NemWan

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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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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