Does Justice Scalia Think the Second Amendment Applies Only to the Federal Government?

The Wall Street Journal Law Blog has an interesting, if somewhat imprecise post devoted to whether or not Justice Antonin Scalia will “flip flop” on the Second Amendment when the Supreme Court hears the gun rights case McDonald v. Chicago next month. The controversy centers on an article by Jess Bravin, the Journal’s Supreme Court correspondent, that features the following paragraphs:

In a 1997 book, "A Matter of Interpretation," Justice Scalia wrote that he viewed "the Second Amendment as a guarantee that the federal government would not interfere with the right of the people to keep and bear arms."

Yet, this next passage gives court watchers some pause. "Of course," Justice Scalia continued, "properly understood, it is no limitation upon arms control by the states."

The issue facing the Court in the Chicago gun case, however, is not simply what the Second Amendment means, but “Whether the Second Amendment right to keep and bear arms is incorporated as against the States by the Fourteenth Amendment’s Privileges or Immunities or Due Process Clauses.” So what actually matters is Scalia’s view of incorporation under the 14th Amendment. That’s where things get interesting. As the legal scholars Ilya Shapiro and Josh Blackman note in their superb article “Keeping Pandora’s Box Sealed: Privileges or Immunities, The Constitution in 2020, and Properly Extending the Right to Keep and Bear Arms to the States,” Scalia has yet to vote in favor of incorporating a right against the states via the 14th Amendment’s Due Process Clause. In fact, he’s been a sharp and persistent critic of the Court’s incorporation jurisprudence (so have many other conservative legal theorists and activists).

But does that mean Scalia will have to “flip-flop” in order to apply the Second Amendment to the states? Not if he follows the text and history of the Privileges or Immunities Clause. Although it was notoriously gutted by the Court in the 1873 Slaughterhouse Cases, the Privileges or Immunities Clause was specifically designed to protect individual rights from abusive state and local governments—including the right of armed self-defense.

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  • Mad Max||

    Bear in mind that Scalia describes himself as a 'faint-hearted originalist' when it comes to the Constitution, so he will sometimes apply established Supreme Court precedent even if he thinks it violates the original understanding.

    There are lots of 'incorporation' precedents which have applied much of the first eight amendments to the states. Scalia may feel that these precedents point in the direction of full incorporation, and that the original intent of the Fourteenth Amendment, as he interprets it, takes a back seat to the incorporationist precedents.

  • Pendulum||

    A 'faint hearted originalist' - a good one, that! Read: a 'sometimes-originalist'; thus a 'when-I-want-to-be originalist'.

    Thus ultimately, much more structurally damaging and ad-hoc than someone who frankly admits that they aren't an originalist at all.

  • Old Mexican||

    Actually, Justice Scalia is incorrect. The 9th Amendmnent makes it clear that the rights enumerated in the Bill of Rights exist for the People:

    "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."

    This means: Just because some rights are enumerated does not mean the people don't have OTHER rights that belong to them"

    ERGO, the right to bear arms belong to The People. The States cannot touch them.

  • Old Mexican||

    Sorry: cannot touch IT.

  • Mad Max||

    cannot touch *this.*

    Stop - flintlock time!

  • ||

    Max, I have to give you credit. Your puns are so bad that even the Greeks would give you props.

  • Mad Max||

    Every time you see me
    My puns keep getting worse
    But I will never stop
    'Till I've been put in a hearse

  • ArkhamOutpatient||

    As bad as your puns are
    They're better than your verse

  • Mad Max||

    I never will get better
    'Cause I don't want to rehearse.

  • Mad Max||

    I don't want to be your nanny
    I don't want to be your nurse
    I want to write bad poetry
    I guess that's just my curse.

  • juris imprudent||

    It could be worse.

  • ph||

    that clause does not mean what you think it does, OM. It refers to unenumerated rights retained by the people, but it has nothing to do with what states can do. It just means that the federal government may not infringe the unenumerated rights just because they are not listed in the BOR.

  • Michael Ejercito||

    It just means that the federal government may not infringe the unenumerated rights just because they are not listed in the BOR.


    this is true.

    Of course, the argument is then whether or not a particular right was retained at the time of the Ninth's ratification.

  • ||

    This means: Just because some rights are enumerated does not mean the people don't have OTHER rights that belong to them"

    Yes, but the Right to Bear Arms is specifically enumerated, so what does the 9th have to do with it?

  • Marc||

    I was going to say that, but then I got distracted.

