Laboratories of Repression

We don’t let the states “experiment” on the First Amendment. Should the Second Amendment receive any less respect?

In 1932, progressive Supreme Court Justice Louis Brandeis penned one of the most famous passages in American jurisprudence. “It is one of the happy incidents of the federal system,” Brandeis wrote in his dissent in New State Ice Co. v. Liebmann, “that a single courageous State may, if its citizens choose, serve as a laboratory, and try novel social and economic experiments without risk to the rest of the country.”

Since then, Brandeis’ famous words have been quoted or referenced countless times, appearing everywhere from legal documents to campaign speeches. Most recently, they surfaced in the arguments leading up to the landmark Second Amendment case McDonald v. Chicago, which the Supreme Court is set to hear in early March 2010.

At issue in the case is Chicago’s draconian handgun ban, a restriction that largely mirrors the gun control law struck down last year by the Supreme Court in District of Columbia v. Heller. The key difference is that Heller only decided whether the Second Amendment secures an individual right against infringement by the federal government (which oversees Washington, D.C.). McDonald will settle whether the amendment’s right to keep and bear arms applies against state and local governments as well.

That’s where Brandeis comes in. In Chicago’s view, the Second Amendment should have no impact on its vast gun control regime. As the city has argued to the Court, “Firearms regulation is a quintessential issue on which state and local governments can ‘serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country.’” Thus, Chicago claims it should enjoy “the greatest flexibility to create and enforce firearms policy.”

That certainly sounds like a classic case for federalism and the states as laboratories of democratic experimentation. But look a little closer and Brandeis’ celebrated words start to lose some of their shine. The issue that confronted the Supreme Court in New State Ice Co. was a 1925 Oklahoma law granting a handful of companies the exclusive authority to manufacture, sell, and distribute ice. Under the law, anyone that wanted to enter the ice business had to first justify their plans by providing “competent testimony and proof showing the necessity for the manufacture, sale or distribution of ice” at all proposed locations. In other words, upstart ice vendors faced the nearly impossible task of securing the state’s permission to compete against a state-sanctioned ice monopoly.

That’s the “courageous” experiment Brandeis got so misty about. What precisely was so “novel” about a business currying favor with the government in order to suppress competition? That’s one of the oldest tricks in the book. Besides, as the great classical liberal Justice George Sutherland declared in his majority opinion striking down the Oklahoma ice monopoly, “in our constitutional system...there are certain essentials of liberty with which the state is not entitled to dispense in the interests of experiments.”

Quite so. In fact, Brandeis himself occasionally shared this skeptical view of state power—at least when it came to state “experiments” on the First Amendment. Just one year earlier, in the case of Near v. Minnesota, Brandeis joined the Court in striking down that state’s defamation law as a violation of the freedom of the press. So much for allowing a “courageous” state the free rein to experiment.

It was Sutherland’s majority opinion in New State Ice Co.—not Brandeis’ famous dissent—that got it right. “In [Near v. Minnesota] the theory of experimentation in censorship was not permitted to interfere with the fundamental doctrine of the freedom of the press,” Sutherland wrote. “The opportunity to apply one’s labor and skill in an ordinary occupation with proper regard for all reasonable regulations is no less entitled to protection.”

Which brings us back to the Chicago gun case. The Windy City would like to “serve as a laboratory” with the “flexibility” to ignore the Second Amendment. But there’s nothing “novel” about that. It’s just another case of the government violating our rights. And since the Supreme Court would never let Chicago ban free speech, establish an official religion, or conduct other “experiments” on the First Amendment, why should the Second Amendment receive any less respect?

It’s time for the Supreme Court to give the entire Bill of Rights its due.

Damon W. Root is an associate editor at Reason magazine.

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  • Old Mexican||

    The Windy City would like to “serve as a laboratory” with the “flexibility” to ignore the Second Amendment. But there’s nothing “novel” about that. It’s just another case of the government violating our rights.

    The government does not exist to experiment on people's rights or anything else, but to follow the law. Whenever a local government or a Federal government starts to talk about "experiments", beware.

  • JB||

    I wouldn't mind seeing experiments conducted on the Daley family.

  • prolefeed||

    Governments create laws, and can change them. Governments do not exist to follow laws -- rather, governments are supposed to be bound by constitutions that protect our rights.

  • ||

    Well said Old Mexican.

  • ||

    I hope the lawyers for McDonald will make just such an argument within the first 5 minutes of their case before the Supremes.

    I first thought of it when I heard Daley's people make months ago.

  • ||

    *Surely MacDonald's lawyers had the same thougths as I and can make them even more eloquent.

  • Death Panelist||

    "...a single courageous State may, if its citizens choose, serve as a laboratory, and try novel social and economic experiments without risk to the rest of the country."

    Brandeis never heard of full faith and credit.

  • ||

    If gun control is an experiment, it's an experiment where the results are ignored.

