Tuesday, January 13, 2009

Heller and Second Amendment incorporation

From Clayton Cramer, writing in Shotgun News:
... But the good news is that there is a strong chance that we are going to win the Nordyke case in the Ninth Circuit Court of Appeals—where our lawyers are arguing that the 14th Amendment incorporates the Second Amendment against the states-opening up the door to demolishing some of the more absurd gun control laws adopted at the state and local levels.

In case it has been a while since government class, what is the 14th Amendment, and what does "incorporates" mean? Congress passed the 14th Amendment in the aftermath of the Civil War, to guarantee that the rights of freed slaves and white Republicans in the South would be protected against arbitrary abuse by the state governments.
One provision orders that, "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States." There is strong historical evidence that both supporters and opponents of the 14th Amendment agreed that "privileges or immunities" meant the rights guaranteed by the first eight amendments to the Constitution.

Stephen Halbrook's book Freedmen, The Fourteenth Amendment, and the Right to Bear Arms, 1866-1876 (Praeger Press, 1998), lays out the evidence on this very well-but he is not alone. Even many very liberal legal scholars, sometimes with great pain, recognize that there is a strong argument that this was the intent-to incorporate the protections of the first eight amendments against the states.

Unfortunately, the U.S. Supreme Court, starting with The Slaughter-House Cases (1873), simply refused to admit this. A number of us are busily marshalling evidence in scholarly journals right now to argue that the Supreme Court should just admit that it made a mistake more than a century ago.

If we can get the Supreme Court to admit that the justices made a serious mistake in the 1870s, then many of the more absurd state and local gun control laws are in deep trouble. The right to keep and bear arms will be on about the same level as the right to freedom of speech, of the right to have an attorney in a criminal case. This doesn't mean that every gun control law will fall, just as freedom of speech does not prevent laws against incitement to riot, but it does mean that the states will need something a bit stronger than, "We don't like guns, and we think that they make things worse."

They will have to prove that a gun control law is necessary to public safety-and we know that their side will have a heck of a time coming up with such proof. The proof is generally stronger on our side that restrictive gun control impairs public safety.
If we can't get the Supreme Court to use the "privileges or immunities" clause to incorporate the Second Amendment against the states, this doesn't mean that we have completely lost. Another clause of the 14th Amendment declares "nor shall any State deprive any person of life, liberty, or property, without due process of law." The original goal was to make sure that if you were executed, jailed, or fined, that the state would have given you your day in court, with a right to a jury trial.

The U.S. Supreme Court, in the early 20th century, decided to use this "due process of law" clause to incorporate some of the guarantees of the Bill of Rights against the states. This process by which they have cherry-picked which rights the states are required to protect is called "selective incorporation."

That's why the First Amendment's provisions about establishment of religion, freedom of speech apply to the states-but not the Second Amendment. That's why the states have to follow the Fourth and Fifth Amendment guarantees about search, warrants, and other criminal procedures-but not the Fifth Amendment's guarantee of indictment by a grand jury.

There's no logic to selective incorporation. I've gone back and read the decisions where the Court has decided that this provision applies to the states but that provision does not-and it is embarrassing how poorly thought out these decisions are. Even many liberals who oppose full incorporation through the "privileges or immunities" clause grudgingly admit that selective incorporation has little rhyme or reason. But selective incorporation still has its fans for one reason: it is the only way that liberals can impose some parts of the Bill of Rights on the states, without imposing the Second Amendment as well.

Read the whole article here. Mr. Cramer also discusses the National Parks carry rule and Washington, D.C.'s latest round of gun legislation. Incorporation is the next big battle in the legal fight. See my posts here and here for information on the Nordyke case currently wending its way through the federal courts in California and which is mentioned in Mr. Cramer's article.

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