Not according to FindLaw:
http://criminal.findlaw.com/criminal-rights/fifth-amendment-right-against-self-incrimination.html
http://caselaw.findlaw.com/us-supreme-court/532/17.html
From your link:
Actually, it would probably be easier to add what hasn’t been incorporated than what has been.
I don’t see how you can say “generally, yup”?
I mean “generally, yep” in the sense that states could deprive their citizens of this BOR guarantees until they were “incorporated” by courts via the 14A. That doesn’t mean states did - most state constitutions had similar rights that protected citizens. But the point is they weren’t compelled to - the states weren’t subject to the BOR.
Most of the BOR has now been incorporated, so it’s the opposite. And I don’t quite understand your reference to my link - yes, the 2A has been incorporated (the McDonald) case)?
The self-incrimination aspect of the 5A has been incorporated, so yes, it’s protections do extend to state and local matters, so not sure what you mean here.
Okay. I guess I was just confused by your reply to @Silyak since almost all of the BOR has been incorporated at this point. I thought you were saying the states can do these things now (…compel people to testify against themselves…) and then you posted incorporation (showing that they can’t), which at 7 AM was confusing to me, lol…
There is something perhaps you can help me to understand, though. Isn’t incorporation based on original intent? Meaning did the SCOTUS return to original intend when ruling in favor of incorporation, for say McDonald, or is it something else?
I don’t follow why SCOTUS would incorporate the 2A if that wasn’t the founders intent unless you think they were simply wrong.
*Or I guess they incorporate based on the 14th, which you’re arguing isn’t in keeping with original intent?
No, I get what you’re saying - it was confusing in that sense, I didn’t explain it well. I didn’t clarify that in the absence of incorporation, generally, yep, states can…. You didn’t get confused - I made it confusing.
Not really - except that the original intent of the 14A is relevant - but for the sole issue of applicability to the states? No.
SCOTUS and its originalists (not everyone is an originalist, or course) would look at the original intent of the underlying law (like 2A) for the substance of that law, but only after a determination of whether that law applies to states or not.
That’s exactly it - the 14A. That’s the reason any BOR rights are now universal in the sense that they apply to federal, state, and local governments, no exceptions. Prior to the 14A, the BOR didn’t apply to the states, and that’s well-settled, because it wasn’t intended to.
And there’s even debate over whether the 14A should do that. After all, think about it - prior to the Civil War, states regulated firearms, as they saw fit, classic state’s rights issue. Some states started regulating more (concealed carry restrictions, etc.), others never did. But safe to say there was infringement on an unqualified right to keep and bear at the state level, depending on which state you were in.
Fast forward to the 14A - was the intent of the 14A really to universalize individual keep and bear rights in an effort to correct the “wrongs” of then state infringements on that individual right? Is that what Congress and the states were after in ratifying the 14A? Was that a chief concern - “states are unfairly restricting citizens’ rights to own firearms, and we need to nationalize the 2A to remedy this problem…”…?
There’s no plausible reason to think so. There’s nothing in the record to even suggest it. So, analyzing through the lens, again, of originalism - the right and true method of interpretation according to conservatives and libertarians - how can you “incorporate” the 2A when there’s no evidence the original intent of the 14A was to solve this “problem”? Incorporation strays from original intent.
That’s how the “originalists” beclowned themselves in the McDonald case. They swear original intent rules the day, except in their case when it doesn’t, in a case where they want an ideological result they want that originalism says they can’t have. Then, they conveniently discard it. In other words, the exact same crime they accuse liberals of every day when they go in favor of a Living Constitution while abandoning original meaning.
Again, it depends on reliability and robustness. I would think that individuals who are gun owners would like safety features that both made sense and worked…and that Law enforcement was not exempted from. Many, MANY individuals (voting in both parties) think that a lot of these so-called safety features are being proposed by people who don’t have the first clue about the reality of owning or firing a gun in self defense.