  • Old Mexican||

    John Thacker,

    Yes, but the Right to Bear Arms is specifically enumerated, so what does the 9th have to do with it?

    John, the 9th Amendment tacitly recognizes that rights come from the People. If we are not to construe from the fact that certain rights were enumerated to mean that there aren't any others, then it follows those enumerated rights ALSO belong to the People. They were enumerated in order to reiterate their importance vis a vis the limited powers granted to the Federal Government, but it does not mean that ONLY the Federal Government recognizes them as being "Rights" - they are retained BY THE PEOPLE.

    So if the 2nd Amendment recognizes the right to bear arms as a right retained by the People, and the 9th implies this, then you can make the case for the right to bear arms from this fact, no need to rely entirely on the Privileges and Immunities clause of the 14th Amendment.

  • Old Mexican||

    In other words:

    The 9th Amendment is establishing that "Rights" do not exist by virtue of being enumerated. Ergo, the right to bear arms exists whether it is enumerated or not, which is what the 9th recognizes. That's the key point.

    I am saying this because many people are prone to think that people in the US have a right to bear arms because of the 2nd Amendment, but those people have it exactly backwards: We have a right to bear arms regardless; it so happens that this right is specifically mentioned in the Constitution.

  • Old Mexican||

    Sorry, that's: The 9th Amendment is establishing that "Rights" exist only by virtue of being enumerated.

    Otherwise it is not clear.

  • Old Mexican||

    Or not... Jeez!

    The 9th Amendment is establishing that rights do not exist MERELY by virtue of being enumerated.

    I have to use the PREVIEW button more often!

  • MNG||

    Lord this is getting better and better!

    "The 9th Amendment is establishing that "Rights" do not exist by virtue of being enumerated. Ergo, the right to bear arms exists whether it is enumerated or not, which is what the 9th recognizes."

    Ergo indeed!

    The 9th Amendment says that there are rights that have not been enumerated which the people retain. It does not say what these rights are or give any guidance on that point (one big reason why it's not taken seriously by SCOTUS, it's an invitation to limitless arbitrary judicial activism if taken that way), but one thing is clear: the rights mentioned by the 9th are NOT the enumerated ones preceding it (as the text expressly distinguishes them)!

    Of course OM's "main" (and shifting) argument, is just flat wrong. There is no "tacit" statement that the enumerated rights are in any way like whatever these "unenumerated rights" are: in fact the text simply says that the enumeration of some rights in the Constitution shall not be construed to deny/disparage other rights retained by the people. Those "other" rights are certainly retained by "the people;" but it certainly doesn't follow (Ergo!) that therefore the enumerated ones must be from the people.

    Ergo, vis-a-vis, concordantly!

  • ||

    John, the 9th Amendment tacitly recognizes that rights come from the People. If we are not to construe from the fact that certain rights were enumerated to mean that there aren't any others, then it follows those enumerated rights ALSO belong to the People.

    So? The 2nd Amendment in its text already says that the right to bear arms is a "right of the people." It's entirely unnecessary to bring the 9th Amendment into it, if you want to make a textual argument over the meaning of "right of the people."

    I can understand saying that the 2nd Amendment, which mentions a "right of the people," already applied to the states, unlike the 1st Amendment, which specifically mentions "Congress shall make no law." Just don't see why you need to bring the 9th in.

    Unless you're insisting that there's some incredible difference between a "right of the people" and a "right retained by the people."

  • MNG||

    JT
    But the 1st Amendment, which expressly mentions "Congress" also grants rights to the "people" (right to assemble and petition). Obviously the 1st was not meant to be applied to the states, yet it uses "the people" language, so the mere fact of the lack of direct "Congress" language and the presence of "the people" language in the 2nd is not conclusive of it applying against the states.

  • juris imprudent||

    ARGH! The 1st does NOT "grant a right", it recognizes a right - a line the govt may not cross.

  • ||

    John, the 9th Amendment tacitly recognizes that rights come from the People. If we are not to construe from the fact that certain rights were enumerated to mean that there aren't any others, then it follows those enumerated rights ALSO belong to the People.

    So? The 2nd Amendment in its text already says that the right to bear arms is a "right of the people." It's entirely unnecessary to bring the 9th Amendment into it, if you want to make a textual argument over the meaning of "right of the people."

    I can understand saying that the 2nd Amendment, which mentions a "right of the people," already applied to the states, unlike the 1st Amendment, which specifically mentions "Congress shall make no law." Just don't see why you need to bring the 9th in.

