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Supreme Court Grants Cert in Second Amendment Incorporation Case!

This is the question that the Court held off considering in Heller.

Whether the Second Amendment is incorporated into the Due Process Clause or the Privileges or Immunities Clause of the Fourteenth Amendment so as to be applicable to the States, thereby invalidating ordinances prohibiting possession of handguns in the home.

Heller finally settled the question of whether the Second Amendment protects an individual right to firearms. But unlike most of the Bill of Rights, the Second Amendment has generally (and with some exceptions back in the 1800s) not been applied to the states.

The case is McDonald v. Chicago. Fun fact: the suit was filed the same day Heller was decided.

The filings in the case so far, including the Seventh Circuit's less-than-stellar order, can be found here (scroll down).

Legal geekery below the fold.

I know many conservatives do not like the incorporation doctrine. They believe that the U.S. Constitution places restraints on the national government with only a few specific restrains on state governments. The state constitutions then constrain state and local governments.

There are a few approaches to this. First, the pragmatic approach, is to admit that the incorporation doctrine is now law; it's widely accepted; and it should not just be applied willy-nilly. In other words, if the states are going to be bound by the First, Fourth, and Eighth Amendments, the states should be bound by the Second Amendment. The argument here is whether the first eight amendments in their entirety should be incorporated (called "total incorporation") or whether the courts should continue with their "pick-and-choose" strategy (called "selective incorporation").

Another approach directly addresses the desirability of the incorporation doctrine. Proponents of incorporation will note that most of the amendments in the Bill of Rights do not place a limitation on Congress, but make a more general limitation. For example, the Eighth Amendment says: "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted." Nothing there to say that the Eighth Amendment only applies to the national government. (This argument fails, though, when considering the First Amendment.) It wasn't until 1833 that the Supreme Court ruled that the Bill of Rights did not apply to the states.

Furthermore, there is some evidence that the creators of the Fourteenth Amendment intended that it would incorporate the first eight Amendments against the states. In other words, incorporation is not textually prohibited and it may have been the "original intent" of the drafters of the Fourteenth Amendment.

Everyone Saw This Coming: When Heller came down, incorporation was the first thing I thought of. Also, if you're interested, check out the comments there for some discussion of the issue (I apologize that the spam has blown up the page width).

Last Update on This: A good write-up on the history of this issue at the Wall Street Journal. It also has some info on the other cases for which certiorari was granted. Thanks to DrewM.

Posted by: Gabriel Malor at 11:57 AM



Comments

1 Why in the world wouldn't it apply to states?

Posted by: runninrebel at September 30, 2009 12:00 PM (i3PJU)

2 Well, this would be earth shattering. I ain't holding my breath.

Posted by: In Exile at September 30, 2009 12:00 PM (nfBdr)

3 I wonder what the "Wise Latina" thinks of all this?

Posted by: Kratos (on the back of Gaia, scaling Mt Olympus) at September 30, 2009 12:01 PM (9hSKh)

4 Hmmmm, this is a very interesting case. I wonder what side of the bed I will get up on that morning. It will certainly be the determining factor in my swing vote.

Posted by: Justice Anthony M. Kennedy at September 30, 2009 12:02 PM (ur6Ar)

5 You don't need incorporation (which is a dumb, dangerous and non-constitutional legal theory).  The plain language of the 2nd amendment (passive voice) means that it applies to all government entities.

In fact, the only one of the bill of rights that is stated as a restriction on the behavior of government and not a right of the people is the First.

Posted by: AmishDude at September 30, 2009 12:02 PM (T0NGe)

6 Why in the world wouldn't it apply to states?
Posted by: runninrebel at September 30, 2009 12:00 PM (i3PJU)

Because the Incorporation Doctrine is bullshit.

That said, if we are going to go down that road and we are way down it already, we need to be consistent in its application. None of this, 'the rights we liberals like are incorporated but that icky 2nd one? Nuh uh."

Posted by: DrewM. at September 30, 2009 12:04 PM (ur6Ar)

7 Because the Incorporation Doctrine is bullshit.

Don't need it.  "Shall not be infringed" has no subject.

Posted by: AmishDude at September 30, 2009 12:05 PM (T0NGe)

8 Ahhhhh! A Gabriel Malor legal thread, nice. Video for you.

Slightly OT, I see they are going to review ANOTHER Sex Offender registry case.
Is this going to be a yearly thing from now on or what?


Posted by: Rocks at September 30, 2009 12:06 PM (Q1lie)

9 I hate the incorporation doctrine; I think it's a stupid, intellectually dishonest way to cherry pick the rights of the people. But since it is the law we are left with, let's hope for the best. It'll probably all come down to Kennedy and his Magic 8 Ball...

Posted by: Alex Classic at September 30, 2009 12:06 PM (M/d1F)

10

It shouldn't but living in Texas or other gun friendly states somewhat diminishes the awareness and importance of the case to a lot of people.  Stupid human nature.

Posted by: polynikes at September 30, 2009 12:07 PM (m2CN7)

11 Meh.  If I feel like having a gun, I'm going to and Daley can go pound sand.

Posted by: Methos at September 30, 2009 12:07 PM (dhFYq)

12 Posted by: AmishDude at September 30, 2009 12:05 PM (T0NGe)

I agree with you but that's not the way the jurisprudence has shaken out for a very long time.

When dealing with cases like this there are several categories...

The law/Constitution

1- As it is

2- As we want it to be

3- As the Courts actually deal with it.

Sometimes you have to move back and forth between the categories because 1 and 3 aren't the same.

Posted by: DrewM. at September 30, 2009 12:07 PM (ur6Ar)

13 Well if they didn't have the stupid ruling in the first place that the Bill of Rights only applied to the Federal government and not the State governments then we wouldn't have had the incorporation doctrine.

Posted by: polynikes at September 30, 2009 12:10 PM (m2CN7)

14 Title: United States v. O’Brien and Burgess
Issue: Whether the mandatory minimum sentence enhancement under 18 U.S.C. § 924(c)(1) to a 30-year minimum when the firearm is a machinegun is an element of the offense that must be charged and proved to a jury beyond a reasonable doubt, or instead a sentencing factor that may be found by a judge by the preponderance of the evidence.

They are kidding with this right? If the issue effects sentencing it should be dealt with in the sentencing faze no?

Posted by: Rocks at September 30, 2009 12:12 PM (Q1lie)

15

I agree that in an ideal world this incorporation thing wouldn't be necessary but it seems the political class (and much of the voting public) lacks reading comprehension skills so here we are.

What scares me to death about these sort of endgame cases is what happens if the SCOTUS rules to further trample the 2nd?

Posted by: Scott J. at September 30, 2009 12:12 PM (/bVuS)

16 Polynikes: That one ( BoR only applies to the feds ) became history after the 14th.

The 14th forced a bunch of states to recognize the rights of ex-slaves.

Sorry, but that toothpaste ain't going back into the tube.

Posted by: Kristopher at September 30, 2009 12:15 PM (Jjzb5)

17 33 state AG's in favor of incorporation...including Maine, Minnesota,New Hampshire.

And yes, incorporation sucks, but until we start a real move back to founding principles, it's all we have.

Posted by: Citizen Khan at September 30, 2009 12:16 PM (4OqzK)

18 I guess the real question is what impact the additional insight of a wise Latina will provide vs. when the case was originally filed.

Posted by: Evil Red Scandi at September 30, 2009 12:16 PM (erlfI)

19 The Second still seems pretty frickin' clear to me:

"A well regulated Militia, being necessary to the security of a free State, the right of the People to keep and bear Arms, shall not be infringed."

Note, again, in the Third the application of Soldier:

"No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law."

If the Founding Fathers had not meant the right of every single individual, they would have used "Soldier" instead of "People" in the Second's text.

Ultimately, I guess I shouldn't really care how the courts get there if it means the rights of the individual are upheld WRT Arms, but this unending sequence of challenge, defense, and meandering/competing/evolving precedent is maddening considering the Second is about as clear a statement as the English language will allow. Maybe the Founders should have used Greek.

Posted by: AnonymousDrivel at September 30, 2009 12:17 PM (C3uAX)

20 I think in the end it gets incorporated and the states lose the ability to prohibit the ownership of non-automatic small arms. The real fight will be over what will be "reasonable" rules on concealed carry and permits.

Posted by: Rocks at September 30, 2009 12:18 PM (Q1lie)

21 This spring the <A HREF="http://www.volokh.com/posts/1241068762.shtml">Ninth Circuit</A> ruled that the Second Amendment applied to the States, etc.  It didn't get a lot of air time, which was odd.  It seemed like a pretty big thing to me.  I'm looking forward to this decision.  It would be odd for the Supreme Court to have decided <I>Heller</I> the way they did and then come along here and rule that, essentially, it doesn't matter.  I am unaware of any other place that they would have done anything similar.

Posted by: Iron Fist at September 30, 2009 12:19 PM (gM7j4)

22 19

Perfect.  It is beyond maddening to listen to people tell you the Constitution doesn't REALLY say what it clearly says in very plain English.  Drives me bonkers.

Posted by: Citizen Khan at September 30, 2009 12:19 PM (4OqzK)

23 Those of you arguing that the Bill of Rights applies to state governments as written, you just completely undermined and destroyed the concept of federalism and states rights.

