Rhode Island's Attorney General Endorses a Broad and Constitutionally Sensible View of the Second Amendment
Carroll Andrew Morse
At the time of Sondra Sotomayor's Supreme Court nomination hearings, Anchor Rising noted that Rhode Island Attorney General Patrick Lynch had not joined an amicus brief offered by other state Attorney Generals in the case of McDonald v. Chicago in support of the position that the Second Amendment is protected from state-government abridgement via the Fourteenth Amendment ("No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States").
Since that time, the RI Attorney General has signed on to the brief, which makes its case for the incorporation of Second Amendment rights in no uncertain terms…
As history has proven, the right to bear arms provides the foundational bulwark against the deprivation of all our other rights and privileges as Americans—including rights that have already been incorporated against the States by this Court. Accordingly, the Court should hold that the Second Amendment also secures a “fundamental” right that can no more be abrogated by local government than by the federal government....
Under this Court’s established Due Process jurisprudence, all “fundamental” rights under the Bill of Rights are enforceable against state and local governments—including the Second Amendment. The fundamental nature of the right to keep and bear arms, as necessary to the protection of all other rights, has been deeply embedded in the American conscience at every stage of our history: It was imported into the colonies from English law, sparked the American Revolution, animated the Founding spirit of this Nation, and drove the adoption of the Fourteenth Amendment and other post-Civil War measures designed to protect recently-freed slaves from both government and private oppression.
The addition of Attorney General Lynch's signature to the brief helps bring the total number of state AGs who support the Second Amendment to 38.
If we live in a system based upon the rule of and not the rule of lawyers, it is obvious that, if the the 14th Amendment extends the protections of Amendments 1 and Amendments 3 through 8 to state governments, then the protections of Amendment 2 must also be similarly extended. Whatever other disagreements you may have with him, it is a good thing that Rhode Island's current Attorney General has taken a public stand in support of this position.
Encouraging.It spits in the face of the social engineers and the ACLU who hate the 2nd amendment.
While I welcome the fact that he signed on to the brief, I don't think this says anything meaningful about Mr. Lynch. He is merely using the trick that the Obama campaign used so effectively last year: Take any position that's popular with your audience while running for office, and do what you want once you are in.
Patrick Lynch has publicly spoken out against the Heller decision and he has said that he is against a "self-defense" 2nd Amendment reading in the past. There are Youtube videos out there confirming this.
Don't get me wrong, I'm glad that he's finally on the pro-liberty side of things (for once?), but it's clearly just to get elected and nothing more. It goes against his personal beliefs and his statements in the past.
Hey, Dan, I took a quick look on youtube and didn't find such footage. If you have a link (without putting you to a lot of work), can you please copy and paste it here?
RE the Second Amendment, I don't think there a climate change at work here, I think there is a "secret plan".
Although this may appear to remove the state's rights to make laws contravening the Second Amendment, it also removes the necessity for local officials to make unpopular decisions.
Moving "rights" to the federal level does not insure their sanctity. It just moves them to a level more removed from local opposition. Local AG's can then say "it was a federal decision, we can't be blamed".
The RI Constitution guarantees the individual right to possess firearms in a much more direct way than the US Constitution,so mere legislation can't change the right as far the General Assembly is concerned.
From the current RI Constitution:
"Article I, Section 22. Right to bear arms. -- The right of the people to keep and bear arms shall not be infringed."
I don't know what the RI Supreme Court history is on the unconstitutionality of our present system of requiring permits to bear arms. But all these state infringements will be hard-pressed to survive a strong incorporation decision by SCOTUS. Of course, this would require someone with the fortitude and financial resources to litigate it.
Monique, I found this video:
http://www.youtube.com/watch?v=J6Sx4RaQaas
I don't support the people interviewing him (9/11 truthers or some such thing, doesn't really matter) but it does get his opinion of the Heller decision.
Lynch first says that he doesn't think it's very important, then he says that he supports a strong reading of the regulatory clause (dissent's position in the case). He goes on an incoherent sidetrack about global warming, appeals to striking a good balance between law enforcement and people's gun rights, and then mentions that the purpose of the 2nd Amendment was debatbly a strong militia reading (again, dissent's opinion in the case). This is consistent with his other highly regulatory-focused positions and his statements on gun issues in the past.
Andrew,
(this is rather late...sorry) Just for the sake of being pedantic, this statement
....it is obvious that, if the 14th Amendment extends the protections of Amendments 1 and Amendments 3 through 8 to state governments, then the protections of Amendment 2 must also be similarly extended.
is not quite accurate. In addition to the Second Amendment, several other provisions of the Bill of Rights have not been nationalized by being "incorporated" into the Due Process Clause of the 14th. They include the 3rd, the Grand Jury provision of the 5th, the 7th, and the excessive bail clause of the 8th Amendment.
