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NemWan t1_irbh56b wrote

Use of the Second Amendment against a state law is not actually a Second Amendment case but a Fourteenth Amendment case that depends on SCOTUS in 2010 ruling that the Second Amendment is part of what Equal Protection and Due Process means. None of the Bill of Rights originally applied to the states, they've been gradually applied since Reconstruction by evolving interpretation of the Fourteenth Amendment.

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codan84 t1_ircdy12 wrote

Incorporation of the second amendment has already been ruled on and settled in McDonald v Chicago. That is not the question in the current case.

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codan84 t1_ircrovf wrote

Does the second amendment enumerate an individual right to keep and bear arms? If it does then I do not see how the original intent was to protect States. The right is conferred to the People, not the States. Nowhere else in the constitution would the phrase the People refer to States. Could you please explain how you arrive at the conclusion that it is about states rights?

Yes. There are limits to governmental powers at all levels. Just because a State claims interests does not mean they can make whatever laws they wish. They too have to follow the law.

I’m not a huge fan of the H and T myself but the opinion in Dobbs wasn’t arbitrary. It was quite detailed and well layer out and even if disagreeing with it arbitrarily hardly seems to fit.

So there is an individual right? Sure there is a balance in some way but that does not allow for anything. Could the state bring back stop and frisk only with check points and stoping and frisking everyone? The argument could be made that such laws would serve the interests of the state and infringing upon the 4th amendment rights is an acceptable cost. Would that be okay too as it would likely do more to prevent crime including shootings than overly restrictive concealed carry licensing laws would.

With free speech we don’t have much if any prior restraints. There is no license needed to preach of the corner or print political flyers. There is no loss of free speech rights after one has served a sentence for a felony or some misdemeanors.

I personally do not believe there should be any exceptions as an ideal at least. If speech or gun control is wanted then the answer is to amend the constitution. Allowing for more governmental power at any level than what is specifically enumerated is wrong in my view and is a greater danger in the long run then most other issues. What checks and balances are there on governmental powers if they can choose any and all they want? However I also know that’s not practical or probable as like with everything there are opposing interests and views and some compromise has to happen.

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Rebelgecko t1_irdjkir wrote

>Does the second amendment enumerate an individual right to keep and bear arms?

Yes

>The right is conferred to the People, not the States. Nowhere else in the constitution would the phrase the People refer to States. Could you please explain how you arrive at the conclusion that it is about states rights?

The first amendment's Freedom of Speech clause is also about the rights of the people, and it's similarly been incorporated against the states for like a hundred years.

Just like almost all of the rest of the Bill of Rights, the courts have determined that if the constitution protects individual from having a right infringed on by the federal government, it also protects indiviuals from having that right violated by they state they're in.

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NemWan t1_ircicq7 wrote

Well settled law doesn't seem to mean what it used to does it?

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codan84 t1_ircj4cs wrote

If you say so. I was simply pointing out that the court has ruled on the question of incorporation already and the case that is at issue in this tread is about a separate question.

Why do you believe incorporation is at question in this particular case? Is NY putting forward an argument that they are not bound by the second amendment of the federal constitution? Is that or similar arguments being presented by any of the parties involved? Do you believe such arguments should be made?

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NemWan t1_ircovpe wrote

I'd question incorporation of the Second Amendment at every opportunity, because the intent of the Second Amendment at its drafting was to preserve states' rights from a federal power grab, not to squash them. It's a radical difference and it matters.

The ability of a state legislature to balance state and individual interests is seemingly replaced by a federal judge's more arbitrary opinion of where the lines should be drawn. For instance, what's the constitutional basis of this:

>Suddaby’s ruling upheld the state’s right to exclude guns from certain “sensitive locations,” but only in instances where there were “historical analogues” for such rules, meaning guns have been banned from such places in the past.

Seems as arbitrary as Alito's opinion of "history and traditions" in Dobbs. Since we have a much greater percentage of American history of the 2A not being formally incorporated, one could argue there's a very, very big "historical analogue" for state and local gun control authority.

It's one thing to establish there is an individual right to bear arms, and other to assert that how that individual right is balanced against competing public rights and interests is to be beyond state and local discretion.

With free speech, for example, we have legal precedents that what is illegal obscenity, not protected by the First Amendment, is to be determined in part by contemporary community standards, not by one uniform standard. It's a flawed and abused precedent I wouldn't normally defend with much enthusiasm, but then I also see words and images as less physically threatening than arms.

The First and Second Amendments seem to have no exceptions in their plain text, but they do have exceptions in practice. Who gets the power to decide the exceptions? Are we to have a community standards approach to speech but not guns? Sure, this inconsistency would be eliminated by abolishing obscenity law for more absolute freedom of speech, but that would miss the point: historically, we have believed in people being able to vote for their values at a state and local level — up to a point. Having accumulated generations of incorporation doctrine, we're using a federal power originally meant to ensure liberty for freed slaves and their descendants to equate the right to bear arms with other rights such as freedom of speech. I don't think the question of whether that is a true equivalency is resolved.

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NemWan t1_irbmsk6 wrote

In response to a deleted but fair question, no, I am not "against the incorporation of rights". It should be obvious that how parts of the Bill of Rights apply to states, or if they apply at all, is not an all-or-nothing, automatic fact, or it wouldn't have taken over 140 years of decisions to piece together.

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