  • juris imprudent||

    In progressive science, results are what progressives want, not what they observe.

  • Anonymous Hockey Shtick||

    Nonsense. The University of Anglia's Gun Research Unit (GRU) has produced a hockey-stick graph showing an increase in gun related crime in states without gun control.

  • ||

    Incorporation is just a jack-off legal fiction of Oprahesque proportions.

  • MNG||

    So you're hoping they rule against McDonald?

  • Jeffersonian||

    So why not lets states experiment with the 13th Amendment, too?

  • ||

    That there is a thread winner!

  • The Libertarian Guy||

    The fedgov sure as hell doesn't experiment with the 10th Amendment... they just shove it further into the filing cabinet and hope it never sees the light of day.

  • ||

    But you see, the Second Amendment is different than the other rights protected by the bill of rights. "The people" in the Second Amendment doesn't mean the same thing as "the people" in all the others. Those framers were tricky that way.

  • The Prosecution||

    Actually, before the 14th Amendment and incorporation, we did let the states experiment with the First.

  • ||

    Who's "we"?

  • ||

    Actually, the states are continually experimenting with the first. Virtually all campaign laws involve an infringement on the freedom of political speech.

  • ||

    I didn't see it in the article. Did IL ban well regulated militias? (The only constitutionally protected body regarding gun ownership)

    If not, this has nothing to do with the 2nd amendment.

    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.

  • ||

    Do any serious legal scholars hold that position anymore?

  • MNG||

    I'd say most of them do Pro L.

  • MNG||

    I don't agree with them, just to be clear. I'm hoping SCOTUS rules for incorporation myself.

  • ||

    Just like most serious astronomers knew that the sun orbited the earth 500 years ago.

  • juris imprudent||

    Even Tribe doesn't buy that anymore.

  • anonymous||

    Yes, I see it so clearly now!

    "A well regulated Militia, being necessary to the security of a free State... shall not be infringed."

  • ||

    Notice that the amendment doesn't grant the right, it acknowledges it as pre-existing. The part about the militia is just one reason for prohibiting the government from violating the right.

    -jcr

  • JB||

    Go back to 5th grade and learn how to read a sentence.

    Go learn what an independent clause is, you stupid grammar-challenged fuckbag.

  • Mike Hunter||

    "No free man shall ever be debarred the use of arms. The strongest reason for the people to retain the right to keep and bear arms is, as a last resort, to protect themselves against tyranny in government"
    -- Thomas Jefferson, 1 Thomas Jefferson Papers, 334

    "The very atmosphere of firearms anywhere and everywhere restrains evil interference - they deserve a place of honor with all that's good"
    -- George Washington

    "The best we can hope for concerning the people at large is that they be properly armed."
    -- Alexander Hamilton, The Federalist Papers at 184-188

    Yes the people that wrote the constitution clearly didn't consider the 2nd amendment to be an individual right. LOL!

  • ||

    Constitutionally, the 2nd Amendment only protects the people's right to bear arms against the Federal government. However, the state can regulate arms as it sees fit. Granted, I want to be able to pack heat anywhere I go, but I do think that the right of the state to regulate arms should be recognized.

    Also, if any regulations need to be passed, it is on gun shows, where military-grade weaponry can be sold without background checks, you only have to be 18.

  • WWJGD||

    "Congress shall make no law" is hidden in there somewhere. Them tricksy founders...

  • ||

    Why should we recognize the state's right to regulate firearms? Leave that for the collectivists.

    Again, upon what basis can a state claim that it has the right to regulate firearms? Natural rights trumps legal positivism, each and every time.

  • ||

    I agree with that last statement, however any regulatory rights that don't go to the feds go to the states. Therefore on a constitutional basis the states can regulate arms.

    If anything, an amendement to the constitution should be proposed that also limits the ability of the state to regulate arms, but until then the states retain the right to say no to gun ownership.

  • juris imprudent||

    Yo, stupid, that happens to be the very question before SCotUS.

    Are you one of the lawyers for Chicago?

  • Adam R||

    If you are using the 10th to justify this line of reasoning, it does not specify whether the states or the people get to regulate the 2nd in each state. If the state constitutions do no have any clause for regulation of firearms in them then that power would fall to the people.

    Nor should anyone gloss over the fact that real militias are funded and equipped by the members themselves unless drafted into service during war time.

  • ||

    """Constitutionally, the 2nd Amendment only protects the people's right to bear arms against the Federal government"""

    The 2nd amendment does not give the citizen the right to rebel or insurrect. Those are things can get your right to due process constitutional removed as per Article 1 Section 9 of the U.S. Constitution.

  • ||

    Oh, that is a little misleading my bad. No, I'm not talking about rebellion, I mean the 2nd Amendment protects that right of gun ownership from the Federal government.

  • wayne||

    Not according to the US constitution. See the 14th amendment.

