Supreme Court to Take Up Second Amendment This Week
Written by Sam on March 17th, 2008
PITTSBURGH-David Harris, University of Pittsburgh professor of law and a leading national authority on racial profiling, calls the Second Amendment case on whether the District of Columbia can ban handguns that is to be argued before the U.S. Supreme Court tomorrow “one of the blockbuster cases of the term.” Harris says this is the first time the Supreme Court will talk about the Second Amendment “right to bear arms” since the 1930s.
According to Harris, the court must decide whether the Second Amendment espouses a collective or an individual right. He says that among the possible outcomes is a decision by the court that the amendment is completely individual, which could throw out all gun regulation; or, on the other hand, the court could rule that the amendment is collective, allowing states and the federal government to regulate guns as much as they wish.
Another interesting wrinkle, says Harris, is the split in the Bush Administration over the case. The solicitor general, Paul D. Clement, who speaks for the administration before the Supreme Court, thinks the case should be sent back to the U.S. Court of Appeals for the D.C. Circuit, while Vice President Dick Cheney feels the Court of Appeals made the right decision.
In the end, Harris believes the Supreme Court will take a middle position and say that “the right to bear arms is an individual right, but some amount of reasonable regulation by the states and federal government is allowed.”
There is no doubt that this is going to be a landmark case and I am very interested to see how the justices split on this, if at all. I personally believe that if you really sit back and look at the entire picture it’s absurd to believe that an Originalist view of the Second Amendment does not guarantee that firearm ownership is an individual right. Everyone owned a gun in colonial days and we had the British at our front door ready to break the thing down and charge in with guns a blazing. If the justices are truly interprating the Constitution as the Founders intended then it should be a 9 to 0 ruling in favor of an individual right to bear arms. Of course, I realize that will not be the case. Ideology rather than Constitutional law has taken precedent in many of the court’s cases over the past several years.
Something that Harris does not mention in his piece is the belief espoused by some that the Second Amendment prohibits the Federal government from enacting firearm restrictive legislation, but that it does not apply to the states or local governments. In other words, the United States Senate can’t ban firearms on the whole country, but the State of New York could within its borders if it so decided. I have always been of the understanding that the U.S. Constitution trumps any State Constitution or local ordinance, but perhaps not. The Supreme Court could rule in some variation of this idea, particularly when you take into consideration that Washington D.C. is not a state, but a district of the Federal government and may theoretically exist outside the boundaries of restrictions placed on the Feds by the U.S. Constitution.
In any case, I do believe that Harris’s conclusion is likely to be the outcome, that the Second Amendment protects an individual right, but common sense restrictions may be applied in some manner by the Federal government or states or both. Should that be the case, does that really solve the issue at hand? What is considered to be a reasonable restriction? Currently in D.C. a shot gun may be kept in the house but it has to be unloaded and fixed with a trigger lock (rendering it completely useless in an emergency). I don’t consider this a reasonable restriction, so if Harris is correct, we will still be asking ourselves what is to become of the D.C. gun ban at the end of this week?
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PM
Actually, the understanding that the Bill of Rights is not necessarily applicable to the states is a correct (and originalist, some would argue) understanding of the United States Constitution.
What the courts now use in incorporating Constitutionally protected rights is a doctrine called Selective Incorporation - which, anyone who’s taken a basic Con Law course probably knows about (and anyone who hasn’t probably doesn’t - most people don’t know about it). The doctrine originates in a series of cases dating back to the 1920s, although it didn’t become fully fleshed out until the 1930s (see Palko v. Connecticut). The doctrine applies the Rights in the original eight amendments (and thanks to the activist Warren Court, far more than that) via the Due Process Clause in the 14th Amendment.
Originally, litigants attempted incorporation through the Privileges and Immunities Clause - though that failed (see Slaughterhouse Cases).
It’s the safest way to protect the concept of Federalism (also in the Constitution) and Individual Rights. In the case of the Bill of Rights, those two might conflict, because you have the Federal Government telling states how they should conduct their business - and when it comes to individual rights, I probably trust my federal government far less than I do my localized government.
