Are there any lawyers on the forum?

[ole pizen slinger]

I just finished watching a presentation given by the University of North Carolina at Asheville by Robert Levy, Chairman of the CATO Institute, concerning the case of DC vs Heller. He goes into detail about the Institute's strategy in fighting the case. However, he made some statements that I do not understand. As I remember, he said, "The Bill of Rights do not apply to the states because they have not all been incorporated under the 14th amendment." He further said, "Some of the Bill of Rights have been incorporated, the 1st amendment for instance, but not the 2nd amendment." I would appreciate some of you legal geniuses interpreting this for me. I am just a dumb ole country boy who takes words to mean what they say so any help would be appreciated.
ole pizen slinger

[Ysabel Kid]

I'm no lawyer, but I am unaware of any of the "Bill of Rights" protections not applying fully to every state. All the original states agreed to these in full, and all states added afterwards had to agree to them (and the rest of the Constitution) when they were admitted to the Union. Most of the states incorporate the same protections into their own state consitutions.

Now, the thing to remember is that the bill of rights prevents the government from abridging one's rights, such as free speech (First Amendment), or the right to keep and bear arms (Second Amendment). This does not mean that a private entity in their own realm can not do so. So, one does not have the right to come onto my property and express their views. They do have the right to do so in the "public square" without fear of censorship from the government.

[Buffboy]

I'm not a lawyer either, but what I think he is referring to is precedence by the court. There are no court decisions that directly link the second amendment to the states via the 14th amendment as there a with some of the other amendments. Those court cases provide fixed guidelines for the states as to how they may or may not implement procedures in law. The 14th amendment has the supposed jurisdiction to make all the constitutional guarantees of all the bill of rights binding on the states, BUT, if there is no court precedence making specifics, it remains a gray area. That is why it's possible for states to have differing law with the other states on firearms and not (for example) 4th amendment search law. I believe the second amendment is one of the few (if not only) ones to lack these precedents.

[kimwcook]

Looks like we've got some work to do. And, why hasn't the NRA and all the other RKBA organizations been all over this? First time I've heard of it. But, then again I'm no lawyer, constitutional or otherwise. Where's Scott Tschirhart when you need him.

[Rusty]

Isn't the CATO Institute considered a Conservative organization?

[Noah Zark]

OPS:

Many state and commonwealth constitutions contain verbiage taken directly from the US Constitution and Bill of Rights. PA is one such commonwealth, with "The right of the people to keep and bear arms shall not be infringed" written into the PA constitution WELL BEFORE the 14th amendment was conceived.

Noah

[AJMD429]

According to the mainstream media, all our "social problems" are so complex that only ivy-league bureaucats can 'solve' them, after extensive brow-wrinkling and hand-wringing. This is B.S. - pure and simple.

Don't steal stuff. Don't kill anyone unless they're trying to kill you. Don't use force to make someone else do something.

Beyond that, social interaction isn't all that complex, and anyone who makes it so, is likely a parasite of society, who is too stupid or laxy to do anything useful, so they have to feed off of others, and use the sham of 'government' to seek out, encourage, and thrive off of individual interactions that could easily be voluntary, but they convert to 'adversarial' - i.e. the politics of 'hate' or 'envy' - i.e. the Democrat party.

If a "constitution" requires a "law degree" to "interpret" - it should be written on toilet paper - that's all it's worth. Freedom isn't "complex" or full of nuances. "DFWM" means "don't mess with me" (vocabulary words for minors omitted), and the old flag that said "Don't tread on me" said it all.

Requiring "lawyers" to 'interpret' every little thing is symptomatic of our social problems; right is right, wrong is wrong, and 'nuances' and 'technicalities' be darned.

[Bob A]

Looks like we've got some work to do. And, why hasn't the NRA and all the other RKBA organizations been all over this? First time I've heard of it. But, then again I'm no lawyer, constitutional or otherwise. Where's Scott Tschirhart when you need him.

I heard a radio show with a guy from the 2nd Amendment Foundation (sorry, I forgot his name). These were the guys who brought the Heller case to the Supreme Court. They are very aware of the incorporation issue and have several followup lawsuits in process to deal with it. They say they had to start with the DC Heller case because it was a very narrow issue. They wanted to get a ruling that the 2nd Amendment was an individual right, period. If there had been other issues, it could have put the case at risk. Now that they have the Heller ruling, they can build on it with other cases that will expand and define other issues. I know they are going after the Chicago ban and also the San Francisco gun ban in public housing projects.

