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September 30, 2009

Supreme Court Grants Cert in Second Amendment Incorporation Case!

This is the question that the Court held off considering in Heller.

Whether the Second Amendment is incorporated into the Due Process Clause or the Privileges or Immunities Clause of the Fourteenth Amendment so as to be applicable to the States, thereby invalidating ordinances prohibiting possession of handguns in the home.

Heller finally settled the question of whether the Second Amendment protects an individual right to firearms. But unlike most of the Bill of Rights, the Second Amendment has generally (and with some exceptions back in the 1800s) not been applied to the states.

The case is McDonald v. Chicago. Fun fact: the suit was filed the same day Heller was decided.

The filings in the case so far, including the Seventh Circuit's less-than-stellar order, can be found here (scroll down).

Legal geekery below the fold.


I know many conservatives do not like the incorporation doctrine. They believe that the U.S. Constitution places restraints on the national government with only a few specific restrains on state governments. The state constitutions then constrain state and local governments.

There are a few approaches to this. First, the pragmatic approach, is to admit that the incorporation doctrine is now law; it's widely accepted; and it should not just be applied willy-nilly. In other words, if the states are going to be bound by the First, Fourth, and Eighth Amendments, the states should be bound by the Second Amendment. The argument here is whether the first eight amendments in their entirety should be incorporated (called "total incorporation") or whether the courts should continue with their "pick-and-choose" strategy (called "selective incorporation").

Another approach directly addresses the desirability of the incorporation doctrine. Proponents of incorporation will note that most of the amendments in the Bill of Rights do not place a limitation on Congress, but make a more general limitation. For example, the Eighth Amendment says: "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted." Nothing there to say that the Eighth Amendment only applies to the national government. (This argument fails, though, when considering the First Amendment.) It wasn't until 1833 that the Supreme Court ruled that the Bill of Rights did not apply to the states.

Furthermore, there is some evidence that the creators of the Fourteenth Amendment intended that it would incorporate the first eight Amendments against the states. In other words, incorporation is not textually prohibited and it may have been the "original intent" of the drafters of the Fourteenth Amendment.

Everyone Saw This Coming: When Heller came down, incorporation was the first thing I thought of. Also, if you're interested, check out the comments there for some discussion of the issue (I apologize that the spam has blown up the page width).

Last Update on This: A good write-up on the history of this issue at the Wall Street Journal. It also has some info on the other cases for which certiorari was granted. Thanks to DrewM.

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posted by Gabriel Malor at 11:57 AM

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