Month: June 2009

From Eugene Volokh.   I’m particularly interested in this footnote in Heller:

With respect to Cruikshank’s continuing validity on incorporation, a question not presented by this case, we note that Cruikshank also said that the First Amendment did not apply against the States and did not engage in the sort of Fourteenth Amendment inquiry required by our later cases.

I was discussing with some other bloggers yesterday whether or not we’ll get incorporation.  I’m optimistic that we will, and this particular footnote is at least a little glimmer of evidence that perhaps we have a majority for incorporation as well.  I think the trick will be moving this case forward as quickly as we can, to cement that.  Incorporation is the keystone of this whole process.  Once we have that, we can argue about the boundaries of where the right begins, end and where government is allowed to exercise power.   But if the amendment can never be applied to the states, it will be a useful boundary on federal power, but strategically not nearly as valuable for our movement.

Brian Darling thinks that Sotomayor has some questions to answer during her confirmation.  I would agree.   She needs to explain her position on the Second Amendment.  Dave Kopel has more on Sotomayor as well.

Here’s a quote from the decision today denying incorporation for the Second Amendment:

But the municipalities can, and do, stress another of the themes in the debate over incorporation of the Bill of Rights: That the Constitution establishes a federal republic where local differences are to be cherished as elements of liberty rather than extirpated in order to produce a single, nationally applicable rule. See New State Ice Co. v. Liebmann, 285 U.S. 262, 311 (1932) (Brandeis, J., dissenting) (“It is one of the happy incidents of the federal system that a single courageous State may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country.”);

Let’s back up one amendment here, and ask whether or not the states are free to experiment, in order to foster our economic recovery, by re-instituting slavery.  Could Oak Park order all of its unemployed into a mandatory service system?  Why is that not part of our federal system?

Sorry, but the Fourteenth Amendment abolished the type of federal system they speak of here.  The federal government has a role to play in guaranteeing certain fundamental rights.