Historically, the cause of incorporation has been championed by liberal justices, while some conservtive "restraintists" (Bork, for instance) have opposed it as "activist". If the Court uses the P&I clause of the 14th to nationalize the 2nd, it will be an historic first. It will overturn state laws and many years of precedent, including the Slaughterhouse Cases of 1873. If the term "judicial activism" means anything, such a decision would surely merit that label.
Whether the original decision to "incorporate" was an activist one or not (and I know it's far from clear what "privileges or immunities" means from the text of the Fourteenth Amendment alone, with both broad and narrow interpretations possible), once it was decided that individual rights listed in the Bill of Rights were what was protected, then all of the individual rights have to come in. To suggest otherwise is to reduce a written constitution to a list of suggestions that judges can choose to implement or not implement at their discretion. And that's the end of the rule of law.
Andrew,
You say, once it was decided that individual rights listed in the Bill of Rights were what was protected, then all of the individual rights have to come in.
You have, perhaps unwittingly, aligned yourself with Justice Hugo Lafayette Black, who was, as far as I know, the ONLY justice (except perhaps Douglas) on the Supreme Court who ever espoused the view of "total incorporation" of the Bill of Rights, A long line of decisions (notably,Palko v. CT, Adamson v. CA and Duncan v. LA) have rejected this view.
More importantly, you should also note that ALL of those decisions rested on the Due Process Clause. NO decision of the Supreme Court has ever said that the Privileges and Immunities Clause has the effect of applying the BOR to the states, a notion that was explicitly rejected in the Slaughterhouse Cases.
I'm not saying that decision would be wrong. I am saying that it would be activist by any definition, and far more activist than a decision that said that the 2nd Amend. was part of the "liberty" protected by the Due Process Clause.
My view is this: one either has to give up on applying the 2nd amendment to the states through the P&I clause, or give up worrying about "judicial activism".
By the way..
Where's Brassband when we need him?
It is established precedent that rights from seven different amendments in the Bill of Rights are incorporated through the 14th. The activist path would be to suddenly change the rules for incorporation and claim that the individual right guaranteed by the Second Amendment is somehow merits less protection from government than the others.
Andrew,
It is established precedent that rights from seven different amendments in the Bill of Rights are incorporated through the 14th.
Yes. However, it was through the Due Process Clause of the 14th. Not the P&I clause. That distinction may not mean much to you, but for people who care about fidelity to precedent, it matters a great deal. People who don't care about fidelity to precedent are known as...."judicial activists".
Incorporating the 2nd through either the Due Process Clause or the P&I clause (though especially the latter) would involve overturning a bunch of precedents and overturning a bunch of state laws, and that is, by any reasonable definition, "judicial activism".
The claim that some provisions of the Bill of Rights apply to the states, while others do not, is long-established. The principle that, if any of the BOR applies to the state they all must is, while not indefensible, completely out-of-synch with 100 years of precedent.
I'm not sure that this conversation is going anywhere. I know I'll catch garbage from some here for saying it, but if you haven't read (or read up on) Palko, Adamson, Duncan, and the Slaughterhouse Cases, perhaps you should. Richard Cortner's "The Supreme Court and the Second Bill of Rights" is excellent.
It's quite possible that the Slaughterhouse Cases were incorrectly decided. Perhaps they should be overturned. My point, once again, is that if the Court does so, there is really no way for it to escape accusations of judicial activism.
My advice, Andrew, is for you to embrace judicial activism. The Rehnquist Court has been the most activist in history, so you lose no conservative credentials for doing so. The distinction between activism and restraint isn't really helpful anyway.
best regards,
Tom
The principle that, if any of the BOR applies to the state they all must is, while not indefensible, completely out-of-synch with 100 years of precedent.
Not in the case of the Second Amendment. The Second Amendment couldn't be incorporated in the same manner as the others, until it was established that it protected an individual right. Now that Heller has established that principle, the judicially conservative path is to treat Second Amendment rights like other individual rights guaranteed by the Constitution, and not let judges create lesser-classes of enumerated rights, when there is no Constitutional basis for doing so. However you want to slice it, you can't claim that the only way to avoid "judicial activism" is to give judges the power to decide which rights they want to enforce and which they want to ignore.
Ah, Andrew, you truly are the child of Justice Black. He would fully agree with you that the entire BOR applies to the states.
Therefore, the 3rd, 5th (Grand Jury) 7th, and 8th (excessive bail) are also in? Right?
Very well!
But why? Do you also accept Black's theory that the Due Process Clause was intended to incorporate the entire BOR? If so, would you please explain the evidence for that theory? (which, by the way, every other Justice has rejected). References to the debates on the adoption of the 14th will be welcome.
If not, could you explain the alternate ground on which you reach the conclusion that the entire BOR applies to the states?
More fundamentally, could you explain why the P&I clause is the proper vehicle for applying the 2nd to the states, since NO other amendment has been applied to the states via this clause, and that approach has been explicitly rejected by the Court? Should the Slaughterhouse cases be overturned? If so, why?
