Tuesday, June 29, 2010

Incorporation Insanity

I feel like I'm in a Twilight Zone episode. Yesterday, I was celebrating the RKTBA victory in McDonald v. Chicago in the chat room of The Ed Morrissey Show when the discussion turned to the crucial question of whether the Fourteenth Amendment had "incorporated" the Second Amendment to bind the states as well as the "Federal" government against infringing gun rights.

My reaction was described as "barking". I can't believe that learned men and women can read the same words I read and come to the conclusions they have reached. Either I'm barking mad, or they are.

I responded that the Second Amendment doesn't need to be "incorporated", because it applied to all levels of government ever since December 15, 1791. Just read its text:

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.
There isn't a word there saying that the "Federal" government can't infringe that right, but States can, unlike the First Amendment, which plainly opens with the phrase "Congress shall make no law..."

Somehow, the notion has become popular that the Constitution only defined the limitations on the powers of the "Federal" government, and did not limit the powers of the States. But that's complete nonsense: Article I, Section 10 explicitly restricts State power, Article IV is all about the States, and Article VI places limits on State laws.

The Tenth Amendment says:
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
I see this as yet another case of the Constitution helping to define the powers of States: It leaves it to the people of each state to write their own constitutions to determine what powers to grant the state government, provided that nothing in the Constitution either gives that power to the "Federal" government or places it off-limits to the states.

Since the Tenth Amendment was proposed en masse with eleven others, including the Second, one could plausibly argue that its wording informs or restricts the meaning of the Second. In my analysis, the only glimmer of a theory under which the Second Amendment doesn't apply to the States is found here. This reading of the Tenth basically says "If the Constitution doesn't come right out and use the word 'state' in declaring a limit on government power, then that limit only applies to the 'Federal' government, not the states".

But I'm not buying that reading. When I read the Declaration of Independence, the Articles of Confederation, the original Articles of the Constitution, Federalist Papers, and the Bill of Rights, I come to the inescapable conclusion that when any of those documents speak of rights of the people that must not be infringed, they mean that those rights are superior to the powers of any government, and a government which infringes those rights, in doing so is violating its very reason to exist.

[Click on the title above, or date stamp below, to see the full article.]So, am I barking mad, or is the judicial consensus so far from what our first Congress meant when they proposed the Second Amendment, and the states understood when they ratified it, that I just seem insane as a sane man must appear in a world gone mad?


  1. I'm no professor, and no Constitutional Scholar by any stretch. On the surface of it, as you have described here, I'd probably tend to agree with you on the wording. But after over 200 years of piddling around with interpretations and various rulings, as they say, in politics perception is reality.

    I'm sort of thinking myself that the phrase "shall not be infringed" would be the key line. We've had a hard enough time over the years getting that out and understood, and now after this ruling, there is at least no doubt that the whole Amendment applies to all jurisdictions.

    I know, semantics, and words have meanings, all that. Hell, the regular media is *still* saying this ruling struck down Chicago's law, when it actually has not, it just laid the framework to do so.

  2. I think this is a result of the inverted perspective with which virtually everyone views the Constitution. Alexander Hamilton argued in Federalist 84 that this would be the result of the Bill of Rights.
    I will not contend that such a provision would confer a regulating power; but it is evident that it would furnish, to men disposed to usurp, a plausible pretense for claiming that power.

    But everyone loves the Bill of Rights, right?

  3. Well, if you're crazy, I think we both know a few people who will be right there in that psych ward with us. I've pointed out this distinction many times, and only yesterday received an argument regarding precedents, as if that changes the meaning of the thing.


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