Free Markets, Free People

SCOTUS prepared to “incorporate” 2nd Amendment via 14th?

It appears that may be the case as the Supreme Court hears oral arguments in the Chicago gun ban case (McDonald v. Chicago).  Great write up at the SCOTUSblog if you haven’t read it.  Per Lyle Denniston, the court appears to be leaning toward incorporating the individual right to keep and bear arms interpretation of the amendment nationally:

The Supreme Court on Tuesday seemed poised to require state and local governments to obey the Second Amendment guarantee of a personal right to a gun, but with perhaps considerable authority to regulate that right.  The dominant sentiment on the Court was to extend the Amendment beyond the federal level, based on the 14th Amendment’s guarantee of “due process,” since doing so through another part of the 14th Amendment would raise too many questions about what other rights might emerge.

Make sure you read the whole thing as there’s lots of interesting discussion about why most feel that will be the final decision of the court. Also note that while it is believed the court will incorporate the 2nd Amendment as an individual right, it will leave state and local governments with, as Denniston says “considerable authority to regulate that right”. That part of it, I’m sure, will continue to be fought in the courts over the years. But if this turns out as it appears it might, it will be an almost fatal blow to the “2nd Amendment is a collective right” crowd.



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21 Responses to SCOTUS prepared to “incorporate” 2nd Amendment via 14th?

  • I so very much want to be at the press conference that Daley has after the decision is announced…

    • He’s already having a meltdown.

      2010 is going to be a fun and interesting year.

  • I am not a big fan of substantive due process. I think the previous clause, “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States;…” is more on point.

  • <i>…would raise too many questions about what other rights might emerge.</i>
    …what?  Maybe I need more coffee, but I’m having difficulty wrapping my brain around that.  It seems to say that the SCOTUS is doing this a certain way to avoid people “finding” more rights?  Am I reading this correctly?

  • Bruce,

    Heller was a fatal blow to the collective rights crowd.

    Incorporation just means this right will also restrict state and local governments.

    I suspect that there is a case to challange the CA AWB sitting by, waiting for the outcome of McDonald.

    • I do have to say, however, that in reading some of the comments, it is clear that some justices (and of course, the opposition attourney) don’t grasp Heller. Perhaps we needed a wiser latina . . .

  • I don’t get this at all.  We all live under the Constitution.  It expressly declares that the right exists and that we all share it.  How could it possibly be constitutional for a state or city to deny it to individuals?

    • To clarify more, I don’t see why the 14th amendment has anything to do with it.  Isn’t the force of the 2nd enough?

      • No. The 2nd Amendment only pertains to the federal government, not the states. In a federal system that’s the level to which the Constitution and Bill of Rights apply. It is the 14th Amendment’s incorporation that has made some (not all) of those things that apply to the feds also the law in the states. That’s the 2nd Amendment argument now before the SCOTUS-it is being argued (and the court is leaning that way) that it should be incorporated to apply to states as well.

        • Interesting.  I thought the Bill of Rights governed us all and not just as a prohibition on the federal government.

        • Bruce, I believe you are wrong.  The 2nd is not categorical the way the 1st is–it restricts the feds solely by restricting Congress solely.  With regard to bearing arms, the Founders and the second draw no such distinction.
          Also of course the 10th protects the rights of the people as being apart from the states as well.

          • But the court apparently does, Tom. And that’s really all that counts in reality.

          • Tom,

            Bruce is right. The whole BoRs was a check on federal power. Teh Founding Fathers likely would not have even been willing to restrict the states in such a way. The BoRs was included in the Constitution because of anti-federalist concerns.

            Note that the states mostly also had similar BoRs in their constitutions. They followed the same pattern as the federal government, with the states replicating the protections at the state level.
            That said, I think the 2nd contains a potential to restrict state power: federal need for a well armed militia could overrule state restrictions.

          • What I meant above was a potential to override state restrictions without a 14th amendment. With the 14th it is rather obvious. Which is why the court will rule in our favor.

