"Second Amendment does not apply to the states", Judge Morgan

[Chet]

I thought everyone might enjoy hearing the good news...our Second Amendment is of zero value.

http://hamptonroads.com/2008/09/judg...t-private-info

Judge: Norfolk gun law OK, but not request for private info

NORFOLK

The arrest of a man for openly carrying a gun at a Norfolk festival did not violate the U.S. Constitution but the police officer who asked for the man's Social Security number might have violated his civil rights, a federal judge ruled this week.

Chester "Chet" Szymecki Jr. of Yorktown sued the city after his arrest in June 2007 on a charge of violating a city ordinance prohibiting firearms at Harborfest, held annually at Town Point Park.

Szymecki, a gun rights advocate, has challenged handgun bans in the past. During his arrest, Szymecki claims police pushed him and that when he complained that the handcuffs were on too tight, an officer made them tighter.

During his arrest and later, when he was released from custody, police asked him for his Social Security number. He initially balked, but gave it to the officers to avoid being detained longer, he says in his suit.

The charge was later thrown out after city officials learned that it violated a state law that prohibits localities from regulating firearms.

Szymecki sued in federal court claiming multiple constitutional violations, including the Second Amendment's right to keep and bear arms and the Fourth Amendment prohibition against unlawful searches and seizures.

U.S. District Judge Henry Coke Morgan Jr. ruled Thursday that Szymecki cannot sue claiming constitutional violations under state or local law. Morgan ruled earlier this year that the city did not violate the Second Amendment for the same reason.

"It is well settled law in this circuit that the Second Amendment does not apply to the states," Morgan wrote in dismissing Szymecki's constitutional claims. "Because the Second Amendment does not apply to the states, neither a state law nor a local ordinance can run afoul of any right guaranteed by the Second Amendment."

However, Morgan ruled that the police demand for Szymecki's Social Security number - if the allegation is true - would have violated the federal Privacy Act.

Morgan will allow the case to go to trial on that issue alone. The trial has been set for Dec. 16.

Tim McGlone, (757) 446-2343, tim.mcglone@pilotonline.com

Source URL (retrieved on 09/13/2008 - 11:53): http://hamptonroads.com/2008/09/judg...t-private-info

[XD40coyote]

Hmm, so who does it apply to then? The "people" who run everything at the federal level- ie, the president, VP, cabinet, FBI, federal judges, postal inspectors,etc? Keep in mind there was no D.C. back when the constitution was ratified. There was no designated federal only area.

I guess only the same federal people are allowed religious freedom, and freedom of speech too?

[stinkymcdoober]

I guess that means going back to my sharp stick and heavy stone theory

[lildobe]

If the 2nd doesn't apply to states or cities, then neither do any of the others - so all of the state and local laws struck down in the last 30 or 40 years based on the constitution were actually valid... right?

I really hope he appeals this to a higher court. That's B.S.

[Lysander]

If the 2nd doesn't apply to states or cities, then neither do any of the others - so all of the state and local laws struck down in the last 30 or 40 years based on the constitution were actually valid... right?

I really hope he appeals this to a higher court. That's B.S.

What the Judge is referring to is Incorporation. (While I don't necessarily like Wikipedia for research, this is a good starting point.) As Incorporation of the 2nd Amendment needs to be done before it can (judicially) be applied to the States.

The issue with DC is, as DC is not a state, the issue of Incorporation did not have to be dealt with in order to tackle the "meaning" of the Amendment per Heller. If Incorporation was dealt with first, "Heller I" would be the USSC case on Incorporation and "Heller II" would be a later case deciding what the actual Heller case did. Now that we have the Heller decision, we can concentrate on Incorporation and other issues affecting the application of the Second Amendment.

As an aside, it would really have hurt if after arguing Incorporation and arguing other issues, the Court ruled against the Second Amendment.

[jofreder]

I do not get what you mean my incorporation. Can you simply for me, I am a little slow. I do not understand how the 2A does not apply to a state. I thought the constitution was law of the land.

[stinkymcdoober]

I do not get what you mean my incorporation. Can you simply for me, I am a little slow. I do not understand how the 2A does not apply to a state. I thought the constitution was law of the land.

I'm glad someone else asked that, i was a little unclear as well.

[knight0334]

Incorporation is finding or ruling through the 14th amendment. The 2A and maybe a couple others are the only ones that haven't been incorporated as applying to the states.

The theory is that the United State Constitution is written to keep the federal government from infringing on rights, but not the states. Either the 2A needs to be incorporated, or we need to rid this country of the notion that the USC doesn't apply to all levels of government.

[Lysander]

I do not get what you mean my incorporation. Can you simply for me, I am a little slow. I do not understand how the 2A does not apply to a state. I thought the constitution was law of the land.

When first enacted, The Constitution and the first eight amendments applied directly to the Federal government - and no further. The Ninth Amendment is of "unenumerated rights of the people" - rights held by the people that are otherwise not spelled out in the preceding eight amendments and Constitution itself - as interpreted by the USSC. Likewise, the Tenth is a reservation of all other powers to the states, or the people, as appropriate (and again, as interpreted by the USSC). Incorporation, or, properly, unincorporation, is a principle of federalism.

Until the 14th Amendment and suits of Incorporation, those rights and privileges in the Federal Constitution operated against the Federal Government only. Absent Incorporation, the Federal Government, for example, "shall make no law respecting an establishment of religion", but a STATE government could (and most had during the colonial period) official state religions. State involvement in religion continued well into the 1870s, particularly by some former Colony states.

With the absence of many 2nd Amendment cases, I disagree with the Judge that unincorporation of the 2nd Amendment is "well settled" (or proper, though I do not recall the Judge calling unincorporation "proper"). To my knowledge, there are no cases that have been decided in the past that say the Amendment should not be incorporated.

[knighthawk06699]

If the second amendment does not apply to the state then what does "we the people" mean? where do we the people reside??? Oh yeah in the states.