6/22/2009

Will the second amendment be applied to the states through the citizenship clause?

The ABA Journal has this:

University of Texas law professor Sanford Levinson told the New York Times that the case could present a dilemma for some conservative justices who scoffed at incorporation arguments in the past. Because of the touchy issues, he says he would be surprised if the Supreme Court agrees to hear new cases on the issue.

Yale law professor Akhil Reed Amar told the Times that incorporation fell out of favor after the 1960s, but it’s being resurrected by liberal scholars. Most of the Bill of Rights have been applied to the states under liberal Warren Court rulings that found the 14th Amendment required incorporation. One exception is the Seventh Amendment right to a jury trial, which has not been applied to the states.

“The precedents are now supportive of incorporation of nearly every provision of the Bill of Rights,” Amar told the Times. “Now what’s odd is that the Second Amendment doesn’t apply to the states.” . . . .


Akhil is right. The Second Amendment was actually the most talked about reason for applying the bill of rights to the states, but it is obviously one of the few parts of the bill of rights that hasn't been applied to the states.

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4 Comments:

Blogger Martin G. Schalz said...

The first paragraph of your argument Dr. Lott, summarizes the third paragraph of the argument of the article that you referenced.

To say that 'conservative' justices scoffed at the incorporation clause strike me as wrong. When the 14th amendement was originally attacked, the definition of conservative, and liberal was reversed compared to todays ideas of the concepts.

Republicans of that era, were regarded as Liberals, and Democrats were conservative, sir.

To that end, I have argued that there were those in the 19th, 20th, and 21st centuries that relied on such findings of previous SCOTUS makeups, that denied all, or a select few, their inherent rights as citizens.

The aforementioned errors have yet to abate.

Let us hope that a remedy that is in line with the Law, awaits us.

6/22/2009 7:30 PM  
Blogger joeyn said...

I'm no legal scholar...heck I'm not even much of a scholar. But, by the wording of the tenth amendment aren't the Bill of Right's guaranteed to be applied to the states? After all it say's:"Amendment X The powers not delegated to the United States by the Constitution, nor prohibited it by the States are reserved to the States respectively, or to the people."
That tells me that since they are in the Constitution, they are delegated to the United States and apply to all the states.
Am I right?

6/22/2009 10:41 PM  
Blogger Raven Lunatic said...

to Joeyn:
I'm not certain I agree with your logic, but yes, to my (linguistically trained) eye, it looks like the entire bill of rights should apply to the states.

...with one possible exception. The only amendment on the bill of rights that i could see an argument for Not incorporating is the First, which specifically says that "Congress shall make no law [...]" (emphasis mine), strongly implying that that limitation was intended for the Feds.

Of course, that may have been the intent only with respect to Religion, giving defense to the states, most of which Had (differing) state religions.

Not that i'm saying the 1st should Not apply to the states, only that that is the only one which has any argument against it.

6/23/2009 7:15 PM  
Blogger Martin G. Schalz said...

The 14th amendment was very clear on this issue, and cannot legally be overruled by congress, potus, nor the courts (Marbury v Madison 1803).

"Section 1. 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."

14th Amendment, Section 1.

6/24/2009 1:14 AM  

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