  • ||

    In most states the "Gun Show Loophole" is just a myth. ANY fire arm bought has to at least be checked with the federal system. Parts on the other hand not so much. The parts to "assemble" what you call a miltary grade weapon can be had if you know what and how.

    Full auto guns and destructive devises are and have been for years fully regulated at the federal level. So basically the states need not do anything more in that area. One thing the states should do is to track the real criminals and keep them from having guns.....ever. But that is way harder to do in the real world, so the polititions and liberals cop out by saying "only cops and military or militia are to have guns".

    An armed people are a free people....Any thing else and we are just subjects....subject to the Governments every whim.

  • juris imprudent||

    Also, if any regulations need to be passed, it is on gun shows, where military-grade weaponry

    Someone left the gate open at the funny farm.

  • SIV||

    On another thread Galt is pushing the "libertarians must align with the Democrats,The Party of Liberty.Looks like some low grade trolling.

  • Mike DeSoto||

    Change your name.

    It's an insult to libertarians for you to spout your left-wing pap while calling yourself John Galt.

  • ||

    States "experimented" with the First routinely. Hell - they outright denied it existed.

    As late as 'Wallace v. Jaffree' states were trying to negate the Establishment Clause and reactionary "originalists" were fighting for a theocracy.

    Wingnuts' obsession with guns is pathological while they deny that other civil liberties exist.

    Its Beckian hyper-paranoia.

    "they comin' to git mah guns"!

  • MNG||

    Clarence Thomas seems to think the 1st doesn't apply to the states; state established churches just fine thank you.

    It will be interesting to see how he rules on whether the 2nd should be incorporated.

  • MNG||

    "The text and history of the Establishment Clause strongly suggest that it is a federalism provision intended to prevent Congress from interfering with state establishments. Thus, unlike the Free Exercise Clause, which does protect an individual right, it makes little sense to incorporate the Establishment Clause."

    Justice Thomas

  • ||

    Considering he's already agreed that the 2nd protects an individual right in Heller, it would seem he sees the right to bear arms as akin to the Free Excercise right.

  • tarran||

    Given that at the time the ammendment was ratified several states *had* churches, this is not wrong.

    For example, the Massachusetts government school system, held up with pride as being one of the oldest in the nation was originally instituted to indoctrinate children the state religion rather than with their parents' heresies. A task it continues to excel at even today.

  • Jeffersonian||

    Which rights are those, Shrike?

  • ||

    shrike, calling supporters of the 2nd Amendment "wingnuts" is beyond hypocrisy and stupidity. Do you say the same about supporters of the First or Fifth Amendments? It's not about guns. It's about being able to defend self, family and country, but more about defending the above from tyranny of out of control government. Believe me, Stalin was all about gun control. If you are a dyed in the wool Kool Aid drinker who thinks that all politically motivated laws are the will of God, Heaven help you.

  • ||

    Wingnuts' obsession with guns is pathological while they deny that other civil liberties exist.

    Citation needed. Please show a libertarian who denies anything in the bill of rights.

  • ||

    "...a single courageous State may, if its citizens choose, serve as a laboratory, and try novel social and economic experiments without risk to the rest of the country."

    I always love it when I hear "the will of the people" as if it actually means something.

  • ||

    while job losses and firearm purchases soar; violent crime plummets.

    http://www.fbi.gov/ucr/2009prelimsem/index.html

  • ||

    Yea but you cant tell a Liberal gun grabber that. They would loose their mind trying to "rationalize" it some other way.

  • Barry Loberfeld||

    Sorry, a little long. From here:

    Nothing is more likely to (justly) infuriate a liberal than an assertion of the specious theory, which in recent years has gained support among conservatives (e.g., recently defeated Senator Rick Santorum of Pennsylvania), that the "original intent" of the First Amendment's no-establishment clause was to preserve the right of the state governments to establish their own churches. "Congress shall make no law respecting an establishment of religion" -- so that the state legislatures can. Along those lines, we may conclude that the "intent" of the free-exercise clause was to prevent federal interference in the state burning of heretics. The purpose of the Eighth Amendment? No doubt to safeguard the right of the state governments to erect their own torture chambers. And of course, the purpose of the Second Amendment is to allow those governments to form their own armies and even disarm the people if they so decide -- a point where our liberal finds himself in perverse agreement with a hated premise.

    Let there be no doubt: The Bill of Rights is not a charter of the rights of state churches, state armies, and state torture chambers -- and none of its ratification proponents ever championed it as such. It is a charter of the rights of American citizens -- against the power of the federal government. The weak reed of this "states' rights" theory is the fact that the Constitution did not secure these rights for citizens against the power of the state governments, a defect that Madison recognized and tried to remedy with an amendment (which he thought the "most valuable") affirming "No state shall violate the equal rights of conscience" and other liberties. Sadly, it was never adopted, and incorporation -- the application of the Bill of Rights to the state governments -- was not achieved until the Fourteenth Amendment, whose "privileges or immunities" clause was stated by its author, Congressman John Bingham of Ohio, to effect precisely that end. (See Michael Kent Curtis' No State Shall Abridge: The Fourteenth Amendment and the Bill of Rights.)

