Supreme Court Holds That the Second Amendment Applies to the States

Monday, June 28, AD 2010

In the case of McDonald v. the City of Chicago, the Supreme Court of the United States ruled that the Second Amendment applies to the states.  Read the decision here.  The decision was 5-4 which is absolutely stunning since I think that there was no intellectually respectable argument to be made that the Second Amendment does not apply to the states.

The bill of rights applies to the States due to the Fourteenth Amendment.   In the opinions written by the majority justices, emphasis is given to the importance that the drafters of the Amendment placed upon the rights of freed slaves after the Civil War to keep and bear arms for their defense.  A good day for the Constitution at the Supreme Court.

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16 Responses to Supreme Court Holds That the Second Amendment Applies to the States

  • Apropos of our discussion a few weeks ago regarding Justice Scalia’s view that “tradition” should inform the Court’s “substantive due process” jurisprudence, note that this was key to the Court’s decision. (See also Justice Scalia’s concurrence, in which he masterfully dissects Justice Stevens’ dissent.)

    I think Justice Thomas’ privileges or immunities clause analyisis is the better argument from both an originalist and textualist standpoint. But, given that that ship has already sailed, and given the need to limit the Court’s “substantive due process” jurisprudence to those rights that actually have some grounding in the text of the Constitution and the history and tradition of our nation, I can’t say that I blame the majority for relying on the due process clause rather than privileges or immunities, and using this case as a vehicle for defining the limits of “substantive due process”.

  • One gets the feeling that, should a case that hinges upon the question “Does the Constitution require that there be a House and Senate?” make its way to the SCOTUS, the vote would come down five votes to four. Sadly, no one seems able to predict whether the five would be for or against.

    Those of you who think “we are a nation of laws” will find yourselves confounded by the caprice of five untouchables in black robes.

  • I agree. The vote should have been 9 – 0.

    One, “the right of the people to bear arms shall not be infringed.” Can the four dissenting read?

    Two, I bet “dollars to donuts” that the four dissenting (plus Kagan) will affirmatively vote (hallucinating) that the constitution gives a woman the RIGHT to have taxpayers pay a medico to exterminate her unborn babies.

  • Incorporation through the 14th has been piecemeal. The court had never adopted a blanket doctrine of incorporation. But I agree that if we’re going to incorporate at all, the 2nd amendment has to be included.

  • I’m with restrainedradical. The incorporation doctrine is hardly an obvious feature of our constitution, but there is no coherent basis for excluding the 2d amendment from its ambit once it has been applied to the other enumerated rights.

  • T. Shaw, I think the four dissenters are right in insisting that the clause you quote–“the right of the people to bear…”–is qualified, and rendered more precise in its intent, by the prior clause, establishing the need for militias. On an originalist reading of this text, the right to bear arms for, eg. the purposes of hunting or personal protection, simply does not exist.

  • WJ,

    That issue was decided and rejected in the Heller case. They had already lost on that. And don’t pretend that your argument is originalist. Calling it such doesn’t make it so.

  • wj:

    I think the four dissenters do not believe we the people should be free people. I doubt they believe in individual liberty.

    You may read the commentaries, minutes, and statements of the “state” conventions, and all the drafters/founders. At no time was the right of US citizens to individually keep and bear arms questioned until around the time the federal government instituted the income tax (they needed to amend the Constitution) and Federal Reserve System.

    But, you’re right. Once the Obama regime packs the court. [I’m ‘chanelling’ Thomas Jefferson here] We’re likely to devolve into slaves to the state.

  • wj:
    Your is a common argument. The problem is that it does not withstand the scrutiny:

    http://www.guncite.com/journals/vanalful.html

    Van Alstyne is one of the leading con law scholars of our time. Although a liberal to the core, he is ruthlessly principled in his constitutional reasoning. for instance he is pro choice as a policy matter, but believes Roe was a terrible decision.

  • I’m aware of van alstyne and heller etc and disagree with the findings of both. You can disagree with heller precisely on originalist grounds; which is not to say you must–just that you can as a matter of interpretation. Both heller and van alstyne perform any number of impressive exegetical contortions to escape what to my mind is the clear intent of the sentence in question. But maybe you’re right that the four dissenters are motivated less by interpretive scruple and more by policy preference.

  • Fair enough, Wj. For what it is worth I have no great interest in gun regulation as a policy matter, and really don’t care if guns are outlawed. But I find Van Alstyne’s exegesis if the 2d Amendment air tight. Moreover, I have known Bill for almost 30 years; he is immune to exegetical contortion. I have no opinion on the motivations of the four dissenters. I just don’t think there exists a reasonable argument for sparing the 2d Amendment from the incorporation doctrine.