  • I won’t argue with someone who has their mind made up for them by nine robes on a bench, but I invite you scholars to present evidence the Founders approved of a state power to disarm it’s citizens of good standing.  I also invite you to discover where the usual rules of constitutional interpretation, which insist every word choice and omission has meaning, do not lead to there being any significance to the 1st mentioning congress only and the 2nd stating only “shall not be infringed”.
    Also Bruce, clearly the opinions of the SCOTUS are not all that matters on the questions, or once their was  a ruling, there would never be any further comment, and the Congress would not be empowered to strip the SCOTUS of jurisdiction at it’s pleasure.

    • Reality is reality Tom. That’s not an argument, that’s a statement of fact. And in fact, the 2nd has never been considered anything but a federal prohibition. That’s what the BoR was designed for. And in a federal system that’s all the founders intended it to be. The 14th changed that. But there’s no question when, for instance the 1st Amendment said “CONGRESS shall make no law”, they weren’t prohibiting the states.

      • “Reality is reality Tom.”
        And you don’t know what reality is on this question.  The 2nd was always viewed as being binding on the state and local jurisdictions with respect to its prohibiting a general disarmament of the populace by the government–at any level.  Of course it was held to be no bar towards disarming free blacks and Indians, and the disarmament of slaves was assumed–but that really makes as opposed to undermines my point, doesn’t it?  The general attitude was that no just government could legitimately disarm it’s citizens of good standing, and that the 2nd was an expression of that.  The 14th acted on the 2nd as an amplification of that concept, not creating it.
        Also you are quite wrong about the BoR rights being only about what the feds can’t do–that is a lot of it–but the guarantee of jury trials was binding on the courts at all levels, as were the other “judicial” phrases in the BoR.  They are binding on all courts, and always have been held to be so.
        The idea that the 2nd only acted on the feds was created by the popular dissemination of the judicial opinions leading to the Slaughterhouse cases, it does not predate them.  In the same way the ridiculous notion that the BoR had to be incorporated by the SCOTUS for the 14th to apply the BoR to the states was an idea created by judicial activism, the axiom required for that to be legitmate–that the BoR is not a limitation on what states generically can do–is assumed by you to be true.
        I  have read in excerpts of for example Clayton Cramer’s texts of state courts citing the 2nd as a reason for upholding the carriage of arms by the general citizenry.  If I really need to I’ll got buy the book(s) and dig them out.
        But I’ll put it back up to you, find evidence the 2nd did not apply to the states at the time of the Founding.  I don’t think you’ll find any evidence to the contrary until during of after the Civil War, and very little until the Slaughterhouse cases.  Your unsupported opinion is the creation of that court opinion, not the Constitution or the Founders views of it.
        “But there’s no question when, for instance the 1st Amendment said “CONGRESS shall make no law”, they weren’t prohibiting the states.”
        There you are correct.  But it is applied so narrowly because Congress is named as such.  The 2nd is small c catholic in it’s prohibition of infringement of the right to arms by government, not leaving alone the states.
        They wanted us able to make war on the government, and not just the federal government.

        • Well then I’m sure you can point out all the states which view the 2nd as an unrestricted right granted by the federal Constitution and explain why the court is presently entertaining the question of whether or not the 2nd is incorporated under the 14th, or, indeed, why the 14th was ever needed. Speaking of reality and all.

          • Bruce, I expect none of the states prior to the 14th viewed the 2nd as granting any rights to anyone, because as is true, the Constitution grants no rights at all–it grants a few privileges but no government can create rights.
            In the 2nd the Constitution recognizes a pre-existing right as being one to be preserved from government interference, and singles out no level of government as being prohibited from doing so, so they all are.
            The notion of incorporation arose from what most legal and constitutional scholars call a mistake–the Slaughterhouse cases–which is why the SCOTUS is looking at it from the incorporation perspective at all.  Past judicial activism.  In the Slaughterhouse cases, an majority of the justices didn’t like what the 14th made unambiguously binding law, so they made shit up.
            That’s the reality.