Will the Supreme Court Apply the Second Amendment to the States?

Damon W. Root | June 17, 2009

In the midst of an otherwise bland summary of the debate over Second Amendment incorporation currently working its way towards the Supreme Court, the New York Times reveals an interesting disagreement between two leading constitutional scholars:

"The precedents are now supportive of incorporation of nearly every provision of the Bill of Rights," Professor [Akhil Reed] Amar said. "Now what's odd is that the Second Amendment doesn't apply to the states."

Sanford Levinson, a law professor at the University of Texas, said he would be surprised if the Supreme Court accepted these gun cases, because some of the conservative justices on the court had scoffed at incorporation arguments in the past and might not want to set a precedent.

Professor Amar, however, argued that the justices would not only take up the case but would also ultimately vote for incorporation of the Second Amendment.

I'm with Amar on this one. Here's why.

Comments

MNG|6.17.09 @ 7:36PM|#

I hope so.

Looking at the right as described by Heller it certainly strikes me as more like the rights that have been incorporated to the states than the ones (like the right to a grand jury) which the Court declined to incorporate...

I imagine the ball's in Kennedy's court on this one...

B|6.17.09 @ 7:38PM|#

If the Second Amendment is not incorporated, then the DC vs. Heller ruling becomes essentially worthless as various localities, as proved by Chicago, will, for all intents and purposes, continue to ban the possession of guns. What would be the fucking point of claiming the Second Amendment protects my right to keep and bear arms if the states don't have to respect that right?

Elemenope|6.17.09 @ 8:01PM|#

Will the Supreme Court Apply the Second Amendment to the States?

No.

The supremes which believe in gun rights do not believe in incorporation. The supremes which believe in incorporation do not believe in gun rights.

Not that massively violating their own principles is beyond them or anything, but I have a hard time imagining any of the conservatives on the court expanding the incorporative reach of the fourteenth amendment with a straight face.

|6.17.09 @ 8:04PM|#

"What would be the fucking point of claiming the Second Amendment protects my right to keep and bear arms if the states don't have to respect that right?'

Because it would increase the demand for lawyers, that is why.
Approach every case with this question,
"What decision will increase the demand for lawyers?"
And more often then not, answer that question and you will be right on what decision comes out.

MNG|6.17.09 @ 8:22PM|#

"What would be the fucking point of claiming the Second Amendment protects my right to keep and bear arms if the states don't have to respect that right?"

Well, talk to conservatives who have bitched about incorporation, selective or otherwise, since the inception of the idea...In their view the Bill of Rights ain't got nothing to do with the states...

MNG|6.17.09 @ 8:28PM|#

How many people here think like I do that "B" is the kind of ignorant fuck who has no idea that it's the very liberals he hates that have fought to incorporate the Bill of Rights while it's the very conservative movement he identifies with so strongly that has fought it tooth and nail?

Oh, you too, huh?

And I imagine it's like that on many an issue for such folks...

Naga Sadow|6.17.09 @ 8:54PM|#

MNG,

"The very liberals" are all for the Bill of Rights as long as you see things there way. Actually, while we have our differences, I'm quite certain you are as hated as any libertarian by "the very liberals" due to your attempt to be reasonable about an issue.

"The desire to save the world is almost always a false front for the desire to rule the world." H.L. Mencken

|6.17.09 @ 8:57PM|#

Elemenope, can't argue with your basic point. However, in another context, they have massively violated their principles-see Bush v Gore.

|6.17.09 @ 9:02PM|#

MNG-

Why are you writing that B "is an ignorant fuck?" If you are basing your assessment entirely upon his post upthread, WTF?

JB|6.17.09 @ 9:06PM|#

If they say the 2nd amendment isn't a fundamental right, then the Supreme Court doesn't have any rights.

Elemenope|6.17.09 @ 9:13PM|#

Elemenope, can't argue with your basic point. However, in another context, they have massively violated their principles-see Bush v Gore.

Believe it or not, that was the very case I was thinking of when I added the proviso that they often ignore their principles.

wayne|6.17.09 @ 9:19PM|#

I did not realize that the Cruikshank decision also omitted the first amendment from incorporation. This incorporation thing is just a big, steaming pile of SCOTUS-crap.

wayne|6.17.09 @ 9:22PM|#

MNG,

Are you suggesting that "liberals" want to see 2A incorporated? That is hard for me to agree with. The ACLU certainly have omitted "2" from their lexicon.

Elemenope|6.17.09 @ 9:28PM|#

I did not realize that the Cruikshank decision also omitted the first amendment from incorporation. This incorporation thing is just a big, steaming pile of SCOTUS-crap.

It was incorporated later, and in individual pieces. Everson v. Board of Education (Establishment Clause), Cantwell v. Connecticut (Free Exercise of Religion), Gitlow v. New York (Freedom of Speech), Near v. Minnesota (Freedom of the Press), DeJonge v. Oregon (Freedom of Assembly). NAACP v. Alabama is thought to incorporate the Freedom of Association, even though it is not explicit, as well as Edwards v. South Carolina re: the Right to Petition for Redress of Grievances.
----------

Apropos of the Iran conversations yesterday, an answer to that question of why all the police gear was in English is here.

|6.17.09 @ 9:28PM|#

"The very liberals" are all for the Bill of Rights as long as you see things there way."