Bob A

[marlinman93]

Don't get the Constitution and the Bill of Rights mixed up. There are major differences.

[FWiedner]

Don't get the Constitution and the Bill of Rights mixed up. There are major differences.

The "Bill of Rights" is the common name for the first 10 Amendments to the Constitution.

In other words, specific limitations to the authority of the federal government were missing from the original document which the framers felt were so important to ensuring the People's liberty that they amended the original document to include those guarantees.

While it is not the entire Constitution, the "Bill of Rights" IS the Constitution.

[Leverdude]

What he meant, & he is right I think, is that originally the Bill of Rights were protecting the states from an overzealous Fed, they were not limitations on states legislative powers.
Then after the civil war with the 14th amendment several of them were "Incorporated" or whatever & were judged to be limitations on the states as well as the Feds. I'm not a lawyer either & it confuses me that the Second is not included since one of the things that spawned the 14th was southern states refusing to let blacks own or carry firearms for their own protection.
Is seems absurd that we would change things granting them free speech & a few other things & forget to make the second amendment a limitation on states legislation.

Before he left ScotT mentioned this a few times.

I think it likely that the founders never thought that people would allow their own state to take away their rights. They felt that the states needed protecting from a strong federal Govt but could take care of themselves. Nobodies perfect.

[Charles]

When the Constitution is admended it becomes part of the Constution and in incorporated into the whole and is not a different document. The U.S. Constitution is the supreme law of the land and states through their various constitutions or laws can offer greater rights, but they cannot offer less. The notion that any part of the limitations on goverment does not apply to the states is silly.

[Old Time Hunter]

Thanks Charles

[Leverdude]

When the Constitution is admended it becomes part of the Constution and in incorporated into the whole and is not a different document. The U.S. Constitution is the supreme law of the land and states through their various constitutions or laws can offer greater rights, but they cannot offer less. The notion that any part of the limitations on goverment does not apply to the states is silly.

Its not a notion, its the way it is. If its not then how is it allowed for the states to infringe beyond Fed laws?

I agree its silly, but it was explained here that it was because the states werent bound by recognizing the second as they were by the first & some other amendments, that it was & is a limitation on the federal govt. I cant say I understand it, but by the same token if its true that they are bound by it, why arent lawyers pouncing on obvious violations like they would be if folks were denied the ability to worship as they please or say what they want?
Theres still several states that totally ban CCW & about all of them infringe well beyond what the Govt does. It would appear to be an untapped well of unloseable suits.

If its true that states cant legislate beyond it then theres countless LEO, judges, prosecutors, legislators & others that accept money to routinely deny the rights of the citizenry.
Personally, I'v long felt this to be the case, but you are the first lawyer I'v heard agree. Would you take a case defending a man who's only crime was carrying a gun in a state that did not permit it & expect to win?

[rimrock]

Not a lawyer, but I work with them. Just my opinion, but I like arguments like that by the idiot antis. Their argument about collective rights compared to individual rights under the 2A was positively rejected by the Supremes. I predict their argument that the 2A has not been impressed upon the states will fall also. It's simple--the 14thA makes the US Bill of Rights apply to the states. The Miranda decision about warning that what you say after being arrested can be used against in court is applied to the states through the 14A. And freedom of speech at the permitted time and place in the 1A applies to the states through the 14A. The language on individual rights is almost the same in these amendments, so it's highly likely the Supremes will use very similar rhetoric as it used in the Heller decision to stop that argument also. Also, many state constitutions express gun rights more clearly than the U.S. does, as discussed in Heller. So, even if the Heller decision, for some reason, did not apply, the same reasoning from Heller most likely would apply.

[Leverdude]

You, me & the rest understanding or believing it to be a limitations on the states doesn't seem to matter. The Heller case doesn't seem to matter.
If it is a limitation its one that is routinely ignored by not just the states but also by many municipal govt's . Its not only ignored by our legislators, its ignored by all of our public officials, elected & otherwise as well as 99% of our lawyers. If it mattered the anti's would go for an amendment to it. As it stands they dont need to, because of the apathy of our legal system when it comes to governmental abuse of our second amendment rights.

