, we note that Cruikshank also said that the First Amendment did not apply against the States and did not engage in the sort of Fourteenth Amendment inquiry required by our later cases. Our later decisions in Presser v. Illinois, 116 U.S. 252, 265 (1886) and Miller v. Texas, 153 U.S. 535, 538 (1894), reaffirmed that the Second Amendment applies only to the Federal Government.

I would seem to be that would require some more serious analysis on the part of the circuit court.  Looks like it was a nunchaku possession case that is less than an ideal case to take forward, but not much is going to stop defense lawyers from hopping in the Hellermobile for a little joyride with their clients.  Hopefully we can have better luck in other federal circuits before someone wraps it around a telephone pole.

2 Responses to “Bump on the Road”

  1. Jdude says:

    I am not a lawyer, but I’ll give it a go.

    As a personal note, I disagree with the courts ruling. But as a legal matter, I agree with it. I suspect the circuit court focused on this part:

    “Our later decisions in Presser v. Illinois, 116 U.S. 252, 265 (1886) and Miller v. Texas, 153 U.S. 535, 538 (1894), reaffirmed that the Second Amendment applies only to the Federal Government.”

    It is my understanding that a circuit court cannot make rules on incorporation. It is also my understanding that only the Supreme Court can. If incorporation is decided to be so, the circuit courts can interpret the right based on local jurisprudence until overruled by the Supreme Court. So we may end up with some circuits having no form 4473 and the accompanied check, and we may have some districts with certain select fire weapons being unprotected.

    I find it interesting that this case is about nunchaku. If this case turns to our favor, then that means less than common weapons are protected. I know that they are as simple as two stick tied together but my limited observation tells me that numb chucks are not nearly as common as swords, bows, or pistols.

    I would love to see this ruling – “The right to bear arms is a fundamental right, and is this incorporated against the states. We have question as to the actual utility of the gentleman’s martial arts weapon for daily defense. Nonetheless, it has a practical application on the ancient battlefield and is thus falls under the category of ‘arms’, and therefore is protected under the Second Amendment to the Constitution of the United States.”

    /Oh leave me alone, A guy can dream can’t he?/

    Was it not the 9th circuit the one to say that a felon had the right to own an unregistered machine gun, but was overturned on commerce clause grounds? The commerce clause does not supercede the bill of rights. Incorporation may result in a re hearing of that case under the new definitions. The 9th circuit may be the first to regain unfettered select fire access in the future.

  2. Tom says:

    OK.

    My take:

    The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.

    It was included in the federal constitution, the one that applies to ALL states of the union, read it carefullyA well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed. for a reason.

    Including it here was specifically to prevent states from doing what they just claimed they could do. The language there, shall not be infringed makes no mention of congress, or “in a manner to be prescribed by law” it says what it means and by placing it there it means ANY level of government that is a signatory to this constitution. What was the average education level (in todays terms) of the common American then? The lack of lawyer language implies that this was meant to be comprehensible to Joe the silversmith down the street.

    The framers put into the highest law a specific ban on infringing the right to arms. They didn’t say congress couldn’t do it. They didn’t say it was a state issue. They put an absolute guarantee, a ban on bans, that would apply nationwide into the supreme law.

    Also, the weapon at issue here was nunchaku. The irony is not lost on you I hope. A weapon, that originated because edged weapons were banned, made from sticks and string. I’d LOVE to hear the anti’s takes on this.

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