    The question now: Who are the greater knaves of our time -- liberals who embrace incorporation except for the Second Amendment or conservatives who reject incorporation, except for the Second Amendment?

  • wayne||

    BL,

    I was unaware that conservatives reject incorporation.

  • Mike DeSoto||

    The question now: Who are the greater knaves of our time -- liberals who embrace incorporation except for the Second Amendment or conservatives who reject incorporation, except for the Second Amendment?

    That is a silly question. Conservatives do not "reject incorporation, except for the Second Amendment". Some of them reject incorporation in toto. Some of them accept it and want the Second Amdt to be incorporated as well.

    incorporation -- the application of the Bill of Rights to the state governments -- was not achieved until the Fourteenth Amendment


    No. Incorporation is a new doctrine, one which the courts only began to deploy in the mid-20th century.


    The Bill of Rights is not a charter of the rights of state churches, state armies, and state torture chambers

    Wrong again. To a large extent your description is correct. States did have their own armies - the state militias, which combined made up the US Army and which could and did rise against the US. States did have dramatically different laws about all sorts of things - slavery was a big one.

    You an argue that all this was a bad thing and should not have been, but the plain historical fact is that this is what WAS. It's historical revisionism to claim that it never happened.

  • ||

    The question now: Who are the greater knaves of our time -- liberals who embrace incorporation except for the Second Amendment or conservatives who reject incorporation, except for the Second Amendment?

    The vast majority of liberals in the Labor/Farmer/Veteran coaltion (see Webb, Tester, even Gillibrand) embrace the 2nd. The resistance is in pockets like NYC, Chicago and DC.

    While conservatives reject incorporation in overwhelming numbers.

    So conservatives are the bigger knaves.

  • ||

    I think you need to add a few more places to your very short anti gun list.

    "The vast majority of liberals in the Labor/Farmer/Veteran coaltion (see Webb, Tester, even Gillibrand) embrace the 2nd. The resistance is in pockets like NYC, Chicago and DC."

    Massachusetts and Califonia as a whole state have the most restrictive gun laws just short of all out bans. And places like NJ have crazy and confusing laws that make most any gun owner have heartburn trying to figure them all out.

    Basically I think just about every one on the Democrats and Republican tickets have our "rights" all messed up. Both parties have written and passed bills that have trampled all over the very same Document they swore to up hold.

  • monkeys||

    You forgot Hawaii, it's more restrictive than California.
    I just realized, Obambam's never lived in anything other than an anti-firearms state.
    Hmm ...

  • ||

    While conservatives reject incorporation in overwhelming numbers.

    Conservatives? Perhaps, but again citation needed for "overwhelming numbers". I call talking out your ass.

  • Pedantula||

    I'm so pro-abortion I don't even need the euphemism "pro-coice", but to be fair...

    Many of the conservatives who oppose incorporation are motivated by a desire to remove the abortion right, extracted from the penumbra of the privacy right, which was in turn conjured up from no definable scrap of text.

    Take that away, and I'm not sure too many conservatives today would gripe about the 14th amendment.

    In any case, whether we're talking about "penumbras" or "experiments", when politicians and jurists start using scientific terms, its time reach for your pistol.

    Provided the laws of your individual state allow.

  • ||

    Do you not think that a zygote is a life?

  • Pedantula||

    Not until that zygote can smoke or wear a dollar-sign embroidered cape, but that's beside the point.

    Just because I support (or don't support) a given bit of liberty, doesn't mean I'm willing to read it into (or out of) a constitution that pretty well...says what it says.

  • ||

    I can't tell if your serious or not, but I understand your second statement.

  • Pedantula||

    Not serious, just trying to avoid the abortion tangent, and make the point that libertarians have a greater interest in a de-politicized Supreme Court than probably anyone else.

  • ||

    Animals, plants, bacteria, parasites, and possibly viruses are also life. You're going to have to prove a stronger claim if you think (human) zygotes deserve the protection of the law.

  • ||

    Actually, the genesis of the penumbra ruling (Right to Privacy) came from the birth control pill case (Griswold vs. Conn). That was a root of judicial "activism".

    The Pill is Catholic heresy, of course.

  • MNG||

    I think it's a bit far to say the right was conjured up from no definable scrap of text. If you read the opinion in Roe they reference quite a bit of the text as anchoring the right. Perhaps you don't find that anchoring persuasive, but there was a definite attempt to anchor it there.

    Shrike points out correctly that Griswold begat Roe. I'm not sure it was that fantastic to get Roe from Griswold.

