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Timbs v. Indiana handed down today...
Opinion here. The holding is that the 8th Amendment's bar to excessive fines is incorporated under the 14th Amendment and applicable to the states. But the astonishing thing is that Justice Ginsberg writes the majority opinion and repeatedly cites McDonald:
"This safeguard, we hold, is "fundamental to our scheme of ordered liberty," with "dee[p] root[s] in [our] history and tradition." McDonald v. Chicago, 561 U. S. 742, 767 (2010)..."
"When ratified in 1791, the Bill of Rights applied only to the Federal Government. Barron ex rel. Tiernan v. Mayor of Baltimore, 7 Pet. 243 (1833). "The constitutional Amendments adopted in the aftermath of the Civil War," however, "fundamentally altered our country's federal system." McDonald, 561 U. S., at 754."
"But when a Bill of Rights protection is incorporated, the protection applies "identically to both the Federal Government and the States." McDonald, 561 U. S., at 766, n. 14."
"In short, the historical and logical case for concluding that the Fourteenth Amendment incorporates the Excessive Fines Clause is overwhelming. Protection against excessive punitive economic sanctions secured by the Clause is, to repeat, both "fundamental to our scheme of ordered liberty" and "deeply rooted in this Nation's history and tradition." McDonald, 561 U. S., at 767..."
Ginsberg's analytical method (joined by all the liberal wing, it was a 9-0) cannot be reconciled with the liberal dissent in McDonald, where they called for a very elaborate and impossible-to-meet standard for incorporation. To be fundamental, a right would have to supported by a "modern consensus," further other constitutional rights, help to assure equal protection, not be complex in application, and not much impair state decision-making. In Timbs, the majority just looks at history. It was a right at common law, a right in many early states, and a right today. Only the last tracks the McDonald dissent's method.
And on the side, Gorsuch's concurrence suggests he might join with Thomas in privileges & immunities incorporation. He treats the present case as what has been called unitary incorporation: whether it's the due process clause or the privileges and immunities clause, it's in there somewhere.
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Too bad. The courts were wrong in Barron and in every case that relied on Barron since. Not single word in Amendments 2-10 even implies applicability ONLY to the feds. Fact is Rawle in his 1825 and 1829 books on the Constitution discussed how the amendment bound both the states and the feds. Barron looked at where Madison wanted to place the amendments BUT Madison was totally repudiated and should never have been considered when the Amendments were added to the end. The Supremacy clause took it from there and made all the non-specific, i.e. the 1st, amendments applicable against ALL governments, fed, state, and local. The courts though as they most often do scrood things up and caused nothing but grief. Trying to correct their wrong through Incorporation is done simply so they can keep their usurped powers and scroo the people over and over.
We would never be in this position if the courts hadn't been wrong to begin with. Too bad they don't evaluate past cases like scientists evaluate past research. If it's wrong, dump it.
Just got done with it.
Great opinion.
Looks like a set up for a slam dunk, for the next firearms rights case in front of the court.
It is almost like you could "find and replace" excessive fines with guns, and hit print.
And they covered due process and privileges and immunities!