The Bill of Rights only applies to the federal government because the Constitution only applies to the federal government.  It is the federal constitution, as distinct from state constitutions.  That is what permits the federalist system or concurrent zones of autonomy.

It was not until the 14th Amendment that the document itself ever attempted to limit state governments beyond the issue of their structure.

The open question is to what extent the language in the 14th Amendment limits state governments, and the argument has been generally that it limits state governments the same way the federal government is limited.  That is the "incorporation doctrine."

Those of you arguing that you can ignore the incorporation doctrine and just say the constitution limits states are ignoring federalism and destroying states rights.  So, don't argue that stupid bullshit.  TIA.

Posted by: screwed, like the rest of you at September 30, 2009 12:21 PM (6U7rq)

24 The 14th forced a bunch of states to recognize the rights of ex-slaves.

No.  The 14th (again, as written) says that a state has to treat its citizens the same as each other.  What it doesn't say is that Georgia has to have the same laws as Alabama.

Posted by: AmishDude at September 30, 2009 12:24 PM (T0NGe)

25 23

but incorporation is a reality we have to deal with. while in theory you are correct, it is what the courts do in practice that seems to be the basis of this discussion

Posted by: justanotherbostonian at September 30, 2009 12:24 PM (GFaLW)

26

What if states applied this nonsensical bullshit to the RIGHT for blacks to VOTE?

 

I think LIBTARDS would shit their pants.

Posted by: gus at September 30, 2009 12:25 PM (Vqruj)

27 My prediction - it gets incorporated on a 5-4 vote. Voting to incorporate: Scalia, Thomas, Alitto, Roberts and Kennedy. 

Posted by: Mallamutt at September 30, 2009 12:25 PM (V9SYy)

28

... 10 / Polynikes:

I think favorable rulings could help even in Texas. I took the CHL class in Texas and it seems like the bizzare pile of law, case law, travel interpretations, etc could be simplified. I rarely carried concealed but had one in the vehicle almost all the time and the CHL seemed the only safe way not to have to rely on an officers interpretation of "travelling". CO and LA state laws are simpler, car is pretty much same as home.

Posted by: Huckleberry at September 30, 2009 12:25 PM (s2bW4)

29 The real fight will be over what will be "reasonable" rules on concealed carry and permits.

Not to mention, rules and restrictions on ammunition
.

Posted by: IllTemperedCur at September 30, 2009 12:26 PM (cc7EP)

30 polynikes : Well if they didn't have the stupid ruling in the first place that the Bill of Rights only applied to the Federal government and not the State governments then we wouldn't have had the incorporation doctrine.


Will someone please give a solid post about negative liberty and federalism. I just can't muster the energy at the moment.

Posted by: LiveFreeOrDie at September 30, 2009 12:26 PM (luBvu)

31 Interesting.  I sat in on the oral arguments last week in the 9th Circuit's en banc rehearing of Nordyke v. King, its incorporation case.  Hard to get an exact read on which way the court was leaning (except for a couple of obvious judges, like that doddering old piece of petrified Carter droppings Pregerson), but based on some of the questions even from Kozinski, I wouldn't have been too surprised if the court had punted on the incorporation issue and found a narrower ground to decide the case on.  I wonder if the 9th is going to stay its en banc decision pending Supreme Court review now, or just go ahead and decide while punting on incorporation.

Posted by: Alex at September 30, 2009 12:27 PM (VG5lq)

32 Ban my ass. I got my shit and it's ready to be used.

Posted by: LtE113(Mike in Chicago) at September 30, 2009 12:28 PM (3NFq/)

33 Can't even post my complaint before its already noted by someone else.

I love this blog.

Posted by: LiveFreeOrDie at September 30, 2009 12:28 PM (luBvu)

34 Perhaps a look at the amicus brief tells us more about the 14th and incorporation doctrine...hmmmmmmm?

The 14th was specifically enacted in order to 'incorporate' the privleges and immunities ( read rights and liberties) to the states during reconstruction, and even specifically in re the disarming of freed slaves.

Posted by: Citizen Khan at September 30, 2009 12:29 PM (4OqzK)

35 States rights died during the Civil War.

Like I said: toothpaste, wave goodbye to tube.

Too bad the Mason-Dixon compromise didn't end this crap the same way the Brazilians did ... by declaring anyone born after a certain date to be a full citizen. But they didn't, so State's rights was forced to die upon that damned slavery hill.

I blame the Democrats.

Posted by: Kristopher at September 30, 2009 12:29 PM (Jjzb5)

36 I dont want to derail the thread but thought I would throw this out there. does anyone see actual changes being made if the 2nd is incorporated? if this happens will it really make a difference? if so, how? last I checked nothing in DC has changed since Heller.

Posted by: justanotherbostonian at September 30, 2009 12:29 PM (GFaLW)

37 I am sure that soon we will see some more suits in DC regarding the administrative boondoggles placed in the way of the firearm ownership. 

Posted by: Citizen Khan at September 30, 2009 12:32 PM (4OqzK)

38 If it gets fully incorporated, then victims of state oppression can seek federal court relief if punished for the RTKBA.

Arrest for carry? The local government gets sued, just like they would for arresting someone for putting a political yard sign up.


Posted by: Kristopher at September 30, 2009 12:33 PM (Jjzb5)

39 1st Amendment is worded "Congress shall make no law..." which is why, I guess, incorporation was required. The rest of the bill of rights does not mention congress, only the state or the government.
States rights were given much more respect in those days.
But the 2d amendment is pretty much the only constititutional amendment whose exercise can land you in prison.

Posted by: the real joe at September 30, 2009 12:34 PM (gue3j)

40 I never understood why some rights are incorporated and some are not.  Seems crazy that incorporation has been held (at least to some degree) for the 1st, 3rd, 4th, 5th, 6th, and 8th, but yet it is argued not to apply to the 2nd.  There is no logic to it.    

Posted by: California Red at September 30, 2009 12:35 PM (7uWb8)

41 The Second Amendment is actually the one provision in the Bill of Rights that was written from the beginning to apply to the states, and to localities, and to EVERY level of government. It doesn't say "Congress shall pass no law infringing," it says "shall not be infringed." That means by any arm of government, and this is indeed how it was originally understood.

Posted by: Alec Rawls at September 30, 2009 12:35 PM (c+6of)

42 Of course, the Democrats have stopped supporting slavery these days ... unless you are a 13 year old girl, or you need an ACORN grant.

Posted by: Kristopher at September 30, 2009 12:36 PM (Jjzb5)

43 Alec: These are the same folks who think corn grown on your own property to feed your own hogs is "interstate commerce".

Sometimes they just need to be bitch-slapped.

Posted by: Kristopher at September 30, 2009 12:38 PM (Jjzb5)

44 The courts have avoided 2d am. cases for years. They don't want to interfere with legislative control of weapons.

Posted by: the real joe at September 30, 2009 12:38 PM (gue3j)

45 Exactly.

Black-robed cowards.

Posted by: Kristopher at September 30, 2009 12:39 PM (Jjzb5)

46 If the 2d is incorporated, we will have Sup Ct precedent that it is an individual, not a collective right, and that it applies to every state. This will open up the federal courts to challenges of unduly burdensome state and local firearms regulations.
The lower courts will still try to avoid overturning those laws.
After years of working in constitutional criminal law, I have seen that once the Sup Ct issues a ruling, all the lower courts do their damnedest to avoid it, limit it, distinguish it.

Posted by: the real joe at September 30, 2009 12:42 PM (gue3j)

47

I totally agree on the incorporation bullshit. It was a great stretch to make that the term “freedom” in the 14th amendment means that the first amendment applies to the States as well as the feds (I think the 1st was the first to be incorporated based on a sedition law in one of the States)

 

That being said, I could live with it if it was consistently applied. Here to date the SCOTUS has always incorporated liberal shit and ignored the conservative shit. Why? Because they can.

 

They have amply demonstrated bizarro logic in some of their rulings like Hamdan and Boumediene.

 

And BTW, that Boumediene decision and its bizarro logic was written by Kennedy so don’t count on him here,

Posted by: Vic at September 30, 2009 12:44 PM (CDUiN)

48 Neat!

Posted by: Truman North at September 30, 2009 12:44 PM (e8YaH)

49

O/T

Orrin Hatch is on Fox just now bitching about his amendments for the mediscare bill to prevent funding for abortion were shot down.

 

I’m glad it got shot down. I don’t want them to have any kind of a fig leaf if they vote for this communist take over of the health care system.

 

Posted by: Vic at September 30, 2009 12:44 PM (CDUiN)

50 The Second Amendment is actually the one provision in the Bill of Rights that was written from the beginning to apply to the states
________________

That is just wrong.  Did you people sleep through your high school civics classes?

The Federal Constitution applies, and was intended to apply at the time of drafting, exclusively and only to the federal government.  Each individual state had their own state constitutions.  The only limitation on states are the ones set out in Article IV, primarily that they had to have a republican form of government

The Bill of Rights were amendments to the federal constitution, intended only to apply to the federal constitution, that protected negative rights and restricted the federal government.

It was not until the 14th Amendment that the argument could even be made that anything in the federal constitution outside of Article IV could limit state governments.  States had supremacy and autonomy.  The 14th changed that, and through its language about protecting liberty, due process, and privileges and immunities, raised the question of what those terms included.  The argument has been that it protects citizens of the states from the same intrusions prohibited in the bill of rights that limited the federal government.

