Will Scalia Prevent Incorporation of the Second Amendment?

[TPaine7]

In judging the justice's stances, most enigmatic may be that of Antonin Scalia, who wrote the majority opinion in the District of Columbia case.

In a 1997 book, "A Matter of Interpretation," Justice Scalia wrote that he viewed "the Second Amendment as a guarantee that the federal government would not interfere with the right of the people to keep and bear arms."

Yet, this next passage gives court watchers some pause. "Of course," Justice Scalia continued, "properly understood, it is no limitation upon arms control by the states."

Now a claim to the contrary—that the Second Amendment does limit arms control by the states—is pending. Justice Scalia declined to comment through a court spokeswoman.

Source: http://online.wsj.com/article/SB10001424052748704269004575073771717464954.html?mod=WSJ_hps_MIDDLEThirdNews

This actually concerns me. Many staunch conservatives don't like the 14th Amendment's "privileges" and "immunities" clause--they think it too open to interpretation, too unwieldy. They think it allows the creation of "new" rights.

The Framers of the 14th obviously thought differently. When they wrote the Amendment, they consciously resisted any attempts to define the "privileges" and "immunities" of the people--their rights. In fact they said that such a definition was impossible.

The Fourteenth Amendment does more than incorporate Amendments One through Eight of the Bill of Rights; it insists that no division of government anywhere in the United States may infringe on your undefined rights. Logically, you could bring suit under the Fourteenth Amendment's "privileges" and "immunities" if your city forbad, let's say, jumping jacks.

There are two ways of looking at things.

1) The government can meddle in any aspect of anyone's life, except as forbidden in the Constitution.
2) Individuals have the right to do whatever they please except that the government can legitimately limit their freedom using only those powers and affecting only those areas that are spelled out in the Constitution.

Of course I agree with the Framers. There are no "new" rights. We can dispense with all of the elaborate and tortured reasoning. Two men have the right to be lovers because government has no legitimate power to stop them. The same is true of your right to perform jumping jacks.

Will Scalia stand against personal freedom even if that limits gun rights? Will one or more liberal justices stand for personal freedom even if that means people have the right to keep and bear arms in every state? Will our latest justice actually follow the intent of the Fourteenth Amendment's authors as promised in her confirmation hearings?

This could be a lot more interesting than Heller's 5-4 decision.

[virginia mountainman]

1. Agreed.... K&R

[X_Digger]

2. Ehn.. he's changed since 1997.

I'm not that worried that he would vote against incorporation. Considering that he's the primary author of Heller and some of its more well-reasoned sections, I'm not losing any sleep over a footnote from a 1997 book.

Where I think he's likely to divert from some of the other conservatives is the wider 'privileges and immunities' issue. That one seems to scare him silly. Thomas went so far as to say that he's amenable to revisiting the Slaughter House cases that established select incorporation.

[TPaine7]

3. I would love to have my fears appear foolish--the more foolish the better.

I would love to be utterly humiliated by a 9-0 decision incorporating the Second under the dreaded "privedges" and "immunities" clause. Scalia could even author it and prove both of us wrong.

Time will tell.

[X_Digger]

4. *knocking on wood* *throwing salt over my shoulder* *crossing fingers, toes* n/t

[Pullo]

5. *sacrificing chickens*

[jody]

6. SCOTUS said sodomy and abortions are protected by the 14th. IMO if the 2nd is not incorporated then

all hell will break loose.

ON EDIT ADD:
SCOTUS said in Roe v. Wade that a woman's right to destroy her fetus is protected by the 14th Amendment and in Lawrence v. Texas THAT sodomy is protected.

[spin]

7. I have had the same fear ...

It's quite possible that SCOTUS will rule that states can make their own rules on firearms.

In that case, the voters in the gun unfriendly states will have to work to change the existing state laws.

The pro-gun movement is very strong in our country and has consistently been winning victory after victory. I can foresee that five years to ten years from now all states will have "shall issue" concealed weapons permits and "castle doctrine" including "stand your ground" law.

Even if SCOTUS does come down with a another pro-gun ruling, cities like Chicago will place numerous hurdles in the path of anyone desiring to own a firearm. Lawsuits will have to be filed and work their way through the court system. The same five to ten year period might pass before citizens in Chicago or New York City will be able to purchase, own and carry a firearm as freely as others do in most of the U.S.

Sure I want a favorable ruling from the court, but I believe that in the end we will win even in Chicago and NYC.

But a strong pro second amendment ruling would help defend the rights we have gained against some misguided government in the future.

[visigoth]

8. Not a gun case, a 14th amendment case

This will be interesting in deed. Lest anyone think that McDonald is about gun rights, it’s not. Mr. Gura wants to win for his client – sure. But, he is clearly on a mission to overturn the Slaughterhouse cases and may very well frame this in part as the current court’s opportunity to right an historic wrong.

[Pullo]

9. Yes it is, and that is why Scalia is likely to rule in favor of McDonald IMO

He has stated the 2A is not a restriction on states from restricting firearm ownership. This is technically correct as the 2A has yet to be incorporated under the 14A, which is what is at issue here. So Scalia is likely to vote for incorporation via either DP, P&I, or both. There isn't anything inconsistent with that approach.

Roberts will not want to overturn Slaughterhouse, IMO. He'll lead the court(usually) to make another minimalist decision.

[visigoth]

10. Maybe correct on Roberts, but...

I had the opportunity to sit in on a McDonald v Chicago moot (basically a dress rehearsal in front of some really sharp Constitutional Law profs.)

Incorporation will happen. It's just a matter of going the privileges or immunities vs. due process route. Mr. Gura is gunning hard for POI. Remember he and Levy got into this thing because of their Federalist / Libertarian law leaning. They're not gun people, it's about how they view the constitution and they think that POI should have meaning. Don't be surprised if this is presented in part as an opportunity for this court to right a historic wrong. Maybe the SC will take the bait, maybe not.

In the end, incorporation of Heller won't be the big story. The big story will be if Gura is successful in establishing credibility for POI.

[Pullo]

12. Totally agree.

Gura wants the 2A incorporated via the P&I clause, thus, correctly IMO, undoing a MAJOR SC blunder in Slaughterhouse. I hope the court embraces his argument, but I can't see Roberts going that rout.

Hopefully I'm wrong. Anyway, I'm impressed with Gura's approach. I just hope he's up to the task next week. I thought he kind of stammered his way through the oral argument of Heller. Not a surprise in that it was Gura's first time arguing before the court, but thankfully the majority guided him through toward the end of his session. He should be better prepared this time.

Very cool you got to sit in on that preview, btw.

[visigoth]

13. Gura stammers while he thinks

Thats just the kind of way he gets his thoughts together. There's that vocalized pause and then he comes back with a good response every time.

[TPaine7]

11. Gura most definitely positions this case as an opportunity to overturn Slaughterhouse n/t

[SteveM]

14. When perusing the debate over the 2nd on the Volockh site...

some three-four years ago, there was debate over the use of the privileges & immunities clause in the 14th; some conservatives opposing its use as undue federal intrusion, esp. after the 14th's use as a legal bulwark during the "civil rights era." With the GOP cascading to the far right, and resurrection of the 10th Amendment as a means to "nullify" federal laws, the political climate could cause some of these justices to re-think the 14th.

Note: Rick Perry openly expresses his support of the 10th to tell the feds not "to mess with Texas."