  • ||

    And Brown v Board begat the whole family of extraconstitutional jurisprudence built up by the leftist courts of the 79th quarter-century.

    Bringing in the mongoose of judicial activism to get rid of the snake of de jure segregation has in turn given us a nasty mongoose problem.

  • MNG||

    I've never understood why Brown is supposed to be some example of "extraconstitutional jurisprudence." The text says each state must provide equal protection of the law, white and black schools were not equal, end of story.

  • MNG||

    I mean consider: if just giving some members of one race a preference in admissions to public schools is a violation of equal protection of the law then surely blanket segregation of races in public schools is a violation...

  • juris imprudent||

    All the reasoning that was necessary for Plessey to be overturned was contained in Harlan's dissent. That Brown did not use that is a damn shame.

    "Separate but equal" does not appear anywhere in the Constitution. It was "judicial interpretation/activism" that put it there for some 60 years.

  • ||

    That is the logic of Plessy v Ferguson. Brown took the step of saying that even if segregated schools were equal, segregation would still be unconstitutional.

  • juris imprudent||

    That's reasonable. Griswold was the camel's nose as it were.

  • MNG||

    States rights are great, except when they ain't!

  • Dude||

    You look lost. The conservative blogs are that way ----->

  • wayne||

    States rights are great, but the state has no right to deny its citizens the liberties spelled out in the US constitution. That is the whole point of the 14th amendment.

  • Pedantula||

    A begged question, really, because now we're just arguing about whether Griswold was conjured up from no definable scrap of text. In fact it was, since the word "privacy" does not appear in the ninth amendment. I wish it did, but sadly...

  • MNG||

    Pedantula
    Is it your position that no rights are protected by the Constitution unless they are explicitly granted by the text?

  • Pedantula||

    No, its my position that a right explicitly protected by the text is...um, more explicitly protected (by the text) than one that isn't.

    And my observation is simply that, while the explicitly protected "right to bear arms" fights for its life, the not-explicitly protected "right to (reproductive) privacy" lives on in relative security.

    None of which has anything to do with legal reasoning on the part of the public or its leaders.

  • MNG||

    I see your point. I'd only say that the prefatory clause in the 2nd makes it less than clear imo (essentially it seems to read "Since militias are really important the right of the people to keep and bear arms should never be infringed; this convulted language makes the collective right reading at least reasonable, if finally unpersuasive, imo), but you're right that it is at least more explicit than privacy.

  • Pedantula||

    Well said. There are some places where the constitution is deliberately unclear, as a side effect of some storied political compromise. And there are some places where it is accidentally unclear, simply as a result of odd writing.

    The "militia clause" seems like a good candidate for the latter.

    Just imagine how bad it would be, if they'd included a similar sub-clause into the first amendment:

    "Divine worship being an essential support of the social order, congress shall make no law respecting an establishment of religion."

    We'd really be screwed after everyone took a turn interpreting that one.

  • juris imprudent||

    Hold on. The prefatory clause is STILL more explicit than how we got Griswold. You might argue that it introduces some ambiguity, but then you have also to argue that "the people" means different folks at different times. Good luck with that.

  • MNG||

    It's that "the people" part, and how it is read in other parts of the text, that finally sways me.

  • ||

    The term 'the people' is will understood to be simply 'the people' everywhere in the Constitution. Holding that it means something different in the Second is deliberately disingenuous.

  • Ernie the Bear||

    De-lurking here.

    I would love to properly attribute this, but I have forgotten where I first heard it. I have never been able to think of any compelling argument against it.

    An unarmed militia is essentially just a "committee". An armed militia can be regulated by an unarmed populace, but only so far as they are willing to be regulated. They can never be well-regulated, except by a populace with the means to overthrow them by force, should the need arise. The armed populace are not the militia, they are the regulators thereof. In this view, the prefatory clause makes perfect sense, explains why it was considered necessary, and never restricts gun ownership to those in the militia. The militia doesn't need an explicit right to keep and bear arms. They already have arms, else they're not a militia.

    It gives maximum rights to "the people", and gives them another tool to restrict the power of a potentially corrupt government, which is in tune with the rest of the Bill of Rights. Arguments about the meaning of the Constitution can almost always be traced to someone trying to introduce some clever interpretation of language that was intentionally designed not to be clever. Phrases such as "shall make no law" and "shall not be infringed" are not clever.

  • ||

    Ernie:

    May I suggest a New Year's resolution for you? Less lurking, more posting.

    This is a powerful argument. The fact that I've never run across it in a decade or more of following this debate makes the shock of its simplicity even greater. Simple, yes, but I can't see how the gun-banners and collective rightists can escape the iron grip of its logic. Was the source Justice Story?

  • Ernie the Bear||

    I honestly don't remember where I first heard it. Most likely, one of the thousands of otherwise pointless Usenet arguments I partook of, back in the day. The clarity of it was stunning.