Having said all that, it’s about damn time the courts incorporate the 2nd Amendment.
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PM
“Actually, the understanding that the Bill of Rights is not necessarily applicable to the states is a correct (and originalist, some would argue) understanding of the United States Constitution.”
I would counter that argument by stating the 10th Amendment:
“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”
Therefore, it can be construed that the powers and rights that ARE delegated to the United States by the Constitution are not reserved for the states nor the people, but rather are immutable unless constitutionally amended. No state can take away a right that has already been given to the people by the federal government. In this way the federal government checks the power of the state/local government which is equally capable of tyranny.
Palko v. Connecticut is an example of judicial tampering run amok. The reasoning of the court was that since the due process clause of the 14th Amendment was written after the 10th Amendment it was not protected in the same fashion by the 10th as the first eight rights of the bill of rights. This sort of make-believe tinkering with the Constitution to suit a desired end (in this case to put Palko to death for murder with new evidence after he had already been tried once) is dangerous not because of the Palko case, but because of where that case has led us today.
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AM
First, that’s a wholly incorrect reading of Palko - the case had nothing to do with the 10th Amendment whatsoever. The federal question in that case was (as you correctly stated) was whether Connecticut violated the Double Jeopardy Clause of the 5th Amendment via the Due Process Clause of the 14th. There never was a comparison of the 10th and the 14th in that case.
Second, it’s a false interpretation of the 10th Amendment to say that the original Bill of Rights is applicable - and in fact is probably more of an activist position than Selective Incorporation. The Amendment deals with the power of government to limit people’s freedom (essentially - key word in the Amendment is “power”), and those powers not given to the federal government are reserved for the States. Call back to our old high school civics classes to recall the difference between Expressed and Reserved Powers.
I’m not quite sure how your logic follows from the 10th in how that makes the Bill of Rights applicable, but I would certainly enjoy another explanation.
However, following your logic to the degree I understand it, the Bill of Rights is proscriptions against government use of power in certain instances. (Example: Congress shall make no law respecting an establishment of religion…). Congress is a federal institution, and therefore cannot act - it’s expressly stated right there.
If the 10th Amendment gives all power to the state governments not expressly delegated to the Federal government or restricted to the states, and as well restricts states’ power in all instances not delegated to the feds or restricted to the states, than this instance would not fall into your category of guaranteeing rights under state law (as opposed to federal).
Point is this, the 10th Amendment deals nothing with the rights of the people - it’s the Amendment that essentially guarantees a federalist system. In fact, it’s the Amendment that might deny your statement that the rights are immutable at all levels of government from a federal document. IN FACT, when the STATES are seeking exemption from application of FEDERAL laws - the 10th Amendment is often used as their justification.
Key point to remember is that incorporation was going to occur at some point, regardless - and debates raged as to how that would take place. Cardozo, in writing Selective Incorporation as he did, placed the strongest limit possible on federal action against the states, therefore guaranteeing the healthiest balance possible between the concepts of “individual rights” and “federalism,” both part of the philosophical underpinning of the Constitution, which in cases like Palko would conflict.
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That was very interesting to read. I have some further thoughts:
If the 10th Amendment does not in fact guarantee any rights to the people it would surely have not included the phrase “or to the people.”
The 10th Amendment, whatever else it is, clearly protects both states and the people from overreaching federal power. Federalism in a nutshell. It also prohibits states from rejecting certain portions of the bill of rights by leaving those rights to the people if the state does not take them up. The rights are reserved for the states or the people, one or the other, but they are not cast aside if the state decides not to exercise them.
I think that Constitutional case law and the actual intended legal meaning of the Constitution can differ a great deal, but when viewed through the prism of incorporation the rights of the people should be incorporated totally not selectively. If a certain state can deny a portion of the bill of rights to a citizen then that citizen can no longer be considered to be under the protection of the United States, but merely their own state as when we were ruled by the Articles of Confederation.
In my reading of it, the 10th Amendment would seem to protect against this very thing. The federal government is the final arbiter of federal constitutional rights. They are both obligated to enforce these rights upon the states and people just as they are prohibited from taking them away from the states or people.