I really had no idea that you were so conversant with Constitutional history, but I await enlightenment.
Prof.Schmeling-why not dispense with the legal tap dance?Do you consider the 2nd amendment a collective right or an individual right?I am interested in Your personal opinion.Yes or no.That simple.I won't hold my breath waiting for an answer.
"Legal tap dance"? It's a constitutional law question.
I can't see why my view on the question you ask matters, since:
a) The issue has been settled by Heller and
b) It's not the question we're discussing.
Actually, I'm with Felix Frankfurter; given that "no incorporation of any of the Bill of Rights" is now off of the table, judges don't get to pick and choose which rights they want to enforce. They don't get infinite latitude create new "yes fundamental, but not as fundamental as group A, but more fundamental than group B" classes of rights and sort the importance of rights according to their preferences.
Or do you think it would be an act of judicial restraint, just two years after Heller, to say that the Second Amendment is individual but not fundamental, and obviously needs to be treated by the Courts as less important than the First Amendment, even though there is no Constitutional basis for doing do?
And yes I made an error in saying that incorporation is through privileges and immunities instead of through substantive due process. Fortunately, I'm not making the interpretative rules, just asking that they be applied consistently.
Oh, about the other amendments: Nobody cares about the Third (except maybe the circuit court that has incorporated it). I believe what's left out of the Fifth and Eighth has been adopted by every state, so no case will make it to the Federal level. Only the Seventh really stands out in this context. Apparently the Courts don't feel your right to a civil trial by jury is a fundamental right. And now some people want to argue that since the courts have said that your Seventh Amendment rights aren't fundamental, neither are your Second. That Felix Frankfurter was one prescient jurist, wasn't he!
Joe,
Ask Thomas whether he believes the Second Amendment protects a fundamental right or not.
Andrew-why bother.he's just shown himself to be full of evasive blather.He's not an attorney,nor am I.
I asked him something as one person to another and he ducked it.
I would say he's against individual firearms rights,just based on the general tenor of his comments on AR and RIF.
If I'm assuming too much,he need only give a straight answer.I always try to answer a question diretly as long as it doesn't involve my SS# or credit card info(just got through having my credit card info stolen and thankfully my card issuer was great about resolving the fraudulent usage)so I am not asking the good professor to respond to anything wouldn't.
I don't think a request for a personal opinion is off-topic.
Oh yeah,Prof.Schmeling,apparently a lot of gun control advocates don't think Heller settled anything.They are trying to use the "incorporation"argument as an alternative means of attack on our rights.
Andrew-why bother.he's just shown himself to be full of evasive blather.
Oh,Joe. You’re such a charmer. How could I ever have not wanted to engage in discussion with you? But wait, what’s this….?
He's not an attorney….
You’re quite right. But, since you bring it up, I do have a Ph.D. in Political Science with a concentration in Public Law from one of the best schools in the country. I learned my Con. Law from law faculty at two top-notch universities, and I’ve spent far more time reading, teaching and thinking about Con. Law than 95+% of lawyers. So, please tell me, what’s your point? 'Cause it sounds like you're just being deliberately rude.
I would say he's against individual firearms rights, just based on the general tenor of his comments on AR and RIF.
I’m sure everyone would be convinced if you could find ONE comment I made regarding firearms rights that supports this statement. I’ll wait.
And, even if you were right, so what? As much as you would like to make it one, his isn’t a discussion about gun rights. It’s a discussion about the incorporation of rights through the 14th Amendment. Just because you don’t understand the concept, doesn’t mean we all have to come down to your level.
If you’ll stop being so belligerent towards me, you might find me amenable to your questions. Otherwise, I have better things to do.
Andrew,
OK, not that I’ve got that last thing out of my system, we can return to the real discussion….
Actually, I'm with Felix Frankfurter; given that "no incorporation of any of the Bill of Rights" is now off of the table, judges don't get to pick and choose which rights they want to enforce.
But, Andrew. Have you read Black and Frankfurter? I think you have them backward. Black is the one criticizing Frankfurter for being subjective and “picking and choosing” which rights are fundamental. Please, please, please read Rochin v. CA, and you’ll see clearly what I mean. Not only will you find Black’s approach to finding “fundamental rights” more consistent with your own, you’ll also find him a better ally in the 2nd Amendment debate.
And yes I made an error in saying that incorporation is through privileges and immunities instead of through substantive due process.
This is the interesting thing. Every provision of the BOR that has been applied to the states has been done so through the Due Process Clause. The AG’s brief wants to use the P&I clause. It’s a breathtakingly bold approach, since it requires overturning a hundred years of precedent. “Restraintists” like Scalia should surely balk at this, but we’ll have to see what they do. However, I think the petitioner’s brief uses both DP and P&I.
