# The Second Amendment and State Action. **URL:** \ **Category:** Great Debates\ **Created:** [August 13, 2008, 9:18pm UTC](https://boards.straightdope.com/t/the-second-amendment-and-state-action/459893 "2008-08-13T21:18:54Z")\ **Posts on this page:** 12\ **Page:** 1
**Author:** ![Jim\_B](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/jim_b/32/4338_2.png) [@Jim\_B](https://boards.straightdope.com/u/Jim_B)\ **Post date:** [August 13, 2008, 9:18pm UTC](https://boards.straightdope.com/t/the-second-amendment-and-state-action/459893/1 "2008-08-13T21:18:54Z")
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 šŸ˜‰ .) Now my question: The U.S. Supreme Ct. has already said it favors the NRAā€™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, Iā€™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.) Thank you in advance to all who reply šŸ™‚ ---
**Author:** ![Airman\_Doors\_USAF](https://avatars.discourse-cdn.com/v4/letter/a/e36b37/32.png) [@Airman\_Doors\_USAF](https://boards.straightdope.com/u/Airman_Doors_USAF)\ **Post date:** [August 13, 2008, 9:27pm UTC](https://boards.straightdope.com/t/the-second-amendment-and-state-action/459893/2 "2008-08-13T21:27:49Z")
[QUOTE=Jim B.] Now my question: The U.S. Supreme Ct. has already said it favors the NRAā€™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.) [/QUOTE] 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. Itā€™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 NRAā€™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. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [August 13, 2008, 10:03pm UTC](https://boards.straightdope.com/t/the-second-amendment-and-state-action/459893/3 "2008-08-13T22:03:18Z")
On what basis would we accept that the First, Fourth, Fifth, Sixth, and Eighth Amendments are applicable to the states, but not the Second? ---
**Author:** ![villa](https://avatars.discourse-cdn.com/v4/letter/v/bc79bd/32.png) [@villa](https://boards.straightdope.com/u/villa)\ **Post date:** [August 13, 2008, 10:14pm UTC](https://boards.straightdope.com/t/the-second-amendment-and-state-action/459893/4 "2008-08-13T22:14:36Z")
While I donā€™t see anyway the Second wonā€™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 hasnā€™t? ---
**Author:** ![Lumpy](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/lumpy/32/446_2.png) [@Lumpy](https://boards.straightdope.com/u/Lumpy)\ **Post date:** [August 14, 2008, 12:36am UTC](https://boards.straightdope.com/t/the-second-amendment-and-state-action/459893/5 "2008-08-14T00:36:28Z")
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, thereā€™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_ ---
**Author:** ![Stealth\_Potato](https://avatars.discourse-cdn.com/v4/letter/s/d78d45/32.png) [@Stealth\_Potato](https://boards.straightdope.com/u/Stealth_Potato)\ **Post date:** [August 14, 2008, 12:48am UTC](https://boards.straightdope.com/t/the-second-amendment-and-state-action/459893/6 "2008-08-14T00:48:04Z")
[QUOTE=Lumpy] 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, thereā€™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_ [/QUOTE] 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 ā€œlibertyā€ 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. šŸ™‚ ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [August 14, 2008, 11:31pm UTC](https://boards.straightdope.com/t/the-second-amendment-and-state-action/459893/7 "2008-08-14T23:31:29Z")
[QUOTE=villa] While I donā€™t see anyway the Second wonā€™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 hasnā€™t? [/QUOTE] Or the fact that I canā€™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.. ---
**Author:** ![Stealth\_Potato](https://avatars.discourse-cdn.com/v4/letter/s/d78d45/32.png) [@Stealth\_Potato](https://boards.straightdope.com/u/Stealth_Potato)\ **Post date:** [August 14, 2008, 11:56pm UTC](https://boards.straightdope.com/t/the-second-amendment-and-state-action/459893/8 "2008-08-14T23:56:30Z")
[QUOTE=jtgain] 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.. [/QUOTE] 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 ā€œlibertyā€ is, and it seems natural that the Bill of Rights should be the foundation of such a definition. ---