  • Old Mexican||

    Re: John Tackler,

    So? The 2nd Amendment in its text already says that the right to bear arms is a "right of the people."

    The text doesn't really say that, it is implied, just as it is implied by the 9th Amendment, that rights come from the people.

    As you may have read from MNG posts, he makes the same mistake other people do by thinking that the 2nd amendment grants the right to bear arms. The Constitution does not grant rights to the People, it LIMITS the responsibilities of the Federal Government. That point is stressed by the 9th Amendment.

  • MNG||

    Laughable, truly hilarious. Whatever rights the 9th refers to the rights in 1-8 are clearly not them, hence the term "other" moron.

  • Old Mexican||

    Re: MNG,

    The 9th Amendment tacitly recognizes the enumerated rights as those retained by the People. That's the point.

  • Old Mexican||

    So that you don't go ahead and misconstrue the 2nd Amendment as saying that because IT EXISTS, we have a right to bear arms. NOT SO: We have the right regardless of the 2nd Amendment, as the 9th Amendment implies - OUR rights emanate from US, not from the government.

    That is what I am saying. Next time, ask me to explain myself, instead of calling me names, dumbass.

  • ||

    The right of the people to bear arms, in militia context, was the right of the people as a body to provide militia service. A well regulated militia included that body of the people capable of bearing arms -- that is, that body of the people capable of providing militia service. Heller got the Second Amendment meaning of "bear arms" wrong.

  • Michael S. Langston||

    & what was a well regulated militia other than any able bodied male with a gun back then?

  • ||

    States in the 18th century had well regulated militia laws hat set physical and age requrements for militia service, along with rules and regulations for militia organization and conduct.

  • ||

    I wouldn't be terribly surprised to see a split decision, with Scalia and/or Thomas authoring a PoI opinion, and Roberts, Alito, and Kennedy (plus perhaps one or two lefties who value incorporation over re-hashing Heller) signing on to due process. My understanding is that a majority can still strike down a law as unconstituional even if the majority disagrees on how that result is reached.

  • Raven||

    Your understanding is correct. The decision would be (just guessing) 5-4 on the outcome with a plurality on the reasoning behind the outcome.

  • ||

    Scalia said in Heller that states can regulate. Why would he say otherwise now?

  • ||

    No, you have the implications of what he said almost entirely backwards. What Justice Scalia said in Heller specifically set the ground for the Second Amendment to be applied against the states.

    He said that the question was not raised in Heller, and so the Court did not address it. He furthermore went on to specifically note that Cruikshank and Presser, which declined to apply the Second Amendment to the states, entirely predated the incorporation doctrine. Footnote 23 of the opinion (page 51):

    "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."

    From the footnote, it seems clear that Justice Scalia, while no fan of incorporation, does feel that consistency means that the Second Amendment ought to be treated the same as the others.

  • ||

    Pendulum beat me to it. Scalia said,

    "...nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms".

    Do you think he's talking about only federal laws?

  • ||

    Do you think he's talking about only federal laws?

    Do you think he's talking about only state laws? That dicta has nothing to do with this case, or with incorporation. The law in the case McDonald here is similar to that in Heller.

    I'm sorry, I didn't realize that you were entirely changing the subject, and that in your comment "Why would he say otherwise now?" the "now" doesn't refer to the case McDonald before the Court and the subject of the post.

  • ||

    no, Thomas will definitely say, If the amendments were to only apply to the federal government, they would have said so (as in the first amendment) and there would be no need for the 10th amendment.

    Does Thomas believe in incorporation principle through the 14th amendment? I don't think there's anything in the 14th amendment that mentions incorporation.

    Finally, the 14th amendment has an odious side, it actually restricts free speech and political debate (section iv, sentence 1). Odious.

  • ph||

    you're misunderstanding the 10A. it deals with powers - what is not delegated to the federal gov't is reserved to the states or people. It's not about whether the limits imposed on the fed gov't apply to the states.

  • ||

    "nor prohibited by it to the states..." I do realize that there are sections, like AIS10 that do have explicit prohibitions.

  • ||

    Does Thomas believe in incorporation principle through the 14th amendment? I don't think there's anything in the 14th amendment that mentions incorporation.

    Justice Thomas has spoken and written favorably about incorporation through the Privileges or Immunities Clause.

  • ||

    Specifically, in his dissent in Saenz v. Roe.