Seriously... have you never heard of federalism?  Even if you are not a lawyer, did you not learn that in your high school civics classes?

Posted by: screwed, like the rest of you at September 30, 2009 12:45 PM (6U7rq)

51
HAAA!  Suckit, Illinoisians... Illinoiseses... you Illinois tards!  I can buy guns in the Greensheet in Texas!  HAHAHAAAA!

Posted by: Dang Straights at September 30, 2009 12:46 PM (Haq+B)

52 Gabe - or others, what's the significance of the Privileges and Immunities questioning.

Is there a way for this court to grant federal enforcement of 2nd amendment without reinforcing the Due Process junk?

Posted by: LiveFreeOrDie at September 30, 2009 12:50 PM (luBvu)

53 Over at Volokh, some are arguing that using Privledges and Immunities within the 14th Amendment will give the conservatives on SCOTUS better cover than Due Process.

One hopes, though this case won't help up us that much here in the People's Republic of California.

Posted by: David in San Diego at September 30, 2009 12:56 PM (GF+6V)

54 Gabe - or others, what's the significance of the Privileges and Immunities questioning.

Is there a way for this court to grant federal enforcement of 2nd amendment without reinforcing the Due Process junk?

___________________

I am not sure what your question is.

If you want to rule that the 2nd Amendment limits states, you have to do it through the 14th Amendment and say that the 14th Amendment incoporated the limitations of the 2nd Amendment against the states.

There are two grounds to do this under the 14th Amendment:

1.  Either the right to bear arms is protected under the Privileges and Immunities Clause of the 14th Amendment ("No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States"); OR

2.  The right to bear arms is part of the Liberty protected by the Due Process Clause ("nor shall any State deprive any person of life, liberty, or property, without due process of law").

The Court has to find that one of those two provisions substantively protects the right to bear arms from state regulation.  (There is also the equal protection clause, but that does not really fit here).

So the Court has to expand the Incorporation Doctrine either through "privileges and immunities" or the due process clauses' protection of liberty.  Otherwise, the Court cannot find the 2nd Amendment limits the state.




Posted by: screwed, like the rest of you at September 30, 2009 12:56 PM (6U7rq)

55 Furthermore, there is some evidence that the creators of the Fourteenth Amendment intended that it would incorporate the first eight Amendments against the states.

'Some evidence?'  I think if you look, you'll find rather more than just 'some.'  The 14th Amendment, Section 1:

No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

If you think "the privileges and immunities of citizens of the United States" do not include the rights laid out in the Bill of Rights, then I'd like to know by what analysis you reach that conclusion.  I don't see how that passage could possibly mean anything else, any more than I see how the 2nd Amendment itself could mean anything but an individual right to keep and bear arms. 

The problem with the Incorporation Doctrine is not that it exists.  The problem is that the modern Incorporation Doctrine is based on the wrong clause of Section 1 of the 14th.  It is based on the second clause, known as the "Due Process" clause.  It should be based on the first clause, the "Privileges or Immunities" clause. 

Posted by: wolfwalker at September 30, 2009 12:56 PM (c+TqP)

56 I see. Without this "incorporation" they are implying that the States may at will abrogate a person's 2nd Amendment Right to bear arms? Really?

O.k. Then. Then the States may also abrogate any of the other Constitutional rights as well, after all, they aren't Congress.

Are our elected or appointed officials really this stupid? Malevolent? Hoping the unwashed masses won't notice due to all the fancy legalese?

...or are WE stupid for not only electing the jerks who consider this shit, but allowing this farce to continue.

I don't care what the fancy people in their black robes decide, nor the duplicitous officials on any state government - if they legislate that my God given rights are null.

No man will take my God-given rights. None.

We are not weak if we make a proper use of those means which the God of Nature has placed in our power... the battle, sir, is not to the strong alone it is to the vigilant, the active, the brave.

Posted by: The Highland Pipes at September 30, 2009 12:59 PM (iW9fi)

57

LiveFreeOrDie,

In the old, old days selective incorporation was accomplished through the Privileges or Immunities Clause.  That line of reasoning was abandoned in the late 1800s.  Throughout the 1900s, and particularly in the 1950s and 1969s, however, the incorporation doctrine was rivived by means of the Due Process Clause of the Fourteenth Amendment.

So there are two lines of reasoning by which incorporation of the Second Amendment can be accomplished.  The Court can overrule Cruikshank, which held that it was not incorporated through the Privileges or Immunities Clause.  Or they can break new ground and hold that it is incorporated through the Due Process clause. 

Modernly, incorporation has been accomplished through the Due Procses clause.  I'm not sure why, but some folks are every excited about a possible resurrection of the Privileges or Immunities Clause line reasoning. The result would most likely be the same either way.

I have criticized the Seventh Circuit's decision in this case because it did not even consider the Due Process modern jurisprudence and relied entirely on the old cases which rejected incorporation for the Second Amendment under the Privileges or Immunities Clause.  Judges Easterbrook and Posner failed to consider modern precedent.

By contrast, the Ninth Circuit's incorportation case did consider the modern Due Process incorporation and, perhaps only coincidentally, found that the Second Amendment protects against state action.

Posted by: Gabriel Malor at September 30, 2009 01:03 PM (NWnFp)

58

O/T but this according to Gallup:

In a recent Gallup survey, 89% of Republicans, 64% of independents, and 61% of Americans overall say Americans themselves -- rather than the government -- have the primary responsibility for ensuring that they have health insurance. Six in 10 Democrats say the government should be primarily responsible.

Suck it Obama! 

Posted by: runningrn at September 30, 2009 01:04 PM (D2il9)

59 The Constitution shall never be construed ...to prevent the people of the United States who are peaceable citizens from keeping their own arms. -- Samuel Adams

I find it amusing that those who claim that the word "people" in (a) the Declaration of Independence, (b) the Preamble to the Constitution, (c) Article I, and (d) the First, Fourth, Ninth, and Tenth Amendments refer to individuals, but assert that the Second Amendment uses it as "only specifically selected agents of the government, and no others".

And as was pointed out above, the Third Amendment shows that the Founders knew exactly how to refer to military members when it used the specific word "Soldier". If they had wanted to use it in that fashion for the Second Amendment, they could easily have done so. They did not, and liberals refuse to accept that. If I were to amend the 2nd, I would eliminate the dependent clause in its entirety (and if you don't understand the term, you have no business arguing the issue on semantic grounds).

One last point, if I may: My gun collection has killed five fewer people than the Kennedy clan has with airplanes, automobiles and golf clubs.

Posted by: Drumwaster at September 30, 2009 01:05 PM (M34RW)

60 Also, to those few talking about "federalism" and "original intent" and accusing others of sleeping through civics classes, go back and read Scalia's opinion in Heller.  He very capably describes how many early Americans thought the Bill of Rights applied against the states.  As I wrote in the update above, it wasn't until 1833 that the Supreme Court ruled that the amendments did not.

Posted by: Gabriel Malor at September 30, 2009 01:06 PM (ztNrs)

61 What's this Constitution thing I hear so much about?

Posted by: Charlie Gibson at September 30, 2009 01:08 PM (ZGhSv)

62 screwed : So the Court has to expand the Incorporation Doctrine either through "privileges and immunities" or the due process clauses' protection of liberty. Otherwise, the Court cannot find the 2nd Amendment limits the state.

1st, I'm not really interested in the SCOTUS finding that the 2nd limits the States. I think its winning a battle that sets one up for losing a war.

Having said that, if there is incorporation via the privileges and immunities , is it somehow a "better" form of incorporation, because it doesn't allow the willy-nilly junk that has been incorporated via Due Process?

Posted by: LiveFreeOrDie at September 30, 2009 01:09 PM (luBvu)

63 Thanks Gabe... and others.

Posted by: LiveFreeOrDie at September 30, 2009 01:11 PM (luBvu)

64

'Screwed, it is argued above that the Second is worded differently than the other nine, and would restrict state and local government even if there were no Fourteenth. I rather dislike your tone in dismissing this novel approach. This is not a foolish argument, just one far outside your ken. You demean yourself.

"Ever heard of Federalism?" The Bill of Rights is the product of the Anti-Federalists TYVM, without whose support there would have been no Constitution. Perhaps you have heard of them. Turn to the next page in your law book, and you will find the arguments over the land act and Northwest Ordinance, in which pre-14th limitations on state charters suddenly become relevant again. Then sit down, have a long think, and amend your tone.

Posted by: comatus at September 30, 2009 01:12 PM (+Fcaz)

65

1st, I'm not really interested in the SCOTUS finding that the 2nd limits the States. I think its winning a battle that sets one up for losing a war.

How? It's not like they can pass a constitutional ammendment against it.

Posted by: Entropy at September 30, 2009 01:12 PM (IsLT6)

66 Modernly, incorporation has been accomplished through the Due Procses clause.  I'm not sure why, but some folks are every excited about a possible resurrection of the Privileges or Immunities Clause line reasoning.

Gabe, correct me if I am wrong, but is the difference that incorporation through 14th am. due process is substantive due process, whereas the original meaning of due process was procedural due process - conservatives, and I am thinking Scalia, are not fans of substantive due process.

