Calaveras County Safe Again (ATF at it Again!)

Ken H says, operating under RP's confused "agreement":

"Which means if they declare CC a right at the Federal level, States are still free to ban CC. If incorporated, then States banning CC would have those laws struck down."

True, but I thought we agreed for sake of argument that the right to CC was not a right at the federal level? Why are you trying to confuse things?
218 paulsen

Watching you get totally confused in your own wordgames is high comedy, paulsen. Thanks for the laughs..

The USSC not only said that it was not protected by the First Amendment, they also said that the words were of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent. In other words, it violates other rights.

Note he said "Congress had a right to prevent", nothing about requiring them to prevent [He said Congress because it was a Federal, not a State case]. IOW, it is not protected speech because it violates other rights, and is therefore subject to injunction.

Given that, what makes you think that the state could extend the right? It would be immediately challenged as a violation of the First Amendment.

Nope, it would be challenged as a violation of other rights. It would not be a First Amendment case. That's like saying laws permitting CC are unconstitutional because they violate the Second Amendment.

If CC is not protected by the Second, it's not protected whether incorporated or not.

It's not protected by the federal government, no. It may be protected by the state.

Correct, it may be protected by the State, not the Second Amendment.

If incorporated, then States banning CC would have those laws struck down.

True, but I thought we agreed for sake of argument that the right to CC was not a right at the federal level?

Just pointing out that incorporation has potential upside but no downside.

You agreed that the Second Amendment was intended to set limits on Federal infringement of the RKBA. An incorporated Second Amendment would set the same limits on State infringement of the RKBA.

I think you've been arguing as if the Second Amendment could be used to limit the RKBA.

"Nope, it would be challenged as a violation of other rights."

Yes. My mistake.

Fire in a theater or Campaign Finance Reform -- if Congress finds that the speech violates some other right, then the states cannot allow it. No way.

The reason? Because it is incorporated and also applies to the states. If it were not incorporated, the state may find that the right to free speech supersedes the other right that is violated.

The argument against "hate" speech is an excellent example. Individual state courts may find that the right to use "hate" speech supersedes some right not to be offended. Left to the states, they would allow it.

But since the First Amendment is incorporated, the USSC defines what's more important. If the USSC decides that right not to be offended (or whatever it is) supersedes the right to use hate speech, then ALL states must conform and ban hate speech.

The same is true for CC. IF incorporated , and the USSC decides that the 5th amendment right that is violated supersedes the Second Amendment right to CC, then ALL states must conform. If the USSC has previously decided (in our example) that the Second Amendment does NOT protect the right to CC, then the USSC's job is even easier.

Ken H corrected paulsen:

" --- incorporation has potential upside but no downside.

You agreed that the Second Amendment was intended to set limits on Federal infringement of the RKBA. An incorporated Second Amendment would set the same limits on State infringement of the RKBA.

I think you've been arguing as if the Second Amendment could be used to limit the RKBA. -- "

Paulsen has indeed been making that exact argument, but I doubt he will admit to that fact. - He will either ignore your comment or pretend to 'misunderstand'.

Paulsens claim that because the 2nd is deemed 'unincorporated', that our RKBA's can therefore be infringed upon by State or local governments simply ignores our basic constitutional principles. --- Our Republic was founded to protect individual rights, not to allow States/localities in the union to infringe upon them.

Thanks for your input on this thread.

Fire in a theater or Campaign Finance Reform -- if Congress finds that the speech violates some other right, then the states cannot allow it. No way.

Congress? We've been talking about USSC finding a violation. Let's stick with USSC.

The reason? Because it is incorporated and also applies to the states.

I'm assuming "it" is referring to the First Amentment, right?

If it [First Amendment?- kh] were not incorporated, the state may find that the right to free speech supersedes the other right that is violated.

If USSC says "other rights" (which we have been assuming are incorporated) are violated, the State cannot say otherwise.

Correct.

You repeated your mistake. If USSC says "hate speech" violates "other rights", then the State Court cannot say otherwise regardless of whether the First Amendment applies to States or not.

The same is true for CC. IF incorporated , and the USSC decides that the 5th amendment right that is violated supersedes the Second Amendment right to CC, then ALL states must conform.

All States must conform to such a rulng if Second Amendment is unincorporated as well. Are you saying otherwise?

"All States must conform to such a (USSC) ruling if Second Amendment is unincorporated as well. Are you saying otherwise?"

If the USSC is ruling on an unincorporated amendment, their ruling only affects the state that brought the issue to the USSC.

The USSC doesn't just rule on an issue. The issue has to be brought to the USSC. If brought by a state, the ruling only affects that state's law, assuming unincorporation.

If the USSC is ruling on an unincorporated amendment, their ruling only affects the state that brought the issue to the USSC.

We've been talking about a ruling on a 5th Amendment violation, not the 2nd Amendment. We've been assuming that the 2nd was already ruled by USSC as not protecting CC.

If brought by a state, the ruling only affects that state's law, assuming unincorporation.

Again, you are answering as if this were a 2nd Amendment case. It's a 5th Amendment case, and we've been assuming it (the 5th) is incorporated.

----------------------------------------------

You said: IF incorporated , and the USSC decides that the 5th amendment right that is violated supersedes the Second Amendment right to CC, then ALL states must conform.

Let me ask a simple yes or no question. Is the following true as well?

If the Second Amendment is unincorporated, and the USSC decides that the 5th amendment right that is violated supersedes the Second Amendment right to CC, then ALL states must conform.

Yes or no?

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