Or do you think it would be an act of judicial restraint, just two years after Heller, to say that the Second Amendment is individual but not fundamental, and obviously needs to be treated by the Courts as less important than the First Amendment, even though there is no Constitutional basis for doing do?
See Palko v. CT on the question of which individual rights are fundamental. That case has been the guiding light for the court for over 70 years. To answer the question you posed, I think that, yes, given Heller, there is a good argument that 2nd amendment rights are “fundamental” based on the “history and traditions” approach to the question. I won’t say I’m convinced until I’ve read all the briefs.
What I am saying is, and I really hope you’ll try to see what I mean, that even if the decision to incorporate the 2nd is constitutionally correct, there is no definition of “judicial activism” that doesn’t cover a decision that overturns 100 years of precedent and over turns the laws of many states.
A decision to incorporate the 2nd amendment in McDonald would be "activist" by any reasonable definition. So stop worrying about "activist judges".
Well,Prof.Schmeling,"coming down" to my level is something you might try some time-I'm being serious.I had to apply constitutional law in real life too many times to count.My training wasn't as intensive as yours-I mean I'm just a dumb sh*t with a BS degree in Criminal Justice.I wonder if you've ever had to apply your learning in the classroom of life?
I screwed up more than a few times.What I never did was lie about it in court.I'd sooner see a case go south than my reputation, so figure out who you're dealing with before you talk down to me again.
Most of my professors came to academia after long careers in the fields they taught.I learned a great deal from them,because I knew their academic knowledge was augmented by valuable experience.
I'm a slow learner-I started college in 1963 and graduated in 1973-little things
like military service,marriage,and making a living kinda got in the way.
I just wonder what experiences outside of academia shaped your thinking.
Joe,
I won't talk down to you again if you don't insult me and provoke me to do so again. Deal?
Show some respect to me (as a human being) and I'll do the same to you. Otherwise, it goes how it goes.
Sincerely,
Tom
PS. You can cut the "Prof" stuff. It's usually a sign of respect, but we both know that you don't mean it what way. Thomas or Tom will do fine, thanks.
Actually,you are wrong.I am not being a smartass calling you "Prof.Schmeling"-you earned the title.
I can't stand David Cicilline,but when I have debated him on talk radio,I always call him "Mayor"because he did get elected.I don't call him "David" as I've heard people do.It's disrespectful to the office.
I will never speak to Obama,but if I had to,I would call him Mr.President in addressing him.
In the third person,discussing his performance,I am purposely disrespectful,often referring to him as "Barry".
I do however,refrain from calling people with Phd's "Doctor",because I reserve that for medical personnel.
My daughter is currently working on her doctoral dissertation and I don't plan calling her "Doctor".
I kind of lose faith in constitutional "experts" when I see them go through mental contortions to justify the civilian trial of the WTC/Pentagon attackers as opposed to the military tribunal for the USS Cole attackers.I haven't yet heard a logical explanation(or any at all)for the inconsistency.
My alma mater is John Jay College,an early leader in the criminal justice education field.You didn't mention the institutions you studied at.
George,
To answer your question: University of Chicago and University of Wisconsin-Madison.
John Jay is indeed an excellent school for criminal justice.
I'll accept your claim that your use of the "Professor" title was not snide but, please, as a personal favor, I'll be happier with Tom or Thomas.
When I stand in front of a classroom, or make a public lecture, I'm "Dr/Professor Schmeling". Here, I'm just another guy. On some subjects, I have specialized knowledge. On others, I know no more than your average (umm...excuse me...not meant to be personal!) "Joe".
best,
Tom
P.S. The use of the term "Doctor" for the Ph,D. (Doctor of Philosophy) long precedes the use of the term for the M.D., so I think we have first claim, but it's up to you.
However, I'll be dollars to donuts that when your daughter finishes her degree, you'll at least once call your her "Doctor Bernstein" out of pride.
D'oh,
I guess George was on my mind. Of course, that last entry was supposed to be headed
Joe,
Yes Thomas, I have read Frankfurter. Here he is in Adamson v. California…
There is suggested merely a selective incorporation of the first eight Amendments into the Fourteenth Amendment. Some are in and some are out, but we are left in the dark as to which are in and which are out. Nor are we given the calculus for determining which go in and which stay out. If the basis of selection is merely that those provisions of the first eight Amendments are incorporated which commend themselves to individual justices as indispensable to the dignity and happiness of a free man, we are thrown back to a merely subjective test. The protection against unreasonable search and seizure might have primacy for one judge, while trial by a jury of twelve for every claim above twenty dollars might appear to another as an ultimate need in a free society.
Again (as I know you know, but for others reading this), Frankfurter isn't arguing for total incorporation of the Bill of Rights, he's arguing for no incorporation. But now that the possibility of "no incorporation of any of the Bill of Rights" is not an option, the judicially conservative path is to follow whatever process has been applied to the other Amendments.
(I'll also add that Frankfurter is making much more sense to me here than in the case where he used "shocking of the conscience" as the standard for determining a protected right.)
