Rolling It Out

June 26, 2008
9:45 AM CST

From SCOTUSBlog:

The opinion leaves open the question whether the Second Amendment is incorporated against the States, but strongly suggests it is.  So today’s ruling likely applies equally to State regulation.

I need to point out to my Furring Readers (as well as recent graduates from the public school system) that “incorporation” involves taking a Constitutionally-enumerated freedom and, under the Fourteenth Amendment, making it the supreme law of the land, invalidating any state constitutions or laws which stand in contradiction.

Thus, to use the most famous example, it is not permissible for, say, Florida to maintain the institution of slavery, because the Thirteenth Amendment was “incorporated” against the states, making any of their existing or future laws concerning the ledgality of slavery a moot issue.

Tom Goldstein’s opinion that the majority opinion “strongly suggests” that the Second Amendment is, or should be incorporated under the Fourteenth is based on a little statement in Scalia’s opinion where he notes that “curiously”, the Second is the only Amendment in the Bill of Rights which has not been incorporated against the states—which statement is, quite frankly, an open invitation for someone to challenge individual state laws which contradict the Second’s intent and purpose. (Tremble, Mayor Daley of Chicago, you bastard: your city’s fucking un-Constitutional ban on hadguns is toast.)

And indeed, the NRA, in keeping with their tradition of only betting on a sure thing, have announced that they’ll be filing lawsuits against GFW havens like Chicago and the like, where the law-abiding have to endure the infringement of this particular Constitutional right by agents of the state.

So… let’s get cracking on this most worthy exercise.

Comments

Bottom of Comments | Original Post

The Thirteenth Amendment is not “incorporated” by the Fourteenth Amendment against State governments; it applies to them directly on its own terms, antecedent to the writing of the Fourteenth Amendment.  (Slavery wasn’t a Federal institution, so there wouldn’t be much point to outlawing it at the Federal level if the intent wasn’t also to forbid it at the State level.)

All three of the Civil War ("Reconstruction") Amendments (13, 14, & 15) were intended to apply against both the State and Federal governments, forbidding slavery and unequal protection of the law, and guaranteeing the right to vote. 

Incorporation of the Bill of Rights against the States wasn’t the intent of the authors and ratifiers fo the Fourteenth.  Incorporation was first imagined in the Supreme Court’s Gitlow v. New York ruling (a First Amendment case regarding a Communist pamphleteer) in 1925.

Author ID: 9014 | 6/26/2008 10:53 AM CST | #124092


Yeah, I know the NRA pisses us all off at times.  Still, remember Reagan..."Those who agree with us 80% of the time are not our enemies, they are our FRIENDS.” This time, they are on the side of right and should be welcomed, if not exactly with open arms (pun intended). 

Now that they are on board, let’s welcome their participation (and their bank account) as they try to overrule these un-constitutional bans in the communist areas.

Author ID: 6848 | 6/26/2008 10:55 AM CST | #124094


skb12172,

Well, maybe open actions, at least.  It’d be right unneighborly to greet someone with a closed bolt.

Author ID: 10867 | 6/26/2008 11:07 AM CST | #124097


IMHO, my Life Membership is well worth the price. Now to start further contributions to GOA and JPFO.

Author ID: 6430 | 6/26/2008 11:26 AM CST | #124106


Mike,

I know that the 13th is not the ideal example, legally speaking—but it’s the best example of the tenet that a state cannot pass or keep laws which are antithetical to the Constitution.

Especially to furriners, for whom the post was intended.

0 Author ID: 1 | 6/26/2008 11:28 AM CST | #124107


In renewing my wife’s NRA membership yesterday, I also signed up three more people to one year gift memberships.

I may yet be getting her a Life Membership so I don’t have to keep renewing her membership.  She’s also a member of the Second Amendment Sisters.

Now is the time to start bowling them over!  Join as many RKBA organizations as possible, Gun Owners of America, Jews for the Preservation of Firearms Ownership (JPFO), and many other RKBA organizations, just to list a few.

Author ID: 2187 | 6/26/2008 11:29 AM CST | #124108


Once I get my NRA lifetime membership paid off, it’s on to the JPFO for me.  I’m not Jewish, but I support their mission.  “Never again.”

Author ID: 1906 | 6/26/2008 11:55 AM CST | #124120


Quickie editorial cartoon from a friend of mine:



Author ID: 11075 | 6/26/2008 01:01 PM CST | #124137


The issue was never directly addressed by the Court because it wasn’t one of the three principal items at issue in Heller. A very narrow reading of Justice Scalia’s majority opinion might lead some so inclined to interpret it thusly that incorporation can’t be assumed because the District of Columbia (from whence the case sprang) is Federal territory and States’ Rights don’t apply there.

Wayne LaPierre has already made the statement that the NRA will shortly be filing actions in San Francisco and Cook County Illinois (Chicago and Skokie, to name but two cities therein) challenging their very restrictive ordinances which essentially amount to outright bans on ownership and posession.  Parenthetically, Hizzoner King Richard The Turd Daley’s already called this decision “frightening”.  That can only be construed as A Good Thing®.

Those suits, and others that will inevitably ensue, will be the next tests of the incorporation matter. They’ll all (or at least the first one or two, depending upon the novelty of whichever case reaches SCOTUS first) be appealed by whichever side loses in lower courts to the Supreme Court once again for precisely that purpose. The question then devolves on this: Who’ll be sitting on that Court when the issue eventually arrives there? This is why this particular presidential election is so critical. Those justices serve for as long as they choose to do so.