Posted by: the real joe at September 30, 2009 01:13 PM (gue3j)

67 I'm not sure why, but some folks are every excited about a possible resurrection of the Privileges or Immunities Clause line reasoning.  The result would most likely be the same either way.

Gabe: there are those of us who believe that results oriented jurisprudence is hogwash.  The goal of constitutional interpretation is not to reach a preferred result, but to correctly interpret the constitution using neutral principles to derive the original meaning of the text.

So why argue for it being part of the Privileges and Immunities Clause?  Because it is the correct constitutional decision.  That the same result could be reached by incorrect means is irrelevant; the point is to be correct.

I've done appellate work most of my practice, and I'm made it a goal of mine to live up to my beliefs in always arguing for strict clause-bound interpretivism even if I get a preferred result a different way.

Results are meaningless.  So that is why people want the Court to use the P&I clause and not the Due Process clause as you suggest.

Posted by: screwed, like the rest of you at September 30, 2009 01:14 PM (6U7rq)

68 drumwaster,

that is a point I love to make. the founding fathers were, mostly, very intelligent men. they chose their words VERY carefully and took the opportunity they had very seriously.

Posted by: justanotherbostonian at September 30, 2009 01:17 PM (GFaLW)

69

“Selective incorporation” was the brainchild of Felix Franfurter, a good commie asshole appointed by FDR to help him get his unconstitutional BS past the courts. His idea was incorporation in cases that “shocked the conscious”.  

 

Hat way the liberals could get what they wanted while ruling out both sides of their mouths.

Posted by: Vic at September 30, 2009 01:19 PM (CDUiN)

70

BTW folks, most States do have some sort of gun rights in their State Constitution.

Posted by: Vic at September 30, 2009 01:20 PM (CDUiN)

71 Uzbek asshoools

Posted by: Børat at September 30, 2009 01:20 PM (wL8I+)

72 gabe: "As I wrote in the update above, it wasn't until 1833 that the Supreme Court ruled that the amendments did not."

Gabe, this is a lawyer centric view. During the constitutional convention, the question was whether a Bill of Rights should be added which would lay out in simple language What the Structure of the Constitution provided.

One of the primary arguments AGAINST including a Bill of Rights was that some would interpret it as being a list which the Federal Government would Positively enforce.

I therefore have no doubt that its true that some portion of people, upon seeing the Bill of Rights, concluded that it was a list of positive liberties.

That doesn't mean it was viewed that way by the framers, nor by We the People as a whole. There are ways of balancing power without using a supreme law.

Posted by: LiveFreeOrDie at September 30, 2009 01:20 PM (luBvu)

73 Government is government, whether it's the Feds screwing you or the state.

Posted by: GarandFan at September 30, 2009 01:21 PM (ZQBnQ)

74

O.k. Then. Then the States may also abrogate any of the other Constitutional rights as well, after all, they aren't Congress.

Well, yes. Anyone arguing against incorporation is arguing precisely that. (And there are SOME arguments to be made for it, with regard to intent).

Then, for instance, the federal government cannot establish a religion, but the State of Massachusetts can recognize the Episcopal Church of Massachusetts as the official religion of the state.

Without incorporation this is what you argue (without taking into account [insert state]'s constitution).

The other option is you accept incorporation, and if you do, there's no damn sensible reason to suggest it's limited to only what they want to incorporate. To say that it can't establish religion but can ban guns, that it can't prohibit political speech but can forceably quarter National Guard units... This is tantamount to cherrypicking foreign law to get whatever result you want.

Posted by: Entropy at September 30, 2009 01:23 PM (IsLT6)

75

The compromise here is by far the worst position of the 3.

Better either extreme then anywhere in the middle.

Posted by: Entropy at September 30, 2009 01:23 PM (IsLT6)

76 I've done appellate work most of my practice

Me too, Screwed. In fact on Monday, I won my last 2d circuit case (Dunlap). And the court affirmed the District Court, adopting my argument over the DC's basis. Heh.

Posted by: the real joe at September 30, 2009 01:26 PM (gue3j)

77 etropy: How? It's not like they can pass a constitutional ammendment against it.

I'm not actually concerned in the near term about losing the right to keep and bear arms. My primary concern is keeping at bay an overreaching federal structure.

The 14th was a major empowerment of the Federal government over the state governments. Though not as bad as the 17th. Regardless, the federal power ratchet has to be stopped, and limiting the extent of incorporation is one way of doing that.

If the 2nd is incorporated, it reinforces that SCOTUS sets the supreme law of the land. I think that's a mistake.

Posted by: LiveFreeOrDie at September 30, 2009 01:26 PM (luBvu)

78

70, Alabama's reads: "That every citizen has a right to bear arms in defense of himself and the state."

IIRC we also have declared hunting and fishing to be rights as well.

Posted by: Scott J. at September 30, 2009 01:26 PM (/bVuS)

79

they chose their words VERY carefully and took the opportunity they had very seriously.

 

Not so much that. The founders at the convention drafted what they wanted while a committee of a select few known as the “committee of style” were the ones who determined the actual language that went into the final product.

 

That is how we got the infamous interpretation of “general welfare” in the preamble got to be an authority to pass socialism in the U.S. Note that the “preamble” is a product wholly of the committee of style. It was never debated by the full convention.

Posted by: Vic at September 30, 2009 01:28 PM (CDUiN)

80

72 gabe,

The way I recall it, the biggest fear about the Bill of Rights was that once they had laid out *some* of the rights that the State could not infringe upon, some people would argue that those were the *only* rights the State couldn't infringe upon.  Thus we have the 9th and 10th Amendments, both of which have been pretty much ignored as the State has often done whatever the hell it wants to do without interference from the Courts.

Gun control is one of these areas, and it is looking hopeful that the Unconstitutional laws restricting people's right to arms (btw, read Federalist 46 by Madison if you want to know *why* the 2nd is there.  It ain't about hunting) will be thrown out as the affront to liberty that they so clearly are.

Posted by: Iron Fist at September 30, 2009 01:28 PM (gM7j4)

81

80, you almost make hope spring eternal.

I would love to see a return to pre-1934

 

Posted by: Scott J. at September 30, 2009 01:31 PM (/bVuS)

82

The MA religion thing is a fine example of the fact that the people writing the Constitution and the bill of rights did not consider them to apply to the States. MA had a State approved and financed church up until the mid 1800s.

Posted by: Vic at September 30, 2009 01:32 PM (CDUiN)

83

Great, great news.

Posted by: TallDave at September 30, 2009 01:33 PM (/s1LA)

84

This is tantamount to cherrypicking foreign law to get whatever result you want

 

LOL, isn’t that what they did with that last ruling on the death penalty for young villains.

Posted by: Vic at September 30, 2009 01:34 PM (CDUiN)

85 vic,

touche

Posted by: justanotherbostonian at September 30, 2009 01:38 PM (GFaLW)

86

One of the primary arguments AGAINST including a Bill of Rights was that some would interpret it as being a list which the Federal Government would Positively enforce.

The biggest (federalist) argument against it was that it would be seen as a complete list of things the government cannot do. To spell out what they cannot do would be to imply they can do whatever isn't mentioned at all.

Most all of them agreed at the time, at least outloud, that anything not specifically mentioned was not allowed to the federal government and relegated to the states.

Anti-federalists wanted concrete explicit reassurances that the Federal government (at least) could not do any of this.

It's also worth noting that the Anti-federalists of the time are the Federalists today. Back then Federalists wanted a strong central (federal) government. Anti-federalists were big on state rights. Today the term is reversed.

At any rate, I tend to believe the Bill of Rights which was explicitly mentioned (and nothing else) should indeed be positively enforced by the feds against states, vs. everything else that wasn't mentioned being negatively forbidden to the Feds (and Feds only).

This is reductio ad absurdem and a lot of people don't really, uh, understand that concept.

But if basic rights are not incorporated, what if some state goes and says "Murder is decriminalized"? We're all just gonna have to oh well, it's a state issue? The federal government does not intervene?

What if some relatively unpopulous state like Montana goes all crazy cult on us and the state government absolves the state constitution, cancels all elections, declares itself State Government for Life and starts indicting any Montana residents who criticize it? Closes all the churches and demand people attent religious services in reverance to the Governor? This is tolerable?

Posted by: Entropy at September 30, 2009 01:40 PM (IsLT6)

87 Well, a win means that local governments will be cleared to impose post-Heller DC-type restrictions on gun ownership if they want to. Not sure how much of a 'win' that is. Let's not forget that Heller basically said "The Second Amendment recognizes an individual right to permission to keep a gun in your house." That's not much of a right.

Posted by: PersonFromPorlock at September 30, 2009 01:46 PM (ElVal)

88

The MA religion thing is a fine example of the fact that the people writing the Constitution and the bill of rights did not consider them to apply to the States.

And there are examples in reverse of that too.

But yes, you are right - it is a fine example of just that.

However... whatever it may mean, would you not argue that we need incorporation? (See my post above).

The 14th didn't exist when many states had a state religion. But that is part of the constitution. Arguing about what was what in 1790 might effect our understanding of the intent with regard to privlidges and immunities... but it is utterly and wholey irrelevant to whether or not it's incorporated by due process.

