Second Amendment Incorporated Against the States
By Melancton Smith • Monday June 28, 2010 3:27 PM PDT • 7 Comments
What a feast for law geeks. Today, the Supreme Court actually decided an incorporation case. Most of us never thought we would see such in our life times. What is incorporation? It is the judicially created doctrine that certain provisions of the the bill of rights are applicable to the states. History teaches that the bill of rights only applied to the national government because the people wanted extra security that the new government would not transgress fundamental rights such as free speech. However, the Court has held that certain provisions of the bill of rights apply to the states via the due process clause of the 14th Amendment. This is a bit of hocus pocus to give the Court greater control over state legislation.
At issue in McDonald v. Chicago was whether the Second Amendment precludes a Chicago gun-control law that practically prohibits the ownership of handguns. (Note that the landmark decision in Heller, only applied to the national government). In examining whether to incorporate the Second Amendment, the Court had to decide whether the right to bear arms is fundamental to our scheme of ordered liberty and whether the right is deeply rooted in the nation’s history and traditions.
The majority answered yes to both questions, noting that self-defense is a basic right and the central component of the Second Amendment. The Court also noted that the centrality of this right dates back into English history and Blackstone.
(Props to Independent Institute Research Fellow Stephen Halbrook for being cited by the majority multiple times for his work on the history of gun rights!)
Though I hate selective incorporation because it gives the Court the ability to roam about the Constitution and pick what provisions it will apply to the States, this is a good decision for individual liberty. Government fails to protect us from the criminal element (especially in the Windy City) and would prefer that we have no defense against it. This decision helps the people on both fronts.
Tags: Civil Liberties, Constitution, Gun Control, Law, Liberty, Personal Liberty 
We are very pleased that the following two key, Independent Institute books by our Research Fellow Stephen P. Halbrook were cited six times in this landmark McDonald decision:
Securing Civil Rights: Freedmen, the Fourteenth Amendment, and the Right to Bear Arms
The Founders’ Second Amendment: Origins of the Right to Bear Arms
David Theroux | Jun 28, 2010 | Reply
What other parts of the Constitution do you want to ban?
DUI Attorney | Jun 29, 2010 | Reply
Try: Dyett v. Turner, 439 P2d 266 @ 269, 20 U2d 403
This case expresses serious concerns about the “14th amendment.”
The Constitution has meaning only if the people at large believe in the principles it espouses. Otherwise it is only a little ink smeared on paper (or parchment).
It is followed when convenient to the agenda of the power structure. Otherwise it is artfully dodged or even ignored outright:
“In this courtroom I’M THE LAW!!!”
“If you mention the Constitution again I’LL hold you in CONTEMPT!!”
Al Grayson | Jul 8, 2010 | Reply
As time goes by many people lose their confidence in the our government and in the Court. So whatever they do we always tend to contradict and find a way out.
dui attorney akron | Oct 3, 2010 | Reply
Thanks for posting a good article. This sounds good for Chicago. I’m in Arizona but if I lived in The Windy City I’d want my right to bear arms to be upheld.
DUI Attorney Flagstaff | Jul 14, 2011 | Reply