Few Americans know that the Bill of Rights was only written to protect them from the federal government – not their state government. A long line of US Supreme Court cases, going back to 1833, clarifies why. The Constitution created a new federal government; and the first 10 amendments to the Constitution limited that new federal power, but not the power of states. For 150 years after the nation’s founding, individual states could deny to its citizens any and all rights in the Bill of Rights: speech, religion, privacy, jury requirements, self-incrimination, etc. – and federal judges had nothing to say or do about it.
This started to change in 1925, when the Court took the case of Benjamin Gitlow – a New Yorker who’d been sent to prison for publishing socialist revolutionary writings. The Court did NOT hold that the 1st amendment applied to state governments – and never has. Instead, the Court interpreted the 14th amendment’s due process clause as incorporating the 1st amendment to apply against the states. Technically, in state court, you have a 14th amendment right to free speech (not 1st) and a 14th amendment right against self-incrimination (not 5th) – and so on.
The distinction is vital. In 90 years since Gitlow, the US Supreme Court has, on a piecemeal basis, selectively incorporated some – not all – of the rights in the Bill of Rights to apply against the states, via the 14th amendment’s due process clause, which reads in pertinent part, “No State shall… deprive any person of life, liberty, or property, without due process of law.” The issue the Court has been engaging is what, precisely, “due process” requires of states. One proposed solution was to incorporate amendments 1 though 8 in their entirety. This however was rejected in favor of an incremental approach, under which individual rights are evaluated on a case-by-case basis.
Not all the rights in the bill of rights are equal for the purposes of incorporation. Amendments 9 and 10 reference the states specifically, making incorporation awkward. The 2nd amendment poses a similar problem because it also explicitly references the state: “A well regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed.” Since the most straightforward reading of the text has an individual right to arms exist to serve the needs of the state – it takes no small amount of contortion to twist the law to apply it against a state. But in 2010, in McDonald v. Chicago that’s exactly what 5 conservative justices did, in effect pretending that the 2nd amendment’s reference to the state and the militia dont exist – that a right to arms simply exists in the ether.
The conservatives on the Court aspire to interpret the Constitution as it was originally drafted and ratified, refusing to allow the meaning of the law to change with the times – and so their holding is even more absurd when one considers that the 14th amendment was passed just 3 years after the end of the Civil War. These so-called originalists would have us believe that in 1868 – fresh after the subjugation of an armed insurrection that claimed 750,000 lives – the northern states amended the Constitution so that states could not disarm their own citizens! This is spectacularly ridiculous, and showcases the essence of originalism: a pretext for conservative justices to do whatever they want to do, without respect to law, precedent or history.
While we’re left to wonder what else in the Constitution – beyond the Militia clause – that the Court’s “originalists” will ignore to advance their agenda, the worst is yet to come. Drake v. Jerejian, which is pending and expected to reach the Supreme Court, poses the issue as to whether the right to bear arms should be incorporated, the same as the right to keep them – and thus the Wyomingization of New York, Boston, LA, and San Fran may be just around the corner….