Wednesday, March 03, 2010

The Second Amendment and the big surprise

The U.S. Supreme Court is about to decide the case of McDonald v. Chicago, which is expected to settle the question of whether the Second Amendment right to keep and bear arms is one of the rights that is "incorporated" into the Fourteenth Amendment and therefore binding on the state governments the same way it's binding on the federal government.

There was a dust-up in the oral arguments between Justice Antonin Scalia and attorney Alan Gura (who successfully argued the 2008 District of Columbia v. Heller case) over whether the incorporation could be accomplished through the Fourteenth Amendment's "privileges and immunities" clause instead of the "due process" clause that has been used to incorporate other rights in the past.

Justice Scalia said he doesn't like "substantive due process" but he has come to accept it, and he complained that Mr. Gura was trying to go against "140 years of our jurisprudence" to remake constitutional law. Justice Scalia accused the attorney of "bucking for a place on some law school faculty."

The snide comments only serve to call attention to the fact that the Incorporation Doctrine appears nowhere in the U.S. Constitution and is the creation of imaginative judges, totally disconnected from the principle of government by consent of the governed.

Confused? Don't be. Here are the ten things you need to know about the Incorporation Doctrine in order to make sense of this debate:

1. When the Bill of Rights was written and ratified, it was intended and understood to apply only to the federal government. The powers of the states were limited only by their own state constitutions.

2. After the Civil War, the Fourteenth Amendment was written and ratified to put some limits on the powers of the states, but nobody at the time thought the Amendment made the Bill of Rights apply to the states.

3. From 1868 until 1925, the U.S. Supreme Court ruled over and over again that the Bill of Rights did not apply to the states. Not once did anyone in Congress or the state legislatures stand up and say, "Hey! That's wrong! We meant for it to apply to the states!"

4. After everybody who debated and ratified the Fourteenth Amendment was safely dead, the U.S. Supreme Court quietly began to suggest that maybe the Fourteenth Amendment actually was intended to pick up certain parts of the Bill of Rights and make them apply to the states.

5. Over the course of the 20th century, the justices of the Supreme Court gradually added more and more rights to the list of rights that were "fundamental" enough to be "incorporated" into the Fourteenth Amendment. However, they left some wiggle room, permitting state laws that infringed those rights if the states could show "a compelling reason."

6. Nobody knows exactly what constitutes a "fundamental" right or a "compelling" reason. They have been different things at different times to different justices.

7. Because of the Incorporation Doctrine, states and cities can be sued in federal court over virtually any police procedure, school policy, local ordinance, state law, or state constitutional amendment.

8. Because of the Incorporation Doctrine, local and state voters have lost the power -- guaranteed to them by the always-ignored Tenth Amendment -- to have the laws they want on all kinds of controversial issues, including but not limited to: prayer in the schools, Ten Commandments displays, abortion, panhandling, pornography, flag-burning, drug searches, police interrogations, admissibility of evidence, jury trials, and the death penalty.

9. At no time did any voter, elected official, or state government formally consent to this arrangement, nor were they asked.

10. Under the Incorporation Doctrine, the U.S. Supreme Court has invented various balancing tests to decide which fundamental-right-infringing laws will be allowed and which ones will be struck down. Each new decision is instantly binding on every jurisdiction in the country.
That brings us to the Second Amendment and the big surprise that awaits gun-rights supporters if the Supreme Court grants their wish: a ruling that the Second Amendment is "incorporated" and binding on the states.

It's actually worse for gun rights if the Second Amendment is incorporated than if it isn't.

For every Chicago gun ban that is struck down in one of these cases, there will be dozens or hundreds of jurisdictions that end up adopting gun restrictions they never had before. That's because the U.S. Supreme Court will eventually spell out certain kinds of gun regulations that are allowable, using one of its fundamental-rights-vs.-compelling-interests balancing tests.

That's when gun-control advocates will besiege every city council and state legislature and demand those regulations.

City and state lawmakers who previously would have rebuffed those demands with a firm Second Amendment argument will be stuck, forced to acknowledge that the Second Amendment allows whichever restrictions made the cut in the latest Supreme Court ruling on the subject.

The justices could use McDonald v. Chicago or another case like it to give the green light to gun registration, or mandatory trigger locks, or a ban on "assault weapons," or a safety-training requirement, or a ban on gun ownership by anyone who's ever been clinically depressed.

Can you imagine a politician standing up to the pressure for gun-control laws like these after the Supreme Court specifically rules that the Second Amendment allows them?

The Incorporation Doctrine simply transfers power from state and local governments to the federal courts. Just as local governments have to consult the U.S. Supreme Court's rulings before they can close down a topless bar next to a high school, they will have to study the Supreme Court's rulings on gun restrictions whenever gun-control advocates show up with a list of demands.

It's just a matter of time before somebody gets shot and a city is sued for not having gun-control laws.

The better way to protect gun rights is to fight for state constitutional amendments in all fifty states to guarantee the right to keep and bear arms. The amendments may not succeed everywhere, but in the states where they do, gun rights will be safe from the constant threat of infringement by a 5-4 decision of the U.S. Supreme Court.

Copyright 2010

Editor's note: For a history of the Incorporation Doctrine complete with detailed source notes and a bibliography, read "How the First Amendment Came to Protect Topless Dancing." It's published as an appendix to the novel, The 37th Amendment, and can be read online at

You might also be interested in the 2006 America Wants To Know post, "The cat, the bag, and Justice Scalia."