  • Way too much education wasted here on a rather simple issue. Where in the Constitution is any branch of the federal government given authority to disarm either the states or the people? The ninth amendment applies. The critical issue here, and the reason many oppposed incorporation of “the Bill”, is that the amendment did not create the right, though it is now treated as if it had; it only acknowledges the right. No one ever would have written the second amendment as it was written to make sure that states allowed their militia to keep arms at their homes (the point of mobilization). To say they would have is simply dishonest. So it comes down to this; you are either for, or against the Constitution. There are no nuances here that merit consideration.

  • I’ve heard estimates that 90,000,000 Americans own firearms.

    “The beauty of the Second Amendment is that it will not be needed until they try to take it.” Thomas Jefferson

    “Laws that forbid the carrying of arms…disarm only those who are neither inclined nor determined to commit crimes…such laws make things worse for the assaulted; they serve rather to encourage than to prevent homicides, for an unarmed man may be attacked with greater confidence than an armed man.” Thomas Jefferson 1764

    “No free man shall ever be debarred the use of arms.” Thomas Jefferson proposed Virginia constitution 1776

    “The Constitution preserves ‘the advantage of being armed which Americans possess over the people of almost every other nation…(where) the governments are afraid to trust the people with arms.'” The Federalist #46

    “…arms discourage and keep the invader and plunderer in awe, and preserve order in the world as well as property…Horrid mischief would ensue were the law-abiding deprived the use of them.” Thomas Paine Thoughts on Defensive War 1775 – proof positive in all the states that infringe the Second Amendment.

    “The Constitution shall never be construed to prevent the people of the United States who are peaceable citizens from keeping their own arms.” Samuel Adams 1788: During Massachusetts’ Constitution ratification convention.

    “Guard with jealous attention the public liberty. Suspect every one who approaches that jewel. Unfortunately, nothing will preserve it but downright force. Whenever you give up that force, you are ruined.” Patrick Henry: during Virginia’s ratification convention (1788)

    “Arms in the hands of individual citizens may be used at individual discretion…in private self-defense.” John Adams 1788

    “A militia when properly formed are in fact the people themselves…and include all men capable of bearing arms…To preserve liberty it is essential that the whole body of the people possess arms.” Richard Henry Lee Additional Letters From The Federal Farmer 53 (1788)

    “I ask sir, what is the militia? It is the whole people…To disarm the people is the best and most effectual way to enslave them.” George Mason: Virginia’s US Constitution ratification convention (1788)

    “To secure the blessings of liberty to ourselves and our posterity.” US Constitution

    “Government is not reason; it is not eloquence; it is force; like fire, it is a dangerous servant and a fearful master.” George Washington, Farewell Address

  • That Washington quote has to be the best. Seems our Presidents went downhill from there.

  • Kevin, nobody reads the 9th Amendment as you do because it would be ridiculous to do so. The 9th was intended merely to clarify that the Bill of Rights shouldn’t be interpreted to prohibit all other rights. It doesn’t ensure any rights. It only ensures that absent a law prohibiting it, you have the right to do it.

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A President Obama Will Silence Catholics

Friday, October 10, AD 2008

Senator Obama has stated that he wants the Internet to be regulated. CNET had this exchange of a MoveOn.org member asking Senator Obama this very question:

He asked Obama: “Would you make it a priority in your first year of office to reinstate Net neutrality as the law of the land? And would you pledge to only appoint FCC commissioners that support open Internet principles like Net neutrality?”

The answer is yes,” Obama replied. “I am a strong supporter of Net neutrality.”

This “Net Neutrality” law would be something along the lines of the Fairness Doctrine. Conservapedia states that the Fairness Doctrine required broadcasters who aired material on controversial issues to provide “equal time” for the expression of opposing views.  The end result was censorship, broadcasters simply refrained from airing public affairs programing.

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17 Responses to A President Obama Will Silence Catholics

  • Tito,

    I think you (or perhaps the author you’re citing) is misunderstanding what “net neutrality” means here — it is largely a technical term in favor of free speech and no restrictions on content:

    Put simply, Net Neutrality means no discrimination. Net Neutrality prevents Internet providers from blocking, speeding up or slowing down Web content based on its source, ownership or destination.

    Net Neutrality is the reason why the Internet has driven economic innovation, democratic participation, and free speech online. It protects the consumer’s right to use any equipment, content, application or service on a non-discriminatory basis without interference from the network provider. With Net Neutrality, the network’s only job is to move data — not choose which data to privilege with higher quality service.

    The counter-position is also chiefly economic — to quote from your own ‘Conservapedia’ source:

    Broadband providers want to manage more actively — and thus profitably — those information bits. They’d like to offer, for instance, new superfast delivery for sites or users willing to pay more (not unlike how FedEx speeds delivery of packages for a fee), or other new services such as online video or telephony.

    Network neutrality would render all that illegal. But why, then, should broadband investors keep building the Web infrastructure needed to keep pace with surging use? Where’s their financial incentive?

