pageok
pageok
pageok
Heller and incorporation of the Second Amendment:

Along with many others, I noted yesterday that the Supreme Court expressly left open the question whether the individual right to keep and bear arms in the Second Amendment should be incorporated into the Fourteenth Amendment to apply against the states. Here is the relevant passage reserving the issue:

With respect to [the nineteenth-century case of U.S. v.] Cruikshank's continuing validity on incorporation, a question not presented by this case, we note that Cruikshank also said that the First Amendment did not apply against the States and did not engage in the sort of Fourteenth Amendment inquiry required by our later cases. Our later decisions in Presser v. Illinois (1886) and Miller v. Texas (1894) reaffirmed that the Second Amendment applies only to the Federal Government.

Op. at 48 n. 23.

The footnote is a whipsaw; it reads like one person originally wrote the first line and, seeing it, another came along and insisted on adding the second. The first sentence suggests that just as Cruikshank was wrong (and under-theorized) on First Amendment incorporation it was also wrong (and under-theorized) on Second Amendment incorporation. But the second sentence notes two post-Cruikshank opinions confirming that the Second Amendment limits only federal power. There's been some speculation that Justice Scalia may not have had five votes for a more unequivocal pro-incorporation statement. The generally more cautious, incrementalist, and minimalist tendencies of Chief Justice Roberts may have prevailed here, as did minimalism on other important questions the Court avoided (noted in a post yesterday by Orin).

Nevertheless, on re-reading the decision, I noticed a passage that seems relevant to future litigation on the incorporation question. In the middle of his review of post-Civil War enactments, Justice Scalia highlights the importance to the newly freed slaves of the right to keep and bear arms in the home. He also reviews how federal authorities took steps to prevent vengeful and racist southern legislators from infringing this right. Mike O'Shea at Concurring Opinions also points to this discussion as significant on the incorporation issue. It is, as he notes, exactly the kind of evidence that scholars have relied upon to support incorporation.

Especially significant are these sentences from Heller discussing congressional understanding of the Civil Rights Act of 1871 and the Fourteenth Amendment:

Similar discussion attended the passage of the Civil Rights Act of 1871 and the Fourteenth Amendment. For example, Representative Butler said of the Act: "Section eight is intended to enforce the well-known constitutional provision guaranteeing the right of the citizen to 'keep and bear arms,' and provides that whoever shall take away, by force or violence, or by threats and intimidation, the arms and weapons which any person may have for his defense, shall be deemed guilty of larceny of the same." H. R. Rep. No. 37, 41st Cong., 3d Sess., pp. 7--8 (1871). With respect to the proposed Amendment, Senator Pomeroy described as one of the three "indispensable" "safeguards of liberty . . . under the Constitution" a man's "right to bear arms for the defense of himself and family and his homestead." Cong. Globe, 39th Cong., 1st Sess., 1182 (1866). Representative Nye thought the Fourteenth Amendment unnecessary because "[a]s citizens of the United States [blacks] have equal right to protection, and to keep and bear arms for self-defense." Id., at 1073 (1866). It was plainly the understanding in the post-Civil War Congress that the Second Amendment protected an individual right to use arms for self-defense.

Op. at 43-44.

Interestingly, the quote from Rep. Nye supports incorporation through the Citizenship Clause, rather than through due process, though Nye himself believed blacks already enjoyed the right in common with all citizens. The right to keep and bear arms for self-defense could be considered an implicit and indispensable aspect of "citizenship" protected by the first sentence of the Amendment. Others might argue that the right is a privilege or immunity protected against state intrusion.

Add to all of this the fact that the Court repeatedly compares the incorporated First Amendment to the unincorporated Second Amendment as a guarantee of important individual rights. A court that believes the Second Amendment is comparable to the hallowed First Amendment is unlikely to leave protection of the right to the mercy of legislative majorities in states and cities.

Whichever specific route the lower courts now choose — the Citizenship Clause, the Privileges and Immunities Clause, the Due Process Clause — it seems the Supreme Court is providing a road map and is strongly suggesting that the ultimate destination is incorporation.

Related Posts (on one page):

  1. Supreme Court Cites Lysander Spooner!:
  2. Heller and incorporation of the Second Amendment:
Anon21:
I think you're right that incorporation is the ultimate destination. But it wouldn't at all surprise me to find that Roberts or Kennedy insisted on honoring the rule against deciding constitutional issues before they are squarely presented to the Court.

A commenter on the political implications of Heller thread saw the omission of a clear statement on incorporation as leaving open the possibility that gun rights voters will be more energized to turn out for McCain, because they won't be assured that a gun ban in their own back yards would be overturned on Second Amendment grounds. I see that as patently unlikely. This hypothetical group of gun rights voters would have to have enough understanding of the relevant constitutional issues to know what incorporation is, but insufficient interest in the opinion to interpret the clear signs pointing towards future incorporation. Not to mention that the TV networks and wire services don't have good enough reporters to actually pick up on incorporation or lack thereof as a relevant issue in the case. I think the take-home for gun rights voters and others is that Second Amendment rights are secure, and in my view that does nothing to help McCain, and maybe something to hurt him.
6.27.2008 1:11pm
jazzed (mail):
I'm curious why I've not heard anyone suggest Thomas might be the source of passages that narrow over-expansive interpretations/proclamations of law by the Court. He appears to me to be a spot-on guy, one that really only wants to address specifically tailored issues, and I don't believe he's a shrinking violet (although, admittedly, I don't think he's as flamboyantly caustic or aggressive in his criticisms as others, like Scalia).
6.27.2008 1:26pm
Brooks Lyman (mail):
Anon21 -

I think that you underestimate the judicial and political savvy of the more activist gun owners. These issues have been kicked around in the shooting fraternity for decades. These activist gun owners know the risks of a President Obama to their second Amendment rights, and the looming dangers stemming from the narrow Heller decision, if (as is likely) the next president appoints several judges to the SC.

