Saturday, April 25, 2009

2nd Amendment Incorporation

The 9th Circuit Court of Appeals, reviled by many conservatives for what they view as a penchant for loose constructionist or otherwise pro-liberal rulings, has become a beach head in the fight to win one of the biggest fights in the 2nd Amendment / Gun Control debate. From a recent NRA/ILA Alert:

This week, the U.S. Court of Appeals for the Ninth Circuit marked a milestone in Second Amendment history by ruling that the Second Amendment applies to the states through the due process clause of the Fourteenth Amendment to the U.S. Constitution. NRA has been involved in, and supportive of, this case for the past ten years and has filed several amicus briefs in the case.

"The historic Heller decision was a major victory for law-abiding gun owners and recognized that the federal government and the District of Columbia cannot infringe on our Right to Keep and Bear Arms," said NRA-ILA Executive Director Chris W. Cox. "This week's decision, which applies to the states in the Ninth Circuit (Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, and Washington), ensures that the fundamental freedoms affirmed in Heller are not just limited to the residents of Washington, D.C."


"This decision brings us closer to seeing Heller applied throughout the land," concluded Cox. "After nearly 10 years of litigation, the hard work of the Nordykes, their attorneys, Donald Kilmer and Don Kates, and NRA's legal team has resulted in this week's historic decision."

14th Amendment Incorporation:

The 14th Amendment was a post civil war Amendment aimed at, among other things, ending the deprivation of liberty of freedmen and others by State governments in the post-war South. Though it's intentions at the time were pointed, it's scope applied generally to all states and all issues along similar lines:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. - Amendment XIV, Section 1

The bold portion is what is at hand with this ruling and is generally straightforward at first glance. One can easily see how if the government came and took your stuff or shot your uncle or prohibited you from using your liberty, such as publishing a newsletter, without any due process people would be peeved. Even with due process, such as a court case finding them guilty of theft and forcing them to pay a fine, or perhaps going to prison (as a deprivation of liberty), etc may still leave them peeved, but at least it's fair and allows them the ability to appeal or seek recourse in case of an error.

What's less straightforward is the idea of substantive due process. What if instead of just taking your property, say your car, the State government passes a law that says all cars must be donated to the State gov't. If you refuse, you may get "due process" in the sense of procedural due process: court hearings, appeals, etc. But they'd all be rendered moot by the fact that they are bound by the law and would almost certainly be required to rule against you.

This is where the idea of substantive due process comes in. I touched on this concept in an unrelated prior post:

Due process typically refers to the procedures of carrying out a law, especially the judicial recourse for those wronged. The idea of substantive due process refers to the lawmaking ability of the legislatures themselves as to whether the laws they can create are fair or not. So the typical idea of due process or procedural due process deals with the fair application of the laws and recourse if the laws were unfairly applied. Substantive due process deals with whether or not the laws themselves are fair and allowable. The first appearance of substantive due process in Constitutional law came from a far more infamous Supreme Court decision, namely Dred Scott v Sanford (1856):
"And an act of Congress which deprives a citizen of the United States of his liberty or property, merely because he came himself or brought his property into a particular Territory of the United States, and who had committed no offence against the laws, could hardly be dignified with the name of due process of law."

The general idea here is that without substantive due process limitations, the courts would be impotent to stop State laws that effectively rendered any procedural due process moot as they deprived life, liberty, or property. Someone who read Amendment XIV, Section 1 more carefully is bound to wonder why the privileges and immunities clause wouldn't apply here instead, and perhaps make far more direct sense. For the backstory on that clusterfrag of Constitutional law, wikipedia actually has a fairly decent page on the subject with links to the Slaughter House Cases and other relevant cases.

The concept of substantive due process predated Amendment XIV (dealing with Amendment V's similar language) and predated the later attempts by the court to either intentionally or unintentionally reduce its limits on State governments from infringing upon liberty. So in modern Constitutional law it's essentially what we have left to work with to implement the intent of Amendment XIV and do so with intellectual honesty.

It is how various rights in the Bill of Rights were over time incorporated with Amendment XIV and held as limiting upon State governments, from free speech, freedom of the press, etc. It is also how some non-enumerated rights have gained similar protection from government infringement by noting Amendment IX's attempt to ensure that a bill of rights did not backfire by being overly brief: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." The big question on many issues is whether they fit the view of "liberty" as a fundamental liberty that State governments may not write unfair laws in infringing against per the due process clause and substantive due process interpretations.

Today gun owners got a big first step to seeing what has long been considered overdue by the 9th Circuit Court of Appeals:

"We are therefore persuaded that the Due Process Clause of the Fourteenth Amendment incorporates the Second Amendment and applies it against the states and local governments." - pg. 4496

This victory is due in large part to the Heller decision on the D.C. gun ban where the Supreme Court finally laid to rest the absurd "collectivist view" of an individual right (that required one to read the Constitution with a different meaning of People for this one sole Amendment one way, and the meaning of it in the Constitution itself and other Amendments an entirely different way, which strained credulity.)

Shortly after the Heller decision I pondered on how it may affect future incorporation attempts:

It seems unbelievable that an argument against incorporation could stand at this point. Someone would actually have to argue that people in federal territories have a protected right to keep and bear arms but that people in States do not. I'm sure some will try, one way or another... but it's difficult to see how any court could deny incorporation after this ruling.

With this 9th Circuit ruling, infamous to conservative groups for their rulings in the past. This seems to be a first indication of how this will eventually play out in circuits across the nation. It's a great sign!

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