    I have been lurking, trying to decide if I might be a closet Libertoonian. I was a Republican before I could vote. Now I am not. They have become just as anti-liberty as the Demotards, and a pox on both their houses.

    I'm groovin' on Stossel and Rand, "minarchy", legalized drugs, maximum personal liberties, hate Palin, etc. On the other hand, I actually believe in the "sky fairy", and I think Ron Paul is bat-shit crazy. I'm pretty sure those two things litmus-test me right the Hell out of Libertoonianism, so I still don't know what I am.

    I would add, the level of reason.com discourse, both in the articles and the user comments, rises far above anything I have ever found on the Internets, so I plan to stick around until I have some cause not to.

  • ||

    Another thing to bear in mind is that 'well regulated' meant, before the term 'regulated' came to mean 'screwed up by government' it meant 'well ordered' in the sense that one had to be orderly, hence practiced, in order to stand under fire, etc.

    'Regulated' didn't mean 'government regulation' it merely meant regular, ie orderly.

  • ||

    The development of the constitutional right of privacy involving reproduction or avoidance of reproduction is one of those areas wherein, as Justice Holmes opined in another context, a page of history is worth a volume of logic. As recently as 1927, the law permitted states to forcibly sterilize residents of a home for feeble-minded persons. In Buck v. Bell Justice Holmes infamously wrote, "Three generations of imbeciles are enough."

    The right to reproduce was recognized as fundamental by the U. S. Supreme Court in Skinner v. Oklahoma ex rel. Williamson in 1942, when the Court invalidated a state habitual criminal statute that required sterilization of persons convicted for the third time of various criminal offenses (such as larceny), but did not require that of persons thrice convicted of other crimes of equal gravity (such as embezzlement).

    The Supreme Court in 1965, in Griswold v. Connecticut, extended that doctrine to prohibit states from criminalizing the use of contraceptive devices by married persons, thus recognizing a fundamental right to avoid reproduction. In 1972 the constitutional right of privacy was extended to single persons regarding whether to obtain or use contraceptives in Eisenstadt v. Baird ("If the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.")

    I wonder. Do those who advocate a return to criminalizing abortion contend that Buck v. Bell (which has never been explicitly overruled) was decided correctly? If one accepts the premise that who does or does not reproduce is any of the State's business, where is the infirmity in Buck?

  • ||

    I don't think you need a separate right to reproduction or privacy to strike down forced sterilization. Such an act by the state violates the right to life and bodily integrity without due process of law (ie, some criminal conviction). You don't need to extract some special right from the 9th amendment to say that a state requiring certain people to have a kidney removed would be acting unconstitutionally.

  • ||

    Tulpa, Carrie Buck had already given birth, so the forced sterilization did not destroy anyone's life. And Jack Skinner had received plenty of procedural due process -- at least three times. Do you contend that Skinner was wrongly decided?

  • Pedantula||

    Number one reason I didn't go to law school:

    "This thing we've just made up finds a solid foundation in this other thing we made up six years ago."

  • MNG||

    I think, like the Court said in Griswold, that you can ground Griswold's holding in much earlier substantive due process cases like Pierce v. Society of Sisters and Meyer v. Nebraska, from the 1920's. If child-rearing is somewhat off-limits to the state then child-having can be too.

  • ||

    Apparently none of the State-control-of-wombs crowd wants to defend Buck v. Bell. Why am I not surprised?

  • ||

    There is no defending Buck. Buck involved the power of the state to determine the fitness of individuals to reproduce. The sterilization laws were promoted by the progressives of the day who also pushed eugenics as a way toward a more pure and improved society. Eliminating the undesirable was the core purpose of the movement.
    That has a much closer connection to the progressive idea that a woman's right to choose trumps the rights of the fetus or that society has no (or limited) interest in promoting a culture of life or protecting the unborn. Both sterilization and abortion results in the prevention of life. The difference, of course, is who makes the decision. I think most agree that state-forced sterilization to purify the citizenry is hideous, with the possible exception of castration for irredeemable pedophiles.

  • juris imprudent||

    This is all that is necessary to understand Griswold. The dissent is clear and to the point, quite unlike the various 'majority' opinions.

  • Mike DeSoto||

    It's odd the way in which dissents are the opinions which carry so much weight.

  • Mike DeSoto||

    It's odd the way in which dissents are the opinions which carry so much weight.

  • ||

    I'm not a fan of Chicago's law or the Daley Machine, but states and localities should be able to reasonably regulate the use (not possession) of firearms as local conditions deem necessary, as long as it doesn't substantially restrict the right to bear arms.

    Otherwise, we'd end up with situations like the Feds running the hunting seasons of all 50 states, and one can imagine how well that would work out.

  • Barack Obama||

    You folks need to get hip. Chicago-style politics is the future.

    No, wait... I am the future.