**Author:** ![Lumpy](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/lumpy/32/446_2.png) [@Lumpy](https://boards.straightdope.com/u/Lumpy)\ **Post date:** [August 15, 2008, 12:29am UTC](https://boards.straightdope.com/t/the-second-amendment-and-state-action/459893/9 "2008-08-15T00:29:54Z")
[QUOTE=Stealth Potato] 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 ā€œlibertyā€ 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. šŸ™‚ [/QUOTE] 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 likeā€¦ natural rights. šŸ˜› The recent court ruling that people have an innate right of self-defense sounds like a good starting point. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [August 15, 2008, 1:59pm UTC](https://boards.straightdope.com/t/the-second-amendment-and-state-action/459893/10 "2008-08-15T13:59:49Z")
[QUOTE=villa] While I donā€™t see anyway the Second wonā€™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 hasnā€™t? [/QUOTE] My guess would be that because the functional aspect of a grand jury is preserved in all states ā€“ that is, before prosecution the state must show probable cause to a neutral, detached magistrate ā€“ that thereā€™s no real sense that the specifics of the grand jury are necessary. But youā€™re right ā€“ consistency suggests that this, too, be a state requirement, and I donā€™t have a problem with that. ---
**Author:** ![villa](https://avatars.discourse-cdn.com/v4/letter/v/bc79bd/32.png) [@villa](https://boards.straightdope.com/u/villa)\ **Post date:** [August 15, 2008, 2:20pm UTC](https://boards.straightdope.com/t/the-second-amendment-and-state-action/459893/11 "2008-08-15T14:20:21Z")
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. Thatā€™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. ---
**Author:** ![Max\_Torque](https://avatars.discourse-cdn.com/v4/letter/m/e9bcb4/32.png) [@Max\_Torque](https://boards.straightdope.com/u/Max_Torque)\ **Post date:** [August 15, 2008, 2:59pm UTC](https://boards.straightdope.com/t/the-second-amendment-and-state-action/459893/12 "2008-08-15T14:59:38Z")
I knew Iā€™d talked about this before, so a search turned up a post Iā€™d made years ago (2003, to be precise). Lemme quote myself, omitting some remarks relevant only to that older discussion: > [@](#): > > Letā€™s put our history in perspective. _Presser v. Illinois_ was decided 18 years after the fourteenth amendment was passed, at a time when no rights from the Bill of Rights had yet been held to apply to the states. And the _Presser_ decision rested wholly upon the decision as given in _U.S. v. Cruikshank_, which was decided a mere 8 years after the passing of the 14th! Successful incorporation of rights from the Bill of Rights through the 14th didnā€™t really begin until early in the 20th century. Incorporation of rights was first seriously contemplated in _Gitlow v. New York_ in 1925 and didnā€™t really happen until _Adamson v. California in 1947_. Hell, most of the action involving incorporation of rights didnā€™t happen until the 1960s! > > Now, I know what [youā€™ll] say next: ā€œBut itā€™s still the law!ā€ Yes, that is true. However, Iā€™d feel mighty uneasy citing itā€¦for the proposition that ā€œthe Supreme Court has specifically rejected the incorporation of the Second Amendmentā€, since cases that are even more recent than _Presser_ state flatly that _no_ rights from the Bill of Rights should be held to apply to the states (see _Maxwell v. Dow_, 176 US 581 (1900)). And we all know whatā€™s been happening since then. > > I should also note that, though _Presser_ refuses to apply the 2nd amendment to the states, it does have a rather pro-gun-ownership tone. Quote: ā€œIt is undoubtedly true that all citizens capable of bearing arms constitute the reserved military force or reserve militia of the United States as well as of the states, and, in view of this prerogative of the general government, as well as of its general powers, **the states cannot, even laying the constitutional provision in question out of view, prohibit the people from keeping and bearing arms** , so as to deprive the United States of their rightful resource for maintaining the public security, and disable the people from performing their duty to the general government.ā€ (emphasis added) So, any idea when theyā€™re going to incorporate the Third Amendment? Iā€™ve been housing these Navy guys for weeks, and itā€™s getting old fast!