George Allen: The Supreme Court will rule on gun rights

Insight ^ | March 4-10, 2008 | Former Sen. George Allen

[Publius Valerius]

How can you possibly overlook that the Civil War had unquestionably provided an impetus for post Civil War lawmakers to make systemic changes to the law of the land as evidenced by the 13th, 14th and 15th Amendments to the federal Constitution?

I'm not saying it didn't. Equally compatible with your statement is that the 14th Amendment was drafted in order to "constitutionalize" the Civil Rights Act, which made significant changes in the law of the land.

I certainly can't possibly make Berger's argument better than he, but just because the 13-15th amendments were passed doesn't mean that the point of those amendments were to "incorporate" the bill of rights against the states. Indeed, to this day, we still don't have full incorporation of the bill of rights. If in the past the failure to incorporate was due to failures of communication, why hasn't the Supreme Court simply announced that the bill of rights is fully incorporated?

I would argue that they haven't done so because that was not the purpose of the 14th Amendment, and I believe that the vast, vast majority of scholarship on the subject supports that opinion. As Berger points out:

"The extensive researches of Fairman, which I confirmed, corroborate Frankfurter; our view has won assent even from activists. Michael Perry concluded that Berger’s “finding that the fourteenth amendment was not intended to make the Bill of Rights . . . applicable to the States . . . is amply documented and widely accepted.” Among those who agree are Dean Alfange, Jr., Alexander Bickel, John Hart Ely, Judge Henry Friendly, Lino Graglia, Thomas Grey, Erwin Griswold, Louis Henkin, Forrest McDonald, Richard A. Posner, and Mark Tushnet." (citations omitted).

regarding who should have known what with respect to the scope of the federal Constitution in the late 18th and 19th centuries, beware of falling into the trap of presentism, of thinking that the pioneering generations had the convenience of cell telephones and networked archives to keep themselves abreast of USSC opinions, etc..

No, but as I said before, Berger correctly notes that the bench and the bar was well aware of the 14th Amendment and the Civil War when litigating, say, the Slaughterhouse cases.

Here's Berger's article.

http://oll.libertyfund.org/index.php?option=com_staticxt&staticfile=show.php%3Ftitle=675&layout=html#chapter_106927

[M Kehoe]

You feel me, dude?

Yep, and I appreciate your candor. All of my friends and family know where I stand, and many on FR too.

I've been in bad situations before, and I'm typing here and now. Sure, it's possible to be ambushed, but I've been in those situations before also.

I'm not a young buck anymore, but nobody leaves this planet alive anyway. I would prefer SCOTUS to uphold the Constitution, but from what I've seen the last 40 years or more, well, you just don't know.

Again, I appreciate your post.

5.56mm

[Amendment10]

I certainly can't possibly make Berger's argument better than he, but just because the 13-15th amendments were passed doesn't mean that the point of those amendments were to "incorporate" the bill of rights against the states. Indeed, to this day, we still don't have full incorporation of the bill of rights. If in the past the failure to incorporate was due to failures of communication, why hasn't the Supreme Court simply announced that the bill of rights is fully incorporated?

First of all, in my opinion, the idea that the 14th A. applied the BoR to the states is politically correct sleight-of-hand by secular-minded justices to force the 1st A.'s prohibition on religious powers of the federal government onto the states. This is evidenced by the fact that Sec. 1 of the 14th A. doesn't say anything about the BoR per se, but references essentially all the privileges and immunities in the Constitution. In fact, when John Bingham referenced the first eight amendments to clarify the scope and purpose of the 14th A., he emphasized that the 14th A. was actually targeting the privileges and immunities defined by these amendments. Indeed, Bingham had made it clear that the 14th A. was not intended to take away any state powers.

Also, the fact that Bingham referenced the privileges and immunities of the first eight amendments undermines the Court's idea of selective incorporation of the BoR.

[mamelukesabre]

I have one big problem with this article.

I don’t care what the effect of gun ownership is on crime. The second ammendment is clear. If the facts proved that gun bans decreased crime would it then be ok to ban guns? Where in the second ammendment does is say anything about gun rights being balanced against crime rates?

[lentulusgracchus]

Hints are his favorite law student - a certain B.H. Obama - may be seeking to return certain favors, involving a re-positioning on Heller.

Tribe or one of his students would be, of course, a likely candidate to replace the ailing and aging liberals on the Supreme Court.

I suppose you're aware that Tribe has been secretly lobbying the Justices for years, using his former students (the clerks) as intermediaries, discussing current research with them and suggesting references. So that an ingenuous new Associate Justice might send a clerk off to "see what you can find" on habeas, for example, and end up having an unsuspected and unlooked-for conversation with Professor Tribe instead, in the form of the clerk's returns of cites and quotes.

Tribe was also seen lobbying Justice Kennedy up close and personal for over three hours in a Viennese coffeeshop, on the eve of the Planned Parenthood case that revisited Roe.

Bob Novak wrote a column about all that, which turned into the perfect Buddhist stone tossed into a pool: zero splash, zero ripples, zero consequences.

The man is interfering with the cardinal lawmaking organ of the United States Government and getting away with it.