While more "casual" gun owners might not be as knowledgeable, I suspect that their activist brethren will make most of them aware of the risks proposed by a President Obama. Whether those gun owners who are Democrats will vote the issue instead of their party is something that only time will tell....
6.27.2008 1:32pm
PubliusFL:
Anon21: This hypothetical group of gun rights voters would have to have enough understanding of the relevant constitutional issues to know what incorporation is, but insufficient interest in the opinion to interpret the clear signs pointing towards future incorporation.

I think this is pretty easily accomplished. No need to get into the nuts and bolts of incorporation theory. Just point out:

1. Everyone agrees that this decision doesn't apply to state laws.

2. Future cases that will force the Supreme Court to decide whether the right to keep and bear arms applies to state laws are definitely coming within the next several years.

3. The next president will almost certainly appoint one or two of the justices who will be deciding those cases.
6.27.2008 1:33pm
J. Aldridge:
I wouldn't rely on anything Butler says because he was generally always at odds with Bingham over the meaning of the 14th amendment. He was was of two dissenters of the House Judiciary Committee Report #22, written by Bingham himself in 1871, that defined the true purpose of the P&I's and why it was adopted.

Under the Freemen's Act the constitutional right to bear arms was the right granted under the southern constitutions and laws, which President Johnson was violating through his post war policies in disarming blacks and prohibiting them from forming militias for their security.

Bingham referred to the federal Second Amendment as the "militia amendment." He also was instrumental in having all laws which was imposed on the rebel States to cease once they were re-admitted into the Union.
6.27.2008 1:34pm
Dilan Esper (mail) (www):
While Dale Carpenter's view is plausible, it is also plausible that the decision contained only hints about incorporation because Scalia didn't have the votes to go any further than that.

I suspect when the rubber meets the road, the right will be incorporated, but I am not certain of that by any means.
6.27.2008 1:41pm
Corkie the Dog (www):
I'm upset that the opinion had not one word about grizzlies!

An issue argued at orals no less than three times, and completely ignored in the opinion?

Shocking!

Sincerely,
Corkie the Dog
6.27.2008 1:41pm
NaG (mail):
Is anyone else surprised that the Court summarily rejected the Parker appeal, in which the other plaintiffs in the Heller lawsuit challenged their dismissal by the Circuit Court based on lack of standing?

As we all know, D.C. appealed to challenge the striking of the D.C. gun ban legislation, and the other plaintiffs cross-appealed on the standing issue. The Supreme Court logically chose to hear D.C.'s appeal first, putting the Parker appeal on hold for the time being. Had the Court sided with D.C., then clearly it would be logical to dismiss the Parker appeal as moot. But why else hold on to the Parker appeal but in the event that D.C. lost? Then the Court could have determined the very important issue of what constitutes standing for the purpose of challenging other gun laws.

Perhaps the majority thinks that because they specifically ruled that the 2d Amendment covers the right to self-defense, that pretty much answers the question of standing for those who aren't police officers seeking to have a firearm available when they are off-duty, like Heller. Perhaps. But right now, anyone who brings a lawsuit in the D.C. federal court on any future D.C. gun law (and by the indications given by D.C.'s mayor and police chief, there will be more laws testing the Court's ruling) will have the D.C. Circuit's opinion on standing to deal with, and that opinion allows a pretty narrow class of complainants.

I don't know, but it seems to me that Messrs. Gura and Levy were nice enough to give the Court a clean gun case for a head-on ruling on the 2d Amendment, and even went so far as to provide a variety of differently-situated plaintiffs by which the Court could analyze standing. It's not like the Court has a particularly long docket for next session. So why dismiss Parker?
6.27.2008 1:44pm
Anon21:
I think the "activist gun owners" you refer to are already committed to voting against Obama, and probably for McCain (not that you suggested otherwise). As for casual gun owners, I don't believe the issue is going to have enough salience for them post-Heller, even if more ideologically-oriented gun rights activists are telling them it should still be a top priority. This is especially true as Obama has now pivoted to a murky position that looks pro-gun enough to reassure gun owners who might be inclined to vote for him in any event. As you say, time will tell how this plays out.

As for "several Justices," I'd be surprised if there were more than two vacancies during the next Presidential term. If you're assuming the next President will get eight years in office, then "several" is more plausible.
6.27.2008 1:52pm
Bill Twist:
Anon21:

This hypothetical group of gun rights voters would have to have enough understanding of the relevant constitutional issues to know what incorporation is, but insufficient interest in the opinion to interpret the clear signs pointing towards future incorporation.