It has long amazed me that attorneys dont take this more seriously.
My wifes cousin is a lawyer here in CT. I had some legal issues once regarding getting a pistol permit. When I asked her about it she was pretty unconcerned & basically said either you get it or you dont.
When I asked about my second ammendment rights she looked stupified. Her answer was "Kenny, its not like they are violating your civil rights or anything like free speech or discriminating based on race" I couldn't get a reason how or why it was different, just that it was. Luckily I found a lawyer that could read & understand that ALL of our rights are inalienable & got things worked out. I like my wifes cousin & all that but I feel that if a lawyer is indifferent about ANY civil right they ought be disbarred. I'd lose my contractors license if I tried ignoring regulations for no stupid reason & cant see the difference.

[ole pizen slinger]

I was able to talk with Scott Tschirhart yesterday about this matter. As you know, Scott is an attorney in the San Antonio, TX area. Here is my understanding of what he told me. The Constitution--Bill of Rights protects us from the federal government. The Constitution--Bill of Rights does not apply to state governments except in cases where the amendments have been incorporated to include protection from state government, i.e., 1st amendment, 4th amendment, 5th amendment. Such incorporation in the case of these amendments came through the 14th amendment. The case in mention, DC vs Heller, does not take up the issue of the 2nd amendment being incorporated as DC was not a state. This will have to be litigated at some time in the future. If I understand the implication of this, the Constitution--Bill of Rights protects us from the federal government, however, it does not protect us from tyrany at the state level. The state can always offer us more or less protection than is afforded by the Constitution--B of R. Some of these issues are being litigated now--NRA vs Chicago, NRA vs San Francisco, NRA vs New York, etc. From my talk with Scott, there is a lot to be negotiated in the courts with regard to the 2nd Amendment, some of which we will win and some of which we will lose.
ole pizen slinger

[Charles]

Article VI, Clause 2 of the Constitution is known as the Supremacy clause and states:

"This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the authority of the United States, shall be the supreme Law of the land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding"

If there is any settled law in the country vis-a-vi the United States Consutution ,it is that the states judges are required to uphold it, even it state constutions or laws conflict with it.

I don't know where this idea that the Constituion doesn't apply to the States until SCOTUS runs it through the 14th Amendment comes from. The notion that states can offer less rights than the U.S. Constituion flys in the face of settled Consutitional Law.

Most assuredly there will be many issues to be settled in regard to Heller. What is or is not a reasonable restriction on the 2nd. Ammendment for the public good will be fought over for years if not generations to come. But the notion that Heller does not apply to the states the moment it was announced is not open to debate.

To be certain, states and local goverments do pass laws that step on the U.S. Constution. Those laws stand as long as nobody challenges them as being unconstitutional. The fact that such laws are on the books, only speaks to the ignorance or hubris of various legislative bodies and should not reflect that these laws are valid. But as said, the various states cannot legaly offer less rights than the United States Constitution, but many will until somebody stops them from "sucking eggs". That is the challenge that faces the public and legal community that values the rights guaranteed to EVERY citizen of EVERY state by the most precious document and corner stone of the great country. It will be a long struggle to define Heller and apply Heller, but that is our struggle.

Now, I am certain, all kinds of folks hold all kinds of ideas and notions about the matter at hand. The internet is filled with various opinions some of which are nothing more than pure conjecture and some are straining knats.

For the record, I have been a Texas lawyer since 1966 and currently teach Legal Studies at the University of Texas at Brownsville, which includes the United States Constutitution.

[Old Savage]

Charles - appreciate your input and also the information on your background.

[ole pizen slinger]

Charles,
I finally managed to tape the full presentation of Robert Levy. This presentation prompted the question I asked originally. Maybe you would like to view the presentation and tell me what the man meant when he stated that the 2nd Amendment had not been incorporated to the states. I will be most happy to mail the tape to you if you will graciously send me your address.
ole pizen slinger

[piller]

This is all very informative. I understand most of it as my job requires quite a bit of knowledge of Federal and State laws, but I am honestly glad there are Lawyers who are trying to do what is right. Charles, if you ever get to the Dallas area, I'd enjoy it if you would stop to say hello.

[TomD]

Interesting discusion. There tends to be some heat about what needs to be done to the lawyers, in this kind of thread. Seems to me there is a deep hole in these guns issues, and it is going to take a lot of lawyers to get out of it. Let's not darn them too much - though a few lawyer jokes always go down well.

[Grizz]

For the record, I have been a Texas lawyer since 1966 and currently teach Legal Studies at the University of Texas at Brownsville, which includes the United States Constutitution.