Are you trying to say that if a decision was an "activist" one at the time it was made, then any decision forever into the future is also by definition activist? If that is the reasoning, isn't every case following from the Slaughterhouse Cases, which imposed a much narrower interpretation of privileges and immunities than the historical record of the 14th Amendment would support, also activist?
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Encouraging.It spits in the face of the social engineers and the ACLU who hate the 2nd amendment.
Posted by: joe bernstein at December 3, 2009 3:48 PMWhile I welcome the fact that he signed on to the brief, I don't think this says anything meaningful about Mr. Lynch. He is merely using the trick that the Obama campaign used so effectively last year: Take any position that's popular with your audience while running for office, and do what you want once you are in.
Posted by: BobN at December 3, 2009 4:22 PMPatrick Lynch has publicly spoken out against the Heller decision and he has said that he is against a "self-defense" 2nd Amendment reading in the past. There are Youtube videos out there confirming this.
Don't get me wrong, I'm glad that he's finally on the pro-liberty side of things (for once?), but it's clearly just to get elected and nothing more. It goes against his personal beliefs and his statements in the past.
Posted by: Dan at December 3, 2009 9:36 PMHey, Dan, I took a quick look on youtube and didn't find such footage. If you have a link (without putting you to a lot of work), can you please copy and paste it here?
Posted by: Monique at December 4, 2009 8:03 AMRE the Second Amendment, I don't think there a climate change at work here, I think there is a "secret plan".
Although this may appear to remove the state's rights to make laws contravening the Second Amendment, it also removes the necessity for local officials to make unpopular decisions.
Moving "rights" to the federal level does not insure their sanctity. It just moves them to a level more removed from local opposition. Local AG's can then say "it was a federal decision, we can't be blamed".
Posted by: Warrington Faust at December 4, 2009 9:06 AMThe RI Constitution guarantees the individual right to possess firearms in a much more direct way than the US Constitution,so mere legislation can't change the right as far the General Assembly is concerned.
Posted by: joe bernstein at December 4, 2009 12:16 PMFrom the current RI Constitution:
"Article I, Section 22. Right to bear arms. -- The right of the people to keep and bear arms shall not be infringed."
I don't know what the RI Supreme Court history is on the unconstitutionality of our present system of requiring permits to bear arms. But all these state infringements will be hard-pressed to survive a strong incorporation decision by SCOTUS. Of course, this would require someone with the fortitude and financial resources to litigate it.
Posted by: BobN at December 4, 2009 1:00 PMMonique, I found this video:
http://www.youtube.com/watch?v=J6Sx4RaQaas
I don't support the people interviewing him (9/11 truthers or some such thing, doesn't really matter) but it does get his opinion of the Heller decision.
Lynch first says that he doesn't think it's very important, then he says that he supports a strong reading of the regulatory clause (dissent's position in the case). He goes on an incoherent sidetrack about global warming, appeals to striking a good balance between law enforcement and people's gun rights, and then mentions that the purpose of the 2nd Amendment was debatbly a strong militia reading (again, dissent's opinion in the case). This is consistent with his other highly regulatory-focused positions and his statements on gun issues in the past.
Posted by: Dan at December 4, 2009 3:35 PMAndrew,
(this is rather late...sorry) Just for the sake of being pedantic, this statement
....it is obvious that, if the 14th Amendment extends the protections of Amendments 1 and Amendments 3 through 8 to state governments, then the protections of Amendment 2 must also be similarly extended.
is not quite accurate. In addition to the Second Amendment, several other provisions of the Bill of Rights have not been nationalized by being "incorporated" into the Due Process Clause of the 14th. They include the 3rd, the Grand Jury provision of the 5th, the 7th, and the excessive bail clause of the 8th Amendment.
Historically, the cause of incorporation has been championed by liberal justices, while some conservtive "restraintists" (Bork, for instance) have opposed it as "activist". If the Court uses the P&I clause of the 14th to nationalize the 2nd, it will be an historic first. It will overturn state laws and many years of precedent, including the Slaughterhouse Cases of 1873. If the term "judicial activism" means anything, such a decision would surely merit that label.
Posted by: Thomas Schmeling at December 6, 2009 1:10 PMWhether the original decision to "incorporate" was an activist one or not (and I know it's far from clear what "privileges or immunities" means from the text of the Fourteenth Amendment alone, with both broad and narrow interpretations possible), once it was decided that individual rights listed in the Bill of Rights were what was protected, then all of the individual rights have to come in. To suggest otherwise is to reduce a written constitution to a list of suggestions that judges can choose to implement or not implement at their discretion. And that's the end of the rule of law.
Posted by: Andrew at December 6, 2009 7:58 PMAndrew,
You say, once it was decided that individual rights listed in the Bill of Rights were what was protected, then all of the individual rights have to come in.