  • ||

    I should note that the dissent is another Justice Thomas special, where he first laments that the P or I Clause has been sapped of its original meaning, and then goes on to attack the majority for finding new rights through P or I at the same time as it refuses to find old right through it.

  • ||

    Thanks for ruining my fucking month, Damon.

    What will be really interesting will be watching the liberal justices, who I am sure are on record as supporting incorporation, twisting themselves into knots carving out an exception for the 2A.

  • ||

    I don't think there's anything in the 14th amendment that mentions incorporation.

    Well, the Due Process Clause is a pretty weak reed for incorporation (and thus, predictably, is the one used by SCOTUS).

    However, its pretty hard to read the Privileges and Immunities Clause any other way:

    No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States

    If the Bill of Rights doesn't constitute at least a partial list of said privileges and immunities, what would they be?

  • ||

    I suppose, but it seems silly to make incorporation necessary for any of the amendments except for the first, which contains the "congress shall make no law..." preamble.

  • MNG||

    Look, the right in the Second is clearly not a right to keep arms for individual self defense or all that "well-regulated milita being necessary to the security of a free state" language is absurd. The Founders were'nt libertarians: deal with it.

  • ||

    That argument, based on a poor understanding of not only history but also grammar, has been dealt with at length, not least in the Heller opinion itself. Deal with it.

  • MNG||

    JT
    So the prefatory clause has no meaning at all? Certainly it states WHY the people's right to bear arms should not be infringed.

  • Colonel_Angus||

    It states the collectivist reason why the individual right should not be infringed.

  • ||

    ""Certainly it states WHY the people's right to bear arms should not be infringed.""

    So you admit that it is the people's right, and should not be infringed.

    Your arguement is silly. It's like saying the reason I bought a car was to drive to work, therefore I can't use it for anything else.

  • MNG||

    Yes, I think it's the people's right, the right to keep and bear arms for militia service because "a well regulated militia" is "necessary to the security of a free state." That's what it says; it doesn't say jack about any right to armed sel defense.

  • ||

    It doesn't have to. The reason doesn't restrict use.

  • MNG||

    But there is absolutely no reason at all to derive a "right to armed self defense" from the text. None. There is stuff about the people keeping and bearing arms, and stuff about militias being essential for securing a free state. Therefore it seems increasingly obvious to me that the Amendment grants to the people the right to keep and bear arms for milita service (like they do in Switzerland as I understand). The reason guides the scope of the right, that's just the most natural way to understand it. The libertarian reading makes the whole prefatory clause rather absurd...

    Look, I'm against gun control. I own guns, was raised with owning them. I think liberals are quite irrational on guns (they seem to think they are just going to start going off on their own killing everyone). But I think you have to work with the Constitution we have. I think we SHOULD have a right to armed self defense; I just don't think the text of the 2nd can be read to give us that right...

  • ||

    Oh, I don't disagree that the reason the founding fathers used was not self defense. But that doesn't restrict it for other uses, such as self-defense.

    But if you want to take that hardline approach to the reasoning clause, you should consider that the reason for the militia is a standing army was considered a no-no. The Constitution does not authorize an army, only a navy, and there is no amemdment allowing for one, therefore the U.S. Army is unconstitutional. The defense of the nation depends on "the people", not a standing army.

  • MNG||

    Dude, Art. I gives Congress the express authority to " raise and support Armies" and to "make Rules for the Government and Regulation of the land and naval Forces." Btw-this is clearly something more than just calling out the militia as it also gives Congress authority to "provide for calling forth the Militia to execute the Laws of the Union" and to " provide for organizing, arming, and disciplining the Militia."

  • Old Mexican||

    MNG,

    I just don't think the text of the 2nd can be read to give us that right...

    You make exactly the mistake I mentioned above: You construe the Amendment to mean that it is granting a right, when the Amendment does no such thing - the right already exists, does not matter for what. The preamble of the amendment explains the reason for LIMITING the government from ever infringing on that right: Because people need to practice in order to defend the country. The preamble could have said we need to bear arms in order to practice how to shoot flying ducks - who cares? The right ALREADY EXISTS!

  • ||

    ""Because people need to practice in order to defend the country.""

    Ask a pro-gun control person which they would prefer to defend them, a soldier that's been shooting for 8 years or 3 months. It will be the first every time. They don't realize the implications of their answer.

