33 State Attorneys General File Amicus Brief Supporting 2nd Amendment Incorporation

The Constitutional concept of incorporation (known more formally as the Doctrine of Incorporation) basically says that the restrictions on government action held against the federal government by virtue of the Constitution and more specifically the Bill of Rights, are also held to restrict actions by state and local governments. Quoting from the Basics Project regarding the incorporation of the provisions of the 1st Amendment:

 The vehicle used to accomplish this result was the Due Process Clause of the Fourteenth Amendment, which provides that, “No State shall deny any person life, liberty or property without due process of law.” Focusing on the word “liberty” in the clause, the Supreme Court expanded it to include various provisions of the Bill of Rights, thereby making the restrictions against the Federal government in the Bill of Rights applicable to the States through the Fourteenth Amendment. In this way, for example, freedom of the press was incorporated into the word “liberty” of the Fourteenth Amendment, thereby giving the Federal judiciary the final say on the scope and meaning of this freedom at both the State and Federal level through its power of judicial review.

(Emphasis is theirs.) What this means is that state and local governments are every bit as restricted from curtailing your freedom of speech or religion or peaceful assembly as is the federal government. Since the Doctrine was first applied, many other Amendments have been incorporated, including the 4th, 6th and parts of the 5th and 8th. (The 2nd and 3rd have been incorporated in some circuits and held not incorporated in others, a condition known as a split circuit.) At issue in the matter of incorporation is whether the protections of the US Constitution extend to citizens in their interaction with all levels of government or only with the federal.

The matter of incorporation with regard to the 2nd Amendment has reached a critical stage. Faced with an electorate that is growing less supportive of “gun control” measures, opponents of 2nd Amendment rights are seeking to use the courts to enact policies they cannot do by winning elections. Last year’s Supreme Court decision in Heller v. DC answered the question finally as to whether a citizen’s right to keep and bear arms is an individual one or only as part of a collective. As the Heller decision states, it’s an individual one. Having lost that avenue, localities that saw DC’s draconian gun ban fall sought to have the decision construed narrowly and held to be effective only against federal actions. In other words, they want the 2nd Amendment to remain unincorporated.

For the same reasons as most reasonable people consider the incorporation of the provisions of the 1st Amendment to be proper, supporters of 2nd Amendment rights believe that amendment should also be incorporated. An American’s right to keep and bear arms should not be restricted based solely upon his residence zip code. As I noted, the 2nd Amendment was held incorporated by one Circuit – the 9th – but has been held unincorporated by others – the 7th and most recently the 2nd. An appeal of the case ruled upon in the 2nd Circuit has been filed by the NRA to the Supreme Court asking for them to grant certiorari so as to take the case for review and also to rule that the 2nd Amendment is incorporated nationwide. Today an amicus brief, or “friend of the court” brief, was filed by 33 State Attorneys General supporting the NRA’s request and asking the Court to hold the 2nd Amendment incorporated.

Two-thirds of the nation’s attorneys general have filed an amicus brief asking the U.S. Supreme Court to grant certiorari in the case of NRA v. Chicago and hold that the Second Amendment applies to state and local governments through the Due Process Clause of the Fourteenth Amendment. This bi-partisan group of 33 attorneys general, along with the Attorney General of California in a separate filing, agrees with the NRA’s position that the Second Amendment protects a fundamental individual right to keep and bear arms in the home for self-defense, disagreeing with the decision recently issued by a three-judge panel of the U.S. Court of Appeals for the Seventh Circuit.

The list of states who joined in this brief are: Alabama, Alaska, arkansas, Colorado, Florida, Georgia, Idaho, Indiana, Kansas, Kentucky, Louisiana, Maine, Michigan, Minnesota, Mississippi, Missouri, Montana, Nebraska, New Hampshire, New Mexico, North Carolina, South Carolina, South Dakota, Texas, Utah, Virginia, Washington, West Virginia and Wyoming. It should be noted that California has also fined an amicus brief on their own but are making the same requests.

I am extremely pleased to see that Virginia’s Attorney General, Bill Mims, was a signatory on this brief. Well done, sir, and the same goes to all of those AG’s who joined in the effort.

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3 comments

  1. In reviewing the BasicsProject website, I am forced to conclude that they are far, far from “non-partisan”, and their motives are suspect. That said, the analysis offered in support of incorporation is accurate.

    I confess I find it somewhat amusing that the “guns for everyone” segment of the right wing is applauding a legal maneuver whereby State’s rights are sacrificed in favor of an overarching Federal mandate. Had this same maneuver been applied to *restrict* gun ownership or use, I doubt you’d be happy.

    The same logic of incorporation could be applied in a large number of areas, but whenever it’s applied in opposition to your aims, you would be referring to it as “judicial activism”. You clearly have double-standards.

    In addition, your claim that there is “an electorate that is growing less supportive of “gun control” measures” is unsubstantiated at best. Propaganda, at worst. Looking solely at Wisconsin, efforts to get concealed carry laws passed have been defeated every time, by the electorate. A great many of us do support common sense restrictions on gun ownership and use. Personally, I see no value in the common citizen having the ability to move through the public space with a concealed handgun, and I will continue to vote that way.

  2. As you’ve said, the issue of the Basic Project’s partisanship was never an issue. I quoted their definition of incorporation, that’s all.

    I’m amused you’re amused. The difference you’re not speaking to is a matter of what’s actually in the Constitution versus what’s not. You can’t “incorporate” restrictions on gun ownership because the Constitution explicitly guarantees the right to keep and bear arms. A judge’s ruling to the opposite is, in fact, judicial activism because it creates a law out of nothing but the judge’s will. The 2nd Amendment is a law passed by legislative action. Incorporating it applies that law equally to state and local governments as it does the federal, exactly as the incorporation of the 1st Amendment applies its provisions against the state and local.

    I find it curious that you focus on the matter of concealed carry whenever this subject comes up. It’s not the same thing to suggest that people be allowed to keep and bear arms in their homes, offices, and public spaces where they are otherwise allowed to be as to say they should be permitted to carry concealed. Wisconsin has, as you state, defeated concealed carry laws – one of 2 states that have done so – but its perfectly permissible there to carry openly. The effect of having the Supreme Court incorporate the 2nd Amendment wouldn’t affect you at all. The people it would affect are those living in places like Chicago and San Francisco where local governments are restricting their citizens’ exercise of their 2nd Amendment rights by refusing to allow them to own a handgun at all, even in their homes. Vote how you like as regards concealed carry but I feel that all of the provisions of the Constitution should apply to all citizens regardless of where they live.

    As to “my claim” about the general attitude toward gun control measures, feel free to look up the polling data at Gallup, Rasmussen, and other national polling firms. More Americans don’t favor more gun control measures than those who do and the trend is toward “don’t favor”. That’s not propaganda, those are the numbers.

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