Comments on: Incorporation of the 2nd Amendment http://www.ohioverticals.com/blogs/akron_law_cafe/2008/09/interesting-post-on-incorporation-of-the-2nd-amendment/ University of Akron School of Law Blog Thu, 18 Mar 2010 20:05:07 +0000 http://wordpress.org/?v=2.9.2 hourly 1 By: Professor E. Stewart Moritz http://www.ohioverticals.com/blogs/akron_law_cafe/2008/09/interesting-post-on-incorporation-of-the-2nd-amendment/comment-page-1/#comment-398 Professor E. Stewart Moritz Tue, 23 Sep 2008 14:52:18 +0000 http://www.ohioverticals.com/blogs/akron_law_cafe/?p=373#comment-398 Herb- I'm certainly guilty of sloppy thinking at times, but I'm not sure you've caught me out here. While it's true that incorporation "cannot prevent an individual state from granting more rights" than the U.S. Constitution grants, that's not what we would have here. Here, incorporation would prevent a state entity (e.g. Chicago, which bars registration of handguns) from infringing on the right to keep and bear arms that the U.S. Constitution (following Heller) now protects. The tension is b/w the state right to regulate and the federal constitutional principle (if incorporated) that says certain regulations are not permissible. -ESM Herb-
I'm certainly guilty of sloppy thinking at times, but I'm not sure you've caught me out here. While it's true that incorporation "cannot prevent an individual state from granting more rights" than the U.S. Constitution grants, that's not what we would have here. Here, incorporation would prevent a state entity (e.g. Chicago, which bars registration of handguns) from infringing on the right to keep and bear arms that the U.S. Constitution (following Heller) now protects. The tension is b/w the state right to regulate and the federal constitutional principle (if incorporated) that says certain regulations are not permissible.
-ESM

]]> By: Herb Martin http://www.ohioverticals.com/blogs/akron_law_cafe/2008/09/interesting-post-on-incorporation-of-the-2nd-amendment/comment-page-1/#comment-385 Herb Martin Mon, 22 Sep 2008 04:24:18 +0000 http://www.ohioverticals.com/blogs/akron_law_cafe/?p=373#comment-385 Sloppy thinking by both you and the article's author. Incorporation of the Bill of Rights limits the power of the states vis a vis the Rights of the People but it cannot prevent an individual state from granting more rights than the Federal government requires. The further slight of mouth of assuming (incorrectly) a binary choice (i.e., States rights vs. Federal power) just carries on the sloppiness, or hides the intellectual dishonesty as the case may be. There are three entities involved: One can easily be for States rights over the Federal powers (in general), and at the same time believe (correctly) the Rights of the people trump both. The Constitution is very explicit on this topic, and it always amazes me that any professor, whether of constitutional law or basket weaving could ever honestly confuse it. The Federal government has those powers -- and only those powers -- give it by the Constitution, but at the same time the Constitution requires the Federal government to prevent the government infringement of the rights of the people -- no matter what level that infringement arises. Sloppy thinking by both you and the article's author.

Incorporation of the Bill of Rights limits the power of the states vis a vis the Rights of the People but it cannot prevent an individual state from granting more rights than the Federal government requires.

The further slight of mouth of assuming (incorrectly) a binary choice (i.e., States rights vs. Federal power) just carries on the sloppiness, or hides the intellectual dishonesty as the case may be.

There are three entities involved: One can easily be for States rights over the Federal powers (in general), and at the same time believe (correctly) the Rights of the people trump both.

The Constitution is very explicit on this topic, and it always amazes me that any professor, whether of constitutional law or basket weaving could ever honestly confuse it.

The Federal government has those powers — and only those powers — give it by the Constitution, but at the same time the Constitution requires the Federal government to prevent the government infringement of the rights of the people — no matter what level that infringement arises.

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