-- I'm curious about your thinking. --
It has two components. One being that it shifts the pressure point on the gun-rights lobby. So far, the gun-rights lobby has put all its eggs in the incorporation basket, which implies a paradigm that the RKBA flows out of the 2nd amendment. I reject that paradigm (and I think most of the gun lobby does, even though it doesn't argue that way), and prefer that gun-rights proponents pay more attention to the dicta in Presser that asserts the states cannot prohibit KBA, even in the absence of the 2nd amendment.
Related to this, or maybe just another way of saying the same thing, is my belief that the RKBA in fact does not depend on the federal government for existence. That the citizens of every state have a RKBA that may not be infringed, and this is so even absent a positive statement in a state or federal constitution.
As a technical matter, I think "incorporation" is wrong, in toto. Not to belabor the point, but some of the rights in the 1st eight amendments pertain to the people against all governments (but in a federal constitution, expressly only against the feds), yet others are only against the feds (grand jury). The other component is that I think a rejection of incorporation will result in more of the public finding the courts to be illegitimate. I think finding the courts to be intellectually corrupt on the 2nd amendment is the ONLY rational conclusion, once one understands what the federal courts have done with Presser and Miller.
-- The fact of the matter is that some states are infringing the right to keep and bear arms. Though prior Supreme Courts have ruled that one may not bear arms in a parade, such a ruling cannot mean that one is prohibited from bearing arms at least somewhere. --
I agree with that, and I think the federal courts are corrupt in their application of Presser and Miller. People have been imprisoned and killed over this, at least as against the federal laws (Weaver, Waco), and probably as against state and local laws.
I also think the state courts are corrupt as to the RKBA. The Illinois decision, Kalodimos v. Village of Morton Grove, 103 Ill. 2d 483, 470 N.E.2d 266 (1984), was a close decision, and is a very interesting read. Obviously, I think the dissent got it right. But eventually, at some level, the people have to engage some "self help," and that ought to be directed at the correct miscreants.
So, if the Congress/Exec/Courts ignores the US Constitution, we run to the UN? At some point, the people are supposed to act for their own benefit, and the more local/limited that action, the better. If the Illinois government is corrupt as to denying freedom to its citizens, the first solution is to throw out the local miscreants, not appeal to the federal constitution. If the miscreants ignore their state constitution, what makes them amenable to any other?
Me @ 7.3.2009 6:11pm
-- It took millions of soldiers bearing arms to accomplish the freeing of the slaves and so it should be no surprise if the keeping and bearing of arms by those former slaves is essential to maintaining that freedom. --
Keeping and bearing arms is, at bottom, a show of credible ability and willingness to assert violence of force. If the people don't prevail in that credible show, they WILL be disarmed.
I'm still confused.
"Incorporation" is the result of the non-enumeration of the scope of the Fourteenth Amendment. The situation has demonstrated that neither enumeration of rights nor non-enumeration of rights is a perfect solution.
I agree that the lower courts and even the Supreme Court have used tortured logic to get the decisions they wanted instead of the decisions that the language would suggest is due.
But I fail to see how the right to keep and bear arms is negatively impacted by the various attempts to ensure its recognition.
The right to keep and bear arms pre-existed the Constitution and the Bill of Rights. That has implications for what must not be infringed by any government.
The Bill of Rights enumerates the right to keep and bear arms as a right which, at the very least, shall not be infringed by the U.S. government.
The Fourteenth Amendment recognized the predicament of former slaves being "re-enslaved" by action of the states; which would logically include a prohibition against disarming such former slaves.
Except for the tortured way in which various courts have attempted to subvert the meaning of all this, each of the factors I have listed should argue for greater protection of the right to keep and bear arms rather than less.
Some states today do not outlaw manufacture of machine guns. "Incorporation" does not increase the power of any state to outlaw machine guns if the state did not formerly have such power. On the surface it would appear that a state protection for the right to keep and bear arms should become identical to the federal protection, but that is a logical fallacy that rules out the possibility that the federal protection is not currently being properly recognized. The Heller decision is a prime example of how the federal protection has been, up until that decision, an infringement.
I have no fear that Texas, for example, will suddenly become anti-gun because "incorporation" suggests that the state of Texas must protect the right at least as extensively as the federal government.