  • MNG||

    "The preamble of the amendment explains the reason for LIMITING the government from ever infringing on that right: Because people need to practice in order to defend the country." Quite a stretch. It says that a well regulated militia is essential to the security of a free state (one has to laugh at libertarians fawning over an amendment which has as it's expressly stated aim not the rights of the individual but the security of the State), so the people's right to keep/bear arms should not be infringed. But since the REASON why the people's right to keep/bear arms is to ensure a well regulated (meaning well trained not well practiced, and only a doofus would think memebers of militias having guns for hunting and self defense is the best way to "regulate" your militia) the SCOPe of the right should be guided by that purpose. So I grant that it may give a right to the people to keep and bear arms, but it is a right granted BECAUSE and to the extent it furthers the maintaining of well regulated militias. Now, nations which have such well regulated citizen militias, like Switzerland, have gun laws very different than that of a nation which would have this libertarian "right to armed self-defense" that the Court conjures up like Mickey in the Sorceror's Apprentice. And that's my point. clearly the right granted in the 2nd is a militia related right, otherwise half of the text is superflous nonsense. They used the word the people so I heartily agree it's a personal right, but a personal right to keep/bear arms in order to maintian state citizen militias, not for personal armed self defense.

    Now, as a political matter I am against gun control. Everyone, everywhere should vote most gun control laws down and toss their proponents out of office. I'd even happily support ratifying a federal or state amendments granting us the right to armed self defense (and to hunt btw, several states have done this). My point is the libertarian reading of the 2nd to give us this right seems untenable.

  • ||

    Since you threw Switzerland in there, I guess you knew that only 5% of their army are professionals.

    http://en.wikipedia.org/wiki/Military_of_Switzerland

  • MNG||

    As I said above Switzerland recognizes citizen militias constituted of arming the people. But notice how different their gun laws are from what would be the case for a nation with an armed right of self-defense.

  • juris imprudent||

    MNG, your problem here is that you are ignoring the Common Law of that time, and what were considered rights. Blackstone was not an unfamiliar source to the Founders. The final language of the 2nd, like some of the other Amendments was whittled down from the original drafts. There are several underlying concepts built into the 2nd: civilian authority over the military, citizenry over professional soldiers, defense of self and country.

  • ||

    Look, the right in the Second is clearly not a right to keep arms for individual self defense or all that "well-regulated milita being necessary to the security of a free state" language is absurd.

    This argument of yours is absurd as claiming that government powers under the Constitution are void if the Union isn't "more perfect," Justice isn't established, the common defense isn't provided for, the general Welfare isn't promoted, and the Blessings of Liberty aren't secured to ourselves and our Posterity." Preambles are preambles.

  • Jersey Patriot||

    True enough. It's written so that the military power of the US rests in the hands of the people instead of a standing army. The 2A may not cover handguns. M-16s and bazookas, yes; concealed carry, possibly not.

  • Old Mexican||

    Re: MNG,

    Look, the right in the Second is clearly not a right to keep arms for individual self defense or all that "well-regulated milita being necessary to the security of a free state" language is absurd.

    You are misrepresenting the preamble of the Amendment.

    What it states is: "BECAUSE well drilled militias are required for the defense of the land, the right to bear arms will never be infringed."

    They could have said for all it mattered "Because you need to practice a lot to shoot down ducks, the right to bear arms will never be infringed."

    So WHO CARES what the preamble says?

    By the way, there is NO such thing as "Collective Rights" if that's what you're driving at. Only individual persons have rights.

  • MNG||

    If the Amendment said "because hunting is a noble pursuit which creates better citizens which are essential to a free state, the right of the people to keep and bear arms shall not be infringed" then it would be clear that the people to keep and bear arms for hunting purposes could not be infringed, but non-hunting keeping and bearing could be. Otherwise the prefatory language is superflous. It must mean something or it wouldn't be there.

    And yes, I know you have goofy ideas about natural rights and invididual vs. collective rights, full of question begging and ignorance, but that's seriously a discussion for another day. Your constitutional ignorance alone provides plenty of fodder for this weekend's discussion.

  • MNG||

    Scalia's "right to bear arms as part of Blackstone's right of self-defense" cannot be sensibly derived from the text of the 2nd, but given the right has now been declared it would be much more absurd to not incorporate it. What, there is a natural right for persons to defend themselves which cannot be infringed by the feds but states can?

  • Pendulum||

    Heller is a largely useless, gutless, unprincipled (even if you agree with the holding) opinion that will amount to a box of wind barring a shocking expansion, and probably will remain so even if the Court expands Heller to states and cities in McDonald.

    Look at this eviscerating language from Scalia's majority opinion:

    "...nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms".

