The incorporation myth. Why does anyone believe it?

[Prometheus]

The Incorporation Myth
by: Joseph Haney

First a time line, the Second Amendment was ratified in 1791. The Fourteenth Amendment in 1868.

The first lie of those who propagate the "incorporation myth" is that they would have us believe the Second Amendment didn't mean anything until 1868.

The next lie is that until 5 out of 9 black robed people "incorporate" the Second Amendment it still doesn't mean anything.

The third lie is that (assuming these incorporators have there way) the Second Amendment will finally carry the force of law in 2010.... Well over 200 years AFTER it was ratified.

These arguments are always based on the same fact: The people making them have never actually read the Constitution, let alone comprehend it.

Lets look at Article Six Section One of the Constitution:

"This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding."
emphasis mine

Already force of law exists to prevent the violation of The Peoples Rights by a State. 100 years prior to the fourteenth amendment!

The right to keep and bear arms is absolute? ABSOLUTELY!

For those who are so fixated on the thoughts of persons in black robes vs what the Constitution says, I submit Cockrum v The State, 1859.

"The clause cited in our bill of rights, has the same broad object in relation to the government, and in addition thereto, secures a personal right to the citizen. The right of a citizen to bear arms, in the lawful defense of himself or the state, is absolute. He does not derive it from the state government, but directly from the sovereign convention of the people that framed the state government. It is one of the "high powers" delegated directly to the citizen, and "is excepted out of the general powers of government." A law cannot be passed to infringe upon or impair it, because it is above the law, and independent of the law-making power."

http://www.constitution.org/2ll/bardwell/cockrum_v_state.txt
emphasis mine
Note the date of this decision: 1859. NINE YEARS before the Fourteenth Amendment.

Lets break that down: "secures a personal right to the citizen". The Court doesn't stop there, "The right of a citizen to bear arms, in the lawful defense of himself or the state, is absolute".

They still aren't done " He does not derive it from the state government, but directly from the sovereign convention of the people that framed the state government. It is one of the "high powers" delegated directly to the citizen, and "is excepted out of the general powers of government." This would seem self explanatory but the Justices decide to continue to spell it out:

"A law cannot be passed to infringe upon or impair it, because it is above the law, and independent of the law-making power."

This begs a question: Why would a group like the NRA not submit briefs based upon solid Constitutional wording and precedence? Why would they attempt to lower the status of the Peoples Rights and make them subservient to the Fourteenth Amendment?

In a word, money. Should a modern day Supreme court rule the Peoples Right to keep and bear arms is absolute, the need for their bloated salaries and existence diminishes to that of simply firearms and hunting safety. A noble cause, but not the money making behemoth the NRA and their legal team has become. The more battles they can fight, the more money they can demand.

The next time you hear anyone attempting to sound intelligent when discussing Rights, remind them to consult the Constitution, not the mainstream media.

 

[Bill of Rights]

Good points in here, and thanks for posting it, Prometheus. It explains well why the NRA didn't include this in its amicus brief, but it does not explain why Mr. Gura did not do so. Any thoughts?

Blessings,
Bill

 

[antsi]

In a word, money. Should a modern day Supreme court rule the Peoples Right to keep and bear arms is absolute, the need for their bloated salaries and existence diminishes to that of simply firearms and hunting safety. A noble cause, but not the money making behemoth the NRA and their legal team has become. The more battles they can fight, the more money they can demand.

Sorry, gotta call BS on this one.

Over 95% of the NRA budget goes to training, range safety, competition, and other kinds of promotion of shooting activities. The NRA-ILA (the political arm) is a comparatively tiny portion of NRA activities.

If the gun control crowd was suddenly shut down by a massive, sweeping Supreme Court decision, there would be a massive expansion of ranges, training, competition, and other NRA activities that would overwhelm any loss of lobbying and litigation staff. Under these circumstances, the NRA would surely expand, not whither away.

Besides, the Supreme Court bends over backwards to avoid making the kind of sweeping "this changes everything" decisions these people are fantasizing about. They usually try to rule as narrowly as possible on the facts of the case before them. Even Heller, which is a strong precedent, still left a lot of questions unanswered and a lot of gun control laws intact. The reason the NRA does not pursue a single, massive "eliminate all gun laws in one fell swoop" ruling is that they are not total idiots.