When the Constitution is admended it becomes part of the Constution and in incorporated into the whole and is not a different document. The U.S. Constitution is the supreme law of the land and states through their various constitutions or laws can offer greater rights, but they cannot offer less. The notion that any part of the limitations on goverment does not apply to the states is silly.

Charles, my simple question is this: when a state violates my second amendment rights according to the U. S. Constitution, is that a civil rights matter? Same as voting rights or speech rights?

If so, isn't there massive legal opportunity to expand and protect my civil rights? And isn't there massive legal jeapordy to the 'takers'?

curious, Grizz

[Charles]

Ol Pizen Slinger et. al.

I will admit to being a tad bumfuzzled by the content of this thread. My best guess at what is going on here, is two or more different issues have been rolled into one, and those issues really should be dealt with seperately. Sometimes, speakers and writers commit the sin of assumption and assume those who hear and read have more background than they in fact do, and what is read or heard gets very muddy.

1. The first issues is whether or not the 2nd. Amendment and Heller apply to the states? The answer is a resounding "yes" because of the Supremacy Clause (Art. VI, Clause 2) of the United States Constution.

2. The second issue is what restrictions may be placed on the 2nd. Amnendment for the public good. Heller left the door wide open for such restrictions. These restrictions must meet 14th Amendment "Due Process" standards and there is a large body of law dealing with that issue. However, there has been zero litigation on that issues in regard to the 2nd. Ammendment. We have yet to see how that issue will be handled, but it most certainly will be forthcoming and will be the subject of much litigation for years to come. Because of the lack of litigation, it is true that the 2nd. Ammnendment has not been considered in regard to 14h Ammendment "due process" issue. This "Due Process" (14th Ammendment) issues should not be confused with the application of the 2nd. Ammendment to the States.

Now to a couple of other issues that come up when these types of threads start to roll...

A. There are always folks who say the Constitution should be read in a literal fashion and the courts have no business in interpreting it's meaning. The problem is that different folks understand the literal reading in different ways and the courts must be the decider of the meaning. What the literalist are really saying is that THEIR interpretation of the wording is THE ONLY interpretation allowed and others are wrong and should not be allowed. Folks are free shout, scream, rant and jump up and down (First Ammendment) and say the Consutition needs no judical interpretation, they they are tilting with windmills and have lost all contact with the real world of Constutional law.

B. These same folks (literalist) also say that rights granted under the Constitution can have no restrictions. Well again this is just la-la land thinking, which againt they are entitled too under the First Ammendment. Reasonable restriction on Consutitional rights have been in place for many generations. We have all heard of the case that held "Freedom of Speech does not give the person the right to yell FIRE in a crowded theater. Freedom of religion means freedom to believe and not freedom to do. A person is free to believe in regligious human sacrifice, but they are not allowed to practice that believe.

C. The fact that many federal, state and local laws are on the books that clealy do violence to the rights we have under the Constution does not mean those laws take precedent over the Consutition. It just means those laws have no been challenged in court (yet) and stricken down. The fact that many criminals have not been caught, convicted and punished does not mean they are not criminals and their acts are legal. The same reasoning applies to unconstutional laws still on the books which have yet to be challenged and stricked down.

In closing let me say that I am not trying to be arrogant or a know it all. I am just trying to share what little light I have on the subject for the common good of all. Yes, I can be wrong.

[Charles]

Grizz... The Answer to both you questions is "yes". When states have laws that infringe on your rights under the United States Constution that is a Civil Rights Issue under the 14th. (Due Process) Amnendment.

The 14th Ammendment was passed in 1866 to grant citizenship and protect the civil liberties of recently freed slaves. The 14th Ammendment was necessary but SCOTUS in the Dred Scott decision had ruled that slaves were property. The fact that the United States Constution trumped state law was not an issue, The Southern States refused to ratify the 14th Ammendment which prompted the "Radical Republicans" to pass the Reconstruction Arts of 1867 which had such awful consequences on the South.

Despite the historical context of the 14h. Ammendment it applies to you as well. The question as always is what is "due process" in the various circumstances. When it comes to civil liberties the Federal Courts apply the "Strict Scrutiny" test. Which means there is a strong bias toward protecting civil rights and a strong bias against placing restriction on them.

Yes, it does place the "takers" as risk of having their work thrown into the garbage, but various legal doctrines of Govermental Immunity protects then from civil litigation for damages.