    Now, we see the future. Governments will continue to comprehensively regulate guns with "who-restrictions", "where-restrictions", and "for what-restrictions", among others.

    The language about felons will easily be used to justify disenfranchising first violent misdemeanants (already in progress), then misdemeanants, then those who were arrested but not convicted (as long as an authority deems that the 'preponderance of evidence' shows that he did it).

    "Sensitive places" will be subjected to rational basis scrutiny (i.e. no meaningful scrutiny), which will then include anywhere within 2000 feet of a school, church, park, fair, or public gathering place.

    "For what" restrictions are fully in effect already, given that Heller only recognizes a right to self-defense in the home. Heller provides no right for self-defense in a car, self-defense on the street, hunting, general 'militia' protection against the government.

    As Scalia himself said: "We are aware of the problem of handgun violence in this country, and we take seriously the concerns raised by the many amici who believe that prohibition of handgun ownership is a solution. The Constitution leaves the District of Columbia a variety of tools for combating that problem."

    I don't for a second buy that this is language Scalia put in to pacify Kennedy. It's in because Scalia believes it and wanted it in.

  • ||

    This is a silly question, but:

    What is the point of a federal Constitution which can be rendered completely irrelevant by the action of a state?

    "Illogical" doesn't even come close to describing it. It hardly seems conceivable that the states can legislate away the protections of the federal Constitution.

  • microwave oven||

    Maybe the point of the federal constitution has to do with the federal government. What's the point of state constitutions if they were all rendered obsolete by the federal constitution?

  • ||

    If that was true, then no right could belong to the people since the state could usurp it.

  • microwave oven||

    No, like I mentioned the states have their own constitutions. Even their own set of explicitly stated rights. Why assume that the state constitution is some how less real than the federal one? A constitution is a constitution.

  • ||

    Ok, let me rephrase.

    The federal Constitution could not reserve any rights to the people.

  • microwave oven||

    Why couldn't it?

  • ||

    "Maybe the point of the federal constitution has to do with the federal government. What's the point of state constitutions if they were all rendered obsolete by the federal constitution?"

    So if the state constitution forbid the activity. The federal Constituion could not usurp the state. According to your argument.

    Reserving a right to the people, instead of the state, which it sometimes does, the feds prevent the states from usurping your right. In theory.

  • MNG||

    That's untenable: the 1st Amendment reserves rights to "the people" but it clearly was aimed only at the federal government ("Congress shall make no law.."). You can't get incorporation through "the people" language.

    You can get it the way liberals have got it on the SCOTUS: through the 14th Amendment (because it clearly applies to States).

    BTW-while I think the 2nd clearly was not meant to apply to the states, I do think there is a great deal of evidence that the 14th was intended to apply the 2nd to the States (probably under Privilegs and Immunities). Since it's the 14th at issue viola, you can get incorporation. But without the 14th it's all goofiness imo.

  • microwave oven||

    Agree with what you say. If the constitution worked as people are saying it does as applying to the states, how would it have ever been passed? But yes, the 14th incorporating stuff is a strong argument.

  • RM||

    BECAUSE THE STATE COULD LEGISLATE IT AWAY, AS LONG AS IT'S NOT IN IT'S OWN CONSTITUTION.

  • ||

    If a state can pass a law rendering the Second Amendment void, why not the Fifth?

  • Michael Ejercito||

    Because the Fifth was incorporated.

  • ||

    You can't pass a law to make the amendment void, that would require another amendment to repeal it.

    Legislate to near death may be a different story.

  • ||

    Is there, or is there not, a hierarchy of authority between the federal government and the individual states?

    However much the waters have been muddied over time, a right protected by the Constitution of the United States ought not to be revocable by a state legislature. That would be absurd.

  • ||

    ""a right protected by the Constitution of the United States ought not to be revocable by a state legislature. That would be absurd.""

    I agree, if the state can usurp it, then it can't possible be protected by the U.S. Constitution.

  • ||

    However much the waters have been muddied over time, a right protected by the Constitution of the United States ought not to be revocable by a state legislature. That would be absurd.

    Absurd or not, it was clearly the case at the time the Constitution was adopted and for many years. The First Amendment specifically very clearly only restricted Congress and the Federal Government, as seen dramatically in how states had established churches for years after the Constitution was ratified.

  • ||

    For those who know the jurisprudence and issues better, is there any line of argument that, instead of neutralizing or apologizing for the 2nd Amendment PREAMBLE , tries to RECLAIM IT. I can think of one way to interpret it -- has it been argued?