Am I the only "gun rights voter" out there that finds this at least mildly insulting?

As pointed out by PubliusFL above, it can be boiled down fairly simply. Speaking for myself, while I see incorporation as more likely than not in the coming decade, I also understand that it isn't a given, especially when you consider how closely Heller was decided.

I will vote accordingly.

Not that my vote was ever going to be for Senator Obama, who sat on the board of the anti-gun Joyce Foundation for 8 years, but that doesn't mean my vote was going to Senator McCain, either. Had Heller been decided by a wider margin, like the 6-3 or 7-2, I'm not sure if I would have voted. Quite frankly, I don't care for some of Senator McCain's previous accomplishments (McCain-Feingold, to be exact). I quite possibly could have just stayed home on Election Day.

Now, however, with a very narrow decision, I have a choice between a candidate who has always supported the Second Amendment as an individual right, at least to some degree, and one who actively worked against it right up until the time where it was politically expedient to switch sides.

Guess which one I'm going to vote for.

I suspect there will be a number of people like me who weren't very keen on McCain for various reasons, who will now vote for him.
6.27.2008 2:03pm
Gino:
I think incorporation is, or should be, a moot point. Unlike other amendment rights, the right to keep and bears arms is a right that expressly inures to the benefit of the federal government, as well as to the individual. This is where the prefatory language is actually useful. A well regulated militia is *necessary* to the security of a free state (i.e., the federal government). So, the several states cannot disarm the militia with onerous gun regulations; that would impair the security of the free state and render the amendment useless. This observation can be used to justify why the 2nd Amendment is incorporated, but I think the cleaner analysis is that it is simply moot based on the language.
6.27.2008 2:11pm
GV:
I'm not sure I understand the quoted passage. Is it saying that prior Supreme Court opinions have held that the Second Amendment is not incorporated? If so, what lower court litigation is there? The question has already been decided.
6.27.2008 2:15pm
Erik jaffe:
I think Dale and others might be misreading the Scalia footnote slightly. The first sentence notes that the Cruikshank case looked only at the First and Second Amendments themselves and did not engage in the now-required Fourteenth Amendment analysis. The Second sentence merely notes that Presser and Miller merely reaffirmed that the Second Amendment itself applied (of its own force) only to the federal government. The implication seems to be that those later cases had the same limitations as Cruikshank -- they failed to engage in the required Fourteenth Amendment analysis -- and merely reaffirmed a proposition that he accepts: that the Second Amendment does not directly apply to the states. That has no adverse implication as to whether it is incorprated via the Fourteenth Amendment, and I think folks are finding inconsistency where there is none. Of course, the footnote is indeed a bit ambiguous, so it is easy to get the impression that he is making contradictory observations, but I think it ultimately presents no contradiction. In addition, the bulk of the opinion regarding the long-established right to arms, its importance in history dating all the way back to the English, and the many references to Blackstone would seem to make the incorporation argument fairly straight-forward, and it is thus hard to see a credible path to non-incorporation. Perhaps I am underestimating the creativity of the States in battling incorporation, or overestimating the willingness of the Supreme Coourt to apply its incorporation doctrine, but at least at the legal argument level, it seems pretty straight-forward to me once you accept Heller.

DC: These are good points Erik, and I certainly agree that the likely result will be incorporation. The footnote is ambiguous. The lack of any transition word or phrase between the first sentence and the second sentence, such as "Similarly...", makes the footnote especially disjointed and cuts against the view that Scalia was merely citing the post-Cruikshank precedents as more instances of Cruikshank's deficiency or inapplicability. At nay rate, this is probably more than enough exegesis about a single footnote that, at the end of the day, will be far less important to the incorporation question than the historical materials you and Justice Scalia point to.
6.27.2008 2:38pm
PubliusFL:
GV: I'm not sure I understand the quoted passage. Is it saying that prior Supreme Court opinions have held that the Second Amendment is not incorporated? If so, what lower court litigation is there? The question has already been decided.

It is saying that. But prior Supreme Court opinions held that the First Amendment was not incorporated, too, and the Supreme Court reversed itself on that issue. So the quoted passage holds open the possibility that there may be a good argument for reversing the Second Amendment precedents just as the First Amendment precedents were reversed.
6.27.2008 2:42pm
GV:
PubliusFL, but if the Supreme Court has decided this issue already (even if it was wrongly decided and makes less sense in light of modern doctrine), a lower court may not overrule a Supreme Court case. Only the Supreme Court may do that. Thus, there cannot be any lower court litigation, as we would have to wait for the Supreme Court to overrule its prior precedent.
6.27.2008 2:51pm
J. Aldridge:
May 18, 1866
Sen. Howard questioning Captain T.J. MacKay

Question. Suppose the Freedmen's Bureau should be removed, and the federal troops withdrawn from the late insurrectionary States, and the affairs and interests of the freedmen should be submitted entirely to the legislation of those States, what would probably be the result, so far as the condition of the freedmen is concerned?