And even if you say the 14th doesn't incorporate all the rights either, well then, I understand judicial constraint, but we now need a new ammendment because they ought be incorporated.

Posted by: Entropy at September 30, 2009 01:48 PM (IsLT6)

89 Also, to those few talking about "federalism" and "original intent" and accusing others of sleeping through civics classes, go back and read Scalia's opinion in Heller.  He very capably describes how many early Americans thought the Bill of Rights applied against the states.
___________________

Gabe: could you point me to what you are referring?  Because that sounded completely wrong to me.  So I even took the time to go back and read through the opinion, and Scalia says nothing of the sort.  In fact, in going back over the opinion, Scalia notes that "For most of our history, the Bill of Rights was not thought applicable to the States."   That sentence seems to completely reject your argument that Scalia was describing that "the Bill of Right applied against the States." 

Moreover, I cannot imagine Scalia saying such a thing because it is plainly wrong.  States at the time of passage were exempted from the application of the Bill of Rights.  This is consistent with the argument about states such as Mass. and Pennsylvania having state churches despite the 1st Amendment.  And examples abound.

I honestly do not know where you are getting your argument from.  It entirely contrary to the constitutional text and history. 

And really, one does not need to be a lawyer to know this.  One can recall what you learned in history classes about the Articles of Confederation and the need to move to a federalism system.  The Federal Constitution was the FEDERAL constitution; not a constitution controlling the federal government and every state.  In fact, had it been so, you can guarantee that it would never have been passed.

Posted by: screwed, like the rest of you at September 30, 2009 01:50 PM (6U7rq)

90 To spell out what they cannot do would be to imply they can do whatever isn't mentioned at all

I recall obama making that point in an interview during the campaign. his view is that if the constitution doesn't tell him that the feds can't do something, well then he's free to do it. i.e. force everyone to buy health insurance, take over the auto industry, and whatever else his little liberal heart desires

Posted by: justanotherbostonian at September 30, 2009 01:51 PM (GFaLW)

91 Well, a win means that local governments will be cleared to impose post-Heller DC-type restrictions on gun ownership if they want to.

How is that different from now? I still think it would be good for SCOTUS to rule that the 2d applies to the states and is an individual right.

Posted by: the real joe at September 30, 2009 01:53 PM (gue3j)

92

But if basic rights are not incorporated, what if some state goes and says "Murder is decriminalized"? We're all just gonna have to oh well, it's a state issue? The federal government does not intervene.

 

I think that is a rather poor argument but let5’s assume that “incorporation” did not occur and that only those items in the Constitution which specifically mentioned the States were applicable to the States.

 

How about this in the 14th:

 

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

 

It would seem that legalizing murder would be depriving people of their “life”.

 

In any case, if the people of a given State allow their government to usurp the State Constitution and pass silly laws it is their own fault. One of the common clichés that we post here is that the people always get the government they deserve.

 

The people who get roped into stupid State laws can always vote with their feet and move to Texas. If the feds take over total control of everything you will no longer be able to do that.

Posted by: Vic at September 30, 2009 01:55 PM (CDUiN)

93

Posted by: screwed, like the rest of you at September 30, 2009 01:50

 

He said it in a footnote, I believe it was number 10.

Posted by: Vic at September 30, 2009 01:58 PM (CDUiN)

94 Judge Silberman who wrote Heller thinks that the SCOTUS will rule for incorporation.  Good video interview at National Review: http://tv.nationalreview.com/uncommonknowledge .  Sorry I didn't link directly to the interview.  I need to learn how to use tiny URL.

Posted by: Michael E. Stora, Ph.D. at September 30, 2009 02:00 PM (UpJts)

95 entropy:What if some relatively unpopulous state like Montana goes all crazy cult ... This is tolerable?

I'll hit other points in a minute, but this one is just really no good.

What if the Federal Government goes all crazy cult... is that worse?

The simple answer is that a complex system can tolerate certain parts of itself performing less than optimally. But if the unit as a whole goes bat shit crazy, you're shit out of luck.

Posted by: LiveFreeOrDie at September 30, 2009 02:02 PM (luBvu)

96 If you think "the privileges and immunities of citizens of the United States" do not include the rights laid out in the Bill of Rights, then I'd like to know by what analysis you reach that conclusion.  I don't see how that passage could possibly mean anything else, any more than I see how the 2nd Amendment itself could mean anything but an individual right to keep and bear arms.

Incorporation doctrine, as developed by the courts, says that the "privileges and immunities" clause protects "only rights the Federal Constitution grants or the national government enables, but not those preexisting rights the Bill of Rights merely protects from federal invasion."  (first Nordyke opinion, here [pdf], at 4477-78.)

The due process clause, however, protects "traditional" and "fundamental" rights that existed before the Bill of Rights.  The first Nordyke opinion discusses and analyzes this issue at 4481-90.

Posted by: Alex at September 30, 2009 02:04 PM (VG5lq)

97 He said it in a footnote, I believe it was number 10.

________________

Not in the footnote 10 or anywhere in the footnotes of the version I read.  Moreover, why on earth would he say in the body of the opinion that "
For most of our history, the Bill of Rights was not thought applicable to the States" (referring to pre-incorporation doctrine) and then say somewhere else that, as Gabe claims, "many early Americans thought the Bill of Rights applied against the states.

I would appreciate seeing exactly where this claim comes from, because I did not read it and it sounds completely wrong.

Posted by: screwed, like the rest of you at September 30, 2009 02:04 PM (6U7rq)

98

While it is true that the founders did not want a bill of rights because they feared that government would go down the path of it ain’t there they have the authority were right.  But also, they were wrong. The big government people not only feel like if it ain’t protected that they can do it. They even believe now that, in their own words, “the Constitution is evolving”. This train of “legal theory quackery” is 100 times worse than incorporation.

 

Basically  it throws down to what one of the liberal assclowns in black robes said years ago. The Constitution means what we say it means. As long as we have 5 assholes on the court the people will be stuck with that bit of legal quackery.

Posted by: Vic at September 30, 2009 02:05 PM (CDUiN)

99 Again, if you take the view that the Framers were precise in their language, it would seem that amend 2-9 were in fact generalized or incorporated rights but the first amendment, because of the state religion issue, was limited to the "Congress".
Clearly amends 5 thru 9 deal with state matters as at that time the criminal codes and common law were local/state matters.

Posted by: Citizen Khan at September 30, 2009 02:06 PM (4OqzK)

100 Also, due process incorporation seems to me as a layperson to be much weaker on its face.  Due process of law only means that the law was legislated properly, whereas to me privledges and immunities seem to be much more fundamental.  But I'm a techy type not a lawyer, so there's that.

Posted by: Citizen Khan at September 30, 2009 02:09 PM (4OqzK)

101
entropy: "It's also worth noting that the Anti-federalists of the time are the Federalists today."

True.

entropy: "The biggest (federalist) argument against it was that it would be seen as a complete list of things the government cannot do. To spell out what they cannot do would be to imply they can do whatever isn't mentioned at all."

Yes, that was a primary argument. None the less, fear of a positivist interpretation was also mentioned. I believe I read it in a federalist paper... more than one, I think. I mentioned it to counter Gabes implication that a significant portion of the people thought of the Bill of Rights as positivist.

entropy: Most all of them agreed at the time, at least outloud, that anything not specifically mentioned was not allowed to the federal government and relegated to the states.

Again, there was also worry that the parts that were laid out would be seen as positivist.

entropy: "At any rate, I tend to believe the Bill of Rights which was explicitly mentioned (and nothing else) should indeed be positively enforced by the feds against states, vs. everything else that wasn't mentioned being negatively forbidden to the Feds (and Feds only)."

There are arguments for and against that position. I do not think its absurd. For example, if the 17th amendment was repealed, I would be for a period of positivist interpretation of the Bill of Rights, at least until the States had reach an equilibrium with the federal government.

entropy: "This is reductio ad absurdem and a lot of people don't really, uh, understand that concept."

I disagree, obviously. Right now - and for the last 100 years, really, the primary threat to Liberty is federal overreach. The States have much less power than you think, regardless of what SCOTUS says, because they are bound together by a division ring.

entropy: "But if basic rights are not incorporated, what if some state goes and says "Murder is decriminalized"? We're all just gonna have to oh well, it's a state issue? The federal government does not intervene?"

I addressed this in a previous response. Don't spit at me with reductio ad absurdem, and then give me this. This is prevented by non-legal structures which are for more robust then a Ruling from the Men in Black Robes.

Posted by: LiveFreeOrDie at September 30, 2009 02:18 PM (luBvu)

102 Clearly amends 5 thru 9 deal with state matters as at that time the criminal codes and common law were local/state matters.

_________

This is not correct at all.  They apply to the federal government and only have been incorporated against the states by subsequent Supreme Court incorporation.

In fact, some of them, such as the Seventh Amedment's "Right to Trial By Jury in Civil Cases" has not been incorporated, on its face, or by challenge under the 14th Amendment.  The Supreme Court has held it does not regulate state law even in light of incorporation.  And there are states which do not grant the right to a trial by jury in civil cases.

Posted by: screwed, like the rest of you at September 30, 2009 02:20 PM (6U7rq)

103

screwed, page 34 of Heller and that section in general. I will quote Footnote 20 in full:

 Rawle, writing before our decision in Barron ex rel. Tiernan v. Mayor of Baltimore, 7 Pet. 243 (1833), believed that the Second Amendment could be applied against the States.