 

[indykid]

People can't seem to figure out the first amendment either. There is a putz suing his high school over a prayer during commencement. He says that thanks to a class he took, and read the constitution, that the prayer violates his rights. He obviously didn't read the same constitution because the real first amendment only states that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof". I don't see anywhere where it says the school can't say a prayer.

It is the same with the second amendment. People constantly trying to figure out a way around something as simple as " the right of the people to keep and bear arms, shall not be infringed."

 

[hoosiertriangle]

I'd like to clarify that Cockrum v. The State, was Texas Supreme Court opinion. The discussion of the second amendment was only germaine because the defendant tried to argue that the Texas legislature's decision to require punishment for murders by bowie knife be more serious than other murders "infringed" on the right to carry a bowie knife because it discouraged persons from owning and using bowie knives for self defense.

The Texas Supreme Court in evaluated the argument under the Texas Constitution and analogized the language to the U.S. Constitution. In no placed did the Texas Supreme Court even indicate that the second amendment of the U.S. Constitution was supreme over the Texas Constitution.

Finally, the Texas Supreme Court didn't even by the argument and found that the legislature may impose stiffer penalities for murders caused by bowie knife. All of this makes the author's assertion that courts had long recognized the second amendment as a barring state action is flatly unsupported. I'd call this intellectual dishonestly on the part of the author. The case just doesn't stand for what the author claims.

Though the author may have some interesting thoughts, they aren't supported by his citation to Cockrum v. The State.

The Incorporation Myth
by: Joseph Haney

For those who are so fixated on the thoughts of persons in black robes vs what the Constitution says, I submit Cockrum v The State, 1859.

 

[Prometheus]

In no placed did the Texas Supreme Court even indicate that the second amendment of the U.S. Constitution was supreme over the Texas Constitution.

You and I must have read something different...
"A law cannot be passed to infringe upon or impair it, because it is above the law, and independent of the law-making power."

Though the author may have some interesting thoughts, they aren't supported by his citation to Cockrum v. The State.

The Cockrum decision is one example. There are dozens of others the article doesn't mention, including the Scott decision which is, possibly an even better example in this context because the 14A was about giving Rights to slaves, not to those who already had them... but I digress.

The main point still is resounding clear. We have Rights not predicated on the stupidity of courts or legislatures. Especially not an amendment passed nearly 100 years after the Constitution and BOR.

I understand many of you want a "shortcut", but shortcuts are what got us here to begin with.

It pains me greatly so many of you are so eager to throw your Rights under the feet of men when they clearly come from your Creator.

It makes me livid you pretentious cretins intend to try and throw my Rights under those same feet!

They aren't for sale or negotiation! They are mine.

It's no different those those demanding I pay for "free" health care of cellphones. NO! Stop giving away what is NOT yours!

 

[hoosiertriangle]

I don't disagree that many of our rights come from our creator and are not a product of government action. The point of my reply was that the author of the article was disingenuous or ignorant of what his citation stood for.

The author makes the point that courts aren't need to delineate rights, but even if they were, here is an example where the courts recognized the second amendment prior to the 14th amendment. I guess I'm confused as to your point as well.

You seem to make clear in your reply that rights are god given, and thus, need no recognition by government or court. But, the article isn't about god give rights. Its about whether or not the second amendment was recognized by states to be binding on the states. The article is all about whether or not state governments recognized federally prescribed rights prior to incorporation of the 14th amendment. Did you post the article for the one bit you quoted first in your reply about the Texas Supreme Court's recognition of god give rights?

You and I must have read something different...
"A law cannot be passed to infringe upon or impair it, because it is above the law, and independent of the law-making power."

The Cockrum decision is one example. There are dozens of others the article doesn't mention, including the Scott decision which is, possibly an even better example in this context because the 14A was about giving Rights to slaves, not to those who already had them... but I digress.

The main point still is resounding clear. We have Rights not predicated on the stupidity of courts or legislatures. Especially not an amendment passed nearly 100 years after the Constitution and BOR.

I understand many of you want a "shortcut", but shortcuts are what got us here to begin with.

It pains me greatly so many of you are so eager to throw your Rights under the feet of men when they clearly come from your Creator.

It makes me livid you pretentious cretins intend to try and throw my Rights under those same feet!

They aren't for sale or negotiation! They are mine.

It's no different those those demanding I pay for "free" health care of cellphones. NO! Stop giving away what is NOT yours!