    Standing to the States. Why the militia clause? Not to limit the rights "of the people" because the Amendment unambiguously says that's an uninfrigeable people's right but rather it is expansive language to empower the States to separately assert the popular right. IOW, the reason for mentioning the free State and well-regulated militia is not to create a range for State restrictions on what is clearly a peoples right, but to provide the extent STANDING may be asserted by the States to separately (in addition to the individuals affected by an infringment) advance, challenge, assert or litigate against the feds (or anyone else) when any law or action by them interferes with their State citizens' popular rights to keep or bear arms.

    States must not interfere with the people's rights period. The language creates no State collective right to limit a clear uninfringeable peoples right. Rather the premable is an empowerment, if not obligation, on States, at least to the extent there is an interference with a well-regulated militia, to independently support, defend or assert their citizens' arms rights against the federal government.

    Why not claim back that preamble, instead of just explaining it away as superfluous?

    Has this been advanced - that the militia language merely adds a constitutional basis for States to have standing to separately defend and assert the uninfringeable popular right of their citizens?

  • Josh Blackman||

    Damon, thanks for the link to Pandora's Box. I wrote a follow-up piece here http://joshblackman.com/blog/?p=4169

  • JimBob||

    I'm actually reading through "A Matter of Interpretation" right now.

    One of the points that Scalia makes in the book is that, while he disagrees with some precedents, he does feel duty-bound by stare decisis to uphold them. He even cites a few cases where he's done so.

    So if there is a clear precedent of incorporating individual rights specifically delineated within the Constitution (which is how Scalia defined the right to keep and bear arms in the majority opinion for Heller), I imagine that he would argue to incorporate it.

    Now, if the issue of incorporation in general came up to SCOTUS again, I imagine that Scalia would argue for an interpretation which is wildly different from current 14A doctrine. But disagreement with a precedent does not imply a refusal to apply it.

  • ||

    The Second Amendment wasn't written about an individual right to self-defensse or hunting. The amendment is completely silent on those matters.

    Rather, the amendment was written to preserve the continued right of the American people to a well reglated state militia defense. Such a defense was manned by that body of the people capable of bearing arms, i.e.,capable of militia service, in the idiom of the time.

    The Supreme Court occasionally makes mistakes. The Heller decision was one of them.

  • ||

    What it states is: "BECAUSE well drilled militias are required for the defense of the land, the right to bear arms will never be infringed."

    that is as clear an interpretation of the 2nd ammendment as i have seen. it amazes me that some can interpret that to mean that you can have a well trained militia, but they can only practice and train as a militia.

  • ||

    In the 18th century, a well regulated militia would of course have been well drilled as a part of being well regulated. But the term "well-regulated militia" was generally a reference to regulation by militia law.

    There was quite a lot of regulation by law in the 18th century. For instance, Pennsylvania's militia act of 1777 carried the title, "An Act to regulate the militia of the Commonwealth of Pennsylvania." It was full of militia rules and regulations.

  • juris imprudent||

    But the term "well-regulated militia" was generally a reference to regulation by militia law.

    Well regulated in the parlance of that era meant well maintained, efficient, effective - not bound by lots of rules and regulations.

  • ||

    Thomas Jefferson considered the militia to be regulated by law:

    "These considerations render it important that we should at every session continue to amend the defects which from time to time show themselves in the laws for regulating the militia. until they are sufficiently perfect. (Thomas Jefferson, First Annual Messzge,
    Dec. 8, 1801)

  • ||

    General Washington believed a well regulated militia was formed through militia law:

    “But your first object should be a well regulated Militia Law…. What I would wish to have particularly insisted upon, in the New Law, should be, that every Man, capable of bearing arms, should be obliged to turn out, and not buy off his Service by a trifling fine.” ---George Washington to Governor William Livingston, New Jersey, January 24, 1777.

  • The Art-P.O.G.||

    I just checked in to say that Scalia looks like Robert Z'Dar.

  • ||

    God, Guns, and Guts made America free, at any cost keep all three.