 Barron is the case I mentioned in the post where the Supreme Court held that the Bill of Rights does not apply to the states.

Posted by: Gabriel Malor at September 30, 2009 02:22 PM (ztNrs)

104

How about this in the 14th:

 

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

 

Vic, that is totally missing the point.

 

There's people arguing that the 14th is bad and needs to be repealed. That's my point. If some people are going to take a stand against any incorporation at all... it's absurd. Hence reductio ad absurdem. But the Federal government will and must intervene to protect basic rights.

Posted by: Entropy at September 30, 2009 02:24 PM (IsLT6)

105

For those who don't want to flip back to Heller, here is what William Rawle, a member of the Pennsylvania Assembly which ratified the Bill of Rights wrote in 1825 about the Second Amendment:

"The first [principle] is a declaration that a well regulated militia is necessary to the security of a free state; a proposition from which few will dissent. . . .

“The corollary, from the first position is, that the right of the people to keep and bear arms shall not be infringed.

“The prohibition is general. No clause in the constitution could by any rule of construction be conceived to give to congress a power to disarm the people. Such a flagitious attempt could only be made under some general pretence by a state legislature. But if in any blind pursuit of inordinate power, either should attempt it, this amendment may be appealed to as a restraint on both."

The "either should attempt it" applies to "congress" and to "state legislature"  in the previous two sentences.

Posted by: Gabriel Malor at September 30, 2009 02:26 PM (ztNrs)

106

Page 51 footnote 23 of the decision

 

23With respect to Cruikshank’s continuing validity on incorporation, a question not presented by this case, we note that Cruikshank also said that the First Amendment did not apply against the States and did not engage in the sort of Fourteenth Amendment inquiry required by our later cases. Our later decisions in Presser v. Illinois, 116 U. S. 252, 265 (1886) and Miller v. Texas, 153 U. S. 535, 538 (1894), reaffirmed that the Second Amendment applies only to the Federal Government.

Posted by: Vic at September 30, 2009 02:27 PM (CDUiN)

107

Entropy, I am not a big opponent of incorporation. As I said earlier, I can live with it either way as long as it is applied consistently. I think that it is wrong and a bad interpretation of the 14th but I can live with it.

 

I just disagree with this “selective” incorporation because it is nothing more than another version of “the living Constitution” which is no Constitution at all.

Posted by: Vic at September 30, 2009 02:32 PM (CDUiN)

108 In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district where in the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defense.

So you're telling me this amendment doesn't deal with State matters?

Posted by: Citizen Khan at September 30, 2009 02:35 PM (4OqzK)

109 screwed, page 34 of Heller and that section in general. I will quote Footnote 20 in full
_________

Yeah,  I read that. The point Scalia was making there was about whether the miltia language applied to state militias or individual rights. Scalia was not addressing incorporation in that section, and he mentioned one person's argument with respect to a reading of the militia clause being de-linked from state militias.  Regardless, that one out-of-context sentence in footnote 20 does not come anywhere close to your claim that "Scalia very capably describes how many early Americans thought the Bill of Rights applied against the states." 

Moreover, it does not explain away the quote I cited to you which Scalia does, clearly, without confusion, state: "For most of our history, the Bill of Rights was not thought applicable to the States."

I'm not trying to beat your over the head with this.  I just think you misspoke, but did so on a pretty revolutionary point.  The claim you are making would be completely contrary to the text and history of the constitution, and the Supreme Court's jurisprudence.

Posted by: screwed, like the rest of you at September 30, 2009 02:35 PM (6U7rq)

110 Gabe: "either should attempt it"

I think its a good exampkle, gabe. It's an example of a positivist interpretation of the 2nd amendment, and there are some good reasons to view it that way. In particular, the wording of the amendment.

None the less, the Bill of Rights as a whole was seen as an example of restrictions on what government can regulate (negative liberty) and, as whole, as restrictions on the federal apparatus.

Anyway, I would prefer this over reliance on the 14th amendment for incorporation purposes.

Posted by: LiveFreeOrDie at September 30, 2009 02:37 PM (luBvu)

111 So you're telling me this [6th] amendment doesn't deal with State matters?
Posted by: Citizen Khan at September 30, 2009 02:35 PM

__________________

Absolutely.  Please note: the reference to "State" does not mean "the 50 states."  It means "State" in its classical sense of "the government" and in the context of the federal constitution, the government was the federal constitution.

If you doubt that, than please see that the 6th Amendment was not incorporated against the states until the 1960s.  For instance, the right to counsel was not incorporated against the states until the famous Gideon v. Wainwright case in the 60's.  Before then, states did not have to follow the 6th Amendment (though they may have had state constitutional requirements).

Posted by: screwed, like the rest of you at September 30, 2009 02:42 PM (6U7rq)

112

screwed, William Rawle, someone who actually voted to ratify the Second Amendment, believed that it applied to the states. Keep reading Justice Scalia's opinion. It appears that Charles Sumner would have disagreed, as would the Georgia Supreme Court.

So at the outset, it is clear that some early Americans thought that the Second Amendment applied to the states (including the plaintiffs in Barron, obviously).

I do admit, however, that perhaps Scalia did not actually discuss "many" as I wrote. You may consider my argument amended: "Scalia very capably describes how some early Americans thought the Bill of Rights applied against the states."

And it appears that this belief of some early Americans runs contrary to your own beliefs about what they believed.  The error is, I think, with your beliefs, not theirs.

Posted by: Gabriel Malor at September 30, 2009 02:43 PM (ztNrs)

113

The States have much less power than you think

I don't know if you live in Texas or what, but I live in Illinois.

The Feds do do a lot of direct meddling right into my damn personal life that I stumble over just going to work.  No doubt. And the feds have a far broader range of power and states are rather paltry.

But the degree to which they can meddle with your personal life with frivolous petty things is extreme.

Locally as well, not just at the state level, the degree to which they'll penetrate into your life with micromanagement is absurd at this level. Like the school dictating how you travel to school. Whether or not you can talk on a phone while walking across the street. Whether you wear your seatbelt.

A state or county government will come along and litterally try to tell you how to wipe your ass.

And they may be, any one of them individually, petty things. But taken cumulatively you're a serf to the arbitrary whims of a corrupt bureaucracy.

The feds will do most things they do and it relates to you personally indirectly. They regulate the energy sector which directly affects your electricity bill, for instance.

But it's the localities who will literally come into your home and tell you no, you may not babysit little Bobby. They have far less people to try to micromanage so they're more 'hands on', they're far more likely to actually come knocking on your damn door.

For the federal government to enforce positively at least the very basic Constitutional rights (and that's all I'd argue for positively enforcing), would be a hefty net contributor to liberty around here, not a detractor.

And do not think that one state or a bunch of states can go fruitloops but the system as a whole will just survive peachy. The actions of these states set expectations, proprieties, general understandings, and beat down boundaries at a local level, which is reflected nationally. 1 state cannot just tear down the constitution, but a half dozen states drifting slow and steady leftward can drag the federal edifice off course with it.

You cannot have states regulating every aspect of a person's life, and not have those millions of people become complacent with servitude and have that reflect on the national scene as well. You let states establish churches, and people wind up having to accept that, they won't make much fuss at all when the Federal government wants to as well.

Just look - it's all the places where guns are already banned that are pushing for more (federal) gun control and have the least resistance to it.

Posted by: Entropy at September 30, 2009 02:44 PM (IsLT6)

114

I just disagree with this “selective” incorporation because it is nothing more than another version of “the living Constitution” which is no Constitution at all.

I said as much myself.

Better either extreme then anywhere in the middle.

Incorporate all, or incorporate none. Else if you just incorporate whatever you want, you may as well go cherrypicking a new constitution out of randomly selected snippets from The Complete Works of William Shakespeare Vol. 3.

Posted by: Entropy at September 30, 2009 02:47 PM (IsLT6)

115 Gabe,

Again, you are mis-reading what that portion of the brief is arguing.  I explained it above.  You are really stretching here.

But, let's make this real simple.

Please harmonize these two statements:

1.  Gabe: "Scalia very capably describes how many early Americans thought the Bill of Rights applied against the states."

2.  Scalia's actual words in Heller:  "For most of our history, the Bill of Rights was not thought applicable to the States."

I took the position that the Bill of Rights was not thought applicable to the states until the 14th was ratified and it was understood it only applied to the federal government.  You threw Scalia's opinion in my face when in fact Scalia confirms my point of view.

So please, harmonize your claim with Scalia's actual words.  (And no, pointing at his reference to Rawle does not harmonize your claim).


Posted by: screwed, like the rest of you at September 30, 2009 02:48 PM (6U7rq)

116

And that, by the way, is the context of my reductio ad absurdem.

It's the "incorporate none" bit that I'm saying is just really not viable.

The US cannot simply be a Federation of petty kleptocracies and remain in any way classically liberal at the federal level.

Hell, most of the federal politicians come from local and state level politics.

And what they did before, they'll want to keep doing.

Posted by: Entropy at September 30, 2009 02:50 PM (IsLT6)

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Posted by: LiveFreeOrDie at September 30, 2009 02:52 PM (luBvu)

118

While Kelo vs. New London was a federal case, recall that it was a local government that done started it.