Answer. In my judgment, if the troops were withdrawn and the Freedmen's Bureau removed from the States south, within a brief period the gravest disorders would result. There would be local insurrections among the freedmen to assert their rights, as the majority of them are armed, and entitled to bear arms under the existing laws of the southern States. It would result in bitter feuds and the destruction of the freedmen.
6.27.2008 3:56pm
PubliusFL:
GV: a lower court may not overrule a Supreme Court case. Only the Supreme Court may do that.

True, but what often happens in cases like this is the lower courts keep saying "you may be right, but we can't help you," while the losing side keeps appealing all the way up to the Supreme Court. The side challenging a state gun control law may not be able to win an ultimate victory in a lower court, but they can still litigate the issue as long as they're willing to appeal all the way up.
6.27.2008 3:58pm
GV:
PubliusFL, I agree with that. People will raise the issue in lower courts -- but it won't be "litigated" in the sense that the question won't be actively argued for on each side since one side's argument is, under current law, frivolous.
6.27.2008 4:07pm
J. Aldridge:
Dale Carpenter wrote: "Whichever specific route the lower courts now choose — the Citizenship Clause, the Privileges and Immunities Clause, the Due Process Clause — it seems the Supreme Court is providing a road map and is strongly suggesting that the ultimate destination is incorporation."

Let's see, Bingham said many times during and after the adoption of the 14th the P&I's were only those belonging to United States citizens in, not of, a particular state. That rules out trying to force something on resident citizens of a state.

The Equal protection of the laws and "Due Process" he said a half dozen times was the words of the Magna Carta, articles 39 and 40. It won't work through these ancient, well understood principles.

He also argued a half dozen times the amendment took no right that ever pertained to the states from them.

Bingham also said in 1871 that the "citizens of the United States, and citizens of the States, as employed under the Fourteenth Amendment, did not change or modify the relations of citizens of the State and the Nation as they existed under the original Constitution."

Maybe they can spin the guarantee clause like Jacob Howard was forced to do with a bill on equal schools.
6.27.2008 4:39pm
PubliusFL:
GV: No, no, it wouldn't be considered frivolous. The normal test of whether a legal argument is frivolous is whether it is "warranted by existing law or by a good faith argument for the extension, modification, or reversal of existing law." I don't think anyone will have a problem making that "good faith argument" test now.
6.27.2008 4:44pm
starrydeceases:
The RKBA does not attach merely to citizenship. It is inherent in "the people", which is a superset of the citizenry. The majority opinion already cites the relevant case (Verdugo-Urquidez). Therefore, to assume protection as part of the citizenry is a less than satisfactory substitute.

As an enumerated right now affirmed by the Heller decision, it is difficult in the extreme to imagine how the RKBA does not qualify immediately for incorporation under the "privileges and immunities" clause, and while I will admit that this statement seems to contradict my intent here, I have a feeling that the "privileges and immunities" clause will be used rather then the "due process" clause or "equal protection" clause for the very simple reason that this limits its application to U.S. Citizens, rather than the "any person" as set forth in the "due process" and "equal protection" clauses, and this will likely be more politically acceptable or expedient.

Unfortunately, most people do not seem to realize that the term "citizen" appears only in very limited areas of the Constitution, and certainly does not appear in the Bill of Rights.
6.27.2008 4:48pm
J. Aldridge:
starrydeceases:, P&I's won't work according to Bingham:
The citizens of each State (being ipso facto Citizens of the United States) shall be entitled to all the privileges and immunities of citizens (supplying the ellipsis "of the United States") in the several States." This guarantee is of the privileges and immunities of citizens of the United States in, not of, the several States.
6.27.2008 4:55pm
GV:
Publius, it is frivolous to argue to a lower court that it should overturn Supreme Court precedent -- that's not a "good faith" extension of the law, as the Supreme Court has held repeatedly that only it may overrule its own precedent.
6.27.2008 5:22pm
A.W. (mail):
Another thing reflected in Nye's comments is that the framers of the 14th A began this process IGNORANT of the holding in Baron v. Baltimore. They read the bill of rights as applying to the states and were surprised when more knowledgable congressmen straightened them out.

Howard Graham's work on our "declaratory" 14th A, does a great job illustrating this point.
6.27.2008 5:29pm
A.W. (mail):
Another thing reflected in Nye's comments is that the framers of the 14th A began this process IGNORANT of the holding in Baron v. Baltimore. They read the bill of rights as applying to the states and were surprised when more knowledgable congressmen straightened them out.

Howard Graham's work on our "declaratory" 14th A, does a great job illustrating this point.
6.27.2008 5:29pm
PubliusFL:
GV: Publius, it is frivolous to argue to a lower court that it should overturn Supreme Court precedent -- that's not a "good faith" extension of the law, as the Supreme Court has held repeatedly that only it may overrule its own precedent.

Yes, but the Supreme Court did not so hold with the intent that no case would ever put the Supreme Court into the position of having to overrule itself because any such case would be thrown out as frivolous on sight. To qualify as "good faith" you certainly have to acknowledge existing Supreme Court precedent contrary to your position, but if you do so it's possible to argue in good faith based on subsequent Supreme Court decisions that the earlier case was wrongly decided. To quote from one federal circuit case ordering sanctions against a frivolous complainant:

"If Szabo-Digby were trying to get the Supreme Court to reconsider Olim or Bishop we would not be keen to impose sanctions; a party is free to ask for reconsideration even when the court is unlikely to respond favorably. But this was not Szabo-Digby's strategy. It ignored Bishop, Olim, and the wealth of cases in this circuit holding that the Constitution does not guarantee that states will follow their own law. It ignored the language of the Board's invitation to bid. It ignored Polyvend [a U.S. Supreme Court case]. . . . To find out whether it was the opening shot in a campaign for some new legal principle, a court must examine what the lawyers later say about their work. Rule 11 creates difficulties by simultaneously requiring courts to penalize frivolous suits and protecting complaints that, although not supported by existing law, are bona fide efforts to change the law. The only way to find out whether a complaint is an effort to change the law is to examine with care the arguments counsel later adduce. When counsel represent that something cleanly rejected by the Supreme Court is governing law, then it is appropriate to conclude that counsel are not engaged in trying to change the law; counsel either are trying to buffalo the court or have not done their homework. . . . Counsel ignore rather than acknowledge the force of existing law, so this case cannot be called an effort to alter the law." Szabo Food Service v. Canteen Corp, 823 F.2d 1073 (7th Cir 1987)

I would be amazed if a litigant who squarely addressed precedent like Cruikshank and argued that it should be reconsidered based on subsequent Supreme Court 14th Amendment jurisprudence and the Court's comments in Heller were sanctioned for making a frivolous argument.
6.27.2008 5:56pm
J. Aldridge:
A.W. wrote: "Another thing reflected in Nye's comments is that the framers of the 14th A began this process IGNORANT of the holding in Baron v. Baltimore."

They all knew the bill of rights was a limitation on acts of congress. Many radicals felt they had the power to enforce the P&I's of United States citizens (read: new black citizens returning to southern states) through the civil rights bill of 1866. Bingham was right they had no authority to do so, hence the intro of section 1 of the 14th. Bingham also wanted to go one step further in protecting everyone by giving them equal access to the remedies of state law for wrongs done to person. This lead to incorporating the bill of rights into the 14th, that is, the provision for securing against arbitrary denial of life, liberty and property that was being violated under the post war policies of Andrew Johnson. This outraged Bingham (AND Stevens) more than anything.

Bingham was also under the mistaken notion (from a mistaken understanding of a speech by Webster) that officers of a state under oath to respect the US Constitution was also obligated to respect all of the first eight amendments. He said he was of the "opinion" the 14th amendment "might" allow congress to enforce these oaths. He was wrong of course, and wasn't much he could do about it short of forceably giving congress the power, but this would had doomed the amendment.
6.27.2008 6:36pm
GV:
Publius, perhaps at this point we're just talking past each other, but I'll try one more time. Someone can certainly file a lawsuit to preserve for appeal an argument they would like to make before the Supreme Court. We see this every day. Criminal defendants, for example, file appeals where they preserve the issue of whether Almanderiz-Torres (the case where the Court held that the government need not prove to the jury beyond a reasonable doubt the fact of a prior conviction) should be overruled. But there's a difference between preserving an issue for appeal to the Supreme Court (proper!) and filing an appeal and arguing to a circuit court that a Supreme Court opinion should be overturned (not proper!) The former will not get you sanctioned, the latter might. But the issue isn't whether arguing that Cruikshank should be overruled will get you sanctioned. I doubt it would. But to argue that a Supreme Court opinion should be overturned by a circuit court is a position entirely without merit. It is the very definition of frivolous.
6.27.2008 6:44pm
starrydeceases:
This guarantee is of the privileges and immunities of citizens of the United States in, not of, the several States.

Following is the exact text of Amendment XIV, Sec. I, according to the National Archives (emphasis added):

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
6.27.2008 6:55pm
PubliusFL:
GV: Let me ask you this, then. Cruikshank wasn't just about the 2nd Amendment. It also said that the 1st Amendment right of assembly was no restriction on the states. The Supreme Court obviously decided differently later (DeJonge v. Oregon). How did that happen?
6.27.2008 8:05pm
GV:
Here's an oft-cited quote from the Supreme Court regarding whether lower courts may ever "overrule" a Supreme Court opinion or even assume the Supreme Court has silently overruled a prior opinion:

We do not acknowledge, and we do not hold, that other courts should conclude our more recent cases have, by implication, overruled an earlier precedent. We reaffirm that "[i]f a precedent of this Court has direct application in a case, yet appears to rest on reasons rejected in some other line of decisions, the Court of Appeals should follow the case which directly controls, leaving to this Court the prerogative of overruling its own decisions." [citation removed]

To the extent you're interested, the Supreme Court has reiterated this rule numerous times in numerous different contexts; likewise, circuit courts have continually stated that they may not overrule Supreme Court cases and they cannot assume that the Supreme Court has silently overruled its prior precedent.

All of this means that only the Supreme Court may rule that the Second Amendment is incorporated. Any argument to the contrary is without legal merit and is frivolous.
6.27.2008 8:15pm
GV:
Sorry -- we cross posted. The issue isn't whether the Supreme Court can overrule its own decisions. Of course it can. The issue I thought we were discussing was whether lower courts could somehow decide the incorporation issue. They may not because it has already been decided (or so I'm told).
6.27.2008 8:17pm
J. Aldridge:
starrydeceases: Yes, No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United Statesin, not of (meaning resident citizens), the State. This is why the House Judiciary declared in 1871 that "citizens of the United States, and citizens of the States, as employed under the Fourteenth Amendment, did not change or modify the relations of citizens of the State and the Nation as they existed under the original Constitution."