You have, perhaps unwittingly, aligned yourself with Justice Hugo Lafayette Black, who was, as far as I know, the ONLY justice (except perhaps Douglas) on the Supreme Court who ever espoused the view of "total incorporation" of the Bill of Rights, A long line of decisions (notably,Palko v. CT, Adamson v. CA and Duncan v. LA) have rejected this view.
More importantly, you should also note that ALL of those decisions rested on the Due Process Clause. NO decision of the Supreme Court has ever said that the Privileges and Immunities Clause has the effect of applying the BOR to the states, a notion that was explicitly rejected in the Slaughterhouse Cases.
I'm not saying that decision would be wrong. I am saying that it would be activist by any definition, and far more activist than a decision that said that the 2nd Amend. was part of the "liberty" protected by the Due Process Clause.
My view is this: one either has to give up on applying the 2nd amendment to the states through the P&I clause, or give up worrying about "judicial activism".
Posted by: Thomas Schmeling at December 6, 2009 8:39 PMBy the way..
Where's Brassband when we need him?
Posted by: Thomas Schmeling at December 6, 2009 8:54 PMIt is established precedent that rights from seven different amendments in the Bill of Rights are incorporated through the 14th. The activist path would be to suddenly change the rules for incorporation and claim that the individual right guaranteed by the Second Amendment is somehow merits less protection from government than the others.
Posted by: Andrew at December 6, 2009 9:34 PMAndrew,
It is established precedent that rights from seven different amendments in the Bill of Rights are incorporated through the 14th.
Yes. However, it was through the Due Process Clause of the 14th. Not the P&I clause. That distinction may not mean much to you, but for people who care about fidelity to precedent, it matters a great deal. People who don't care about fidelity to precedent are known as...."judicial activists".
Incorporating the 2nd through either the Due Process Clause or the P&I clause (though especially the latter) would involve overturning a bunch of precedents and overturning a bunch of state laws, and that is, by any reasonable definition, "judicial activism".
The claim that some provisions of the Bill of Rights apply to the states, while others do not, is long-established. The principle that, if any of the BOR applies to the state they all must is, while not indefensible, completely out-of-synch with 100 years of precedent.
I'm not sure that this conversation is going anywhere. I know I'll catch garbage from some here for saying it, but if you haven't read (or read up on) Palko, Adamson, Duncan, and the Slaughterhouse Cases, perhaps you should. Richard Cortner's "The Supreme Court and the Second Bill of Rights" is excellent.
It's quite possible that the Slaughterhouse Cases were incorrectly decided. Perhaps they should be overturned. My point, once again, is that if the Court does so, there is really no way for it to escape accusations of judicial activism.
My advice, Andrew, is for you to embrace judicial activism. The Rehnquist Court has been the most activist in history, so you lose no conservative credentials for doing so. The distinction between activism and restraint isn't really helpful anyway.
best regards,
Posted by: Thomas Schmeling at December 6, 2009 9:54 PMTom
Not in the case of the Second Amendment. The Second Amendment couldn't be incorporated in the same manner as the others, until it was established that it protected an individual right. Now that Heller has established that principle, the judicially conservative path is to treat Second Amendment rights like other individual rights guaranteed by the Constitution, and not let judges create lesser-classes of enumerated rights, when there is no Constitutional basis for doing so. However you want to slice it, you can't claim that the only way to avoid "judicial activism" is to give judges the power to decide which rights they want to enforce and which they want to ignore.
Posted by: Andrew at December 7, 2009 12:13 AMAh, Andrew, you truly are the child of Justice Black. He would fully agree with you that the entire BOR applies to the states.
Therefore, the 3rd, 5th (Grand Jury) 7th, and 8th (excessive bail) are also in? Right?
Very well!
But why? Do you also accept Black's theory that the Due Process Clause was intended to incorporate the entire BOR? If so, would you please explain the evidence for that theory? (which, by the way, every other Justice has rejected). References to the debates on the adoption of the 14th will be welcome.
If not, could you explain the alternate ground on which you reach the conclusion that the entire BOR applies to the states?
More fundamentally, could you explain why the P&I clause is the proper vehicle for applying the 2nd to the states, since NO other amendment has been applied to the states via this clause, and that approach has been explicitly rejected by the Court? Should the Slaughterhouse cases be overturned? If so, why?
I really had no idea that you were so conversant with Constitutional history, but I await enlightenment.
Posted by: Thomas Schmeling at December 7, 2009 12:40 AMProf.Schmeling-why not dispense with the legal tap dance?Do you consider the 2nd amendment a collective right or an individual right?I am interested in Your personal opinion.Yes or no.That simple.I won't hold my breath waiting for an answer.
Posted by: joe bernstein at December 7, 2009 8:52 AM"Legal tap dance"? It's a constitutional law question.
I can't see why my view on the question you ask matters, since:
a) The issue has been settled by Heller and
Posted by: Thomas Schmeling at December 7, 2009 9:52 AMb) It's not the question we're discussing.
