Tuesday, October 06, 2009

McDonald v. Chicago; Another Attempt to Explain 2nd Amendment Incorporation

Yesterday was the First Monday in October, meaning that the season has begun for Supreme Court watchers. One of the more interesting cases to watch will be McDonald v. Chicago -- another go-round for the new improved Second Amendment.

Recall that in Heller v. DC, the Supreme Court found for the first time in constitutional history that the Second Amendment includes a personal right to have weapons and that an outright ban on handguns violates that right. But the District of Columbia is Federal territory. We still don't know if this freshly invigorated right applies to the states.

I've referenced this before when Sotomayor was getting NRA hateburgers thrown her way by a certain failed gubernatorial candidate, and again referencing my Akron Legal News column about nunchucks. The feedback was my drive by treatment of the issue left some of my non-lawyer readers confused. But that they really liked seeing Bruce Lee play ping pong with nunchucks.

So here again is an attempt to explain the background of the case. I'll have more specific thoughts on the case and some of the strange bedfellowships it has inspired.

In the beginning, there was the Bill of Rights. And it was good. But it was only good against the Federal Government. Recall that the first words in the First Amendment are "Congress shall make no law." The Constitution wasn't about creating rights, it was about creating a newly powerful national government after the disaster that was the Articles of Confederation. Not everyone was comfortable with a national government with real power. The original purpose of the Bill of Rights was to secure individual rights against this new government.

Not to say that states could do whatever they wanted. Each state had a constitution with some version of the freedoms in the Bill of Rights. But for the first several decades of the nation, states were not under Federal Constitutional constraints.

That changed after the Civil War. In light of all that had just happened, the Northern states thought that just maybe states had a wee bit too much freedom under the Constitution. And so the Restoration Amendments were passed -- the 13th, 14th and 15th. The purpose of these amendments was to codify certain results of the war (the 13th abolished slavery; the 15th guarnateed voting rights to freed slaves), and more generally to guarantee freedoms against state intrusion.

Nestled in the 14th amendment is the Due Process clause, which says that no state shall "deprive any person of life, liberty, or property, without due process of law." Starting in the early 20th Century, the Supreme Court began reading the clause as incorporating Bill of Rights guarantees against the states. What does due process mean? Look to the process guarantees in the Bill. What "liberty" cannot be denied? Look to the substantive rights in the first ten amendments.

The Court rejected calls to simply incorporate the whole Bill in one fell swoop. Instead it adopted an approach called selective incorporation. Selective incorporation says that only fundamental rights are incorporated. Fundamental rights are those that are "essential" for "ordered liberty" or are rights out of which all other rights flow. Not a rigorous standard, to be sure.

For a number of reasons to be saved for later posts, I (along with most anyone paying attention) expect the Supremes to incorporate the Second Amendment in McDonald. But how they go about it will be interesting, and will have implications for future decisions about the metes and bounds of the right to bear arms.

In the meantime, you can read up on McDonald on SCOTUSwiki and Wikipedia if you wish.