Again, at a local personal level, people get use to the idea in their daily lives that 'the government' (even if it's Mayor Bob of New London or whatever) can just go around siezing property because he wants more revenue, that expectation will carry over to the federal level.

Posted by: Entropy at September 30, 2009 02:54 PM (IsLT6)

119 And how did the federal government fix that? They ruled in favor of the local government.

Posted by: LiveFreeOrDie at September 30, 2009 02:58 PM (luBvu)

120

The NY Times take on this?  No big deal it doesn't matter.  They have their heads in the sand.

Kemp

Posted by: kempemanx at September 30, 2009 02:58 PM (2+9Yx)

121

And how did the federal government fix that? They ruled in favor of the local government

Yes, precisely, they failed to positively protect the negative liberty from local government.

Yeah... yeah, I know.. they didn't deny incorporation they arbitrarily redefined the definition of  'public use'. So they'll do the same thing at the federal level.

That's a different jurisprudence problem though.

Posted by: Entropy at September 30, 2009 03:06 PM (IsLT6)

122 LiveFreeOrDie, I think you're way off base with this "positivist" stuff, at least so far as you seem to think I have such a view or that Rawle's statement would support such a view. Rawle seems clear (and so did I in the original post) that the Amendments served to place restraints on the national government and perhaps the state governments too.

Posted by: Gabriel Malor at September 30, 2009 03:17 PM (ztNrs)

123 A couple questions (to direct a line of thought, not lack of information, mind you):

First, does the US (federal) Constitution contain any sections or clauses concerning states?  If it does so without explicitly restricting state concerns to those segments, the argument that said document and its amendments apply exclusively to the federal level is bunk.  The Constitution's applicability to the states either exists or it does not.  If Article IV is binding on the states, then all parts not relegated to only the federal level are likewise binding.

Second, the actions of which entities are curtailed by the language of the Second Amendment?  Unlike the First, which explicitly restricts Congress and not the states (regarding the state religion issue, this is why states were still permitted to have their own religions under the 1A), the Second simply declares that the right to keep and bear arms "shall not be infringed".  The lack of "by Congress", "by the states", or any other targeted entity implicitly includes all entities.  By the language, someone stealing your firearm is violating your civil right as much as the sheriff who bans guns in his town, the state requiring citizens to pay a fee when purchasing a gun, or the federal government banning "assault" weapons.  In all cases, the right to keep and bear arms has been infringed, a violation of the exact language of the Second Amendment.

It's worthwhile to note that, of the original ten amendments in the BoR, only the First and Tenth are restrictions placed solely upon the federal government.  The rest take forms similar to that of the Second, wherein it is simply forbidden for a particular right to be violated, without regard to the particular entity making the violation.

Also interesting is the uniqueness of the Second Amendment, in that, of the BoR, it is not reliant on any apparatus of the government.  What I mean by this is that the others all target a particular function of the government (state or federal):  1A targets the federal lawmaking progress through Congress; 3A targets the military; 4-8A target law-enforcement, the criminal system, and the courts; 9A is essentially an "including but not limited to" clause which may thereby target any given process and/or entity (arguably like 2A, but the anti-loopholing concept of it is reliant on a government entity trying to make/exploit such a loophole); and 10A targets the federal government in general.  Only the Second describes and protects a right wholly independent of the government at all levels.

To get back on topic, the 1833 SC ruling against this common sense reading of the Constitution was a terribly destructive blow to the federal system on the basis of nothing more than the Court's whim.  Unintuitive as that may seem, one only has to look at the consequences to understand the reason.  States were effectively granted de jure powers to ignore every right not included in their own constitution, and this situation was seized as an opportunity to recreate the federal guarantee of these rights through incorporation.  Incorporation relies on the courts a second time to restore the rights in a piecemeal fashion, meaning that rights may be selectively restored, denied, or altered in restoration, and established the dominance of the courts over both the federal and state governments.  In short, the original 1833 ruling, whether this was intentional or not, set the stage for the courts to become the final arbiter of our rights, a massive shift in power, and an effective rewriting of the BoR by the whims of the justices.

Posted by: Cortillaen at September 30, 2009 03:20 PM (gusJY)

124

Even if incorporation  is granted, it won't mean that much for 'may' issue states...like Jersey.

Jersey has a mechanism for granting CCW licenses...they just don't - except for that .03% that are former LEOs, judges, etc.  Just enough to look good.


I'm not holding my breath.

Posted by: trainer at September 30, 2009 03:21 PM (MV46T)

125

LiveFreeOrDie, I think you're way off base with this "positivist" stuff

For whatever it's worth... it's not entirely posivitist that I was arguing.

The right is still and remains a negative right. I do not object, because it's fair to say (with a bit of confusing nuance) I'm arguing for positive enforcement of a negative right. A bit positivistic. Yes.

But a truly 'positive liberty' interpretation of the 2nd ammendment would amount to me saying the government needs to give me a gun.

A truly positive take on the right to assembly might say that to be truly FREE to assemble, assembly must be free of any cost or consequence, so government must provide me with on-demand cost-free transportation to meet my assembling needs.

The way I'm suggesting it these rights are still negative liberties. Freedom FROM laws that would prohibit you. Merely applied (positivistically) to state and localities.

Posted by: Entropy at September 30, 2009 03:23 PM (IsLT6)

126

Although, even almost uniformly against though I'm against 'positive liberty' as to provide it to anyone requires imposing on someone else... to be perfectly honest with you... if the government took a 'positive liberty'/welfare stance on the very basic Bill of Rights and the Bill of Rights only....

I probably wouldn't bitch much.

Posted by: Entropy at September 30, 2009 03:25 PM (IsLT6)

127

Extreme lameness, screwed. You ask:

Please harmonize these two statements:

1.  Gabe: "Scalia very capably describes how many early Americans thought the Bill of Rights applied against the states."

2.  Scalia's actual words in Heller:  "For most of our history, the Bill of Rights was not thought applicable to the States."

Quite simply, for "most of our history" -- that is, from 1833 to the mid-1900s -- "the Bill of Rights was not thought applicable to the States."  However, "many early Americans" -- that is, prior to the 1833s -- "thought the Bill of Rights applied against the states."

There. Harmonized.  Now, we can quibble over whether Scalia described "many" early Americans or just a few, but the point is that at least some early Americans, including prominent ratifiers of the Bill of Rights, thought it applied against the states. You very strenuously insist that very thought runs contrary to, well, what you learned in civics class. I suggest your civics class missed a few details.

Posted by: Gabriel Malor at September 30, 2009 03:25 PM (ztNrs)

128 Alex @96: I went to your cite in Nordyke and found exactly what I expected to find: a reference to the infamous Slaughter-House case.  I've read the background on Slaughter-House, along with excerpts from the majority opinion which neutered the Privileges and Immunities Clause.  I agree with the position held by many constitutional scholars that the majority opinion is pure judicial activism: specious reasoning designed solely to reach the conclusion that the majority wanted to reach, regardless of the written law or the facts of the matter.   I believe the Privileges and Immunities clause was specifically and intentionally written to apply to all rights recognized in the Constitution, including those in the Bill of Rights. 

Posted by: wolfwalker at September 30, 2009 03:27 PM (c+TqP)

129 "Please note: the reference to "State" [in 6A] does not mean "the 50 states."  It means "State" in its classical sense of "the government" and in the context of the federal constitution, the government was the federal constitution."

"...by an impartial jury of the state and district wherein the crime shall have been committed..."

So the 6A is actually making a provision for international extradition, huh...  Before you say I'm misinterpreting your claim, how else can that part of 6A be taken, assuming your claim is correct?  If the "state" referenced actually means "country" or "nation", 6A is dealing with crimes committed in other nations.  Hmm...

Posted by: Cortillaen at September 30, 2009 03:33 PM (gusJY)

130 gabe: "at least so far as you seem to think I have such a view or that Rawle's statement would support such a view."

Then I stand corrected.

Posted by: LiveFreeOrDie at September 30, 2009 03:38 PM (luBvu)

131

So am I to understand that the right to a trial by jury is not incorporated?

What about criminal trials?

I have noted that basically both innocent until proven guilty and trial by jury go right the hell out the window when a cop says you weren't wearing your seatbelt, or were going 12mph over the limit.

Of course, if they had to hold a jury trial and meet the burden of reasonable doubt over these issues, it'd be practically impossible for them to use it as a revenue source and they'd have to stick to just enforcing issues of considerable public safety. Oh heaven's my.

Posted by: Entropy at September 30, 2009 03:41 PM (IsLT6)

Posted by: ãíß ÇÈ - at September 30, 2009 03:47 PM (sVDTi)

133 Gabe, it's quite frankly pathetic how far you are going to defend your original incorrect statement.

You've taken one out-of-context statement about the right to bear arms and extrapolated a general belief that many people believed that the entire Bill of Rights applied to the states up until 1833.  And in doing so, you have rejected a clear statement from Scalia to the contrary. 

This is extraordinary bad faith.

It is clear from the Supreme Court's jurisprudence and the history of the Constitution that the Bill of Rights only applied to the federal government up until the 14th Amendment.  I cannot fathom you are arguing otherwise.  But you said it, so now you are acting like a pit bull in defending it when it is self-evidently wrong.