In addition, they despise being told to do something that LEOs and others are exempted from. That viewpoint has a long and decorated American history behind it, and is also correct in my view. If, for normal semiautomatic handguns, LEOs are not required to have these safety features why should the regular gun owner? You’ll notice that not even police or federal departments have signed on to use smart gun technology. They have to vet effectiveness as well, so if it was really that reliable and robust a solution, one would think that they would be amenable to it, being as they are at an increased risk of a thug struggling for their weapon.
Law abiding gun owners are not the cause of most crime in any case.
Thanks, TB. I don’t agree with your assessment, but I appreciate your thoughtful insight.
By your argument then no incorporation through the 14th amendment can be originalist. Because the founders didn’t write the 14th and didn’t intend for the BOR to extend to state/local governments. When debating the “merits” of originalism it’s odd to argue about things written 70 years after the BOR.
The constitution is “living and breathing” not so much in the sense that we can reinterpret things to suit us, but we can literally amend it.
Your argument is like saying that the 21st amendment ending prohibition violates the originalist intent of the 18th.
The 14th amendment was ratified and changed the constitution. So the incorporation doctrine changes all rulings after that point, specifically after the Slaughter House case.
We could propose a 28th amendment to the constitution dissolving the Congress, or revoking the 1st. If it gets ratified, it’s part of the constitution and thus SCOTUS decisions moving forward.
Oh, I do. Dissenters found the prospect of what are, in effect, high-explosives being placed in the steering column to be beyond ludicrous.
More people than don’t favor smart-gun technology:
Obviously, reliability and robustness are important (just as they were for seatbelts and airbags).
No offense, but they can get over it. Why the participation of LEOs should be a dealbreaker, I don’t understand. At times, LEOs are exempt from speed limits, parking rules, etc; does that mean we should dispense with these laws?
Again, I don’t understand why this should be a dealbreaker. It seems rather conspiratorial to me. But hey, I welcome a debate on the subject (among people who are better-versed than I in the nuances of the issue). If passage of mandatory safety technology requires that LEOs phase in the same technology: As far as I’m concerned, so be it.
Let’s leave aside the incorporation issue. You mention the natural right of revolution (with which I agree), and you tangentially touch on the natural right of self defense that was well accepted by the FFs (again agree).
You say the purpose of the 2nd Amendment was to prevent the federal government from disarming the states and citizenry through a standing army loyal to the federal government (ala James 1, Cromwell, and many others the FFs would have been familiar with). This would protect the natural right of revolution against the federal government by assuring that states are armed and that these armed men would not be under federal control, but would be led by state appointed officers and state led training. Again agreed.
Now it seems that you follow the above with a view that that this guarantee was best carried out only by an enlisted/conscripted state militia (“it makes more sense that the 2A applies to the state militia as opposed to the individual”) as a subsidiary of the state’s population rather than the body of the state’s people as a whole? how do you square that with the FF’s views that the true strength of the Republic lay in the fact that each free man be armed? Madison in Federalist 46 writes:
“Let a regular army, fully equal to the resources of the country, be formed; and let it be entirely at the devotion of the federal government; still it would not be going too far to say, that the State governments, with the people on their side, would be able to repel the danger. The highest number to which, according to the best computation, a standing army can be carried in any country, does not exceed one hundredth part of the whole number of souls; or one twenty-fifth part of the number able to bear arms. This proportion would not yield, in the United States, an army of more than twenty-five or thirty thousand men. To these would be opposed a militia amounting to near half a million of citizens with arms in their hands, officered by men chosen from among themselves, fighting for their common liberties, and united and conducted by governments possessing their affections and confidence. It may well be doubted, whether a militia thus circumstanced could ever be conquered by such a proportion of regular troops. Those who are best acquainted with the last successful resistance of this country against the British arms, will be most inclined to deny the possibility of it. Besides the advantage of being armed, which the Americans possess over the people of almost every other nation, the existence of subordinate governments, to which the people are attached, and by which the militia officers are appointed, forms a barrier against the enterprises of ambition, more insurmountable than any which a simple government of any form can admit of. Notwithstanding the military establishments in the several kingdoms of Europe, which are carried as far as the public resources will bear, the governments are afraid to trust the people with arms…”
He is quite clearly talking about the entire free population of men as the “militia” here when he mentions that 500,000 men at arms would be fighting. Granting that there was no census data and that Madison was not doing hard “number crunching”, this figure of 500,000 men amounts to nearly the whole of the free white men over the age of 16 in the new country at that time, or the entire body of of the country given the social and cultural mores of the time exclude blacks and women (Census of 1790 puts the number of white men 16+ at ~800,000 a few years after this article).