    It could be argued that if “net neutrality” were not enforced, internet content providers could effectively slow down or impede access to religious and public-service websites because they were not deemed commercially profitable.

    This is why the USCCB currently situates itself in favor of this principle:

    Bishop Kicanas urged that such protections, termed “net neutrality requirements,” be included in the Communications Opportunity, Promotion and Enhancement Act (“COPE Act”). As approved by the House Subcommittee, the COPE bill lacks net neutrality protections.

    “Those protections have particular importance for religious organizations which must rely on the Internet to convey information on matters of faith and on the services they provide to the public,” Bishop Kicanas said. “The Internet is an indispensable medium for distributing USCCB’s views on matters of public concern and on its religious teachings. The Internet was constructed as a unique medium without the editorial control functions of broadcast television, radio or cable television. The Internet is open to any speaker, commercial or noncommercial, whether or not the speech is connected financially to the company providing Internet access, whether it is popular or prophetic,” he said. “Those characteristics make the Internet critical to noncommercial religious speakers,” Bishop Kicanas said. …

    “That open environment, however, is threatened by a lack of response by Congress to the recent decision by the FCC to end the decades-old regulatory regime which fostered the unique freedom and openness of the Internet,” he continued. “When the FCC classified cable broadband service (and later telephone broadband) as an ‘information’ service, it ended more than thirty years of regulation which prohibited the companies which control the infrastructure connecting people to the Internet from interfering with the content distributed on the Internet. Unless Congress requires telephone and cable companies to act as neutral providers of Internet access, as they had been required to do since the birth and through the spectacular growth of the Internet, those companies will use their control over internet access to speed up or down connections to Web sites to benefit themselves financially.”

    At the present time, radio, broadcast television and cable television are largely closed to religious messages, Bishop Kicanas noted. “Years of deregulation and growing consolidation of the media industry have inevitably led to a hostile environment for noncommercial religious voices in broadcasting, whether in the form of short Public Service Announcements, programs on religious themes, news coverage of religious events, or local public affairs programs featuring representatives of local religious organizations. If the Internet becomes, as it inevitably will without strong protections for net neutrality, a medium where speakers must pay to deliver their messages, religious speech will be effectively barred from the Internet,” Bishop Kicanas said.

    So I’m having some difficulty seeing how an advocacy of ‘net neutrality’ actually translates into “a fairness doctrine” which mandates government censorship of all content the Obama administration presumably wouldn’t like. In fact, you couldn’t have that happen without violating the very principle under which people are supporting net neutrality as a concept.

  • Obama’s campaign has demonstrated on several occasions that they like attempting to silence and intimidate critics. If he is elected, I expect a full court press against all groups who stand in his way.

  • What would be stopping people from using servers abroad? Unless US regulations suddenly are enforced all over the planet, this wouldn’t be the end of free speech on the Internet — just on American servers.

  • Which is not to say that any such regulation doesn’t totally suck, but that it wouldn’t be as universal as is presented in the above post.

  • Donald:

    Obama’s campaign has demonstrated on several occasions that they like attempting to silence and intimidate critics. If he is elected, I expect a full court press against all groups who stand in his way.

    This would be true and is already happening (pressure from the Obama campaign to silence criticism they don’t particularly like) — but this isn’t the same thing and shouldn’t be identified with the principle of “net neutrality” — I think there’s some degree of confusion or misrepresentation of what we’re talking about here.

  • Christopher my comment was directed in general in regard to Obama and freedom of expression and not directed towards the net neutrality issue itself. A good overview of the issue is here at the Popular Mechanics Webite.

    http://www.popularmechanics.com/technology/industry/4286547.html

  • Honestly, I’m not overly concerned about blogs being shut down; while I accept Jonah Goldberg’s thesis regarding liberal fascism, I think we’re a long way from that in this country, even under an Obama presidency.

  • That’s a great presentation of the issue — thanks, Don.

  • Christopher Blosser,

    Like the Internet, this legislative/regulatory concept is new and difficult to grasp. I can see where confusion can reign, especially in our day and age where technology is moving at such a fast pace, congressional reaction/oversight may seem confusing and misinterpreted to say the least.

    I’ll take a wait-and-see attitude while the dust settles down on this. I hope you’re right on the misconception of Net Neutrality.

  • Irrespective of the legal nuances & technicalites, the reality is that Barack Hussein Obama, Jr., & his goose stepping minions has shown both in the US and abroad (see Kenya & Corsi being kicked out) a predeliction for silencing and attempting to legally destroy their opponents.

    See Missouri, see Chicago, etc.

  • I may be overly optimistic, but I think any kind of serious regulation of TV, radio, print publications or blogs would never get passed — because it would so clearly be a double-edged sword and because it’s the sort of thing that would unite the civil libertarian wing of the left with nearly the entirity of the right.