That would not pass the red face test in front of an appellate panel, and I'm not going to argue it any further with you.

Posted by: screwed, like the rest of you at September 30, 2009 03:54 PM (6U7rq)

134

You've taken one out-of-context statement about the right to bear arms and extrapolated a general belief that many people believed that the entire Bill of Rights applied to the states up until 1833.  And in doing so, you have rejected a clear statement from Scalia to the contrary. 

Scalia did not make a "clear statement" to the contrary. For reasons passing understanding you apparently think it is logically impossible for "many early Americans" to have thought the Bill of Rights applied against the states and yet "for most of our history, the Bill of Rights was not thought applicable to the States." These are not inconsistent, as I demonstrated above.

It is very clearly possible -- and from the historical record actually what happened -- that early Americans thought the Bill of Rights applied against the states and then (following Barron) that the Bill of Rights was not thought applicable to the states for the majority of American history.

This is so clearly a "No, duh" issue, that I fail to understand your intransigence.  Are you so invested in your belief that early Americans never would have thought the Bill of Rights applied against the states that you refuse to consider the historical evidence right in front of your face?

Posted by: Gabriel Malor at September 30, 2009 04:07 PM (ztNrs)

135

So am I to understand that the right to a trial by jury is not incorporated?

What about criminal trials?

_________________________


The right to a jury trial in civil cases has NOT been incorporated.
The right to a speedy, public, and impartial jury in criminal trials has been incoporated.
A listing of what has been incorporated and when can be found here.

Posted by: screwed, like the rest of you at September 30, 2009 04:08 PM (6U7rq)

136 Entropy: I have noted that basically both innocent until proven guilty and trial by jury go right the hell out the window when a cop says you weren't wearing your seatbelt, or were going 12mph over the limit.

Do they?  It's been a long time since I got a speeding ticket (fortunately), and the exact procedure varies from state to state, but typically it goes something like this:
* cop gives you a citation;
* you sign to prove you got the citation form;
* you appear in court at the appointed time and either pay your fine or contest the citation. 

If you choose to contest the citation, you can in fact demand a trial by jury.  Or a trial by judge alone.  In some states there are even attorneys who specialize in defending against traffic violations. 

Posted by: wolfwalker at September 30, 2009 04:12 PM (c+TqP)

137 wolfwalker: I tend to agree with you and others on the Slaughter-House Cases being poor case law.  But the ruling remains binding until overturned, so it's what we have to contend with for now.

And re: the later exchange about traffic tickets: states tend to classify those as "infractions," and many states, such as California, have successfully denied jury trial rights for infractions.  The burden of proof remains on the prosecution, but infractions don't carry all the criminal-procedure rights of misdemeanors and felonies.

Posted by: Alex at September 30, 2009 04:23 PM (VG5lq)

138

So far these are the rights Not incorporated:

 

The second amendment discussed here

 

Third amendment

 

Fifth amendment part regarding grand jury indictment

 

Seventh amendment “jury trial” in civil court cases discussed above

 

Eighth amendment with regard to excessive fines and bail.

Posted by: Vic at September 30, 2009 04:26 PM (CDUiN)

139 The Bill of Rights only applies to the federal government because the Constitution only applies to the federal government. It is the federal constitution, as distinct from state constitutions.
This is nonsense on stilts. First of all, the original text of the Constitution provided for certain requirements of the States, and exclusions to their powers. (Art. I, Sec. 10; Art. IV). To argue that it does not regulate the powers of State governments is absurd on its face. Second, the word "federal" has two different meanings: 1) The system under which a central government has certain limited powers while the more local governments and the people retain others. 2) The central government in such a system. I refuse to use that second definition, because it weakens the first. I call it the "national" government mostly. The Framers were quite good at referring to States in some contexts, to the United States in others, and mentioning neither in others. When the 2nd Amendment says the right "shall not be infringed", and doesn't single out Congress or state Legislatures for a specific prohibition, it means neither of them shall fracking infringe upon that right.

Posted by: The Monster at September 30, 2009 04:41 PM (RX0J3)

140 HOW DO YOU FORMAT THIS SHIT!

Posted by: The Monster at September 30, 2009 04:41 PM (RX0J3)

141

The burden of proof remains on the prosecution

Yeah.

But '1 cop says so' meets the burden of proof for the judge.

Posted by: Entropy at September 30, 2009 04:45 PM (IsLT6)

142 Since there are so many constitutional attorneys on the thread right now, how 'bout someone's opinion on whether or not there is any difference between a Citizen as we are referred to in the original and a citizen, as we are referred to in the 14th amend.

Posted by: teej at September 30, 2009 04:51 PM (QdUKm)

143

123 Cortillaen:

Wind that clock back even further - Marbury's where this started.  It's rather ironic that all of the Court's navel-gazing and equivocation about the Founders' intent is being performed in the course of exercising a power conspicuously absent from Article III.

I wasn't there, but I'm just guessing that giving a handfull of life-term-serving, unaccountable autocrats carte-blanche to tortuously "interpret" the Constitution at their whim was not what the Founders had in mind.

Posted by: societyis2blame at September 30, 2009 05:11 PM (rPDD/)

144

For strict constructionists:

In that these amendments were referred to collectively as the Bill of Rights - echoing both the "inalienable rights" cited in the Declaration of Independence and the English Bill of Rights, which applied to all Englishmen, we should err on the side of holding they enjoin both federal and state actions.

For loose constructionists:

My "rights" don't do me much good if California can tell me to pound sand on 5 out of 10 of them - and I live here, not in D.C., so who's more likely to quarter troops in my house and bother my livestock ?

 

 

 

Posted by: societyis2blame at September 30, 2009 05:39 PM (rPDD/)

145

Beck is talking to a Chicago lawyer about this case now. He just asked the lawyer if the federalism argument would allow NY to have their strict laws while other States didn’t.  He then went on a break.

 

It will be interesting to see if they talk about the “incorporation” all or none issue.

Posted by: Vic at September 30, 2009 05:42 PM (CDUiN)

146

Well, in lose words, the Constitutional attorney just told Beck that the 14th amendment eliminated federalism.

Posted by: Vic at September 30, 2009 05:48 PM (CDUiN)

147

WOW the attorney is the guy taking the case to SCOTUS.

Posted by: Vic at September 30, 2009 05:53 PM (CDUiN)

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As a matter of fact, with the passing time, the love for ugg usa is increasing among girls in this modern world. The growing demand for these womens ugg made the manufacturers UGG Boots Sale to revamp the looks of these boots with different hues.come our website and buy a pair of ugg uk.UGG Classic Cardy are popular as shoes for cowboys. The SHOES close the whole parts of the foot. The ugg cardy are important to protect your feet from any dangerous things during your walking activities. There are many oatmeal ugg available in the Market and if you are interested to get one you can directly go to the store that sells it.

Posted by: reviewups at December 03, 2009 08:35 AM (OKj2x)

182

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Posted by: ugg classic cardy at December 04, 2009 12:39 PM (npwAH)

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Plus, all the States were required to "ratify" the US Constitution. Why be required to ratify something if you're NOT being required to comply with it?

If SCOTUS rules against incorporation of the 2nd Amendment, it will have to go against all the other incorporation cases it has decided the last century or so. And, it will be prima facie evidence of Judicial Activism on the nation's highest court (oh, we already have evidence of that don't we!).
The "Incorporation Doctrine" is nothing more than legal quackery perpetrated by corrupt judges so they could rationalize their violation of both the US Constitution and their Oaths to uphold it as the "supreme law of the land."

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Margaret Cho: Still Not Funny
Iraqi Prisoner Claims He Was Raped... By Woman
Wonkette Announces "Morning Zoo" Format
John Kerry's "Plan" Causes Surrender of Moqtada al-Sadr's Militia
World Muslim Leaders Apologize for Nick Berg's Beheading
Michael Moore Goes on Lunchtime Manhattan Death-Spree
Milestone: Oliver Willis Posts 400th "Fake News Article" Referencing Britney Spears
Liberal Economists Rue a "New Decade of Greed"
Artificial Insouciance: Maureen Dowd's Word Processor Revolts Against Her Numbing Imbecility
Intelligence Officials Eye Blogs for Tips
They Done Found Us Out, Cletus: Intrepid Internet Detective Figures Out Our Master Plan
Shock: Josh Marshall Almost Mentions Sarin Discovery in Iraq
Leather-Clad Biker Freaks Terrorize Australian Town
When Clinton Was President, Torture Was Cool
What Wonkette Means When She Explains What Tina Brown Means
Wonkette's Stand-Up Act
Wankette HQ Gay-Rumors Du Jour
Here's What's Bugging Me: Goose and Slider
My Own Micah Wright Style Confession of Dishonesty
Outraged "Conservatives" React to the FMA
An On-Line Impression of Dennis Miller Having Sex with a Kodiak Bear
The Story the Rightwing Media Refuses to Report!
Our Lunch with David "Glengarry Glen Ross" Mamet
The House of Love: Paul Krugman
A Michael Moore Mystery (TM)
The Dowd-O-Matic!
Liberal Consistency and Other Myths
Kepler's Laws of Liberal Media Bias
John Kerry-- The Splunge! Candidate
"Divisive" Politics & "Attacks on Patriotism" (very long)
The Donkey ("The Raven" parody)
News/Chat