I don’t remember if this is the correct term or not, but IIRC, there is something called the doctrine of incorporation which requires a right conferred in the Bill of Rights to be interpreted by the courts as being applicable to the states pursuant to the 14th Amendment. Did the recent Heller decision do this?
Thanks,
Rob
Short answer, we won’t know until someone brings a case involving state gun restrictions to the SC. My WAG is that the Heller decision affirms a “natural right” to self-defense. If a case came before the court where a majority of the Supremes felt that a state gun law was infringing on this natural right, they would end up holding that the 2nd was incorporated.
For the time being, the next step will be challenges to near-total handgun bans like the ones in Chicago. If any of the big cities in states without preemption choose to fight rather than allow handgun registration, and choose to invoke previous court decisions like Cruikshank and Presser (which held that the 2nd doesn’t restrict states), then we may get the answer.
No.
Since the case is a federal case, the Fourteenth Amendment was not in question.
Related Question: Does Justice Scalia’s reasoning in deciding Heller require that the right be incorporated into the meaning of “liberty” as used in the Fourteenth Amendment?
Stay tuned, hilarity ensues. 
Really? This is the first I’ve heard that the issue of self-defense was involved. My understanding was that this case was pretty much all about gun ownership.
What I’ve read of the decision sounded like Scalia was championing handguns precisely because they are the weapon of choice for personal self-defense. The provision of the DC law requiring that guns be kept in a non-fireable state was rejected precisely because it made the guns useless for home defense in an emergency. That was the impression I got anyway. Anyone who has analyzed the decision more thoroughly is welcome to comment.
Anybody got a link to the opinion?
You just knew that I would, didn’t you?
I always found it hilarious that, apparently, the Founders knew precisely how to word their sentiments in a very logical and lucid fashion in every instance except a simple two-clause sentence.
They didn’t. What is “cruel and unusual”? What is “excessive bail”? What is “due process”? What is “just compensation”?
The only way you can know is to look at what they wrote incidental to what is in the Constitution. Which is what Scalia did, consistent with his judicial philosophy.
Yes, and let’s not forget that lovely phrase “interstate commerce”.
Addressing the specific question in the OP and the underlying tacit question “What the heck is the doctrine of incorporation anyway?”…
The Bill of Rights addresses itself to the federal government --most clearly shown in the opening words of the First Amendment, “Congress shal;l make no law…” It contains prohibitions barring the Feds. from depriving citizens of the freedom of the press, prosecuting illegal searches and seizures, forcing self-incrimination, setting unreasonable bail, etc.
The first section of the Fourteenth Amendment prohibits the states from abridging the rights of citizens of the United States. Does this mean the Bill of Rights, in every detail? Or something else?
Well, the courts, with admirable restraint, have decided to rule on this on a piecemeal basis – as someone alleges that certain of their rights as American citizens to have been violated by a specific state action, the courts will review that allegation and determine if indeed that state action violates that specific right, and if that right is guaranteed by the 14th Amendment. They began this process in the 1890s, and have still not considered all of the Bill of Rights.
Most of the Bill of Rights has over the years has in fact been “incorporated” into the 14th Amendment’s prohibition against state infringements of citizens’ rights. The 2nd, 3rd, and 7th Amendments have not, and a couple of minor guarantees included in the 6th.
And since Heller related to a D.C. law, it did not resolve the question of whether the 2nd Amendment is incorporated.
There’s a dirty little secret about the Constitution that judges don’t like to talk about: we’re not sure precisely what it says. I not just talking about its meaning - I’m talking about the literal text. When the Constitution was written, several copies were made (by hand obviously) and distributed for ratification by the states and record keeping. And like any hand written copy, there are not exact duplicates. And nobody has ever ruled on which copy is the official one that has the true and only text that all others are copies of.
So, for example, we’re not exactly sure if the Constitution gives Congress the power to “repel invasions” or “repeal invasions”. We’re not sure in Habeus Corpus can be suspended in “Cases of Rebellion or Invasion the public Safety may require it” or “Cases or Rebellion or Invasion the public Safety may require it”. We’re not sure if citizens are entitled to “all Privileges and Immunities of Citizens in the several States” or “all Privileges and Immunities of Citizens in several States”. We’re not sure if “no new State shall be formed or erected within the Jurisdiction of any other State” or “no new State shall be formed or erected with the Jurisdiction of any other State”. We’re not sure if “Congress shall have the power to enforce, by appropriate legislation, the provisions of this article” or if “Congress shall have power to enforce, by appropriate legislation, the provisions of this article” (the Fourteenth Amendment).
Some years ago Milton Friedman was the speaker at the banquet for the Libertarian Party’s California State convention. After the speech he was fielding questions and someone asked, “If you had the power to pass any constitutional amendment you liked, what would it be?”
He replied, “Oh, that’s easy. ‘Congress shall make no law . . .’” then made a dramatic pause. Made too long a dramatic pause because someone started clapping, then more joined in, then he got a standing ovation from about a third of the audience.
He looked startled a moment, then laughed, saying, “I guess we know who the anarchists in the audience are, huh.” then went on to complete his thought which was interfering with lawful commerce between individuals or corporations.
This is the first time I have heard of this. Fascinating.
Here’s a longer article that I cribbed most of my above examples from. Or check out Akhil Reed Amar - he’s a Constitutional scholar who’s written on this subject.
It raises an interesting point. When the Constitution was sent out to the thirteen states for ratification, they were actually being asked to ratify thirteen distinct documents. However, as far as I know nobody ever experienced ratifier’s remorse and complained “that’s not in my Constitution”.
No kidding. I think the framers’ heads would explode if they were alive to see the astonishing ways that clause has been tortured to permit truly egregious expansion of federal power. :smack: