Incorporation of the Second Amendment:
Thanks to Gene Hoffman (Hoffmang.com), you can read the pro-challenger briefs that have been filed so far in Nordyke v. King, including an amicus brief -- largely drafted by Prof. Michael Kent Curtis, a leading liberal Fourteenth Amendment scholar -- on the incorporation question.
There might well be anti-incorporation amicus briefs coming soon; for now, the leading anti-incorporation argument is in the state's brief, which was also posted by Hoffman.
No, but whatever authority they have from wherever/whatever/whomsoever derived, is limited by the federal Constitution through the 14th Amendment which incorporates the first eight Amendments (in the Bill of Rights). Read the Aynes article in the Yale L. J.
At the very least, the Second Amendment would seem to bind every state judge and prevent him from enforcing any state or local law abridging the right to keep and bear.
State governments don't draw their authority from the federal Constitution. Furthermore, your argument would prove too much. Clearly the amendment has an implicit limitation on who it applies to, or else it would apply even to owners of private property. If you look at the history, it is clear that the amendment was intended as a restraint only on the federal gov't.
Don't get me wrong; I'm about as pro-RKBA as one can be. But I can recognize that sometimes the text of the Constitution, as it was originally understood, does not support my personal policy preferences.
That's novel. Any comment Eugene?
For the same reason the 4th, parts of the 5th, 6th and 8th "needed" incorporation, despite none of them mentioning Congeress, either.
The Second Amendment, by itself, is bindingly on only the federal gov't. It is the 14th Amendment that binds protections of the Second Amendment against state governments.
The Second Amendment, by itself, is binding on only the federal gov't. It is the 14th Amendment that binds protections of the Second Amendment against state governments.
But the precedents were with us for a long time and a constitutional amendment, the Fourteenth Amendment, was passed in particular to address that constitutional regime.
I think it’s a little late, then, to correct barron v. Baltimore, even if incorrect.
That said, the deeper issue is that the same evidence that the founders intended to incorporate the Bill of Rights also tends to point toward total incorporation, not this hit and miss analysis. The second A should be incorporated as a matter of right.
Another common sense approach is to look at the Black Codes they were designed to repeal; one prominent example was laws that declared that black people could not carry guns. The people seeking to reenslave African Americans understood that keeping them unarmed was important, I don’t know why we should think Congress recognized the relationship between the two. Indeed, in different debates over the right to vote, they likened the right to vote to the right to bear arms, saying that the right to vote was a self-defense measure almost as fundamental as the right to bear arms.
A few specific comments:
Bama 1L
> Do state governments derive their authority from the federal constitution?
No, they derive it from the people. The people explicitly chose to take certain powers from the states and give it to the constitution. Frankly, this far into your first semester, you should know that.
malvolio
> At the very least, the Second Amendment would seem to bind every state judge and prevent him from enforcing any state or local law abridging the right to keep and bear.
Only if the constitution says that the Second Amendment applies to the states, either directly or by incorporation. So for instance, before the Fourteenth Amendment was passed, there was nothing to stop a state judge from enforcing a state law abridging freedom of speech—at least nothing in the Federal Constitution stopped him. But on the other hand, if a federal law abridged freedom of speech they would have the duty to refrain from enforcing it.
That would be a neat trick since the next ruling that is in the Heller gun sights is the 9ths Silveria Vs Lockyer. That ruling stated that the 2nd did only protect a collective right and not an individual, but it isn't cited in the State Brief so obviously someone doesn't want to talk about it. Or is its non-existence due to the fact in section C of that ruling the Court told the State of california to stop arming retired Police with Assault weapons unless the State organized them as a military reserve.
Few know this, California ignored that order on the grounds that the 2nd Amendment was a restriction on Federal authority (the very issue being discussed). It would be interesting for the 9th to agree not to incorporate the 2nd Amendment into the 14th and, in the process, have to publicly revoke its section C of Silveria Vs Lockyer. It would make a mockery of the entire ruling
This strikes me as pretty poor scholarship and writing from a professor. Is the right to learn to read a basic constitutional right, at least on the same level as the other rights he mentions (which are explicit in the bill of rights)? And what's the evidence that free blacks in the slave states were denied the right to bear arms (which apparently loses its constitutional status in the second sentence)? My understanding is that free blacks were "denied" that right only in a very limited, and now sanctioned by the Supreme Court, way: by laws regulating the carrying of concealed weapons. These laws might have been enforced discriminatorily, but none was facially discriminatory.
The whole beginning of the brief sounds like it was written by a tenth grader. On a forty-minute history exam.
Surely everyone is familiar with arguments for total incorporation by the 14th Amendment but also knows that courts just haven't seen it that way.
Everyone: please don't take my handle too seriously.
That's obvious from the plain wording.
Yours, TDP, ml, msl, &pfpp
[excerpt]
Sen. Reverdy Johnson, considered one of the most ablest constitutional lawyers among congressional members involved in the adoption of the Fourteenth Amendment, was asked during the Joint Select Committee on the Condition of Affairs in the Late Insurrectionary States in 1871 the following:
Sen. Johnson replied:
Read the rest here.