Actually, I'm with Felix Frankfurter; given that "no incorporation of any of the Bill of Rights" is now off of the table, judges don't get to pick and choose which rights they want to enforce. They don't get infinite latitude create new "yes fundamental, but not as fundamental as group A, but more fundamental than group B" classes of rights and sort the importance of rights according to their preferences.
Or do you think it would be an act of judicial restraint, just two years after Heller, to say that the Second Amendment is individual but not fundamental, and obviously needs to be treated by the Courts as less important than the First Amendment, even though there is no Constitutional basis for doing do?
And yes I made an error in saying that incorporation is through privileges and immunities instead of through substantive due process. Fortunately, I'm not making the interpretative rules, just asking that they be applied consistently.
Oh, about the other amendments: Nobody cares about the Third (except maybe the circuit court that has incorporated it). I believe what's left out of the Fifth and Eighth has been adopted by every state, so no case will make it to the Federal level. Only the Seventh really stands out in this context. Apparently the Courts don't feel your right to a civil trial by jury is a fundamental right. And now some people want to argue that since the courts have said that your Seventh Amendment rights aren't fundamental, neither are your Second. That Felix Frankfurter was one prescient jurist, wasn't he!
Posted by: Andrew at December 7, 2009 10:03 AMJoe,
Ask Thomas whether he believes the Second Amendment protects a fundamental right or not.
Posted by: Andrew at December 7, 2009 10:06 AMAndrew-why bother.he's just shown himself to be full of evasive blather.He's not an attorney,nor am I.
Posted by: joe bernstein at December 7, 2009 10:17 AMI asked him something as one person to another and he ducked it.
I would say he's against individual firearms rights,just based on the general tenor of his comments on AR and RIF.
If I'm assuming too much,he need only give a straight answer.I always try to answer a question diretly as long as it doesn't involve my SS# or credit card info(just got through having my credit card info stolen and thankfully my card issuer was great about resolving the fraudulent usage)so I am not asking the good professor to respond to anything wouldn't.
I don't think a request for a personal opinion is off-topic.
Oh yeah,Prof.Schmeling,apparently a lot of gun control advocates don't think Heller settled anything.They are trying to use the "incorporation"argument as an alternative means of attack on our rights.
Andrew-why bother.he's just shown himself to be full of evasive blather.
Oh,Joe. You’re such a charmer. How could I ever have not wanted to engage in discussion with you? But wait, what’s this….?
He's not an attorney….
You’re quite right. But, since you bring it up, I do have a Ph.D. in Political Science with a concentration in Public Law from one of the best schools in the country. I learned my Con. Law from law faculty at two top-notch universities, and I’ve spent far more time reading, teaching and thinking about Con. Law than 95+% of lawyers. So, please tell me, what’s your point? 'Cause it sounds like you're just being deliberately rude.
I would say he's against individual firearms rights, just based on the general tenor of his comments on AR and RIF.
I’m sure everyone would be convinced if you could find ONE comment I made regarding firearms rights that supports this statement. I’ll wait.
And, even if you were right, so what? As much as you would like to make it one, his isn’t a discussion about gun rights. It’s a discussion about the incorporation of rights through the 14th Amendment. Just because you don’t understand the concept, doesn’t mean we all have to come down to your level.
If you’ll stop being so belligerent towards me, you might find me amenable to your questions. Otherwise, I have better things to do.
Posted by: Thomas Schmeling at December 7, 2009 8:05 PMAndrew,
OK, not that I’ve got that last thing out of my system, we can return to the real discussion….
Actually, I'm with Felix Frankfurter; given that "no incorporation of any of the Bill of Rights" is now off of the table, judges don't get to pick and choose which rights they want to enforce.
But, Andrew. Have you read Black and Frankfurter? I think you have them backward. Black is the one criticizing Frankfurter for being subjective and “picking and choosing” which rights are fundamental. Please, please, please read Rochin v. CA, and you’ll see clearly what I mean. Not only will you find Black’s approach to finding “fundamental rights” more consistent with your own, you’ll also find him a better ally in the 2nd Amendment debate.
And yes I made an error in saying that incorporation is through privileges and immunities instead of through substantive due process.
This is the interesting thing. Every provision of the BOR that has been applied to the states has been done so through the Due Process Clause. The AG’s brief wants to use the P&I clause. It’s a breathtakingly bold approach, since it requires overturning a hundred years of precedent. “Restraintists” like Scalia should surely balk at this, but we’ll have to see what they do. However, I think the petitioner’s brief uses both DP and P&I.
Or do you think it would be an act of judicial restraint, just two years after Heller, to say that the Second Amendment is individual but not fundamental, and obviously needs to be treated by the Courts as less important than the First Amendment, even though there is no Constitutional basis for doing do?