The very linchpin of federalism is that both the federal government and the states cannot violate the rights of the people as expressed in the Constitution. Limiting the powers of the federal government to the extent that certain parts of the bill of rights cannot be incorporated into state law defeats the very purpose of such a bill of rights. These rights transcend all levels of government and do not rely on federal jurisdiction, nor an amendment to the Constitution that was passed in 1865.
The idea that the 2nd Amendment is not “incorporated” yet is nonsense simply because it is a right that has belonged to the people since 1791 (and has been a natural right long before that). The fact that constitutional case law and some states don’t recognize this doesn’t change the meaning of the 2nd nor its application to all citizens of the United States by the 10th.
If this was the case that rights had to be selectively incorporated over time (as I know a great many people argue) then what exactly was the entire Federalist vs. Anti-Federalist debate about? The entire Anti-Federalist argument hinged on the idea that states not the federal government should enforce the law within a state’s borders. Once they lost this battle and a Constitution was seen as inevitable they fought for the eventual inclusion of a Bill of Rights that would ensure that certain rights could never be taken away from the states or the people by mere federal dictate. If, however, a state itself could take these same rights away (by not incorporating them) then the role of the federal government would be no different than before the entire constitutional debate.
I understand the motive and reasoning behind the 14th Amendment in the post War Between the States environment of extending the Bill of Rights to black freedmen, but as far as originalist intent is concerned I find that aspect of the 14th redundant.
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PM
You are very right - this is interesting! I love talking about this stuff, and unfortunately - there’s not a lot of people that take the same interest in it I do.
That was very interesting to read. I have some further thoughts:
If the 10th Amendment does not in fact guarantee any rights to the people it would surely have not included the phrase “or to the people.”
The 10th Amendment, whatever else it is, clearly protects both states and the people from overreaching federal power. Federalism in a nutshell. It also prohibits states from rejecting certain portions of the bill of rights by leaving those rights to the people if the state does not take them up. The rights are reserved for the states or the people, one or the other, but they are not cast aside if the state decides not to exercise them.
Again, I think it’s a problematic and false “interpretation” of the 10th Amendment. First, because I think this focus on “or to the people” denies the contextual mean of the Amendment in its entirety when read – which is a comparison of powers given to the federal government and reserved to the states. Second, it’s just historically inaccurate to read that Amendment that way – either in a court of law or by the framers of the Amendment itself. I’ve never come across anything that even suggests it’s been a protector of rights like you suggest. In that light, compare it to the Ninth Amendment, which speaks of rights very specifically.
Even using a framer’s intent paradigm, the word “rights” is not mentioned by word once in the 10th Amendment, but it is in the 9th, which would make very specific the context of the amendments. 9th deals with rights in a general sense, 10th deals with federalism in a general sense.
I think that Constitutional case law and the actual intended legal meaning of the Constitution can differ a great deal, but when viewed through the prism of incorporation the rights of the people should be incorporated totally not selectively. If a certain state can deny a portion of the bill of rights to a citizen then that citizen can no longer be considered to be under the protection of the United States, but merely their own state as when we were ruled by the Articles of Confederation.
To the first part of the statement, I agree to a certain extent. I do think the rights should be incorporated, but one straight shot is not necessarily a good idea. One such example is indictment by grand jury; try convening a grand jury in the middle of Montana when a crime occurs. There are certain methods of protection and law enforcement that should be localized, and total incorporation wouldn’t recognize that. Then, in turn, that method of application would result in the federal government destroying states’ rights in the process.
Furthermore, when states are enforcing state laws, to a large degree those accused are not considered U.S. citizens for jurisdiction purposes. Now, to the procedural and substantive due process rights that have been applied via the 14th DPC, the state has to recognize those. However, to the degree they haven’t – they can’t. Furthermore, violation of state laws cannot be tried in a federal court of law unless a federal crime has been committed.
Our legal process should reflect that, and using selective incorporation, it does. Reading Palko, Cardozo’s test for selective incorporation was the belief that the right at hand is the “essence of a scheme of ordered liberty.” Total incorporation gives no consideration that there are fundamental rights (of which I think the 2nd Amendment is one, mind you) and others that don’t fit.
