Constitutional Law

Article on Heller and self defense

Abstract and downloadable article here.

The thesis I find a bit confusing: it talks of applying the 2A to the states without 14th A incorporation, but seems to be talking about applying it via 14th A due process incorporation (the right of self defense being fundamental) rather than privileges or immunities incorporation.

UPDATE: the need for incorporation is that the Supreme Court in Barron v. Baltimore, back in the 1830s, ruled that the federal Bill of Rights only limits the federal government. You want to be protected against state action, put it in your state constitution and sue in state court.

It's not an unreasonable legal position -- James Madison wanted another amendment to require States to comply with essentially the First Amendment, and Congress rejected it. So some states had establishments of religion into the 1830s or 1840s, and the slave states rigorously punished printing of any anti-slavery statements, or giving of anti-slavery speeches, up thru 1865. The 4th Amendment restriction on unreasonable searches wasn't applied to state action until, if I remember, 1960.

Full post as published by Of Arms and the Law on October 28, 2008 (boomark / email).