 

[Bill of Rights]

I think the point is that the problem he sees is that the states are not recognizing the Constitution to which they agreed. The original Bill of Rights of 1791 was part of the US Constitution and thus, applied to the federal government to restrict it. It was never intended to restrict the several states except in very narrowly defined circumstances, i.e. the Congressional power to regulate interstate commerce (which touches on the meaning of "regulate" in common use at the time: To make regular, such that the dealings of one state with another must be on a level playing field)
It is for that reason that each of the several (sovereign) states had its own Constitution as well, for only in very limited circumstances were the sovereign states meant to be subordinate to the central government.
Amendment X
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.

That said, however, it segues neatly into the junction of the 1A, 2A, 9A, and 10A:

The 9A describes unenumerated rights that are limited only by the rights of other citizens. The 10A specifies that powers not specifically given the central gov't are reserved to the states unless also prohibited them, and then to the people. The 1A specifies that "Congress shall make no law..." (and it's my opinion it should have stopped there!), but the 2A contains no such limitation, thus it applies to all government at all levels.

Thus, the only amendment that should have needed to be incorporated was the 1A!

Amendment [I.]
Congress shall make no law respecting an establishment of
religion, or prohibiting the free exercise thereof; or abridging the
freedom of speech, or of the press; or the right of the people peaceably
to assemble, and to petition the Government for a redress of grievances.

Amendment [II.]
A 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.

Amendment [III.]
No Soldier shall, in time of peace be quartered in any house,
without the consent of the Owner, nor in time of war, but in a manner to
be prescribed by law.

Amendment [IV.]
The right of the people to be secure in their persons, houses,
papers, and effects, against unreasonable searches and seizures, shall
not be violated, and no Warrants shall issue, but upon probable cause,
supported by Oath or affirmation, and particularly describing the place
to be searched, and the persons or things to be seized.

Amendment [V.]
No person shall be held to answer for a capital, or otherwise
infamous crime, unless on a presentment or indictment of a Grand Jury,
except in cases arising in the land or naval forces, or in the Militia,
when in actual service in time of War or public danger; nor shall any
person be subject for the same offence to be twice put in jeopardy of
life or limb; nor shall be compelled in any criminal case to be a
witness against himself, nor be deprived of life, liberty, or property,
without due process of law; nor shall private property be taken for
public use, without just compensation.

Amendment [VI.]
In all criminal prosecutions, the accused shall enjoy the right
to a speedy and public trial, by an impartial jury of the State and
district wherein the crime shall have been committed, which district
shall have been previously ascertained by law, and to be informed of the
nature and cause of the accusation; to be confronted with the witnesses
against him; to have compulsory process for obtaining witnesses in his
favor, and to have the Assistance of Counsel for his defence.

Amendment [VII.]
In Suits at common law, where the value in controversy shall
exceed twenty dollars, the right of trial by jury shall be preserved,
and no fact tried by a jury, shall be otherwise re-examined in any Court
of the United States, than according to the rules of the common law.

Amendment [VIII.]
Excessive bail shall not be required, nor excessive fines
imposed, nor cruel and unusual punishments inflicted.

Amendment [IX.]
The enumeration in the Constitution, of certain rights, shall
not be construed to deny or disparage others retained by the people.

Amendment [X.]
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.

Only the 1A specifies that it applies to the Congress.

Blessings,
Bill

 

[hoosiertriangle]

Thanks for that clarification and I understand that logic, the cited case law just doesn't support that argument.

I think the point is that the problem he sees is that the states are not recognizing the Constitution to which they agreed. The original Bill of Rights of 1791 was part of the US Constitution and thus, applied to the federal government to restrict it. It was never intended to restrict the several states except in very narrowly defined circumstances, i.e. the Congressional power to regulate interstate commerce (which touches on the meaning of "regulate" in common use at the time: To make regular, such that the dealings of one state with another must be on a level playing field)
It is for that reason that each of the several (sovereign) states had its own Constitution as well, for only in very limited circumstances were the sovereign states meant to be subordinate to the central government.
Amendment X
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.

That said, however, it segues neatly into the junction of the 1A, 2A, 9A, and 10A:

The 9A describes unenumerated rights that are limited only by the rights of other citizens. The 10A specifies that powers not specifically given the central gov't are reserved to the states unless also prohibited them, and then to the people. The 1A specifies that "Congress shall make no law..." (and it's my opinion it should have stopped there!), but the 2A contains no such limitation, thus it applies to all government at all levels.

Thus, the only amendment that should have needed to be incorporated was the 1A!

Only the 1A specifies that it applies to the Congress.

Blessings,
Bill