McDonald v. Chicago Instant Analysis

JoshBlackman.com ^ | 03-02-2010 | Josh Blackman

[ncdave4life]

14th Amendment Incorporation is an "interpretation" that is inconsistent with the text of the Amendment, was never intended by the writers and ratifiers of the Amendment, and wasn't "discovered" by activist courts until those writers and ratifiers were all safely in their graves.

If the authors of the 14th Amendment had intended for it to "incorporate" the first eight Amendments as restrictions upon the States, they could have easily written it to say so. They didn't.

Moreover, there can't possibly be a legal justification for "incorporating" portions of the 1st Amendment (which, by its own language, is restricted to apply only to "Congress" -- i.e., just for federal laws), and not the 2nd Amendment (which is worded much more broadly).

"The true key for the construction of everything doubtful in a law is the intention of the law-makers. This is most safely gathered from the words, but may be sought also in extraneous circumstances provided they do not contradict the express words of the law." -Thomas Jefferson

A ruling on what the 14th Amendment means should be influenced by what it says, and by what it was intended to mean, when it was written and ratified. Unfortunately, that rarely happens.

The 5th Amendment says: "No person shall... be deprived of life, liberty, or property, without due process of law..."

The 14th Amendment says: "...nor shall any State deprive any person of life, liberty, or property, without due process of law..."

If anyone really believes that 14th Amendment Incorporation was intended by the writers of the 14th Amendment, then he needs to explain why the 14th Amendment contains that due process clause restricting the States, which is identical in wording to the 5th Amendment's due process clause restricting the federal government. If Incorporation were intended, then the 14th Amendment would have no due process clause restricting the States, since the Incorporated 5th Amendment would obviously already do that.

It is a basic principle of legal construction that a legal provision should not be interpreted as being without meaning or effect if some other interpretation is plausible. The activist courts had to ignore that principle to invent 14th Amendment Incorporation.

The right ruling in this case would preserve the rights of state and local governments to restrict firearms, by tossing 14th Amendment Incorporation on the scrapheap of history. But that isn't going to happen.

[Filo]

14th Amendment Incorporation is an "interpretation" that is inconsistent with the text of the Amendment, was never intended by the writers and ratifiers of the Amendment, and wasn't "discovered" by activist courts until those writers and ratifiers were all safely in their graves.

I agree, but maybe not for the same reasons.

If the authors of the 14th Amendment had intended for it to "incorporate" the first eight Amendments as restrictions upon the States, they could have easily written it to say so. They didn't.

Actually they did. They just made it more general to include all natural rights enjoyed by free men.

Moreover, there can't possibly be a legal justification for "incorporating" portions of the 1st Amendment (which, by its own language, is restricted to apply only to "Congress" -- i.e., just for federal laws), and not the 2nd Amendment (which is worded much more broadly).

Exactly.

The right ruling in this case would preserve the rights of state and local governments to restrict firearms, by tossing 14th Amendment Incorporation on the scrapheap of history. But that isn't going to happen.

I disagree.

The isssue of duplicative wording aside, the 14th was clearly written to ensure that the states could not impinge upon the rights of newly freed slaves (or anyone else.)

The Bill of Rights was written to ensure that the various natural rights that the founders recognized were enshrined to prevent their infringement.

Yes the BoR was originally written to protect those rights only from the federal government. But, at the time, those same rights were already protected in each of the 13 State Constitutions.

Just as clearly, however, the 14th was written to extend that protection from the states and the rest of government.

The issue I have is that the amendment, once passed, inherently “incorporated” the entire BoR (save, perhaps, the 10th) and all remaining rights implied by the 9th.

The SCOTUS recognizing the rights piecemeal is a bogus construct.

[Ancesthntr]

Wrong, for 2 reasons:

First, read the debates surrounding the ratification of the 14th Amendment - the drafters were VERY specific that among the many wrongs that the proposed amendment was intended to correct was the disarming of the blacks who had recently been freed, yet who were having the basic right of self-defense being denied by the states of the former Confederacy. Let's not forget, this was the heyday of the KKK, and blacks who were disarmed (effectively all of them) were being lynched left and right. For a good read on this issue, consult with Stephen P. Halbrook's "That Every Man Be Armed." Its in a number of libraries, and is easily purchased through Amazon.

Second, you're wrong because the words of the 2nd Amendment are NOT limited to Congress, as are those of the 1st Amendment. Every single state that ratified the 2nd (i.e. the original 13 states) and every state that joined the nation thereafter, and in the process ratified the Constitution, agreed tot he terms of the 2nd. It is clear that it should apply - given an honest reading - to ALL levels of government. Here's why (besides the words themselves): The militia is composed of the body of the people, and is subject to federal call-up in the event of rebellion, invasion or other emergency. How can a state or local government interfere with the training and equipping of the militia, and thereby endanger the entire nation?

I understand where you're coming from, that you want the actual words of the Constitution to be the basis of our laws, not the whims of judges or justices. I want the same thing, as do many tens of millions of people. However, in this particular case you aren't correct because you haven't taken into consideration the factors mentioned above.

My position on gun rights is as follows: we citizens have been so oppressed for so long by the anti-gun control-freaks that I will take any victory against them that I can get. I'll take it by hook or by crook, the same way that they have stolen our rights for the last 76 years (on just the federal level, lots longer in some states). Being practical, we will never see that one perfect case that results in virtually all federal and state gun control laws being wiped away in a heartbeat. It simply won't happen. We have to take our rights back the same way that they were stolen from us: one salami slice at a time. Heller was one such slice - insufficient and unsatisfactory by itself, but very nice as a piece of a mosaic; McDonald will be similar in its effect, assuming that the USSC rules against Chicago (probably under Due Process, but I'll take whatever we can get).

[Ancesthntr]

Correction to Post #43 - it should have had the following at the very beginning:

The right ruling in this case would preserve the rights of state and local governments to restrict firearms, by tossing 14th Amendment Incorporation on the scrapheap of history. But that isn't going to happen.