    In 1960 some 15 yrs. after WWII A Japanese Admiral from WWII was sitting around a reunion table with his now American Admiral friends, on board some American ship I can't recalled the name. During the conversation An American Admiral asked the Japanese Admiral the question why the Japanese did not attack the American mainland during the Pearl Habor attack? The Japanese Admiral answered we new about the Americans being well trained with the use of military rifles/firearms and that most households have firearms at the ready. We were not so foolish to attack the mainland and be slaughered.
    I rest my case for the necessity of arms in America. The day we American's give up our right to private arms is the beginning of the end of America.
    Vietnam Vet 70-72

  • ||

    It dun't ah matter whut Scalia sezs ur duz, causin daah ain't noe way noe howz dem SOB'EEz cain git mee gunz ahwaay frum da grippe of dis FREEE man, urh ahnee uthurz wit libertee on dah minz...git it Mao Boyz..hee hoooh, heee hooo........Marxism is the opiate of the ass's.....Heeeee Hooooooooooozie

  • ||

    The 14th Amendment is and never was needed to "incorporate" the BOR against the individual states. The original text of the US Constitution contained language "incorporating" it entirely against the states. Simply read Article IV, Sections 1 and 2 and Section VI. You know phrases like, "The citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States." And, "This Constitution,..., shall be the supreme law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the contrary notwithstanding." And, "... all executive and judicial Officers, both of the United States and of the several States shall be bound by Oath or Affirmation, to support this Constitution; ...."

    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."

    And the Justice system has the power to punish citizens for "contempt of court"? My question is, "Just how the hell can any Freedom-loving American have anything but contempt for our courts these days."

  • ||

    The Second Amendment was written to preserve the right of the American people to provide themselves with state militia service, without that right being infringed by the new federal government. It's hard to see how that right can honestly be "incorporated" AGAINST the states.

  • ||

    man, what a joke. you people follow these idiots like freakin cattle behind a hay truck. what giv es these people the right to twist and change the constitution to suit their needs? what gives them the right to make decisions that effect you? fact is, there just people and are no better than me or you. you people better wake up. a civil wars comming rght here in the good olde USA,and i aint talk tea party!....what are you people gonna do when you get up one morning, turn on the tv or go out and get the paper and find that the people are fed up to the point that they are marching armed against the US government? its comming and its gonna happen, id bet money on it, and it is gonna happen within obamas administration, id bet on it.

  • ||

    See how, in military context, the Continental Congress applied the phrase "bear arms" to mean "provide armed military service," not simply "carry arms." (A "robust" 15-year old, who obviously would be able to "carry" a gun instead of a drum, was not considered able to "bear" arms):

    "But if there should be among such rejected drafts or recruits, youths of above fifteen years of age, healthy, robust, and likely to make able bodied soldiers when of sufficient age, the Officers may agree to take such of them as will enlist during the war as part of the quota of the State, and they may, and shall be marched to the army, and employed until able to bear arms, as drummers, fifers and officers servants..." (A report from the Board of War, Journals of the Continental Congress vol. 16, p. 249, March 11, 1780)

    In the militia context of the Second Amendment, "bear arms" means "provide armed milita service."

  • JimInMT||

    Everyone seems unnecessarily distracted by 14th amendment chatter. It addressed newly emancipated slaves and others of similar conditions of servitude (not prisoners). Since all those souls are now dead, the 14-A would seem to no longer have meaning or be needed.
    And, since the Privileges-Immunities part was and still is in the main body of the Constitution, the 14th is merely redundant.
    Those who keep focusing on the 14th miss the point: the supremacy clause included the "enumerated" rights, as well as limitations on Congress and the states, a clearly Constitutional prohibition against allowing states or Congress to alter or abolish both enumerated rights, and through the 9th amendment, others retained by the people.
    Arguments about the 14th amendment obfuscate, whether or not intended, and are moot if one looks closely at "original intent". Remember, 14-A was NOT passed by the "founders", and thus is of no importance to an understanding of THEIR intentions.
    Because the supreme law of the land over-rules in regards enumerated rights, the Founders had already "incorporated" the BOR to the states.

  • JimInMT||

    Most (all?) states contain right to arms provisions, some half dozen or more written virtually the same as the 2nd amendment. In fact, the several founding states' rights were used to spell out those in the Bill of Rights, and powers were retained by states in the 10th amendment. While usurpers in Washington have, for two hundred years, been whittling away at it like termites, the BOR is still intact, and NOT ONE WORD contained therein has been changed. Just needs to be applied properly by REAL constitutional scholars and lawyers, not pretenders from Kenya.

  • sathi2000||

    Love the Jess Bravin talk. Most of you tools grew up in the suburbs watching to tv. Yr country is falling to hell, because you are lazy, worthless bunch of crybabies, f&%k all of you!
    http://destinationsoftwareinc.com

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