Thoughts on Second Amendment Incorporation
By way of response to Steve’s earlier post…There are a number of issues at play here.
0. Federal v. State: the reason the Second Amendment doesn’t specify “who would regulate that right” is because no such specification was necessary. The Bill of Rights was drafted to be a bulwark against federal – not state – overreaching. To anyone in the early Republic, it was self-evident that the Second (and all the others) were addressed to Congress, not the states.
1a. Congress v. Supreme Court: Ultimately, what you’re asking here is whose interpretation of the Constitution is final – Congress’s, or the Supreme Court’s? Some (e.g., Pournelle) have argued for Congress. The Supremes, of course, favor themselves; in Boerne v. Flores, they rejected the notion that Congress could (effectively) impose, via statute, a binding definition of the Fourteenth Amendment pursuant to Sec. 5 thereof. Who’s right? Depends on your views re. proper constitutional interpretation, separation/balance of powers, federal v. states rights, etc.
1b. Constitutional mud-wrestling: That said, final power under the Constitution does of indeed rest w/ the political branches, since Congress could theoretically keep impeaching recalcitrant judges until the Judiciary got the message.
2. There’s also the issue of original meaning, which encompasses a couple of related questions.
2a. One question is whether the original public meaning of Sec. 1 of the Fourteenth “incorporates” the Bill of Rights (i.e., renders the Bill of Rights applicable to the states). Over the decades, this question has generated a small cottage industry among con-lawyers, which has, alas, failed to produce any definitive answer.
2b. Another question is whether, regardless of the answer to 2a, RKBA is among whatever rights _are_ encompassed by the original public meaning of “privileges or immunities” and/or “life, liberty, or property” as used in the Fourteenth. I’m not too clear regarding the state of that debate.
3. There’s also the question of precedent. Over the years the Supreme Court has “selectively incorporated” much of the Bill of Rights via the Fourteenth’s Due Process Clause. In view of this case law, it stands to reason that, if the Second Amendment does indeed protect an individual right, that right would be applicable to the states. This was the logic followed by the 9th Circuit in its recent ruling in Nordyke v. King (195 KB PDF).
4. Aside: Eugene Volokh had a very interesting article (687 KB PDF) recently regarding the practicalities of turning the Second Amendment into constitutional caselaw. See also here for excerpts from that hundred-page monster.