This is also why Bingham asked Rep. Robert Hale: "I respectfully ask him to inform us whence he derives the authority for supposing, if he does suppose, that any State has the right to deny to a citizen of any other State any of the privileges or immunities of a citizen of the United States."
6.27.2008 8:19pm
Tony Tutins (mail):
J. Aldridge -- what in the world are you talking about? Can you point to a summary?
6.27.2008 9:20pm
Paul Zrimsek (mail):
Found this while looking for something else:


But there is no need to deceive ourselves as to what the Second Amendment said and meant. Of course, properly understood, it is no limitation upon arms control by the states.

-- Scalia, A Matter of Interpretation, p.137n [emphasis added]
6.27.2008 11:05pm
Chris 24601 (mail) (www):
Pomeroy &Nye weren't talking about the Fourteenth Amendment. Nye was speaking in February, and Pomeroy in March. Congress didn't discuss the 14A until May.
6.27.2008 11:36pm
omarbradley:
J. Aldrige. Have you read Bingham's speech where he specifically states that the purpose of Sec 1 was to overrule Barron v Baltimore and apply the 1st 8 amendments to the states? Where he says that henceforth no state will be able to violate the 1st 8 amendments ever again?

I admit that Bingham, Howard and the rest of the framers made a whole bunch of statements in various directions but I think when looked at in totality, the evidence is that the Bill of Rights was incorporated through the 14th amendment and that writers like Black, Curtis, Amar, Aynes and others have the more persuasive case than the Fairman, Beger, Frankfurter school.
6.27.2008 11:51pm
omarbradley:
Also, I think the footnote is pretty clear. He's saying that for those who think Cruikshank is still valid as to it not being incorporated, that case also held that the 1st wasn't incorporated and it obviously is now. So, Cruikshank will not do as a leg to stand on against incorporation.

Pro Gun control advocates have also used Presser to show that it isn't incorporated and all Scalia is saying is that those cases merely echoed Cruikshank and reaffirmed that the 2nd applies only to the federal govt, as was proper at the time, and can't be thought to have any precedential value as to the issue of whether it applies to the states as well.

They'll incorporate under the due process clause, although Thomas will probably write a concurrence mentioning the privileges or immunities clause as the more appropriate vehicle, based on his opinion in Saenz v Roe and a couple of law review article he wrote in the 80s where he favors the P or I incorporation debate. For the whole court to do so would be a huge step and Roberts doesn't strike me as the type who's in to a wholesale revolution in the law.
6.27.2008 11:58pm
omarbradley:
Here's Bingham in 1871:

He starts by explaining how the 1st 8 amendments apply only to the federal govt, not the states, as Marshall said in Barron. Then he says how he read Barron and Marshall wrote that had the framers intended them to be limitations on the powers of the states, they would have done X. He then says how he proceeded to follow Marshall and do X, "imitating their example and imitating it to the letter". He then says that for the scope and meaning of the limitations imposed upon the states by the 14th amednment to be made more clear he will list what some of them are. He then lists the first 8 amendments.

He says how he wrote the amendment as an express prohibition against the states to not violate the rights included in X, and he defines X as chiefly comprised of the 1st 8 amendments.

"These eight articles I have shown never were limitations upon the power of the States(cf Barron v Baltimore), until made so by the 14th amendment...an express prohibition against every state"

"Sir, before the ratification of the 14th amendment, any state could could deny to any citizen the right to trial by jury and it was done(i.e a state could violate the 6th amendment). Before that a state could abridge the freedom of the press and it was done(i.e a state could violate the 1st amendment)

"Under the Constitution as it is and by force of the 14th amendment, no state can imitiate the example of Illinois or Georgia(and abridge the 1st amendment"

"The states never had the right, though they had the power to inflict wrongs...They denied trial by jury(6th) and he had no remedy, they took property w/o compensation and he had no remedy(5th), they restricted the freedom of the press and he had no remedy(1st)...Who dare say, now that Constitution has been amendmed that the nation cannot provide by against all such abuses and denials of rights as these in States and by States, or by combinations of persons?"(Apparently Justices Stevens, Souter, Ginsburg and Breyer dare say, that's who)

Now, there's certainly contradictory evidence, but there's more than enough evidence from Bingham, Howard and others to show that the amendment was designed to apply the bill of rights to the states, at least the first 8 amendments.

And, given that that pretty much every other right has already been applied to the states, I find it extremely unlikely that the 2nd won't be once the Chicago case makes its way to the SC in a year or two.
6.28.2008 12:48am
Mike Hansberry (mail):
Note that at least one court in the post civil war era (1872) assumed the Second Amendment to apply to the states as well as to the Federal Government -no imcorporation needed as the language of the amendment indicates its nature.


The court in English V. State cites Mr. Bishop

The constitution of the United States provides that 'a well-regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed.' This provision is found among the amendments; and, though most of the amendments are restrictions on the general government alone, not on the states, this one seems to be of a nature to bind both the state and national legislatures, and doubtless it does.