Most present company understands—and I think shares—my distaste for John McCain. But we can talk to him. Obama won’t listen. The other day a friend asked me what I thought of the candidates with whom we’re presented this time around.

“Which would you prefer, a broken leg or a root canal?”

His answer: “A colonoscopy, because that’s what we’re gonna get.”

“Yeah.  The only remaining question is whether or not they’ll administer anesthesia first.”

‘Berg

Author ID: 363 | 6/26/2008 01:13 PM CST | #124140


It has always been my understanding that, while states may make laws specific to themselves, these laws may NOT be in violation of federal law. I wrote a short post over at my place. This should have been 9-0 us.

Author ID: 6430 | 6/26/2008 01:21 PM CST | #124144


Signed up and paid $300 for an NRA Life Endowment Membership earlier this week.  It’s an exceptionally (if only occasional) good deal for family of existing life members.

NRA came to the Heller party late but they got with it and are to taking it to ‘em now on the local level.

Author ID: 8713 | 6/26/2008 02:23 PM CST | #124152


Screw suing Chicago.  Find Quilici, if he’s alive and still living there, and sue the crap out of Morton Grove and get that 1982 abomination removed from our law in the rematch.

Author ID: 7384 | 6/26/2008 03:26 PM CST | #124163


Get real, cmblake.  If everyone on SCOTUS thought like us we wouldn’t have had to wait so long for the right result. 

Scalia did the right thing by getting everything he could while preserving a majority. 

If this decision came with anything more than a 5-4 majority I would be angry at him for leaving stuff on the table!

Author ID: 9055 | 6/26/2008 07:03 PM CST | #124183


As I understand it, the real problem is not that the Second Amendment is the only one that has not been “incorporated” under the 14th. Rather, the problem is that the Federal government, through incorporation, is usurping states’ rights, even though they are explicitly protected under the Tenth Amendment.

The Incorporation Doctrine is directly responsible for the destruction of self-government, because it has allowed the Feds to unconstitutionally centralize power. It allows Federal courts to overturn states’ decisions, thus violating the 10th. Incorporation is why American government is more tyrannical, invasive, and oppressive than it has ever been before.

Libertarians have it right when they want to reduce the size of the Federal government. They are absolutely wrong when they say that it is the source of our problems. The source is, sadly, us. As John Adams said, our government is “designed only for a moral and religious people. It is wholly inadequate for any other.” As we Americans continue our drift away from morality and religion, so our government becomes more powerful over us. The cold bureaucracy may some day crush us, just as the evil EU is crushing Europeans--who are even less moral and less religious than we are.

Author ID: 10536 | 6/26/2008 08:35 PM CST | #124193


The logic of the antigun GFW’s has never been rational. I would say teh 14th was probably written specifically with regards to the 2nd Amendment. I hope I’m not the only one to notice, but they have argued both sides, arguing “states rights” to invalidate the 2nd Amendment, while supporting Over-riding Federal Law that invalidates State RKBA provisions. Machine Guns without Federal registration are only illegal in Texas, and 30 other states, because of a Federal law, there is nothing in the State Constitution to justify it. And since 1986, IT IS A BAN!

Author ID: 7801 | 6/26/2008 09:10 PM CST | #124197


HarryK You might want to reconsider the anti-14th amendment stance.  The 14th amendment was enacted because the Southern states had systematically denied many of their citizens the full rights of the US Constitution. 

Without the 14th Amendment and the doctrine of incorporation, you don’t have a right to free speech unless your state says you have one.  Without the incorporation doctrine you don’t have a 4th amendment right to be free from unreasonable search and seizure unless your state guarantees it in the state constitution. 

Sorry, but that way lies Madness. 

Of course you can argue that this was exactly what the framers intended - that each state become a “laboratory of democracy” and that if people didn’t like it they could either amend the state constitution or vote with their feet and move to a different state, but how practical would it be in 21st century America if, for example, the state of Massachussetts could outlaw certain writings that are critical of its state governement and subject the writer to arrest because the 1st amendment doesn’t apply in Mass?  What effect would it have on interstate commerce and communication if each state was not bound by the Bill of Rights?

Author ID: 7544 | 6/27/2008 10:49 AM CST | #124293


The States were bound to 2 through 10 (at the time of acceptance).  The only right that was delegated to the states and/or The People was the First.

[Since] no power over the freedom of religion, freedom of speech, or freedom of the press [was] delegated to the United States by the Constitution nor prohibited by it to the States, all lawful powers respecting the same did of right remain and were reserved to the States or the people… Thus was manifested their determination to retain to themselves the right of judging how far the licentiousness of speech and of the press may be abridged without lessening their useful freedom, and how far those abuses which cannot be separated from their use should be tolerated rather than the use be destroyed.
--Thomas Jefferson: Draft Kentucky Resolutions, 1798

The fact that the South thought otherwise and continued to deny those rights to blacks (even AFTER the Civil War and AFTER passage of the 14th) is irrelevant to the reality of the Bill of Rights purpose.

The 14th was a clarification Amendment (because of the vile Dred Scott decision), which said “since you were too daft to get it the first time, we mean EVERYONE.”

If the Court hadn’t decided Heller properly, we might have been forced to Amend the Second.  We would not have amended it to CHANGE its meaning, only to articulate more clearly what we know it to mean.

That’s what the 14th did (in addition to eliminating the awful 3/5th clause and the fact that traitors weren’t hanged is the reason for Section 3).

0 Author ID: 2 | 6/27/2008 12:07 PM CST | #124298