  • Carlos,

    While I think that the Obama campaign has shown a mildly disturbing tendency to try to have criticism shut down (based, I think, on a worldview that holds that those opposing them are necessarily morally and intellectually bankrupt, and a conviction that Democrats have lost in the past through not being “tough” enough) — as an editor here I need to ask you to avoid throwing around Senator Obama’s middle name (Hussein) as a pejorative and that you avoid loaded terms like “goose stepping minions”.

    It’s hard to keep a site focused on politics civil, and in order to do so we believe it will be necessary to avoid this kind of inflammatory terminology. Believe me, I don’t want to see Obama elected president at all — but we can express that without getting enflammatory.

  • Christopher’s first comment is right: “net neutrality” has absolutely nothing to do with forcing content providers (e.g., bloggers, newspapers) to be neutral. All it means is that the internet service providers (such as AT&T or Comcast) shouldn’t block or slow down certain types of traffic. Net neutrality would mean, for example, that Comcast couldn’t block an independent VOIP (voice over internet) service like Vonage from letting people make phone calls over their internet connection. Instead, Comcast should be “neutral” towards however people are using their internet connection. That’s the basic idea.

  • Just post outrageous claims, in non-inflamatory language….

    Example: this post.

  • I think Christopher Blosser is a 100% correct on this matter. Sen. Obama has expressed support for Net Netruality for many of the same reasons that the American Bishops have. Net Netruality would have little effect on the internet as it currently is. In fact, opposition to net neutrality would change the internet as we know it.

    Who is advocating Net Neutrality? “The nation’s largest telephone and cable companies — including AT&T, Verizon, Comcast and Time Warner — want to be Internet gatekeepers, deciding which Web sites go fast or slow and which won’t load at all. They want to tax content providers to guarantee speedy delivery of their data. They want to discriminate in favor of their own search engines, Internet phone services, and streaming video — while slowing down or blocking their competitors.”

    Essentially big corporations advocate net neutrality, not most people. It affects us. So in this regard, I think you’re mistaken on what you believe that a potential President Obama would do.

  • To be a computer scientist and not know much about net neutrality is somewhat shaming, but then I’m a theorist. We only like to touch the real world with a long stick, and then only justify the existence of a new complexity class with a natural example.

    That aside, having spoken a little with our Systems Administrator here at the University of Wyoming Department of Computer Science, it would seem that the issue of net neutrality is almost of reverse nature to the issue of the Fairness Doctrine. Fairness is involved in both cases, but in terms of the Fairness Doctrine, we’re speaking essentially of being forced to provide products, whereas with net neutrality, we’re speaking of being forced to avoid throttling products.

    The concern is that ISP’s will grant easier access to big companies, like Google or Microsoft, and make other companies lower priority. Or perhaps that ISP’s will block certain sites, certain blocks of IP addresses. Net neutrality wants to pose limitations on how ISPs can limit customers to accessing certain sites.

    The analogy our SysAdmin used is the following: suppose we have Wal Mart, K Mart, and Target right next to each other along a strip, but the designer of the parking lot makes K Mart readily accessible, but Wal Mart and Target nearly impossible to access. That will funnel customers to K Mart and choke off business to Wal Mart and Target. Net neutrality wants to make the parking lot have equal access to Target, K Mart, and Wal Mart.

    The concerns about net neutrality are more along the following lines:

    1) Without careful crafting of law, net neutrality would make it impossible for ISP’s to block sites with illegal material, like child porn

    2) Smaller ISP’s would face a financial burden of giving equal access to low traffic sites and high traffic sites. With concerns about bandwidth and the huge amount of online games and media streaming, ISP’s would prefer to throttle access to those sites so that customers who are frequenting low-bandwidth sites don’t have to wait forever to connect.

    3) Conversely, ISP’s can get a financial edge by giving preference to certain groups, like Google, Microsoft, and other corporations. While this means slower download times on competitors like Yahoo! and Apple, it also means the ISP’s are able to provide services for less money to the customers.

    4) ISP’s would not be able to make prudent calls by throttling IP’s known to make DoS attacks, carry viruses, or contain objectionable material. This is especially true in terms of pornography in general.

    So from what I understand–and granted, there are a huge number of legal details that have been discussed, and it would probably take a year of study to understand them all–we potentially stand more to lose without net neutrality, because ISP’s could decide that, for example, it would be better business to throttle or block all IP’s associated with Catholic sites.

    On the other hand, things seem to be working fine as is, and I read that net neutrality is a “solution looking for a problem”. But remember the government motto: If it ain’t broke, fix it ’til it is.

  • If obama, when asked a direct question, gives a straight answer… I immediatly must begin to investigate WHY he is for it, cause it can’t be a good thing.

    it deservs to be scrutinized to the fullest extent.