Tuesday, May 10, 2005
Second circuit rejects Second Amendment.
http://www.law.com/jsp/article.jsp?id=1115642115973
Bach v. Pataki raises the issue of whether the second amendment is a right of the people, or of the state. The court finds it is not a right of the people.
It then finds that, based on an 1880s case, the Second Amendment is not incorporated by the 14th, and not binding on the states.
It also rejects an article IV privileges and immunities claim - New York issues no handgun licences to out of state residents.
Plaintiff is a perfect candidate to raise these issues.
He is a seal and a lawyer for the navy. He wants to carry his handgun when he goes to visit his aging parents - he's heard New York can be dangerous.
If I've read the article right, he is both pro se and represented by counsel, a neat trick.
Next step, I assume, would be a motion for rehearing en banc, and then petition for cert. It would be great to see cert granted in the case, to resolve the Emerson split. I am not enough of an expert on article IV P&I to know how that should turn out, but it presents an alternative ground for decision.
There has been enough change in the incorporation doctrine over the last 120 years that it would be worthwhile to revisit Pressler v Illinois. My position is that the right to bear arms is both part of the bill of rights and "implicit in the concept of ordered liberty" and should be incorporated. My view is not universally held.
The solicitor general's brief on whether cert should be granted might make interesting reading.
In all the discussion of fillabusters and such, I haven't seen any discussion of whether the president, if there is a vacancy, will or should appoint someone who supports the second amendment.
Perhaps an amicus brief in support of cert would be a good project for the openlaw movement. I am calling for bloggers to publicize the case, and the potential project,
so that word gets out, so that people can come together online and work on a draft of a brief in support of cert in this case. If a good brief is written, finding someone to file it would not be hard. Cert is a long shot - the point is to build momentum for scholaship and activism and litigation.
http://www.law.com/jsp/article.jsp?id=1115642115973
Bach v. Pataki raises the issue of whether the second amendment is a right of the people, or of the state. The court finds it is not a right of the people.
It then finds that, based on an 1880s case, the Second Amendment is not incorporated by the 14th, and not binding on the states.
It also rejects an article IV privileges and immunities claim - New York issues no handgun licences to out of state residents.
Plaintiff is a perfect candidate to raise these issues.
He is a seal and a lawyer for the navy. He wants to carry his handgun when he goes to visit his aging parents - he's heard New York can be dangerous.
If I've read the article right, he is both pro se and represented by counsel, a neat trick.
Next step, I assume, would be a motion for rehearing en banc, and then petition for cert. It would be great to see cert granted in the case, to resolve the Emerson split. I am not enough of an expert on article IV P&I to know how that should turn out, but it presents an alternative ground for decision.
There has been enough change in the incorporation doctrine over the last 120 years that it would be worthwhile to revisit Pressler v Illinois. My position is that the right to bear arms is both part of the bill of rights and "implicit in the concept of ordered liberty" and should be incorporated. My view is not universally held.
The solicitor general's brief on whether cert should be granted might make interesting reading.
In all the discussion of fillabusters and such, I haven't seen any discussion of whether the president, if there is a vacancy, will or should appoint someone who supports the second amendment.
Perhaps an amicus brief in support of cert would be a good project for the openlaw movement. I am calling for bloggers to publicize the case, and the potential project,
so that word gets out, so that people can come together online and work on a draft of a brief in support of cert in this case. If a good brief is written, finding someone to file it would not be hard. Cert is a long shot - the point is to build momentum for scholaship and activism and litigation.
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