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14th Amendment incorporation
In a segment filmed for my Second Amendment documentary, Prof. Nelson Lund raises an interesting question as to whether the Amendment is the only provision in the Bill of Rights that is guaranteed incorporation under the 14th Amendment.
Short background: the Supreme Court in 1833 held that the federal Bill of Rights only restricts the federal government, not the states. (Some states actually had established churches in the early 19th century, and the Slave codes clearly restricted freedom of speech and press). As of 1868 the 14th Amendment forbade states to deny anyone "due process of law," and by the early 20th century the Supreme Court had begun to find that certain state laws violated due process even if they were enforced with, well, due process of law. The rights which could not be violated by states were termed "fundamental rights."
So what distinguishes a "fundamental" right from any other right?
In Palko v. Connecticut, the Court indicated that a "fundamental right" was one that was "implicit in the concept of ordered liberty." (Palko held that the protection against double jeopary was not fundamental; this result was overruled in Benton v. Maryland).
Prof. Lund makes the point that the Second Amendment begins with the acknowledgement that a well-regulated militia is "necessary to a free state." "Necessary to a free state" sounds an awful lot like a paraphrase of "implicit in the concept of ordered liberty."
In Duncan v. Louisiana, the Court expanded the Palko test: a fundamental right was one that was "necessary to an Anglo-American regime of ordered liberty." As Prof. Lund points out, read Joyce Malcolm on that question.
The Second Amendment is thus the only provision in the Bill of Rights that has, on its face, a statement tracking the standard for a "fundmental right."
Comments
So what distinguishes a "fundamental" right from any other right?
Whatever advances the agenda of a certain special interest group, of course:
"I don't want to dwell on constitutional analysis,
because our view has never been that civil liberties are necessarily
coextensive with constitutional rights. Conversely, I guess the fact
that something is mentioned in the Constitution doesn't necessarily
mean that it is a fundamental civil liberty."
Nadine Strossen
President of the American Civil Liberties Union
"Life, Liberty, and the ACLU"
Reason,
October 1994
Posted by: Nobody Important at April 4, 2005 01:02 PM
Mr. Hardy writes: "Necessary to a free state" sounds an awful lot like a paraphrase of "implicit in the concept of ordered liberty."
Me: I believe your reasoning creates a non sequitur. Your reasoning would merely establish that a "well regulated militia" is a "fundamental" right. It does not establish that the right to keep and bear arms is a fundamental right.
Posted by: Legal at April 6, 2005 03:02 PM
LEGAL: And the amendment goes on to say how the right to a "well regulated militia" is maintained... which is to prohibit the government from infringing upon the right of the people to keep and bear arms.
Whatever the right turns out to be - the "necessary..." language militates in favor of incorporation.
Posted by: Andrew at January 22, 2008 01:37 PM