Quick civics lesson: the U.S. Bill of Rights was originally meant to only apply to the federal government. It only started applying to state action when the U.S. Supreme Court started selectively incorporating it thru the due process clause of the 14th Amendment. (I know we have alot of smart people on these boards who probably already knew that. But I thought I would include it just in case .)
Now my question: The U.S. Supreme Ct. has already said it favors the NRA’s interpretation of the 2nd Amendment. Will it also incorporate the 2nd Amendment to state action thru the 14th Amendment? It is interesting if it does, because to some this might be viewed as a form of rightwing judicial activism. (It certainly would seem that way to me in any event.)
And hey, I’m not perfect. So if I made a mistake in my legal assessment of the situation, feel free to correct me. (I am pretty sure, though, the Supreme Ct. would have to use the 14th Amend. to apply to the states.)
If Incorporation is considered right-wing judicial activism now, I have never been prouder to identify with the right wing, tenuous though that association may be.
Individual rights are exactly that, individual rights. It’s a shame that we have had to go through 150 years of sophistry to get to that point.
By the way, SCOTUS did not agree with the NRA’s interpretation of the 2nd Amendment. They asserted an individual right, with restrictions. While the NRA does advocate a certain amount of restriction (believe it or not) such an open-ended opinion from SCOTUS did little to identify what those restrictions might be, which is why those of us that are pro-rights are not entirely comforted by the decision.
It was a big win, of that there is no question. But the matter is hardly settled. That will come through years and years of litigation, all of which will be targeted to define exactly what those restriction alluded to will be.
While I don’t see anyway the Second won’t be incorporated, Bricker, using your logic one could ask on what basis do we accept that the right to a public trial in the fifth has been incorporated, but the right to a Grand Jury hasn’t?
There is the problem that two previous Supreme Court rulings, Presser v. Illinois and United States v Cruikshank, explicitly stated that the Second Amendment does not apply to the states. Given the history of the cases, there’s arguably some wiggle room: Cruikshank is legally problematic and has been partially overturned already. And Presser denied a boundless libertarian right to keep and bear arms, while rejecting the assertion that the states can flatly ban all private gun ownership. But it would take a gun-friendly court willing to overlook the apparent Stare Decisis
Both of those cases predate incorporation doctrine, and so are no obstacle to incorporating the Second Amendment now. Furthermore, the finding in Cruikshank that the Second Amendment applies only against the federal government is simply one of fact, and it is true of the other amendments in the Bill of Rights as well. Incorporation does not hold an amendment to apply to the states, but rather incorporates the right it protects into the meaning of “liberty” in the Fourteenth Amendment. For example, the First Amendment did not apply to the states, and it still does not; but the rights of free speech, religion, peaceable assembly, etc., are held to be part of the liberty that the Fourteenth Amendment bars the states from violating.
I remember we had a huge argument about the semantics of incorporation in a previous thread, and I readily admit that I learned a thing or two.
Or the fact that I can’t demand a state jury trial in a civil matter when the value of the dispute exceeds $20 (7th amendment)
The whole incorporation doctrine was invented out of whole cloth, but even Scalia now admits that it has enough staying power that he would not want to overturn it…
I would say rather that it was necessitated by the Fourteenth Amendment. Prohibiting the violation of individual liberty by the states requires some operating definition of what “liberty” is, and it seems natural that the Bill of Rights should be the foundation of such a definition.
So the case has to be made that the Second Amendment (or any of the Bill of Rights for that matter) is a statement of fundamental liberty and not merely a technical enumeration of the boundaries of federal/state authority. Gosh, that sounds like… natural rights.
The recent court ruling that people have an innate right of self-defense sounds like a good starting point.
My guess would be that because the functional aspect of a grand jury is preserved in all states – that is, before prosecution the state must show probable cause to a neutral, detached magistrate – that there’s no real sense that the specifics of the grand jury are necessary.
But you’re right – consistency suggests that this, too, be a state requirement, and I don’t have a problem with that.
Though I think we have somewhat different judicial philosophies, I think we would probably come to the same point - if there is to be incorporation, they should have just gone straight to total incorporation.
That’s what I think the 14th Amendment was intended to do (in part at least).
Not incorporating the second would be gobsmacking. I will lose a lot of respect for certain of the liberal judges if they hold it not incorporated without some very good analysis as to why it is different.
I knew I’d talked about this before, so a search turned up a post I’d made years ago (2003, to be precise). Lemme quote myself, omitting some remarks relevant only to that older discussion:
So, any idea when they’re going to incorporate the Third Amendment? I’ve been housing these Navy guys for weeks, and it’s getting old fast!
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