Re: ** D.C Fires First Shot in Supreme Ct. Gun Appeal <= the end is nigh, nutters! **

On Tue, 29 Jan 2008 17:03:33 -0600, RD (The Sandman) wrote:
Jim Bianchi <jimbo@xxxxxxxxx> wrote in
news:slrnfpv8q8.le0.jimbo@xxxxxxxxxxxxxx:

On Tue, 29 Jan 2008 14:23:37 -0600, RD (The Sandman) wrote:
Re: the Presser decision:
" The second and tenth counts are equally defective. The right there
specified is that of 'bearing arms for a lawful purpose.' This is not
a right granted by the Constitution. Neither is it in any manner
dependent upon that instrument for its existence.

So far, it sounds very good.

The second amendment declares that it shall not be infringed; but
this, as has been seen, means no more than that it shall not be
infringed by Congress. ..."

"..as has been seen.." WHERE has it been seen? Are there any
USSCt
decisions that speak directly to this (saying that the 2nd only
applies to Congress)? Or is "..as has been seen.." just a phrase used
as an easy way to avoid the problem of dealing with states rights wrt
the 2nd?

Probably from the USSC ruling in Barron v Baltimore (1803) where the
Court stated that none of the BoR was applicable to the states and only
addressed the federal government. After the 14A was passed, it was
assumed by most I would think that the BoR *did* after all, apply to the
states. The Cruikshank Court, much like Justice Frankfurter later,
apparently didn't think that was so.

Seems to me there are a lot of USSCt cases wherein among listings
of
some of the rights of free citizens are mentioned "keeping and
carrying (bearing) firearms" way prior to Presser. (It's also
interesting that in many of these decisions where the 2nd is quoted,
the 'militia clause' is not mentioned.)

I see RKBA and the 2A as being two separate issues. I feel that RKBA is
a pre-existing right as did the Cruikshank Court which also ruled the 2A
only applied to the federal government (a position I do not agree with).
The Second Amendment is noted as a *protection* of the right of RKBA (but
not the right itself) from the central (federal) government. Until the
2A is incorporated by the Court as to apply to the states, I don't see
any way its application to the states will be legally recognized.

If "..as has been seen.." applies to the 2nd, why was this phrase
not used (or alluded to -- even if only negatively) in their other
decisions about the other parts of the BoR found to apply to state as
well as federal gov't?

I have no idea..... Incorporation didn't even start until 1897. Then
there was another long lag until 1925. After then, portions of the
amendments have been incorporated on a rather regular basis.

I see. (I think.) Thanks for the help, guy.

--
jimbo@xxxxxxxxx
.

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