Incorporation

A friend of mine was in a discussion about gun rights, and someone asserted to him that there is no Constitutional right to bear arms in the States, because the Second Amendment had never been "incorporated" through the Fourteenth Amendment's due process clause:

nor shall any State deprive any person of life, liberty, or property, without due process of law

This is formally true, but not very interesting, for reasons I will get into in a moment. This doctrine of "selective incorporation" means that in fact, you do not get a Constitutional Right in the States unless the Supreme Court says so (yes, they really did decide that is how it would work).

So many of the Rights in the Bill of Rights have been "incorporated" and many have not. The Second Amendment has not been. However, since "selective incorporation" began, its applicability to the States never been challenged in the Supreme Court, either.

The real point here, though, is that the Supreme Court has been full of crap on this issue for about 150 years, because the Fourteenth Amendment explicitly guaranteed complete incorporation of the Bill of Rights. While Justice Frankfurter was a proponent of selective incorporation, he also wrote, "The ultimate touchstone of constitutionality is the Constitution itself and not what [the Supreme Court has] said about it." So let's look at the Constitution itself.

The line that comes directly before due process in the 14th Amendment says: "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States."

So, if it is your right as a U.S. citizen to have a firearm, then the state cannot take that right away. The 14th Amendment itself, clearly and unequivocally, already incorporated the Second Amendment, when it was first passed. As Justice Black wrote:

... I can say only that the words "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States" seem to me an eminently reasonable way of expressing the idea that, henceforth, the Bill of Rights shall apply to the States. What more precious "privilege" of American citizenship could there be than that privilege to claim the protections of our great Bill of Rights? I suggest that any reading of "privileges or immunities of citizens of the United States" which excludes the Bill of Rights' safeguards renders the words of this section of the Fourteenth Amendment meaningless. Senator Howard, who introduced the Fourteenth Amendment for passage in the Senate, certainly read the words this way. ... if anything, it is "exceedingly peculiar" to read the Fourteenth Amendment differently from the way I do.

So what did Senator Howard actually say?

To these privileges and immunities, whatever they may be -- for they are not and cannot be fully defined in their entire extent and precise nature to these should be added the personal rights guarantied and secured by the first eight amendments of the Constitution; such as the freedom of speech and of the press; the right of the people peaceably to assemble and petition the Government for a redress of grievances, a right appertaining to each and all the people; *the right to keep and to bear arms*; the right to be exempted from the quartering of soldiers in a house without the consent of the owner; the right to be exempt from unreasonable searches and seizures, and from any search or seizure except by virtue of a warrant issued upon a formal oath or affidavit; the right of an accused person to be informed of the nature of the accusation against him, and his right to be tried by an impartial jury of the vicinage, and also the right to be secure against excessive bail and against cruel and unusual punishments.

... It is a fact well worthy of attention that the course of decision of our courts and the present settled doctrine is, that all these immunities, privileges, rights, thus guarantied by the Constitution or recognized by it, are secured to the citizens solely as a citizen of the United States and as a party in their courts. They do not operate in the slightest degree as a restraint or prohibition upon State legislation. ...

... The great object of the first section of this amendment is, therefore, to restrain the power of the States and compel them at all times to respect these great fundamental guarantees.

It could not be more clear. The purpose of this clause of the 14th Amendment is to force the States to respect our rights as U.S. citizens, specifically including the right to keep and bear arms.

So I think any talk about "incorporation" that does not assume the entire bill of Rights has already been "incorporated" by virtue of the 14th Amendment's ratification is utterly foolish, as the sponsors of the 14th Amendment thought, and as Justices Black and Douglas thought.

To be brief, and blunt: any and every court decision since the ratification of the 14th Amendment which has held that a State can abridge the rights of a citizen of the United States is clearly and unequivocally wrong.

The good news is that the original interpretation of the "privileges and immunities" clause is coming back into favor, and that our current Supreme Court is (properly) primarily of an originalist bent, so if this ever did reach the current Supreme Court, there is no doubt how it would end up.

And this, friends, is why liberal justices are simply bad. Breyer and Ginsburg have no place on the Supreme Court, and not because they disagree with me, but because they simply ignore the Constitution (or invent new concepts in it) when it suits their purposes. Justice Breyer wrote a whole book literally explaining why he ignores the Constitution's text and the intent of its authors. Justices like these, who think it is their job to decide what is best for us -- rather than what is legally proper -- are the reason why we lose rights in this country, both in fact (e.g., gun rights) and in the effects of judicial uncertainty.

Can you tell I feel strongly about this?