Insidious Incorporation: No need to "extend" gun rights

by: daniel clark | published: 04 16, 2010

In the case of McDonald v. City of Chicago, the Supreme Court is expected to "incorporate" the Second Amendment, meaning it will take a provision from the U.S. Constitution, and apply it to the states. It does this, supposedly, by interpreting clauses from the Bill of Rights "through" the 14th Amendment, as if deliberately tying the Constitution in knots. While the probable outcome in this case, an affirmation of gun ownership rights, would ostensibly be good news to conservatives, this concept of incorporation is nevertheless an example of judicial activism at its worst.

Because the 14th Amendment explicitly prohibited the states from violating the Fifth Amendment's protections of life, liberty and property, judicial activists extrapolated a more general dissolution of the constitutional delineations between state and federal powers. Based on that presumption, the Court took the First Amendment's constraints on the federal government, and projected them onto the states in the 1925 Gitlow v. New York decision. It is this precedent on which McDonald relies.

This "incorporation" was a reaction to the 1833 Barron v. Baltimore decision regarding property rights. The plaintiff in that case had sued the city under the takings clause, but was rebuffed when the Supreme Court unanimously concluded that the Bill of Rights was written only to restrain the federal government, and did not impact the states.

This is blatantly false, as can be seen by comparing the wording of the First and Second Amendments. Whereas the First Amendment specifies that "Congress shall make no law … abridging the freedom of speech," the Second Amendment states more broadly that "the right of the people to keep and bear arms shall not be infringed."

The men who wrote and ratified the Constitution did not choose their words at random like bingo balls. Had they meant to prohibit only Congress from infringing upon gun ownership rights, they could easily have done so. Instead, they simply stated that these rights shall not be infringed, meaning by anybody.

Likewise, those amendments that deal primarily with criminal justice are clearly meant to apply to all levels of government, without needing to be extended to them through incorporation. Just look at the Eighth Amendment, which says that cruel and unusual punishments shall not be inflicted. What sort of a dunderhead would take that to mean that the states may inflict cruel and unusual punishments? Probably the same sort that now believes they're only forbidden from doing so, since the Eighth Amendment has been "interpreted through" the 14th.

Contrary to its apparent intent, the incorporation of the First Amendment did not stop the abridgment of free speech. It only usurped the power of abridgment for the judiciary. Since the Court has often agreed that free speech should be limited, but had revoked the power of states and localities to determine how and when, that conveniently left the judges to invent rules of their own. The result has been a series of capricious speech restrictions -- regarding obscenity or so-called "fighting words" -- having no constitutional basis whatsoever.

If the justices choose to uphold gun rights by "incorporating" the Second Amendment, rather than simply acknowledging what it says, they will be reserving the power to set limits on those rights in the same manner. In future rulings, they could impose every restriction short of outright prohibition, all the while declaring the Second Amendment to be sacrosanct. After all, if they will arbitrarily forbid the use of words that they consider to be dangerous or provocative, then how much more willing might they be to curtail the ownership of lethal weapons?

The legal principle of stare decisis ("to stand by that which is decided") dictates that Supreme Court precedent supersede the Constitution on which it is supposedly based. Generations of jurists' obedience to this rule has led to a vacillation between the equally absurd propositions that none of the Bill of Rights pertains to the states, and that all of it does. The fact that the answer lies somewhere in the middle escapes the grasp of the same judicial activists who delight in portraying themselves as complex thinkers.

This homogenization of state and federal powers through incorporation repudiates the very principle of federalism that the Constitution embodies. Had a plainly worded amendment been proposed to achieve that same result, every state in the Union would surely have rejected it out of hand. So should the conservative members of the Court reject this malignant precedent, even though its short-term result would be the correct one.

-- Daniel Clark is a Staff Writer for the New Media Alliance. The New Media Alliance is a non-profit (501c3) national coalition of writers, journalists and grass-roots media outlets.

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