[O.S.O.K.]

Charles, thanks for your insight into these issues. They are at the top of mind for many of us today.

Another, even more onerous issue is that of the responsibility of the citizenship to right things when the government goes beyond the confines of it's Constitutional powers.

How do the citizens of this country determine when the legal point has arrived to call for action?

The federal government is already way beyond the duties and powers that are outlined for it in the Constitution.

Is there any such legal point of departure or is it simply not allowed for under our system?

And I'm not asking or looking for any kind of justification here - this is just a topic that has puzzled me for some time.

I do know that there is legal presidence for citizens taking action against their local governments - perhaps that gives some guidance?

[Charles]

The 1st. Ammendment gives the people the right to petition the Goverment for redress of greviences. Now just how does that happen? Well it can be just about any form of communication with the goverment from a call to your congressman to a massive demonstration like we saw in the days of the Civil Rights Movement. This can and often does involve civil disobedience. Ghandi was the great exponent of civil disobedience to grain liberty and freedom.

If someone chooses to practice civil disobedience, they should be prepared to suffer the legal consequences of that act. The purpose of civil disobedience is to call attention to the wrong/grievence inflicted by the goverment by their wrongful laws. To suffer the penalties of an unjust law gives the moral high ground and is at the heart and soul of civil disobedience. The practice of civil disobedience is an act of individual conscience.

Now if you are making reference to a "call to arms" for a violent confrontation with the Goverment, then I don't want to go there even for a moment. Neither Ghandi nor myself would be comfortable with that conversation. I am not putting myself on the same level as Ghandi, but I do learn much from him.

[Grizz]

Going even farther off topic from the original off-topic, but further along the lines my thought travels,

Is there any standing in law for citizens to file class action law suits against the news organizations that refuse to vett obama the same way they 'vetted' palin?
I consider myself defrauded by the majority of the reporting I've seen because it is so biased and outright wrong that I can't make an informed decision about the candidates. I feel as though my civil rights have been violated, but have they in fact, or is it perfectly legitimate for news organizations to lie and to intentionally influence the election?

I consider it voter fraud and conspiracy to commit fraud. Is it???

Grizz

[O.S.O.K.]

Charles: Thank you. I'm not wanting a call to arms. God help us if it comes to that.

I would certainly hope that massive rallies would take place though and that mass civil dissobedience would be practiced.

I will say that at some point or level of abuse though, an armed response would be called for. That point would basically be when the armed response was lesser of an evil than not having it.

Of course, the trick is not letting things to so far as to preclude the possibility of an armed response - the very reason for the second amendment in the first place IMHO. This is detant on a intranational level between the governed and the government.

To quote Issac Asimov "violence is the last resort of the incompetent".

Thomas Jefferson commented on this rather explicitely from what I've read. Something to the effect that the tree of liberty must be watered with blood from time to time... perhaps this was his admission to the belief that man is inherently incompetent in his social dealings.

My question was to the point of how is this manifested in the Constitution and you answered it - the First Amendment.

But I guess that the Second Amendment is next in line - literally.

[O.S.O.K.]

Going even farther off topic from the original off-topic, but further along the lines my thought travels,

Is there any standing in law for citizens to file class action law suits against the news organizations that refuse to vett obama the same way they 'vetted' palin?
I consider myself defrauded by the majority of the reporting I've seen because it is so biased and outright wrong that I can't make an informed decision about the candidates. I feel as though my civil rights have been violated, but have they in fact, or is it perfectly legitimate for news organizations to lie and to intentionally influence the election?

I consider it voter fraud and conspiracy to commit fraud. Is it???

Grizz

Good question. I do not think there is any Constitutional responsibility or requirement for the free press to be truthful in their reporting. It is something to be governed by the free market as we are talking about a consumable product.

That's all I can say about it, not being a lawyer myself.

[Charles]

Grizz... Under some circumstances you can sue the press for what they DO say, but you will not be able to sue them for what they DON'T say.

