July 28, 2008

Leading WI blogger fails U.S. Constitution

Writes one of Wisconsin's leading conservative bloggers:
"Chicago’s gun ordinance was not invalidated by the [Heller] decision. Three prior Supreme Court decisions have found that the Second Amendment does not apply to states and municipalities," [Chicago City Corporation Counsel Mara] Georges said. "The decision did not change that case law."
Consider the utter absurdity of the statement that I bolded. Replace "Second Amendment" with any other amendment and the statement is lunacy.
There's nothing absurd about it; Counselor Georges is correct. The Second Amendment is not incorporated against the States. Neither is the Third, nor the civil jury trial provision of the Seventh.

However, if one did replace "Second Amendment" with "First Amendment," then Mara Georges's claim would be false, as each provision of the First Amendment has been incorporated, one by one, case by case ("selective" incorporation).

The adverse party in Heller was the District of Columbia, which is a federal entity, not a State.

Wisconsin's leading conservative blogger continues:
Can you imagine if the cops walked into my house without a warrant and without my permission and just said, "oh, the Fourth Amendment? It doesn’t apply to West Bend."
The Warrants provision of the Fourth Amendment has been incorporated, so yes, it does apply to Wisconsin and by extension, Wisconsin municipalities, including even West Bend.

It goes on:
Or if Wisconsin decided to forbid women from voting under the reasoning that the Nineteenth Amendment doesn’t apply here.
The Nineteenth Amendment has nothing to do with it, as it expressly applies to both federal and State governments. The Bill of Rights is incorporated through the Due Process Clause of the Fourteenth Amendment. The theory entails that that Due Process Clause mimics the effects of the Due Process Clause of the Fifth Amendment.

It's fairly clear to most observers that the Framers of the Constitution did not originally intend the Bill of Rights to apply to the several States. At least, it was pretty clear to Chief Justice John Marshall.

The "total" incorporation argument that the Fourteenth Amendment automatically incorporates all of the Bill of Rights provisions, energetically championed by Justice Hugo Black, never convinced a majority of the U.S. Supreme Court.

And at least one sitting Justice, Clarence Thomas, may disfavor the whole idea of incorporation. In fact, he once wrote a lone concurring opinion* calling for the dis-incorporation of the Establishment Clause of the First Amendment. (As for the incorporation of the Free Exercise Clause, Thomas has written that he "can accept" it.)

That opinion was a bit of "judicial activism," incidentally, because the Court hadn't even been asked to address that question. Indeed, the Court didn't even reach the question it had been asked to address, because the plaintiff was deemed to have lacked standing to simply ask that question in the first place.

Still more leading blogging:
It’s ridiculous, which is why Chicago is going to spend a lot of money of lawyers [sic] to lose their case.
For an added comedy bonus, the above indented commentary is labeled, "Chicago to Continue to Ignore the Constitution." And what's ridiculous is that this person is taken seriously by a lot of people.**

But, thankfully, not by this one.

* He's actually concurring with another concurring opinion, but only that part of the other concurring opinion which is dissenting.

** Okay, only by Charlie Sykes and a few others. But still.


capper said...

Some, especially those on the right, have that special version of federal documents. You know the one. It has that part about all men being created equal, just some more equal than others.

Anonymous said...

True, he's an idiot. However, I assume that you realize the 2nd Am. will almost certainly be incorporated when the proper case comes along (Heller wasn't that case, obviously, because D.C. is a federal govt body). Many observers see the Chicago law as ripe for such a challenge.

illusory tenant said...

I don't know. I'm not sure that the conservatives on the Court are real big fans of the theory of substantive due process to begin with, and I doubt many people think gun ownership is a right of procedural due process (gotta love that redundancy).

I suspect that's why the McDonald v. Chicago plaintiffs are reviving the Privileges or Immunities Clause of the 14th Amendment as the potential vehicle for incorporation.

Good luck with that one, because it's going to take a Herculean effort on the briefs, as it's been something of a dead letter for 135 years.