2d via the 14th

Discussion in 'GA Laws and Politics' started by Malum Prohibitum, Nov 20, 2006.

  1. Malum Prohibitum

    Malum Prohibitum Moderator Staff Member

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    S. 397, last year's Protection of Lawful Commerce in Arms Act, has a neat jurisdictional clause. It appears to argue for the incorporation of the Second Amendment via the Fourteenth Amendment.

    Can Congress do this or only the Supreme Court?


    Anyway, here is the relevant language excerpted from the bill as passed:

    SEC. 2. FINDINGS; PURPOSES.

    (a) Findings- Congress finds the following:

    (1) The Second Amendment to the United States Constitution provides that the right of the people to keep and bear arms shall not be infringed.

    (2) The Second Amendment to the United States Constitution protects the rights of individuals, including those who are not members of a militia or engaged in military service or training, to keep and bear arms.
    . . .

    (7) The liability actions commenced or contemplated by the Federal Government, States, municipalities, and private interest groups and others are based on theories without foundation in hundreds of years of the common law and jurisprudence of the United States and do not represent a bona fide expansion of the common law. The possible sustaining of these actions by a maverick judicial officer or petit jury would expand civil liability in a manner never contemplated by the framers of the Constitution, by Congress, or by the legislatures of the several States. Such an expansion of liability would constitute a deprivation of the rights, privileges, and immunities guaranteed to a citizen of the United States under the Fourteenth Amendment to the United States Constitution.
    . . .

    (b) Purposes- The purposes of this Act are as follows:
    . . .

    (3) To guarantee a citizen's rights, privileges, and immunities, as applied to the States, under the Fourteenth Amendment to the United States Constitution, pursuant to section 5 of that Amendment.


    Interesting in light of this recent Georgia Supreme Court case.
     
  2. jrm

    jrm Sledgehammer

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    The 14th gives congress the power to enforce the amendment "by appropriate legislation." Congress should, therefore, be empowered to pass laws restricting state action infringing on the 2nd amendment. So, in a round about way, congress should be able to apply the 14th amendment to the 2nd amendment.
     

  3. Malum Prohibitum

    Malum Prohibitum Moderator Staff Member

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    That is where I come down. After all, Congress wrote the Fourtennth Amendment, not the Supreme Court.

    There is also some very good legislative history that I posted somewhere on this site supporting the notion that Congress explicitly intended for the Fourteenth Amendment to protect the Second Amendment rights of blacks in the south following the Civil War. I will see if I can find it . . .
     
  4. moga

    moga New Member

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  5. Malum Prohibitum

    Malum Prohibitum Moderator Staff Member

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    You know that GCO has this issue in a case, too, right? And it actually involves "bearing" arms?
     
  6. moga

    moga New Member

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    I'm not sure why, but I had the impression that JRM decided against including this line of argument in the airport case.

    Or are we talking about another case entirely?
     
  7. rmodel65

    rmodel65 Yukon Cornelius

    i believe he is referring to the non resident license case