Kythas wrote:I'm all for incorporation, and even believe the 2nd Amendment goes further than the 1st in stating it is a right of all citizens. While the 1st Amendment states "Congress shall make no law....", the 2nd simply states "...the right of the people to keep and bear arms shall not be infringed." Therefore, I believe the Founders intended the 2nd to be more fundamental than the 1st. However, that's not the way it currently is.
Even with incorporation, would we still support some infringement on gun rights? Would felons then be allowed to own guns, or the mentally unstable? Would we still allow the wording of Article I, Section 23 of the Texas Constitution ("Every citizen shall have the right to keep and bear arms in the lawful defense of himself or the State; but the Legislature shall have power, by law, to regulate the wearing of arms, with a view to prevent crime."). If we do allow that, then what about other infringements in other state constitutions?
In short, I don't think there's a simple answer.
No, there is no simple answer, but incorporation is not a be all and end all, it's essentially SOCTUS, and by extension the federal government, giving us permission to exercise a right, which turns it into a privilege.
Felons, by definition, have forfeited their rights, so there is NO infringement, the mentally unstable are ("unable to understand or competently participate in their defense") and thus not alllowed the same level of rights, therefore no infringement.
The Annoyed Man wrote:My understanding of the 14th (and please feel free to correct me if I'm wrong) with regard to our rights is that it declares the intent that A) "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States;" and B) that the "privileges or immunities" referred to at the time (07/09/1868) in that amendment are codified in Amendments 1 through 13.
But it is already pretty much settled that the privileges and immunities clase should not apply to the second, as that makes the 2nd a right granted by the constitution rather than protected by it. The only part of the fourteenth that we can count on working, and only to a limited extent, is the "due process" clause, and that leaves the door open for lots of infringement.
The Annoyed Man wrote:Therefore, incorporation is another reality that we are forced to deal with in which the SCOTUS has held (since 1833, BTW) that the 14th Amendment does not apply to all of the Bill of Rights at the state level.
The fourteenth wasn't passed until 1868, so SCOTUS could hardly hold something with it since 1833.
I still remain convinced that what we really truly need is a SCOTUS decision that states that the 2nd applies, without incorporation, due to the way it was written, all the way down to the village board.
. . . THE RIGHT OF THE PEOPLE . . . SHALL NOT BE INFRINGED.