English v. State, 35 Tex. 473, 475, 476, 14 Am. Rep. 374.
6.28.2008 7:15am
J. Aldridge:
omarbradley wrote: "Now, there's certainly contradictory evidence, but there's more than enough evidence from Bingham, Howard and others to show that the amendment was designed to apply the bill of rights to the states, at least the first 8 amendments."

Really? Let's see....

You quote Bingham's March 31, 1871 partisan speech that came 3 years after the adoption of the amendment and you fail to recognize the red-flags Bingham throws up that destroys your conclusion. I specifically draw your attention to these remarks by him: "Mr. Speaker, that the scope and meaning of the limitations imposed by the first section, Fourteenth Amendment of the constitution may be more fully understood, permit me to say that the privileges and immunities of citizens of the United States, as contradistinguished from citizens of a State..."

Note he says United States citizens as "contradistinguished from citizens of a State." He isn't talking about citizens of a State which he always said does not come under the protection of this clause. This is why he said "This guarantee is of the privileges and immunities of citizens of the United States in, not of, the several States." If he meant citizens under their own state constitutions and laws then he could never had said the amendment takes from no state or citizens any right that ever pertained to them.

Now, two months earlier he and the entire judiciary committee (except two dissenting members) said: "The clause of the Fourteenth Amendment, 'No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States,' does not, in the opinion of the committee, refer to privileges and immunities of citizens of the United States other than those privileges and immunities embraced in the original text of the Constitution, article four, section two. "

He and the committee is saying nothing new was added, i.e., first eight amendments.

You have to go back to Bingham's Feb 28, 1866 speech to understand what he was saying in his March 31, 1871 speech. He felt Webster's reference to 'injunctions and prohibitions' against State officers who were under oath to support the federal Constitution might allow congress through the 14th to enforce all the securities in the constitution against state officers: Bingham: "The oath, the most solemn compact which man can make with his Maker, was to bind the State Legislatures, executive officers, and judges to sacredly respect the Constitution and all the rights secured by it."

Sen. Howard was under no such illusion as evidence by the fact he had to resort to the guarantee clause to support the constitutionality of equal schools for all the races in 1870 and not the 14th amendment as that dealt only with citizens in, not of, a State.
6.28.2008 9:57am
PubliusFL:
GV: The issue isn't whether the Supreme Court can overrule its own decisions. Of course it can. The issue I thought we were discussing was whether lower courts could somehow decide the incorporation issue.

No, I have acknowledged that lower courts can't overrule the Supreme Court. Anyone seeking that result in a lower court will certainly lose, and have to appeal to the Supreme Court. Unless they can somehow find a way to distinguish their case sufficiently from the prior case that the lower court will buy the argument that the Supreme Court precedent isn't directly controlling.

I was just arguing that the fact that only the Supreme Court can modify Supreme Court precedent does not mean that a case asking for a result contrary to Supreme Court precedent can never get to the Supreme Court. Obviously it's happened lots of times (DeJonge as I mentioned above, Brown v. Board of Education, etc.). What often happens in such cases is that the complainants lose at every level until they reach the Supreme Court, and everyone involved (including the lower courts) realizes that that's the only way for the complainants to win. You said "circuit courts have continually stated that they may not overrule Supreme Court cases and they cannot assume that the Supreme Court has silently overruled its prior precedent." Granted. But I also pointed out where a circuit court said it would not sanction a party who argued that Supreme Court precedent should be reconsidered, as long as they were forthright about it. That's a long, uphill battle, but it's not "frivolous."
6.28.2008 11:03am
J. Aldridge:
omarbradley quotes Bingham as saying:

"The states never had the right, though they had the power to inflict wrongs...They denied trial by jury(6th) and he had no remedy, they took property w/o compensation and he had no remedy(5th), they restricted the freedom of the press and he had no remedy(1st)...Who dare say, now that Constitution has been amendmed that the nation cannot provide by against all such abuses and denials of rights as these in States and by States, or by combinations of persons?"

Did you notice he is talking about lack of remedies?

hmmmmm?

It is the security of seeking remedies in state courts under the equal protection of the laws of due process for life, liberty and property is what the 14th is what is behind the entire first section, not enforcing any of the eight amendments against the states! How did rebel states comply with the first section? By adopting the following provision in their constitutions:
All Courts shall be open, and every person, for an injury done him in his lands, goods, person, or reputation, shall have remedy by due course of law, and right and justice administered without sale, denial, or delay.

The above conformed with the requirements of the first section, and without it rebel constitutions would not have conformed with the fourteenth's first section.
6.28.2008 1:43pm
omarbradley:
Well, we'll have to agree to disagree. I think if you examine the totality of the evidence, it points in the direction of incorporation. Not 100% in favor, but more in favor than against. And it's not only Bingham and Howard. It's the statements of numerous other Congressmen and Senators at the time, numerous contemporary judges(Woods, Swayne, Bradley, Chase, etc...), numerous professors and scholars(Pomeroy, Cooley, etc...). And the Supreme Court and pretty much every Justice have agreed that the 1st amendments are incorporated, although they used the due process clause.

