Appeal to the Supreme Court
(July 9, 2009) This fall, when the Supreme Court begins its next session, one of the questions they are likely to address is the "incorporation" of the Second Amendment to apply to the states. Most Americans would be surprised to learn that their constitutional rights are only selectively recognized as applicable to state and local government, but that is the case. While there might have been some understanding regarding the application of the finer details of the first 10 amendments, the fundamental rights enumerated in the Bill of Rights were clearly intended and universally recognized to apply to all authorities at every level of government, but the Supreme Court shifted that understanding with several rulings culminating in decisions bolstering Jim Crow laws in the South after the Civil War. Two famous cases clearly illustrate the shift:
In Dred Scott v. Sanford, Justice Taney declared that blacks could not be citizens of the United States in part because citizenship "would give to persons of the negro race, …the right to enter every other State whenever they pleased, …the full liberty of speech in public and in private upon all subjects upon which its own citizens might speak; to hold public meetings upon political affairs, and to keep and carry arms wherever they went."
Clearly it was Justice Taney’s view in 1857 that the rights of citizenship carried across state lines. Less than 20 years later though, in United States v. Cruikshank the Court’s tune had changed dramatically. Like Dred Scott, Cruikshank is an embarrassment to the judicial system and reflects seriously distorted attitudes towards the Constitution and human rights. The Cruikshank case sprang from a violent confrontation between a group of black Republicans and a group of white Democrats in Louisiana in 1873. By the time it was over, 3 of the Democrats had been killed and between 100 and 280 of the black Republicans were dead, many purportedly executed after surrendering.
Some of the white Democrats were indicted under a new law passed by Congress which made it a federal felony for two or more people to conspire to deny constitutional rights to any citizen. The Court was opposed to federal interference in state matters and made that clear in their ruling, declaring that federal, constitutional rights were not binding upon the states. While this wasn’t a new legal theory, it was new since the adoption of the 14th Amendment. The Court declared that the right to assembly, the right to petition government, and the right to bear arms were all pre-existing rights which, in the Bill of Rights, were only binding on the federal government and held no sway in the states. They strongly admonished that the states must recognize and protect citizens’ natural and fundamental rights, but they denied any federal authority to force states to provide such protection or to hold violators responsible under federal laws. This decision opened the floodgates to Jim Crow laws and provided cover for the KKK and corrupt politicians.
The Supreme Court being the rigid institution it is, has proven extremely reticent to ever overturn even its worst decisions and relegate them to the waste-bin of history. Instead the Court treats these twisted decisions as Gospel and sets about figuring out ways around the arguments and decrees put forward in the bad calls.
The solution the Court found to the problem of enforcing the Bill of Rights against the states was located in the 14th Amendment, an amendment specifically intended to do exactly that, but which had already been dismissed by previous Court as unenforceable or inapplicable. Section 1 of the 14th Amendment reads; "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."
It would seem obvious that the statement, "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States," means that states can’t pass laws which violate the constitutional rights of their citizens, but that’s not the case. The Supreme Court has instead convoluted that clause into a state of virtual meaninglessness. Rather than later Courts going back and clearing up the mess – discarding erroneous rulings and declaring that privileges and immunities mean federal civil rights, they have found another way to accomplish their objectives. The Court decided they could twist the "Due Process" clause of the same amendment into a means of incorporating select parts of the Bill of Rights to enforce against the states.
The Second Amendment is now the only substantive portion of the Bill of Rights which has not been incorporated. This year the 9th Circuit has said the Second Amendment is incorporated, but the 2nd and 7th Circuits have both said it is not. Such a disagreement in the Circuits increases the likelihood of Supreme Court review.
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