Monday, January 07, 2008

DC argues that the Constitution doesn’t apply in Washington.

I find this approach somewhat novel. My understanding has always been that the 14th amendment has been interpreted as applying the Bill of Rights to the states and territories of the United States. In my poking around the Internet to confirm this I've learned that this is only partly correct.

From Wikipedia:
Originally, the Bill of Rights applied only to the federal government and not to the several state governments. Parts of the amendments initially proposed by Madison that would have limited state governments ("No state shall violate the equal rights of conscience, or the freedom of the press, or the trial by jury in criminal cases.") were not approved by Congress, and therefore the Bill of Rights did not appear to apply to the powers of state governments.[23]
Thus, states had established state churches up until the 1820s, and Southern states, beginning in the 1830s, could ban abolitionist literature. In the 1833 case Barron v. Baltimore, the Supreme Court specifically ruled that the Bill of Rights provided "security against the apprehended encroachments of the general government—not against those of local governments." However, in the 1925 judgment on Gitlow v. New York, the Supreme Court ruled that the Fourteenth Amendment, which had been adopted in 1868, made certain applications of the Bill of Rights applicable to the states. The Supreme Court then cited the Gitlow case as precedent for a series of decisions that made most, but not all, of the provisions of the Bill of Rights applicable to the states under the doctrine of selective incorporation.

This of course begs the question of what has been selectively incorporated-or perhaps more importantly what hasn't. It seems that by the end of the twentieth century, nearly all provisions of the Bill of Rights had been declared binding on the states.

Only five provisions of the Bill of Rights had not been applied to the states: (1) the Second Amendment's right to bear arms; (2) the Third Amendment's prohibition against involuntary quartering of troops; (3) the Fifth Amendment's requirement of Grand Jury indictment in capital cases; (4) the Seventh Amendment's provision for trial by jury in civil cases; and (5) the Eighth Amendment's prohibition of excessive bail and fines.

Does this mean that states are free to ignore the Second Amendment? Hardly. All it really means is that has not yet been a Supreme Court case on point in the last eighty years or so. That may seem shocking to some given all the talk in the media about excessive litigation and whatnot. The reality is that Supreme Court has a long tradition of trying to avoid deciding politically charged cases (though some justices adhere to that tradition more slavishly than others). The last time the court addressed gun ownership rights was in United States v. Miller, in 1939. A lot has changed since then and in any case Miller is a controversial decision in the ongoing gun debate, with both sides claiming that it supports their position.

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