  • chemman||

    Depends on what you define reasonable regulation is? If I can't use my firearm for self-defense then any right to own a weapon is nullified.

  • ||

    I would envision something along the lines of Utah's pre-emption law, which forbids municipalities from regulating the possession, purchase, or carrying and use of guns in self-defense, but allows them to set up reasonable rules regulating the other uses of firearms, such as hunting or target shooting.

    A good example of the need for location-specific regulation would be the use of guns during hunting seasons.

    A bolt-action .270 is a great deer rifle, and for the wide expanses of Montana and Wyoming it's a perfect choice.

    Using it in the crowded, deer-infested suburbs of New Jersey or Connecticut would be a disaster waiting to happen.

  • Mike DeSoto||

    Do those who advocate a return to criminalizing abortion contend that Buck v. Bell (which has never been explicitly overruled) was decided correctly?


    I think it was decided correctly.

    And I don't support a return to criminalizing abortion. I do support returning decisions about such matters to where they belong - outside the courts. When that happens abortion may or may not be outlawed. But whatever happens will be done in a lawful fashion.

  • ||

    Captain Holly:
    "I'm not a fan of Chicago's law or the Daley Machine, but states and localities should be able to reasonably regulate the use (not possession) of firearms as local conditions deem necessary, as long as it doesn't substantially restrict the right to bear arms."

    Ahhh, but how can we allow Ilinois to infringe on intrastate gun ownership, while denying Utah the power to infringe on reproductive rights, or Maryland to re-establish Roman Catholicism as it's State religion, or California from excluding persons of Mexican descent from voting?

    If you allow one state to conduct it's little "experiments", you have essentially no counter-argument when other states want to conduct their own.

    I will say this, though...to my mind, it is better that the 10th amendment trumps the 14th, and Chicago continue to be the crime-ridden sh*t-hole of corruption that it is. I don't live in Illinois, and I would not live in Chicago under ANY foreseeable curcumstances.

    It's better to have 50 separate petit-tyrannies than an overarching monolithic one.

  • wayne||

    "...or California from excluding persons of Mexican descent from voting?..."

    Did you just pluck this example out of some dark corner of your mind? I have lived in CA for 30 years and have never heard such a thing suggested.

  • Publius Huldah||

    Our Rights do not come from "The Bill of Rights". Properly understood, the first 10 amendments to the Constitution are irrelevant. In practice, they have been used by the
    U.S. Supreme Court to divest us of our "retained" rights.

    Our Founding Document, The Declaration of Independence, states that our "Rights" are a gift from God, and that they are unalienable. Thus, our Rights pre-date and pre-exist The Constitution. Even for secularists, this is the strongest LEGAL argument one can make for the unalienablity of our rights.
    Do NOT fall into the pernicious error of believing that our Rights come from The Constitution. At the link, I explain 4 views of the nature of Rights.

    http://publiushuldah.wordpress.....e-a-right/

  • ||

    In the main body of the Constitution, Article One, Section Eight: "The Congress shall have Power. . .To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress.

    If I read that correctly, the Second Amendment applies only to Congress because the States are ABSOLUTELY forbidden from anything except providing training to the militia.

    Incidentally, the National Guard is an adjunct military reserve normally under the control of the States, it is not a militia. A militia cannot be controlled by the President, nor called up for Federal duty without the consent of the States.

  • Publius Huldah||

    J.B. You are not reading it correctly. It is impossible to understand The Constitution without the light shed by The Federalist Papers. (1) Our right to defend ourselves - to keep and bear arms - predates and preexists The Constitution. The Declaration of Independence says our rights were given by GOD and are unalienable. The Bill of Rights does not CONFER any "rights". If you will read my paper linked above, it will be clear. (2) The "militia" was - is - the citizens who were expected to be armed and able to defend themselves, their families and their communities. There are references to the "militia" i.e., the armed citizens, throughout The Federalist Papers. See, especially Federalist No. 46, 8th para to the end, where James Madison explains that ultimately, the function of the militia - i.e., the armed citizens - is to defend themselves from a tyrannical federal government.
    If there is one thing which The People must learn pretty soon, it is this: Your rights do NOT come from the Constitution. Right now, a case is before the U.S. Supreme Court where the statists are seeking a ruling that the 2nd Amendment does not prohibit the STATES & municipalities from banning handguns. The citizens - the "militia" need to understand that whatever the Supreme Court "decides", it is IRRELEVANT - because our right does not come from that amendment! Alexander Hamilton explained in Federalist No. 84 (10th para) why bills of rights were unnecessary & dangerous. Events have proved that Hamilton was right. If people believe that their right to bear arms comes from the Second Amendment, and the Supreme Court rules that the States are not bound by it, then what? You have got to get informed.

  • prolefeed||

    while job losses and firearm purchases soar; violent crime plummets.

    http://www.fbi.gov/ucr/2009prelimsem/index.html

    So, Obama's anti-gun statements have caused people to load up on guns, and the guns are scaring off criminals?