See Palko v. CT on the question of which individual rights are fundamental. That case has been the guiding light for the court for over 70 years. To answer the question you posed, I think that, yes, given Heller, there is a good argument that 2nd amendment rights are “fundamental” based on the “history and traditions” approach to the question. I won’t say I’m convinced until I’ve read all the briefs.
What I am saying is, and I really hope you’ll try to see what I mean, that even if the decision to incorporate the 2nd is constitutionally correct, there is no definition of “judicial activism” that doesn’t cover a decision that overturns 100 years of precedent and over turns the laws of many states.
A decision to incorporate the 2nd amendment in McDonald would be "activist" by any reasonable definition. So stop worrying about "activist judges".
Posted by: Thomas Schmeling at December 7, 2009 8:35 PMWell,Prof.Schmeling,"coming down" to my level is something you might try some time-I'm being serious.I had to apply constitutional law in real life too many times to count.My training wasn't as intensive as yours-I mean I'm just a dumb sh*t with a BS degree in Criminal Justice.I wonder if you've ever had to apply your learning in the classroom of life?
Posted by: joe bernstein at December 7, 2009 10:36 PMI screwed up more than a few times.What I never did was lie about it in court.I'd sooner see a case go south than my reputation, so figure out who you're dealing with before you talk down to me again.
Most of my professors came to academia after long careers in the fields they taught.I learned a great deal from them,because I knew their academic knowledge was augmented by valuable experience.
I'm a slow learner-I started college in 1963 and graduated in 1973-little things
like military service,marriage,and making a living kinda got in the way.
I just wonder what experiences outside of academia shaped your thinking.
Joe,
I won't talk down to you again if you don't insult me and provoke me to do so again. Deal?
Show some respect to me (as a human being) and I'll do the same to you. Otherwise, it goes how it goes.
Sincerely,
Tom
PS. You can cut the "Prof" stuff. It's usually a sign of respect, but we both know that you don't mean it what way. Thomas or Tom will do fine, thanks.
Posted by: Thomas Schmeling at December 7, 2009 11:35 PMActually,you are wrong.I am not being a smartass calling you "Prof.Schmeling"-you earned the title.
Posted by: joe bernstein at December 8, 2009 5:39 AMI can't stand David Cicilline,but when I have debated him on talk radio,I always call him "Mayor"because he did get elected.I don't call him "David" as I've heard people do.It's disrespectful to the office.
I will never speak to Obama,but if I had to,I would call him Mr.President in addressing him.
In the third person,discussing his performance,I am purposely disrespectful,often referring to him as "Barry".
I do however,refrain from calling people with Phd's "Doctor",because I reserve that for medical personnel.
My daughter is currently working on her doctoral dissertation and I don't plan calling her "Doctor".
I kind of lose faith in constitutional "experts" when I see them go through mental contortions to justify the civilian trial of the WTC/Pentagon attackers as opposed to the military tribunal for the USS Cole attackers.I haven't yet heard a logical explanation(or any at all)for the inconsistency.
My alma mater is John Jay College,an early leader in the criminal justice education field.You didn't mention the institutions you studied at.
George,
To answer your question: University of Chicago and University of Wisconsin-Madison.
John Jay is indeed an excellent school for criminal justice.
I'll accept your claim that your use of the "Professor" title was not snide but, please, as a personal favor, I'll be happier with Tom or Thomas.
When I stand in front of a classroom, or make a public lecture, I'm "Dr/Professor Schmeling". Here, I'm just another guy. On some subjects, I have specialized knowledge. On others, I know no more than your average (umm...excuse me...not meant to be personal!) "Joe".
best,
Tom
P.S. The use of the term "Doctor" for the Ph,D. (Doctor of Philosophy) long precedes the use of the term for the M.D., so I think we have first claim, but it's up to you.
However, I'll be dollars to donuts that when your daughter finishes her degree, you'll at least once call your her "Doctor Bernstein" out of pride.
Posted by: Thomas Schmeling at December 8, 2009 9:39 PMD'oh,
I guess George was on my mind. Of course, that last entry was supposed to be headed
Joe,
Posted by: Thomas Schmeling at December 8, 2009 9:45 PMYes Thomas, I have read Frankfurter. Here he is in Adamson v. California…
Again (as I know you know, but for others reading this), Frankfurter isn't arguing for total incorporation of the Bill of Rights, he's arguing for no incorporation. But now that the possibility of "no incorporation of any of the Bill of Rights" is not an option, the judicially conservative path is to follow whatever process has been applied to the other Amendments.(I'll also add that Frankfurter is making much more sense to me here than in the case where he used "shocking of the conscience" as the standard for determining a protected right.)
Are you trying to say that if a decision was an "activist" one at the time it was made, then any decision forever into the future is also by definition activist? If that is the reasoning, isn't every case following from the Slaughterhouse Cases, which imposed a much narrower interpretation of privileges and immunities than the historical record of the 14th Amendment would support, also activist?
Posted by: Andrew at December 8, 2009 9:49 PM