05 November 2021

Not Quite A Second Amendment Case

Though nobody has mentioned it explicitly in the arguments, I think that NYSRPA v Bruen isn't quite a 2nd Amendment case.

As we've been told, over and over, the Bill of Rights is only a restriction on the Federal government.  The states are governed by their own constitutions.

But...

The 14th Amendment.  "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States."

I think we're seeing the Supreme Court going for 14th Amendment incorporation here.

Judging from the notes and debates surrounding the passage of the 14th, I think that the authors intended the Bill of Rights to be applied to the states the moment it was ratified, but the Slaughter House decision muddied that for more than a century now (remember when I said the Supreme Court could be wrong earlier?).

Without 14th incorporation, there's no power to hold New York's laws in violation of the 2nd.

In my opinion.

14th Amendment stuff is often very confusing.  There's broad decisions, there's narrow decisions and there's some seemingly contradictory decisions.

The trend, however, has been one of more liberty and more restriction on the government.  Unfortunately, it's often of the three steps forward, two steps back method of advancement. 

I remain hopeful!

2 comments:

  1. 2A was incorporated to the states via 14A by McDonald v Chicago back on 2010.

    ReplyDelete
    Replies
    1. As is the norm for non-first amendment protections, only partially.

      Fucking Slaughterhouse.

      Delete

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