Sen. Reverdy Johnson, considered one of the most ablest constitutional lawyers among congressional members involved in the adoption of the Fourteenth Amendment, was asked during the Joint Select Committee on the Condition of Affairs in the Late Insurrectionary States in 1871 the following
This is false. Johnson was not a senator at that time and did not testify before that committee. The report of the Joint Select Committee included transcripts from the South Carolina KKK trials, and Johnson was one of the defense attorneys representing the Klansmen. The question quoted was not posed to Johnson directly, but was part of the district attorney's argument. Johnson opposed the theory of incorporation as part of the defense theory, which was to reject the idea that the Klansmen could be guilty of conspiring to deny blacks various rights because those rights were not incorporated by the 14th Amendment.
Also, you claim that Johnson was "considered one of the most ablest constitutional lawyers among congressional members involved in the adoption of the Fourteenth Amendment," but fail to mention who holds that opinion. Johnson was included in the Joint Committee on Reconstruction, which drafted the amendment, as the token Democratic senator, and he was constantly in the minority on the issues as well as in party identification. He objected to the inclusion of the privileges and immunities clause in the amendment, claiming "I do not understand what will be the effect of that." So maybe he's not the best person to cite on the intent behind the 14th Amendment.
It was Flack who said Johnson was the best constitutional lawyer at the time. Nothing wrong to refer to him under his former title (like Mayor Giuliani, President Clinton).
Also, there WAS NO incorporation theory. The theory was the 14th Amendment might provide the power for Congress to make and enforce laws against "conspiracies." The conspiracy theory in question being the disarming of the militia.
Did any Supreme Court ever rule prior to 1866 that the privileges and immunities under Article IV included any of the first eight amendments? The house judiciary committee ruled in 1871 the 14th's privileges and immunities were no different than found under Article IV, and the 14th added nothing new to it. This conclusion was written by Bingham himself. Would you argue Bingham is not the best person to cite?
The Blaine Amendment further proves no one understood the 14th as incorporating any of the first eight amendments, except what its says it does incorporate: The 5th's due process.
Incorporation and the Easter Bunny have much incommon.
Why would they mention female eels?
Sorry, not really busting on you, but I found the construction "Congeress" (ie., "Conger" - a type of eel, with the female suffix of "ess") rather humorous.
Took me a surprisingly long time to figure out how the case got where it was (at least using only public sources since I can't access Pacer or Westlaw today). Three panel and en banc Ninth Circuit opinions, two District Court dismissals on the merits, an order to strike the Second Amendment claims without leave to amend, and a certification trip through the California Supreme Court on preemption issues to boot. And the underlying claim challenges the Constitutionality of a CRIMINAL ordinance banning firearms on county property, notwithstanding that no prosecution has occurred under that ordinance (apparently the plaintiffs lost their permit to hold a gun show at the Alameda County fairground after they were unable to write a business plan that would ensure the show wouldn't violate the ordinance). And then there's the complication that the District Court apparently made a factual finding (subject to deference on appeal) that the gun show COULD be held, just without real guns [huh?].
All of which suggests to this pinhead that the most likely outcome is yet another remand to the District Court, this time with instructions about incorporation and whether the Second Amendment claim is even still alive procedurally, followed by another appeal, and only THEN possibly a cert. petition. At bottom this procedural hairball has created a surprisingly muddy record for what's supposed to be a case raising pure First and Second Amendment Constitutional questions, and SCOTUS tends to lose interest quickly when presented with hairballs.
Gura's Chicago Second Amendment incorporation case may quite possibly beat Nordyke to the Supreme Court, even given the nearly decade-long head start...
This has basically been answered above, but I would also note that people who blithely assume that the provisions of the Bill of Rights that don't mention Congress apply to the states are forgetting that it was a BILL of rights. In other words, it was a list of rights, intended to be read together, even though they were passed as separate amendments to the Constitution.
So, imagine a single law that begins "Congress shall make no law" and then goes through a bunch of legal protections, but which doesn't repeat the reference to Congress or the federal government in each specific paragraph. Would you nonetheless assume that the whole thing applies only to the federal government?
That's what the basis of nonincorporation (pre-14th Amendment) was.
The case is on appeal from summary judgment order, review is de novo, i.e., no deference to trial court's factual findings.
The procedural "hairball" is a non-issue. No one is challanging the status of the 2A claim, in fact the County stipulated to briefing the issue, and steadfastly claim that remand (for factual development) is unnecessary.
Criminal ordinance that has not been prosecuted is also a non-issue. Standing has already been conceded.
The original bill of rights had twelve articles. Articles III through XII became the first ten amendments to the Constitution. Article II was finally approved in 1992 and became the 27th amendment. Article I came within one state of ratification but, while it technically still could become law, it is pretty much dead (it would also have no effect today if implemetned).
The drafters of the twelve may have had some sense that it was a single whole and used language reflecting that. I don't know. But legally they were never a single whole.