Second Amendment Incorporation

Does the Second Amendment restrict the powers of individual states? Initially, the restrictions on government power in the Bill of Rights only applied to the federal government. For example, the First Amendment begins "Congress shall make no law . . ." indicating that the restrictions in that amendment only apply to the "congress" of the federal government. However, since the adoption of the Fourteenth Amendment, The Supreme Court has gone right by right through the amendments in the Bill of Rights, determining whether or not the right in question should be incorporated against the states. Most of the Bill of Rights, has in fact, been incorporated.

One of the few remaining incorporation questions is whether the Second Amendment should be incorporated against the states. The recent Heller decision, holding that individuals have a right to keep and bear arms for self defense, was taken on appeal from Washington D.C. City ordinance. The Second Amendment clearly applied in that case because D.C. is not chartered by a state, but by the federal government.

If you think that for consistency's sake a court has to incorporate the rights in the Second Amendment, you'd be wrong. While the Ninth Circuit has sort of ruled that the Second Amendment is incorporated, The Second and Seventh Circuits have already rejected incorporation based largely upon precedents, like Presser and Cruikshank. Those cases, however, are not directly on point as there are three methods of incorporation, and those cases deal reject only the first two methods of incorporation. Direct incorporation is rejected because the case Duncan says none of the first eight amendments are binding on the states. Incorporation through the privileges or immunities clause was also rejected in the Slaughterhouse cases.

The last method of incorporation is through the due process clause of the Fourteenth Amendment and is the method by which most of the Bill or Right has been incorporated. This test--a shoot off of substantive due process--asks whether the right is "fundamental, meaning 'necessary to an Anglo-American regime of ordered liberty.' "Nordyke v. King, (9th Cir. 2009) (citing Duncan, 391 U.S. at 149 n.14 (emphasis added).) That's a fuzzy standard, but obviously a good argument for incorporation can be made.

How conservative and liberal justices are likely to answer the Second Amendment incorporation question is ironic. Liberals, who always seems ready to find new rights in the constitution, weren't excited about the robust Second Amendment rights created/reaffirmed in Heller. Now, those same liberals, who favor incorporation and top-down federal regulation, are the jurists most likely to vote against incorporating the Second Amendment.

Conservatives face the reverse problem: they are usually seen as supporting states rights, but will be imposing a restriction on the state. But, to be fair "conservatives" (some of whom are originalist) usually believe in following the constitution's requirements, even when it infringes upon state rights. So the question isn't so much policy, but the constitution. The liberals have this same argument, but because they've already incorporate almost every other right, they'd be acting more inconsistent to oppose this rights.

The real problem for the originalist is that he generally does not believe incorporation is constitutionally mandated. Scalia says that he does not believe the incorporation is proper under the Fourteenth Amendment. Still, he accepts incorporation because the cases were decided long ago, and the doctrine is too settled to overturn it now. Still, in order to incorporate the Second Amendment, Scalia will probably have to rely upon substantive due process, a legal doctrine he has long disparaged.

And what should an originalist who is less deferential to precedent, like Thomas, do? As Justice Scalia says, "Clarence Thomas does not believe in stare decisis, period." "Or even setting aside Thomas's views, suppose you're an originalist that does not believe the incorporation is proper but you are faced with the question of whether to incorporate the Second Amendment. Do you follow the incorporation precedents that you believe are wrong and incorporate a right against the states because it is consistent with what has been done before, and open yourself up to criticism that you are abandoning your principles of interpretation for policy reasons? Or do you not incorporate the Second Amendment and leave one of the few rights in the Bill of Rights unincorporated to be faithful to your originalist understanding of the constitution, even though that understanding will never be law?