Madison doubles down on the idea of the entire populace being armed just a couple sentences later: Americans, he says, possess over the people of almost every other country on earth the advantage of being armed. He contrasts this with Europe in the next sentence when he says “governments are afraid to trust the people with arms”.
Now, leaving aside the incorporation issue, how can you square this sentiment–echoed in various places among the whole of the FFs–with the idea that the 2nd amendment applies only to an organized and subsidiary portion of militia that mimics the organization of the federal army instead of the citizenry at large?
I cannot. It seems self-evident that the FFs–whatever they may have thought about the States being able to legally regulate or disarm their local citizenry because of their strong preference for local governance–considered it a given and a right of the population as a whole to be armed. I can in no way reconcile this with the thought that they believed the right to bear arms appllied only to a subsidiary conscripted/enlisted state militia rather than the people as a whole.
If we accept incorporation as later courts do, then we must accept that they meant for the people as a whole be armed. If we do not accept incorporation, then while we may acknowledge that the FFs thought every State should be able to legally regulate its own citizens separately regarding arms, we must also acknowledge that they BELIEVED in the right of every voting citizen, or the “people” at large, to be armed and considered it self evident and a great advantage over other peoples in Europe.
In other words, I see original intent as twofold: first and foremost philosophically and secondly as a separate legal construct. Legally the FFs probably allowed that each state govern its own affairs and people as it saw fit. Philosophically as a matter of what the FFs believed, they saw that an individual right to arms was a natural right and self evident, the strength of the country and to be protected.
One can take the position that they meant for States to govern themselves and no incorporation should be applied: fair. That also means, however, that most rights people take for granted now (and specifically the more left leaning/gun control happy people) could be imperiously recinded in any single state. However I cannot come to the conclusion that the FFs actually believed anything other than that the right to bear arms was an individual right. Gun control people want to have it both ways, incorporation for some but not the 2nd, and I do not see that as possible.
Interesting on the airbag thing. I was not aware there was such a problem.
I didn’t say that all people disliked it, I said that many individuals disliked it because your statement seemed to me to imply that the only push back on smart gun technology came from a corporate gun lobby. That’s not the case, much of it comes from individuals.
Of course not. In the execution of their duties officers are allowed significant latitude. Just as, for example, in an emergency rush to a hospital for say a wife in labor or a kid close to death I will not be held accountable for breaking the speed limit by any good cop. That’s a silly argument to make.
That’s not the same as a permanent exemption for LEOs from the same gun types available for the citizenry. We’re not having a discussion about RPGs or anything exotic here, we are talking about normal semi auto handguns.
One of the founding ideals of this country was that all are equal under law, even the POTUS and Congress–arguably much more highly ranked than your local beat cop. And no matter how many times we muck the execution of that principle up we still accept it as the standard. The practice of exempting one group of people from a law is as unamerican as one can get (I’m looking at you Congress)
If these things worked so well then one would expect that those at most risk of needing them would want them. Police departments do not, and I submit that it is precisely because such smart tech is not as robust or as unbreakable as proponents would have you believe. Again, one of the fundamental principles of self-defense (applicable to both PD and individuals equally) is that tools for self defense should be as simple and reliable as possible. Complication increases the risk of failure at a critical time. In any case, police officer is first and foremost a PEER citizen. One cannot accept different classes of citizens. I don’t see either points as conspiratorial.
I’m thoroughly confused now…
The BOR originally applied to the Fed with regard to interactions with the state, state citizens still subject to state constitution.
14A is passed and US citizenship is now primary to state citizenship.
BOR now overrides state constitution due to US citizenship so therefore applies to each citizen.
I’m not quite understanding how this doesn’t fit with an originalist doctrine in the context that you have a 14A?
