March 2, 2010

Feingold wants 2nd Amendment applied to States

This morning the U.S. Supreme Court takes up oral arguments in the case of McDonald v. City of Chicago, which addresses the question of whether or not the Second Amendment to the Constitution restricts the power of individual States to regulate firearms, something the Court has never directly considered.*

Over the past several decades most of the other provisions of the Bill of Rights, which initially restricted only Congress, have been "incorporated" against the States, meaning their restrictions and guarantees direct the actions of State and local governments as well.

The Due Process Clause of the Fourteenth Amendment was originally intended to make the Bill of Rights applicable to the States, or so the argument goes. However, the Court has not incorporated the Bill of Rights wholesale, but rather one provision at a time, case by case.

McDonald v. City of Chicago is unique among similar enterprises in that the Court may decide to incorporate the Second Amendment not through the Fourteenth's Due Process Clause but rather its Privileges or Immunities Clause, an unprecedented move.

Justice Clarence Thomas, for one, might be more inclined to utilize the latter means rather than the former. Justice Thomas, in addition to being dead set against the incorporation of the First Amendment's Establishment of Religion Clause, occasionally favors reviving legal doctrines that were abandoned 150 years ago (such as that permitting the enthusiastic application of corporal punishment to public school students. See, e.g., "BONG HiTS 4 JESUS").

Last November a group of federal legislators, including Senator Russ Feingold, filed an amicus brief in support of incorporation. Among the arguments put forth is that restrictions on firearm ownership impede the federal government's authority to raise an army:
If many States and local governments followed [the City of Chicago's] example [in restricting ownership of handguns], Congress' ability to exercise its enumerated martial powers would be undermined. Soldiers with previous firearms experience require less training and make better marksmen. And in time of war, the period for training is reduced and pre-existing familiarity with firearms becomes even more important.
(The amici stopped short of requiring national firearms training, something France used to do until 1998 and which is still paying dividends in Olympic biathlon medals.)

Wisconsin's other Senator, Herb Kohl, didn't sign the brief (.pdf; 59 pgs.). Wisconsin's Attorney General, J.B. Van Hollen, joined a separate brief (.pdf; 55 pgs.) submitted on behalf of 38 States and arguing in favor of the same objective.

* Erstwhile and future Wisconsin Supreme Court candidate Judge Randy Koschnick believed the question had already been decided.


Jeremy R. Shown said...

From the perspective of the average citizen, is there a difference between the Due Process vs. Priviliges or Immunities route, or would incorporation by either appear the same?

illusory tenant said...

Excellent question. I haven't read the oral argument transcript yet, but according to SCOTUSblog's Lyle Denniston, who was in attendance, even the conservative Justices were skeptical of the P or I route as they were apparently concerned that it might open the door to recognition of even more "unenumerated" rights than would the due process analysis.

Free Lunch said...

The Supreme Court completely screwed up in the 19th Century in interpreting what was written, but they still refuse to admit it, so they apply privileges and immunities but call it substantive due process and sometimes say it doesn't apply.

Anyone who cares about original intent would be screaming to restore privileges and immunities, but fakes like Scalia can be relied upon not to consider it.

Jeremy R. Shown said...

Thanks. So what are the handicappers saying, is incorporation a done deal?

In other words, is it all over but the shooting?

illusory tenant said...

Is it all over but the shooting?

Very good. Not sure what the handicappers are saying but I think incorporation is a done deal and the Chicago law is toast, but there will remain the same questions as of old: those being whether or not whatever firearm restrictions get challenged are reasonable regulations (which the Constitution will still allow States and municipalities to make).

Should be a very interesting set of opinions, especially that of Justice Thomas, who will write a concurrence that nobody else joins based in Privileges or Immunities rather than Due Process.

Anonymous said...

Good stuff

More good stuff

Interesting how some of the justices believe that the ruling in Slaughterhouse is dubious, yet partly due to their respect for originalism, past precedent, and the potential implications for future cases, they are NOT compelled to overturn it.

Also interesting is how these same justices agreed that corporations are entitled to political free speech similar to citizens, even though their rationale was based on several cases in the late 1900's whose foundation is Santa Clara vs. Southern Pacific RR (1886). Former Chief Justice Reinquist duly noted that the ruling was specious itself!

The Belloti Case (1978)--"This Court decided at an early date, with neither argument nor discussion, that a business corporation is a "person" entitled to the protection of the Equal Protection Clause of the Fourteenth Amendment. Santa Clara County v. Southern Pacific R. Co., (1886). Likewise, it soon became accepted that the property of a corporation was protected under the Due Process Clause of that same Amendment. See, e. g., Smyth v. Ames, (1898). Nevertheless, we concluded soon thereafter that the liberty protected by that Amendment "is the liberty of natural, not artificial persons." Northwestern Nat. Life Ins. Co. v. Riggs, (1906)."

I apologize for the digression!

Keep up the good work, IT!

illusory tenant said...

An astute digression ... thank you.