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Article on Heller and self defense
Abstract and downloadable article here.
The thesis I find a bit confusing: it talks of applying the 2A to the states without 14th A incorporation, but seems to be talking about applying it via 14th A due process incorporation (the right of self defense being fundamental) rather than privileges or immunities incorporation.
UPDATE: the need for incorporation is that the Supreme Court in Barron v. Baltimore, back in the 1830s, ruled that the federal Bill of Rights only limits the federal government. You want to be protected against state action, put it in your state constitution and sue in state court.
It's not an unreasonable legal position -- James Madison wanted another amendment to require States to comply with essentially the First Amendment, and Congress rejected it. So some states had establishments of religion into the 1830s or 1840s, and the slave states rigorously punished printing of any anti-slavery statements, or giving of anti-slavery speeches, up thru 1865. The 4th Amendment restriction on unreasonable searches wasn't applied to state action until, if I remember, 1960.
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The idea that a State could be as fascist or dictitorial as they like because the BoR doesn't apply to them is an idea I find hard to believe. Surely the Founding Fathers realized the ramifications of the BoR not applying to the States! What was the philosophy of the Justices responsible for Barron?
I hope the SCOTUS, when considering 2A incorporation question, puts a very large nail in the Barron coffin!
FWB said: "There never was aneed to incorporate against the states. The BoR always applied."
I understand where you are coming from, but I am familiar enough with the situation in Chicago to know that there IS a need to incorporate against the states.
I think adding "intended" before "a need" would clarify your statement.
As we are fond of saying, “What part of shall not be infringed do you not understand?"
What part of, “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States;…” is not understood? Does the 2nd Amendment not recognize a privilege or immunity?
I’m rather confused as to just why the SCOTUS has to “incorporate” the 2nd Amendment into the 14th Amendment. Aren’t both amendments just as much a part of the Constitution as any of the others? Was it necessary to “incorporate” the 16th amendment into the 14th before it could be enforced? How about the 27th ?
Sorry, I clicked on "POST" before I realized I hadn't signed in.
Selective incorporation was a way racists on the Supreme Court could limit the effectiveness of the 14th Amendment and allow states to continue to discriminate against blacks and other minorities.
Barron is moot. The 14th, by language and by legislative history (intent) made the BOR (in its entirety) applicable to the states. SC interpretations to the contrary were originally done with racist intent, and have been allowed to stand because that legal fiction let Justices distort the meaning of the Constitution to comport with their own predjudice in whatever case was at hand.
FWB and Alan - I hear ya. But it is actually pretty clear that, prior to the 14th Amendment, the BoR actually were understood as limiting the power of the federal government only. Many states already had their own constitutions and were understood to be essentially sovereign states. They yielded only so much sovereignty and power as was expressly given to the federal government via the new Constitution. See the 10th Amendment.
I know that we strongly pro-gun rights types don't like to admit that, but the history is there.
BUT it is equally clear that the 14th WAS expressly intended to apply the BoR to the states, at a minimum. What the heck else are the "privileges and immunities" of being a U.S. citizen, if not at the very least the enjoyment of the rights protected against federal government infringement??
The Slaughterhouse Cases, decided by SCOTUS just a few years after the 14th was added, pretty well screwed that up. BAD and WRONG decision, IMHO. Although there is a very good argument to be made that the Slaughterhouse Cases actually does not prevent incorporation of the BoR against states, but most people have come to think of it as doing so. And of course, there's Cruikshank.
I recall reading a quote from the Congressional Record of a statement from the floor of the House of Representatives by, I think it was, the sponsor or one of the sponsors of the proposed language of the 14th. I think I saw that in "Supreme Court Gun Cases" by Stephen Halbrook. It was expressly made clear that the intent was to ensure that states must recognize the rights guaranteed by the BoR, at a minimum. Unfortunately, due to painfully transparent politicization of the Court, that plain intent was ignored and overruled in the Slaughterhouse Cases.
As it was in Plessy v. Ferguson, but with respect to a different clause (Equal Protection rather than Privileges and Immunities). Another bad decision that has caused generations of anguish and long-lasting acrimony in this country, continuing to this day.
"Selective incorporation" is pure BS as far as I'm concerned, but we're stuck with it and the courts continue to rely on it. So now it is unfortunately up to today's SCOTUS to fix what an old SCOTUS screwed up so long ago. The scary part is who the justices will be when the question finally comes before the court: those nominated by Obama or by someone else? Selective incorporation provides too easy an out for a justice squeamish about "burdening" the states with a requirement to recognize gun rights.
Ahh, but Bill, you're merely an ordinary citizen. You have the disadvantages of a functioning mind, ability to read, and integrity.
How dare you?
This is a very interesting and thought-provoking article, and I suggest it be read by anyone with more than a passing interest in Heller and in incorporation.
I particularly enjoyed those portions that discussed the so-called "private system of criminal justice." I would think that most people with carry licenses would, intuitively, comprehend (and agree with) such a concept.
By invalidating the District’s gun ban, the Roberts Court appears to join the Warren Court in cabining government and creating zones of
freedom in which individuals regulate themselves, with whatever violence that might ensue, free from state intervention and
expense. Within these zones, the deployment of legally sanctioned violence is not simply a function of the regulatory apparatus of the state, i.e. the courts and the police, but the
“inherent” right of the people themselves.
There never was aneed to incorporate against the states. The BoR always applied. Barron was a lie. Marshall was stealing power for the court.
Points to ponder:
1) If the BoR was for fed control only, why did the framers of the BoR single out the 3rd amendment (now the 1st) as applicable against Congress only, leaving the others with open language?
and
why did the framers of the BoR discuss leaving control over religion and the press to the states as the reason?
2) In light of the guarantee to each State a republican form of government, what better location than in the Supreme Law of the land to place the core elements of restriction on govenrment than in the BoR?
Nothing in the BoR explicitly or implicitly points solely tocontrol of the fed except for the 1st so why is it that only judges have the special glasses to see the extra words that We the People can't see?