Constitutional Law

LA Times endorses 14th Amendment incorporation

Editorial here. [link now works, thanks]

"It's tempting for supporters of gun control -- including this page -- to hope that the high court will rule that the 2nd Amendment doesn't apply to the states. That would be a mistake and would give aid and comfort to conservative legal thinkers, among them Justice Clarence Thomas, who have questioned the incorporation doctrine.

We were disappointed last year when the Supreme Court ruled that the right to keep and bear arms was an individual right, giving short shrift to the first part of the amendment, which refers to "a well-regulated militia." But we also believe the court has been right to use the doctrine of incorporation to bind states to the most important protections of the Bill of Rights. If those vital provisions are to be incorporated in the 14th Amendment, so should the right to keep and bear arms."

UPDATE: Yep, the Times screws up Justice Thomas' approach. He's not skeptical of incorporation, quite the contrary. He's skeptical of the *method* the Court has employed, and if anything his preferred method would yield a wider range of incorporation than that now used.

14th Amendment forbids States to, among other things, deny anyone the "privileges or immunities" of US citizenship, or to deny them "due process of law." Personally, I find the evidence compelling that "privileges or immunities" included the federal Bill of Rights. But in a number of 19th century cases, the Court (which was quite hostile to the idea) used a word game to make the privileges or immunities clause meaningless. So for decades it had no meaning, and the federal Bill of Rights did not bind the States, period.

Then in the very late 19th century, and far more powerfully in the mid 20th century, the Court used the due process clause to incorporate federal rights. Under that clause the Court handpicked rights and decided they were so important that they could not be denied without denying "due process" (no matter how much process the person got).

Thomas' privileges or immunities approach is broader, since it involves incorporating all bill of rights liberties (or, in some scholars' suggested formulations, all but a few ones) and doesn't depend upon the Court's judgment as to whether a bill of rights liberty is fundamental or nonfundamental. So it's hardly accurate for the Times to suggest that Thomas has problems with incorporation.
HT to Dan Gifford....

Full post as published by Of Arms and the Law on June 10, 2009 (boomark / email).