Not only that. Cops that die in the line of duty are killed primarily with their own weapons. If anyone would want “smart guns” it would be them. The tech isn’t there yet.
I don’t think LEOs are a “group of people” or a ‘different class of citizen’ in the sense implied by the notion of ‘equal under the law.’ If they are, so are members of the armed services, who have access to all sorts of weapons systems that would not be available to the population at large. (I am not convinced by your ‘same gun type’ exemption. If anything, the fact that members of the armed services have access to weapons unavailable to the public is even more anathema to your ‘equal under the law’ dictum.)
Fair enough. Then we’re in agreement–when the tech is such that LEOs are comfortable with it, we can go ahead with making such technology mandatory, at least on new-gun sales?
Nope not imho at least. Libertarian here. The same number of people would be dead in Vegas if the gunman had to wear a wrist band with a chip in it. Gang members and other normal criminals will be able to figure it out also.
On the notion that the interpretation of the 2A as guaranteeing an individual’s right to bear arms: The following quote is from a 1995 WaPo article:
"[T]he judges who interpret the nation’s laws say the Second Amendment to the Constitution does not guarantee an individual’s right to bear arms. In fact, no federal court has ever ruled that the Constitution guarantees Americans the right to own a gun.
In few areas of law is there such a vast gulf between what people think the Constitution protects and what the nation’s judges say it protects." [emphasis mine]
http://www.washingtonpost.com/wp-srv/national/longterm/supcourt/stories/courtguns051095.htm
My point is simply to highlight 1) the disconnect that exists between the beliefs of gun-rights enthusiasts and actual case law, and 2) the extreme recency of the notion that the 2A applies to individuals in the manner decided by Heller.
OK. Do me a favor–let me know when your goalposts are embedded in concrete, as opposed to mounted on roller skates.
Now who’s out over their skis, and condescending to boot?
I never agreed to anything being mandatory. I pointed out that the cohort MOST likely to benefit from smart gun technology doesn’t want it. I was never part of the seatbelt/airbag comparison.
You didn’t imply that requiring safety technology was something to be contemplated if/when LEOs adopted it?
And that was an expression of frustration, not condescension.
Who would it save? Most civilians aren’t killed by someone shooting them with their own weapon. Because civilians are supposed to flee the violence. It’s the cops that have to rush toward it and go hands on with everyone they arrest. Of the 32k gun deaths per year you cited:
64% are suicides, roughly 20.5k. If they can shell out $400 for a handgun to punch out with They can shell out $500 for a handgun with a wristband. Because of personal experience I find it hard to feel bad for suicidal people. They want to die, then they die… They get what they want. There’s still pills and long drops even if we scrapped all guns on earth. I have seen the study that says guns make suicide attempts more successful… So what? Why should we coddle people who want to die?
About 3% of gun deaths (about 960) are from “accidents”. Imho there is no such thing as an accidental gun discharge, only a negligent one. If you don’t know which end is dangerous and to keep your finger off the trigger then a wrist band won’t help. If you let children get ahold of your guns you’re an idiot. My stand up gun safe cost $200 on sale. That’s about the price of a Kel Tec. If you have guns, you should have a safe. Full stop.
The last 33% are gun homicides (10.5k). Those are very rarely accomplished with stolen handguns. The data I found was that convicted felons stole their handguns 9% of the time. The wristband would only help in that situation if you stored the band and the gun in different places. If the restrictions get implemented then the felons will smuggle older “unsafe” guns anyway. Or just buy the guns with the wrist bands.
Couldn’t find the number of cops killed with their own weapon. 64 officers were shot to death in 2016. So even if we say half were killed with their own gun we’re talking about making technology mandatory for everyone that would only really save those 32 cops.
The tech should meet 4 basic criteria:
–No power source required.
–No way to ever hack a gun such that it won’t work for it’s owner. Implied that it’s not possible to remotely disable someone’s guns.
–The technology never fails to recognize its owner under any conditions.
–The technology does not impede or alter the operation of the gun in any way.
Words like never set an impossible standard (for anything). Seatbelts can’t pass the never test; neither can airbags.
