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.


5 Responses to “Thoughts on Second Amendment Incorporation”

  1. steve2 Says:

    Wow! Volokh’s article is overwhelming, but excellent. Will work through more of it later.

    Having read your post, I think I still come down on the side of Congress passing a law rather than having SCOTUS rule. It would be a more open discussion and more people would be involved. I also think it best, as a general rule, for Congress to write as much of the law as possible.

    As to the general issue of states being able to over rule the Bill of Rights leaves me a little perplexed. The Bill of Rights had to be approved by the states, though just the first group, so I suppose later states could say they would have disagreed. I guess I just dislike this uncertainty that allows for ideologues to grow up on both sides.


    • I’m not so sure about Congressional interpretation of the Constitution via statute. Set aside whether it’s constitutionally permissible, there are good reasons for leaving con-law to the judiciary. Admittedly the latter isn’t perfect; OTOH, I’m not sure politicized Congressional interpretations would be any better.

      the general issue of states being able to over rule the Bill of Rights leaves me a little perplexed.

      Not sure what you’re referring to here. The BoR originally applied only to the federal government. Via incorporation, it applies to the states. However, I don’t think it’s correct to describe the absence of incorporation as “overruling” the BoR, since even in such a situation, the BoR would still apply to Fedgov.

  2. While I realize that this is in no way conclusive, the following may be of interest here:

    “[It is] rational to suppose that the courts were designed to be an intermediate body between the people and the legislature, in order, among other things, to keep the latter within the limits assigned to their authority. The interpretation of the laws is the proper and peculiar province of the courts. A constitution is in fact, and must be, regarded by the judges as a fundamental law. It therefore belongs to them to ascertain its meaning as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcileable variance between the two, that which has the superior obligation and validity ought of course to be preferred; or in other words, the constitution ought to be preferred to the statute, the intention of the people to the intention of their agents.” -Alexander Hamilton, The Federalist #78.

    Given my druthers, the aforementioned view would be the proper one; were Congress able to set the law _and_ determine its constitutionality, it would consolidate too much power to itself. The notion of separation of powers implies that no one branch of the government should have sole discretion over all (or even most) aspects of legislation, i.e. its creation, implementation, and interpretation relative to the Constitution. In fairness, I do not consider this to be as great a danger as the consolidation of the power to create and enforce the law (i.e., the combination of legislative and executive power), but to the extent that it can be avoided, I think it should be so.

  3. Adam Says:

    I have to disagree with you conclusions on the idea of: “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.”

    Perhaps you just need to remember the definition of a “right” as used by the men who drafted the Bill of Rights. Think more along the line of “inalienable rights”, they don’t get regulated. The Bill of Rights exists as acknowledgement at the highest level of our government that these Rights exist. They are no about regulation because the intrinsic rights of man cannot be regulated, they can only be suppressed.

    I don’t think the 2nd amendment is about handguns, I think it’s about the distribution of military power. The more consolidated power is, the more corrupting it is. Power flows from the barrel of a gun. So by having a wide spread distribution of militarily effective guns, our forefathers sought to keep government corruption and over-reaching at a minimum. It is easy to lie to your constituents when the worst you might face is some protest signs and a few anger letters to the editor. Replace ever protest sign with an M-16 and suddenly the voice of the people becomes a real governmental force.

    • 1. I don’t disagree WRT the “insurrectionary purpose” of the 2A, which IMHO is rather important.

      2. That said, at the time the Bill of Rights was added, the concern wasn’t over state infringement of RKBA, so much as federal; hence the 2A (like the rest of the Bill of Rights) only applied to the federal government.

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