In my reading of it, the 10th Amendment would seem to protect against this very thing. The federal government is the final arbiter of federal constitutional rights. They are both obligated to enforce these rights upon the states and people just as they are prohibited from taking them away from the states or people.
Exactly, the federal government is the final arbiter of federal rights – and I stress federal. Again, what is to restrict federal tyranny on the states if there is not a clear division of obligations and powers? That line is already FAR, FAR TOO BLURRED because of past court decisions – a court decision of total incorporation would destroy it all together.
The very linchpin of federalism is that both the federal government and the states cannot violate the rights of the people as expressed in the Constitution. Limiting the powers of the federal government to the extent that certain parts of the bill of rights cannot be incorporated into state law defeats the very purpose of such a bill of rights. These rights transcend all levels of government and do not rely on federal jurisdiction, nor an amendment to the Constitution that was passed in 1865.
Incorrect, the very essence of federalism is that the federal government has sovereignty over national matters, and cannot compel the states to act in the fashion the federal government sees fit over state matters. There’s a distinction between the two systems of government. Federalism is a definition of intergovernmental relationships – not a statement of governmental relationships with the governed.
The idea that the 2nd Amendment is not “incorporated” yet is nonsense simply because it is a right that has belonged to the people since 1791 (and has been a natural right long before that). The fact that constitutional case law and some states don’t recognize this doesn’t change the meaning of the 2nd nor its application to all citizens of the United States by the 10th.
True – the right should have been incorporated long, long before.
If this was the case that rights had to be selectively incorporated over time (as I know a great many people argue) then what exactly was the entire Federalist vs. Anti-Federalist debate about? The entire Anti-Federalist argument hinged on the idea that states not the federal government should enforce the law within a state’s borders. Once they lost this battle and a Constitution was seen as inevitable they fought for the eventual inclusion of a Bill of Rights that would ensure that certain rights could never be taken away from the states or the people by mere federal dictate. If, however, a state itself could take these same rights away (by not incorporating them) then the role of the federal government would be no different than before the entire constitutional debate.
I understand the motive and reasoning behind the 14th Amendment in the post War Between the States environment of extending the Bill of Rights to black freedmen, but as far as originalist intent is concerned I find that aspect of the 14th redundant.
To view the constitution, and its amendments, as anything other than a framework on federal action is the beginning stages of what would begin the already occurring onslaught on a federally structured governing system like we have.
Debates took place after James Madison proposed the amendment in Congress to include language directed specifically at restricting state action on rights like freedom of speech, press, etc. That language was soundly REJECTED by the federal government when the opportunity first came. Also, keep in mind that before there even was a Bill of Rights, the Constitution had been ratified by a requisite number of states to implement is structure.
The debate about federalism is to show that you cannot discuss one aspect of the constitution (individual rights) without recognizing that there may be a negative and horrendous impact to another (federalism). I find that the federal government compelling the states to act on certain rights is a dangerous trend, and one I’d like to see reversed given the amount of it that takes place now.
However, I also understand that it happens when there is a conflict of concepts – as there is here. In those instances, a decision to categorically favor the tenets of one concept – individual rights – over another – states’ rights – does nothing to minimize the negative impacts, and a push can be considered. Using a selective approach – a case by case process – may be slower, but it’s certainly more methodical. And in that, rash decisions will not be made to degree that categorical decisions would require. AND IN THAT, I have faith that the right decisions will be made to minimize the negative ramifications and maximize the positive.
Having said all that, let’s hope the court pulls its damn head out and protects the 2nd Amendment finally!
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AM
Thanks for explaining alot of this to me. I think we are trying to achieve the same goal - the legal defense of personal liberty - just using different interpretations of the Constitution to get there. I am really learning some new things about constitutional law from your comments, so again thanks.
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PM
Yeah, no problem. I’ll fully admit, your comments about the 10th did make me go back to see if I missed something through everything I’ve read and studied.
Like I said, I enjoy talking about stuff like this; nobody ever wants to around here…