Thursday, July 03, 2008

2A Ruled Non-Binding on States?

Senior Norfolk Judge Henry Coke Morgan held in a local federal case the day after Heller was decided that the individual right created by the Second Amendment does not impose any obligations whatsoever on state or local governments: only the federal government. The decision came in the controversial case of Chet Szymecki v. City of Norfolk where the citizen was detained, handcuffed and roughed up by Norfolk The count made under the Second Amendment for injunctive relief and for compensation was dismissed. The other constitutional claims made by Szymecki, for an unreasonable seizure and for the use of excessive force by police, survived dismissal, at least for now.

I don't know if it's the person reporting this or what the Norfolk court ruled, but the Heller majority opinion was pretty clear in saying RKBA was not "created" by 2A.

I can't claim personal experience with this forum or the poster--but he seems credible. The name "Szymecki" does not turn up on a Google news search to verify this, but you can find more info on the case here--I just don't have time to dig right now.

[Via Mack H]

7 comments:

  1. Unfortunately, until the Second is legally "incorporated" under the 14th's "equal protection" clause, Judge Morgan is correct. Two Supreme Court cases state unequivocally that the rights protected by the Second Amendment are not protected against infringement by the states, merely the Federal government. The judge IS legally bound by that, which is why we have to get those precedents overturned and get the Second Amendment legally recognized as a restriction on state law.

    It sucks, but that's how our legal system works.

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  2. Virginia Citizens Defense League is following this case closely. Chet is a very active member.
    Norfolk is violating Virginia's preemption law by making gun ordinances. Gun laws in the state are homogenous; no locality can establish its own gun laws stricter than state law. Yet they do.
    As a Virginian, I will let our elected officials know how wrong this judge is.
    Why are we having Terrorism Liaison Officers appointed to watch (over?) us, while at the same time noncriminal citizens are MADE into criminals for wanting to take terrorist-neutralizers into public spaces at events that would be a very attractive target FOR terrorists? Kinda makes you question the whole gun-permit/homeland security deal, doesn't it?

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  3. A subsequent poster quotes the Virginia state constitution:

    Section 13. Militia; standing armies; military subordinate to civil power.

    That a well regulated militia, composed of the body of the people, trained to arms, is the proper, natural, and safe defense of a free state, therefore, the right of the people to keep and bear arms shall not be infringed; that standing armies, in time of peace, should be avoided as dangerous to liberty; and that in all cases the military should be under strict subordination to, and governed by, the civil power.

    Are we better than Algeria? Two Muslims who converted to Christianity were tried and convicted for advocating that others do the same. Algeria's CONSTITUTION allows freedom of worship, but a DECREE IN 2006 "strictly regulates how other religions can be practiced."

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  4. We'd have to see the case to see if he even considered Heller in his ruling. The pre-incorporation cases I don't think are actually binding since previous cases, like Duncan v. Louisiana pretty much establish the rules under which incorporation can be established. Prior to the Heller ruling, the courts could dismiss on incorporation because The Supreme Court had said nothing about the nature of the right. Now that it's pretty clearly established in Heller, it fits the current criteria for incorporation pretty well. I would be curious to see if the opinion even mentions Heller.

    I've e-mailed Dave Hardy about this, to see what he thinks. Obviously, he's the real expert on this stuff. I just pretend.

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  5. What about Article 4 of the Constitution - the supremacy clause? Doesn't this state that the Constitution is the supreme law of the land and that the states cannot have any laws that conflict with it?

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  6. Excellent point, anonymous.
    Just what one of the Founders would say.
    It's like joining a Buddhist temple and then deciding you're going to sacrifice a chicken to Damballah during a meditation session. It's like getting on a major league soccer team and deciding you're going to use your hands AND a spiked club. Sorta negates the whole purpose of being there.

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  7. 250 years after the Constitution was written and ratified, it doesn't apply because someone needs to incorporate something into something that didn't even exist then?
    Excuse my legal ignorance, but that's EXACTLY like the other side's claim that the 2A allows the states to form National Guard units, which didn't even exist until the early 20th Century.
    They just keep running the treadmill faster and faster.

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