[Grizz]

Grizz... Under some circumstances you can sue the press for what they DO say, but you will not be able to sue them for what they DON'T say.

so, no fairness doctrine, eh?

that doesn't surprise me.

points out why the journalists are the first
ones off to the concentration camps when
their unseen hands turn on them..,

[Grizz]

Grizz... Under some circumstances you can sue the press for what they DO say, but you will not be able to sue them for what they DON'T say.

so, no fairness doctrine, eh?

that doesn't surprise me.

points out why the journalists are the first
ones off to the concentration camps when
their unseen hands turn on them..,

OK Grizz, I'll tackle this one. It should come under the 'equal protection' idea. I mean, one party gets more protection than the other from the commercial media. It violates every normal assumption about fairness and equality of opportunity. SOTUS has generated law from much thinner, or rather non-existent bases. The penumbra thing, a complete legal fiction, a hoax.

The midget minded media propaganda is fraud perpetrated on at least half of America's population. They are purveying damaged goods. They're the ecoli of information. Imagine the uproar of the tomatoe farce applied to the information twisters.

It doesn't matter if anyone follows this argument or believes it, it only matters that we operate as though we believe it, and use the courts to change it the way we're instructed by the treason and treachery party of the butt. We just need to get the first steps of the lawsuit started, framed up in passable legal mumbo-jumbo, and interest some law students in making a career of it.

hello?

[ole pizen slinger]

I believe this link answers the question I had concerning "incorporation" of the Bill of Rights with regard to the states. I don't think this is a good ruling for those of us who own firearms.
Ole Pizen Slinger

http://reason.com/blog/show/131610.html


Hobie,
I'm sorry this did not end up on the "Political" site, but I had to search for the thread I was looking for and when I made a reply, it ended up here. If you would be so kind, please move this to the correct forum. Thanks.
OPS

[AJMD429]

Isn't the CATO Institute considered a Conservative organization?

They are Libertarian, which on the GUN issue is MORE 'conservative' than most 'conservatives' are - i.e. the Libertarians would typically argue no permits should be required to own any defensive small arm, up to and including .50 BMG belt-feds. Many 'conservatives' stall out once the gun stock becomes plastic instead of hand-rubbed walnut.

Here is some more on the "incorporation" issue. Essentially, although it is "established" that the state of Indiana could NOT require an individual to profess a certain religion, violating the First Amendment, it has yet to be litigated to show the same is true for the Second Amendment. Nitpicky, and seems obvious, but you know how the Libs work; if they can't ban guns, they ban ammunition, etc. etc.

Miller v. Texas, 153 U.S. 535 (1893), the next case cited by Ashcroft, likewise presupposed that the Second Amendment was a private right and does not mention any requirement of militia duty. The Court held that the Fourth Amendment right against unreasonable search and seizure, like the Second Amendment, limited federal action but did not apply directly to the states. The Court refused to consider whether the Second and Fourth Amendments were incorporated into the Fourteenth Amendment and thus limited the states, because the petitioner had not raised that issue in the courts below. VPC completely misses this clear holding by the Court.

The opinion in Miller v. Texas includes the following comment:

In his motion for a rehearing, however, defendant claimed that the law of the State of Texas forbidding the carrying of weapons, and authorizing the arrest without warrant of any person violating such law, under which certain questions arose upon the trial of the case, was in conflict with the Second and Fourth Amendments to the Constitution of the United States, one of which provides that the right of the people to keep and bear arms shall not be infringed, and the other of which protects the people against unreasonable searches and seizures. We have examined the record in vain, however, to find where the defendant was denied the benefit of any of these provisions . . . .
Id. at 538. Given that "the restrictions of these amendments operate only upon the Federal power, and have no reference whatever to proceedings in state courts," id., it was hardly surprising that the Court decided that state laws could not violate the Second and Fourth Amendments. VPC's assertion that the Court somehow upheld a gun control law is simply false.

Most critically, Miller refused to consider whether the Fourteenth Amendment incorporates the Second and Fourth Amendments because the issue was raised too late:

And if the Fourteenth Amendment limited the power of the States as to such rights, as pertaining to citizens of the United States, we think it was fatal to this claim that it was not set up in the trial court. . . . A privilege or immunity under the Constitution of the United States cannot be set up here . . . when suggested for the first time in a petition for rehearing after judgment.
Id. at 538-39. Contrary to VPC, the Court did not consider whether the Fourteenth Amendment protects the right to keep and bear arms from state infringement. See Leonardatos, Kopel, and Halbrook, "Miller versus Texas," 9 Journal of Law and Policy, No. 3, 737, 761-66 (2001).

http://www.guncite.com/journals/gun_con ... f-hal.html

http://www.nraila.org/media/misc/halbrookresp.htm