    So Obama inadvertently has caused a lowering of the crime rate?

  • ||

    I could have gone to Einstein University, but NOOOO they had to name it after Brandeis instead.

  • ||

    wayne:
    "Did you just pluck this example out of some dark corner of your mind? I have lived in CA for 30 years and have never heard such a thing suggested."

    Really? Then you might want to learn your own state's history.

    California tried to ban Okies from moving into the state in the 1930's, and people of Asian descent were not exactly accepted with open arms.

    The point is that every state, indeed every community, can very easily infringe on civil rights in the most monstrous and absurd manner...in the opinion of people outside the states and regions in question.

    (There was once this thing called "slavery", y'know...people were not people, but "property" instead. You may have heard of it, it was once really big back East...from New England to Florida).

    My argument is that as hideous as some of those abuses may be, they would pale by comparison with the abuses imposed at a national level.

    Abortion comes to mind...while you might think it's okay, others hold it to be anathema.

    And like with the Fugitive Slave Laws of the early 1800's, using the Fed to enforce your local notions on people who don't want it has some very ugly consequences.

  • ||

    If the individual's right to bear arms, as asserted in Heller, is nationalized via supreme court fiat in McDonald v City of Chicago, courts will "get drawn further into the gun control thicket, [and] they will be forced, as they were by Roe, to decide contentious questions without clear constitutional guidance." - J.Harvie Wilkinson III, U.S. Court of Appeals for the Fourth Circuit.

    Is it not true that once Heller is incorporated, i.e. applied to every gun regulation at any level of government, it will be a boon to the judge as policy-maker ideal?

  • ||

    The subtitle of the article compares restricting 2nd amendment rights with restricting 1st amendment rights, yet it is widely accepted that states and localities can and do restrict 1st amendment rights. Freedom of speech is restricted with regards to profanity and pornography, and "community standards" are used to determine what is profane and pornographic. I am not suggesting that Chicago's restrictions on firearms are either legal or moral, but if community standards can be used to restrict 1st amendment rights, then why not 2nd amendment?

  • ||

    What I have not seen anyone mention is the fact that Alan Gura, the attorney who argued and won Heller before SCOTUS, and who also will be arguing the Chicago case, will be inviting the Court to invalidate Chicago's gun ban not solely based on incorporation.

    Instead, he likes the privileges and immunities clause argument. He is going to ask the Court to overrule the Slaughterhouse Cases - which clearly was a terrible decision and quite wrongly decided. Most modern legal scholars seem to agree that the Slaughterhouse decision was quite wrong. It had never gotten quite the attention and criticism that Dred Scott or Plessey v. Ferguson received, but it's catching up - especially as it is receiving new attention in light of the Chicago gun case.

    This should be interesting - it could be pretty cool to reinvigorate the privileges and immunities clause with the life that the framers of the 14th originally and expressly meant it to have.

    Either way, from what I've heard and read (including hearing it directly from Alan Gura's mouth at a Federalist society meeting), the general view seems to be that the court likely will find the Second Amendment is, to some extent, incorporated against the states - whether via the privileges and immunities clause, or due process, or whatever. That would then generate a series of lawsuits over the next 10 years or more to define the nature of the right and determine what level of scrutiny the right warrants and what regulation is allowable.

    And that's where it gets really "interesting" - as in the ancient Chinese curse.

  • ||

    When that which serves as "a Laboratory" produces what could reasonably be described as a Frankenstein, exactly what Chicago type legislation has produced, the "laboratory" should be promptly and permanently shut down. I suspect that Justice Brandeis, had he considered the matter, would have agreed.

  • ||

    Looking at all the foolishness one sees, hears, reads re The Second Amendment and it's alleged meanings, here I reference what is sometimes described as The Collective View, if President Madison was really the amendment's author, as is sometimes claimed, isn't it a shame that he failed to pay attention to the following. Brevity being the soul of wit, to wit be brief.

    Wouldn't the following have served as well, if not better as The Second Amendment, had it been so written? The Right of Peaceable Individuals To Keep And Bear Arms, Shall Not Be Infringed.

  • abercrombie milano||

    My only point is that if you take the Bible straight, as I'm sure many of Reasons readers do, you will see a lot of the Old Testament stuff as absolutely insane. Even some cursory knowledge of Hebrew and doing some mathematics and logic will tell you that you really won't get the full deal by just doing regular skill english reading for those books. In other words, there's more to the books of the Bible than most will ever grasp. I'm not concerned that Mr. Crumb will go to hell or anything crazy like that! It's just that he, like many types of religionists, seems to take it literally, take it straight...the Bible's books were not written by straight laced divinity students in 3 piece suits who white wash religious beliefs as if God made them with clothes on...

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  • 50 Inch Flat Screen Tv||

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