So, when it comes to whether the 2nd Amendment is incorporated, I think the evidence that it is. And I think it will be when the Court rules on it, likely to be in the Chicago case in the next couple years.
6.28.2008 2:26pm
PubliusFL:
Albridge: Did you notice he is talking about lack of remedies?

Did you notice he is talking about lack of remedies BEFORE the Constitution was amended to include the 14th?
6.28.2008 3:06pm
J. Aldridge:
omarbradley said: "I think if you examine the totality of the evidence, it points in the direction of incorporation... And the Supreme Court and pretty much every Justice have agreed that the 1st amendments are incorporated, although they used the due process clause."

Why did President Grant in 1875 ask congress to propose another amendment to the constitution that would prohibit "the granting of any school funds or school taxes, or any part thereof, either by legislative, municipal, or other authority, for the benefit or in aid, directly or indirectly, of any religious sect or denomination, or in aid or for the benefit of any other object of any nature or kind whatever."?

This recommendation lead to the proposed Blaine Amendment which attempted to make the First Amendment a prohibition directly against the states. Why did congress need to do that if the 14th Amendment incorporated the Fisrt Amendment? Why didn't anyone come forward and say we don't need to amend the constitution, the 1s amendment is already limitation against the states!!!!!

Did you know the entire First Amendment incorporation mantra is based on a ruling that "assumed" the 14th might incorporate the First? The court couldn't say how, why or where, just it was "assumed"!!!!! (laughing)

What a circus.
6.28.2008 8:18pm
Confued:
Who in their right mind would want to give up their right to protect themselves, nevermind fight to give it up? Makes me think.
6.29.2008 2:02pm
starrydeceases:
I think the confusion here may be stemming from the differences between the "Privileges and Immunities Clause", of Art. IV, Sec. 2, and the "Privileges or Immunities Clause" of Amendment XIV, a mistake which I myself perpetuated.

It is Art. IV, Sec. 2 which contains the language "in the several States". The relevant passage in Amendment XIV clearly denies the states the power to abridge the privileges or immunities of "citizens of the United States", with no other modifiers added.
6.29.2008 4:46pm
A.W. (mail):
J. Aldridge

You know, I was with you in your post responding to me until you wrote this:

> that officers of a state under oath to respect the US Constitution was also obligated to respect all of the first eight amendments. He said he was of the "opinion" the 14th amendment "might" allow congress to enforce these oaths.

Maybe you can't enforce the oath as an oath, but you can force them to do what it says: protect those rights, at least to the extent they were incorporated.

And this is a puzzler:

> Note he says United States citizens as "contradistinguished from citizens of a State." He isn't talking about citizens of a State which he always said does not come under the protection of this clause.

Sorry, are you saying that if you are a citizen of Georgia, you can be robbed of your citizenship in the United States? Or that Georgia can violate your rights as a citizen of the United States? Well, that's not what he said anyway.

> It is the security of seeking remedies in state courts under the equal protection of the laws of due process for life, liberty and property is what the 14th is what is behind the entire first section, not enforcing any of the eight amendments against the states!

Not true. They explicitly said that the Bill of Rights was incorporated by the Fourteenth Amendment. You might argue about which clause enforces it, but there is no question that it was there and it was understood to be there.

But do you really think that the framers of the Fourteenth Amendment thought the only problem black people had was they didn't have access to the courts? As I said in "scholarly" thread, context is important.

> How did rebel states comply with the first section?

Um, the answer is... they didn't. they violated it in every way possible. Really, you are going to cite South Carolina law as an example of compliance with original intent? Again, context my friend.

The ugly fact is that Fourteenth Amendment was passed in the face of southern intransigence—intransigence that didn't stop once the 13th, 14th and 15th amendments were ratified. You might argue that the struggle with the KKK was our first war on terrorism. And for those keeping score, the good guys lost (meaning the guys fighting with the Klan).

> Why did President Grant in 1875 ask congress to propose another amendment to the constitution that would prohibit "the granting of any school funds or school taxes, or any part thereof, either by legislative, municipal, or other authority, for the benefit or in aid, directly or indirectly, of any religious sect or denomination, or in aid or for the benefit of any other object of any nature or kind whatever."?

Um, because back then the establishment clause wasn't read that way? And thus the Blaine concept was irrelevant to the discussion.

And besides that "any other object of any nature or kind whatever" goes a lot further than even the modern conception of the First Amendment. It definitely bans private schools entirely and might even ban public schools.

> Did you know the entire First Amendment incorporation mantra is based on a ruling that "assumed" the 14th might incorporate the First? The court couldn't say how, why or where, just it was "assumed"!!!!!

Because the people who ratified it made the same assumption. Now you might have an interesting debate that it was in this clause or that one, but what doesn't change is that the people at the time understood this to be what they were doing.
6.30.2008 10:41am
Earnest Speiker (mail):

I quite agree with "Erik jaffe"'s comment above, regarding incorporation -- and, it seems to *this* poor little observer that Scalia is very skillfully saying something quite simple: "Folks - even the First Amendment didn't get any help from 'incorporation' in an early major case, and yet, whoa, look at the First Amendment **now**!!"
6.30.2008 10:50am