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Civil Rights, Firearms and Heller v. DC

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  • 04-09-2008, 11:08 AM
    XJChief
    Civil Rights, Firearms and Heller v. DC
    Hello all, my first post here that I've cut and pasted from another forum where this issue is being discussed. I have no legal education so forgive me if my questions seem a bit amateurish.

    Well I've been doing a lot of reading and here are some more questions regarding Heller v DC:

    DC is not a state so I would think the second amendment is directly applicable to the residents of DC. In fact, wouldn't a DC resident be provided with "raw" protection under the constitution while those of us who reside in states are left with a double set of constitutions?

    Does/can this case even address the indoctrination issue of the second amendment with regard to the states?

    Further I'm wondering if SCOTUS rulings can affect state supreme courts. For instance, the State of Hawaii's constitution has the exact same language as the US constitution. If the SCOTUS rules that the 2nd is an individual right would a state's constitution with the exact same wording be tied to the SCOTUS's ruling?

    Thanks to anyone who can answer my questions!:)
  • 04-09-2008, 11:12 AM
    seniorjudge
    Re: Civil Rights Heller / DC
    Q: Further I'm wondering if SCOTUS rulings can affect state supreme courts. For instance, the State of Hawaii's constitution has the exact same language as the US constitution. If the SCOTUS rules that the 2nd is an individual right would a state's constitution with the exact same wording be tied to the SCOTUS's ruling?

    A: Yes and yes.
  • 04-09-2008, 02:02 PM
    aaron
    Re: Civil Rights Heller / DC
    Quote:

    Quoting XJChief
    View Post
    Does/can this case even address the indoctrination issue of the second amendment with regard to the states?

    You mean incorporation? I expect that the Supreme Court will discuss its interpretation of the Second Amendment as it pertains to an individual right to possess firearms, and perhaps to articulate a test under which federal restrictions on that right may be evaluated. As they do not have to address the issue of incorporation, I expect that they will avoid doing so.
    Quote:

    Quoting XJChief
    Further I'm wondering if SCOTUS rulings can affect state supreme courts. For instance, the State of Hawaii's constitution has the exact same language as the US constitution. If the SCOTUS rules that the 2nd is an individual right would a state's constitution with the exact same wording be tied to the SCOTUS's ruling?

    States interpret their own constitutions. They may permissibly apply a different interpretation to identical language. The Supreme Court's ruling would likely have a significant influence on how state supreme courts interpret similar language from a state constitution, but it isn't binding.
  • 04-09-2008, 02:22 PM
    BOR
    Re: Civil Rights Heller / DC
    Quote:

    Quoting XJChief
    View Post
    Hello all, my first post here that I've cut and pasted from another forum where this issue is being discussed. I have no legal education so forgive me if my questions seem a bit amateurish.

    Well I've been doing a lot of reading and here are some more questions regarding Heller v DC:

    DC is not a state so I would think the second amendment is directly applicable to the residents of DC. In fact, wouldn't a DC resident be provided with "raw" protection under the constitution while those of us who reside in states are left with a double set of constitutions?


    http://pacer.cadc.uscourts.gov/docs/...3/04-7041a.pdf

    p.47:

    In any event, the Supreme Court has unambiguously held that the Constitution and Bill of Rights are in effect in the District. See O’Donoghue v. United States, 289 U.S. 516, 539-41(1933) (quoting Downes v. Bidwell, 182 U.S. 244, 260-61 (1901)....

    Simply because Maryland and Virginia ceded part of thier states to the federal government does not divest them of Constitutional protection.

    The dissent offers a conflicting analysis??

    Of course, not until the 1920's and after was the Bill of Rights made applicable to the states in a succession of rulings. The ratification of the 14th AM in 1868 did not "automatically" make the BOR applicable to the states.

    Several provisions are still not applicable, such as the 8the AM's clause of excessive bail.



    Quote:

    Does/can this case even address the indoctrination issue of the second amendment with regard to the states?
    If you are speaking of the "incorporation" doctrine, I outlined it above.

    Quote:

    Further I'm wondering if SCOTUS rulings can affect state supreme courts. For instance, the State of Hawaii's constitution has the exact same language as the US constitution. If the SCOTUS rules that the 2nd is an individual right would a state's constitution with the exact same wording be tied to the SCOTUS's ruling?

    Thanks to anyone who can answer my questions!:)
    States are free under thier own constitution's to have greater protections than the federal counterpart clauses/AM, however if the USSC rules the right to bear arms as an "individual" right and not just a collective militia one, than the Supremacy Clause of Article 6 makes it the law of the land.

    You can pull up the SC's own website and read some of the merit briefs filed in the case, but here is transcript of the oral argument. Audio available also.

    http://www.oyez.org/cases/2000-2009/..._290/argument/
  • 04-09-2008, 03:03 PM
    XJChief
    Re: Civil Rights Heller / DC
    Thank you all very much for your answers. I've reviewed the oral arguments and read a few of the briefs. Not having any legal training, other than a single aviation law course, it's quite confusing to try and figure out exactly what is being decided and how a ruling will affect the Feds, the States, and of course all of us.

    It's really quite sad that a guy who went to some pretty respected schools doesn't have enough education to understand this very important process. Hey, at least I care enough to try and figure it out which is a heck of a lot more than most folks ever bother to do! ;)
  • 04-09-2008, 03:25 PM
    BOR
    Re: Civil Rights Heller / DC
    Quote:

    Quoting XJChief
    View Post
    Thank you all very much for your answers. I've reviewed the oral arguments and read a few of the briefs. Not having any legal training, other than a single aviation law course, it's quite confusing to try and figure out exactly what is being decided and how a ruling will affect the Feds, the States, and of course all of us.

    You are welcome. I am also quite anxious to read the decision when it is handed down, as is many right to bear arms citizens across the country. Too bad Charlton Heston could not be around to read it, as he was a major proponent of the 2nd for the NRA. He passed here just within several months of a ruling, a shame!!

    Quote:

    It's really quite sad that a guy who went to some pretty respected schools doesn't have enough education to understand this very important process. Hey, at least I care enough to try and figure it out which is a heck of a lot more than most folks ever bother to do! ;)
    Don't feel uneducated because of it, the law, even for those prolific in it, is not always crystal clear.

    I studied criminal law in College and since then have attempted to keep up with general principles of it, so it comes somewhat easy for me. I even chose the username BOR, Bill of Rights.

    When it comes to other areas such as Math and science/electronics etc., I am befuddled for the most part.

    The original BOR, as submitted to the states, had 12 Amendments or Articles, only 10 were ratified.

    If you live in the DC area or can tour one time, visit it and all the magnificent sites, including the National Archives. In the Rotunda of the charters of freedom are the Declaration of Independence (badly faded), the Original 7 Articles and the Bill of Rights.

    I had the awesome pleasure of sitting in on an oral argument many many years ago when Warren Burger was Chief Justice.

    I saw some greats from history, Thurgood Marshall, William O. Douglas, Willam Rhenquist, Byron White, Lewis Powell.

    Good luck with your further readings and as you, I will await the decision.

    BOR (Bill of Rights)
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