Naga, Isn't this true about all political groups?

Mad Max|6.17.09 @ 10:19PM|#

Apart from the Second Amendment, the big things which remain unincorporated are the grand jury clause of the Fifth Amendment (can't be held to answer for an infamous crime unless a grand jury has accused you) and the Seventh Amendment (jury trial in civil cases under the common law, limits on judicial review of jury verdicts).

At least one big state (California) has grand juries being optional - you can be brought to trial by a court order, without a grand jury indictment or presentment. This would be open to question if the Court decides to finish the job with incorporation.

MNG|6.17.09 @ 10:43PM|#

LM
Naw, that's one exhibit of evidence for my evaluation of B...

"The very liberals" are all for the Bill of Rights as long as you see things there way."

Well, sure Naga, I agree. My point was that other than the fact that both sides read the Bill of Rights in their own special way, the right has long bitched about incorporation of the Bill of Rights to the States, period. In fact, many on the right see it as the worst form of their hated "judicial activism." But thank God the liberals got their way on that!

"Are you suggesting that "liberals" want to see 2A incorporated?"

Oh no, the liberals probably will come up with some bullshit reason why the Heller right is not incorporated, and it will be bullshit. My point is that incorporation itself is a liberal doctrine, one that was and is opposed by conservatives...

|6.17.09 @ 10:59PM|#

USSC Justice Scalia, writing for the majority in Heller vs DC:

"We start therefore with a strong presumption that the
Second Amendment right is exercised individually and
belongs to all Americans."

I think it's a very safe bet that the SCOTUS will consider the second amendment to be a right fundamental enough to warrant incorporation via the 14th amendment. Indeed, a primary intent of the 14th was to prevent infringement of the 2nd Amendment right of newly freed slaves. This is one of the most under-told, dirty little secrets of the racist underbelly of gun control in this country.

It's only through bad, old, racist case law the the entire bill of rights wasn't applied to the states via the 14th amendment. The Supreme Court appears to be waiting with baited breath to undo Slaughterhouse, Presser vs Illinois, and one or two other historical embarrassments. And good riddance. There will be wonderful political irony when the restoration of the 2nd amendment to it's rightful place results in the most sweeping expansion of civil rights since the civil war, the application of the entire bill of rights against the states, the way that the 14th amendment originally intended it.

In a related case:
6_17_09 DC folded today on the gun roster scheme they attempted to inherit from California. the court was notified of emergency legislation being put in place to move toward compliance with Heller vs DC

Alan Gura, lead counsel for Dick Heller:
"It's impossible to list every single gun protected by the Second Amendment," Gura stated. "We won't stop until this list is scrapped."

Naga Sadow|6.17.09 @ 11:04PM|#

MNG,

Explain. Liberals are all for hate crime legislation(as if the color of one's skin makes a crime more terrible) despite 14th amendment protections for ALL races. As well as free speech limits, gun rights, 10th amendment rights, etc. My point was that because you're not a fanatic for either side you're just as hated as any libertarian.

Brotherben,

Damn you. Pwned.

|6.18.09 @ 7:31AM|#

Wut?? I thought the Amendments got tossed out the window on Sept 12, 2001. What amendments???

RT
www.anonymity.tk

Niccolo|6.18.09 @ 10:33AM|#

I really hate the complaining about "over-reaching" judicial activism by conservatives. They're largely missing the point when they do this.

If conservative judges strike down the potential to decrease the power of governments to bite at the hands of the citizens and disarm them systematically for principles, then that is a sad naive thing to do on their part.


Complain about judical activism as much as you want. Fact is that the judges who want to restrict freedoms are going to use it anyways. Fight fire with fire. The constitution has been dead for a long time; sticking by it is like sticking with Latin.

|6.18.09 @ 3:53PM|#

The flood of ignorance over Gore v. Bush apparently cannot be stopped. The Constitution (have any of you actually read it?) gives state legislatures the sole right to select electors. If it goes to Congress, each state gets one vote. The clear intent is that the STATES elect the President. If the states opt to delegate the power to the voters (as all have), that's their right. If they opt to split their electors proportionally, as some have, that, too, is their right. But the STATES elect the President by choosing electors. There is NO individual right, under the Constitution, to vote for President. Presumably, some state might decide to choose electors some other way. THAT would make a nice Constitutional brouhaha. The SCOTUS decision was based in part on the fact that prolonging the recount would interfere with Florida's right to select electors by the deadline set in Federal law. Oh, also, Florida could not have held a re-vote unless the whole country did, because the Constitution - pesky document - specifies that electors shall be chosen on the same day throughout the United States. When you vote in California or Rhode Island, you are voting solely to say how California or Rhode Island casts its electoral votes. You have nothing whatsoever to say about how Florida or Utah casts its votes.