The Second Amendment and the Big Surprise
By Susan Shelley
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."
Justice Scalia's irritation draws 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? Here's a ten-step guide to understanding
the Incorporation Doctrine and making sense of this debate:
1. When the Bill of Rights was written and
ratified, it applied only to the federal government. State governments were
limited by their own state constitutions. The rights spelled out in the first
ten amendments to the U.S. Constitution had no effect on state powers.
2. After the Civil War, the Fourteenth Amendment
was written and ratified to put some limits on the powers of the states,
but still nobody agreed to make the Bill of Rights apply to state governments.
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, "That's incorrect! When we voted for the Fourteenth Amendment we
intended to make the Bill of Rights 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 perhaps 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
Supreme Court gradually expanded the list of rights that were "fundamental"
enough to be "incorporated" into the Fourteenth Amendment. However, the justices
left some wiggle room: They permitted state laws to infringe fundamental
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, prison policy, local ordinance, state law, or state constitutional
amendment. Anything that limits anybody's rights can be challenged as
unconstitutional under the Fourteenth Amendment. Then city or state officials
have to persuade the federal courts that they didn't violate one of the
"fundamental" rights, or if they did, that they have a "compelling"
reason.
8. Because of the Incorporation Doctrine, local
and state voters have lost the power -- which is guaranteed to them by the
always-ignored Tenth Amendment -- to have the laws they want on all kinds
of controversial issues, including prayer in the schools, Ten Commandments
displays, abortion, panhandling, pornography, flag-burning, drug searches,
weapons 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 change in the Constitution's
division of powers between the federal government and the states (not that
anybody ever asked them).
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. Every fresh nuance opens the door for new state and local laws
as well as challenges to existing ones.
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 may actually be worse for gun rights if the
Second Amendment is incorporated than if it isn't.
For every Chicago gun ban that is struck down, there
could 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 federal gun registration,
mandatory trigger locks, a ban on "assault weapons," a safety-training
requirement, or a ban on gun ownership by anyone who's ever filled a prescription
for anti-depressants.
It may be hard for politicians to stand up to
pressure for gun-control laws like these after the Supreme Court specifically
rules that the Second Amendment allows them.
The Incorporation Doctrine silently 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 probably 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.
April 9, 2010
© Copyright 2010 by Susan
Shelley
Source Notes:
Justice Scalia's exchange with attorney Alan
Gura was reported in the New York Times on March 2, 2010:
For a history of the Incorporation Doctrine
complete with detailed source notes and a bibliography, see "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
AmericaWantsToKnow.com post,
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