Tuesday, June 29, 2010

The Second Amendment and the Incorporation Doctrine

From Glenn Reynolds, at Pajamas Media, "The New Normal: The Second Amendment After Heller and McDonald":
Following Monday's McDonald decision, gun ownership by law-abiding citizens is the new normal, and the Second Amendment is now normal constitutional law.

I’ve been interested in the Second Amendment for a long time, but for a long time, it wasn’t really part of the Constitution.

Oh, I mean it was part of the Constitution — right there between the First Amendment on one side, and the Third Amendment (the only part of the Bill of Rights that really works — when did you last hear of troops being quartered in someone’s house?) on the other. But in “mainstream” constitutional discourse, it just didn’t exist.

Courts routinely rejected Second Amendment claims, frequently with atrocious misstatements of what little caselaw existed, and usually with almost no discussion. Popular discussion was, if anything, even more dismissive. Former Chief Justice Warren Burger said that the notion that the Second Amendment protected individual rights was a fraud, and that it only protected “state armies.” (And wouldn’t that have been interesting if it had turned out to be true. …) The general position taken by most mainstream media types, and most academics, was that the Second Amendment didn’t protect individuals, only the right of states to have a national guard, a right that was obsolete anyway. It had nothing to do with individuals owning guns.

There wasn’t actually much support for this “collective right” position, in terms of scholarship or caselaw — the 1939 case of United States v. Miller, often cited for that position, doesn’t actually say that, but for many years, unanimity substituted for understanding, and ridicule substituted for research. (Burger’s “state armies” claim appeared not in a law review, but in Parade magazine.) That began to change with Don Kates’ article, “Handgun Prohibition and the Original Meaning of the Second Amendment,” in the Michigan Law Review, and really picked up after the publication of Sandy Levinson’s “The Embarrassing Second Amendment” in the Yale Law Journal. Soon, scholarship accumulated, and it was possible even to speak of a ”Standard Model” of the Second Amendment, in which the linguistic, structural, and historical elements came together to explain, in a widely accepted way, why the Second Amendment did, in fact, protect an individual right to own guns.

Opponents continued to criticize this view and to characterize its proponents as shills for the NRA, but it was a rearguard action — especially as polls continued to show, despite contrary media efforts, that around three quarters of Americans believed the Second Amendment gave them a right to own a gun, and that legal efforts to limit gun ownership were unconstitutional.
RTWT at the link.

Professor Reynolds argues that the Second Amendment has now been incorporated into the Fourteenth Amendment, and thus made a normal part of constitutional law.

5 Ridiculous Gun Myths Everyone Believes." And see all the discussion at Memeorandum.