PDA

View Full Version : Incorporation


choprzrul
02-09-2010, 12:57 PM
Just curious as too how one amendment to the bill of rights can be incorporated against the states, but others are not? Point of reference, found doing some other research, is the case of Engblom v. Carey, 677 F.2d 957 decided by the 2nd Circuit court of appeals.

We first address the novel claim based on the Third Amendment, a provision rarely invoked in the federal courts. We agree with the district court's conclusion that the National Guardsmen are "Soldiers" within the meaning of the Third Amendment. Moreover, we agree with the district court that the Third Amendment is incorporated into the Fourteenth Amendment for application to the states. found here: http://www.law.umkc.edu/faculty/projects/ftrials/conlaw/engblom.html

If the 3rd Amendment is incorporated, why wouldn't the 2nd Amendment be incorporated?

pitchbaby
02-09-2010, 1:01 PM
Very good question indeed

ke6guj
02-09-2010, 1:07 PM
Here, read this, http://en.wikipedia.org/wiki/Incorporation_(Bill_of_Rights) , it goes into how and why "selective incorporation" is done.

Rusty_Rebar
02-09-2010, 1:19 PM
There are 2 schools of thought on this.

I think the more strict constitutionalist would say that all of the Bill of Rights should apply to the states.

This may cause some issues. Take the 5th Amendment. It states:

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

Well, that is not how it works in most states. In most states (California included) you can be indited by the DA. The Grand Jury can also indict, but normally you would be indicted by a DA. That part of the 5th Amendment does not apply.

The other school of thought is selective incorporation. This is done through the 14th amendment. This argument is that the constitution applies to the federal government only. It is a limit on the powers of the federal government.

Look at the first amendment

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

It says the "congress shall make no law". If the framers wanted to restrict laws about religion or speech or assembly then why did they not write it like this?:

Congress shall make nNo law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances shall be made.

I tend to think that the constitution proper (sans bill of rights) limits the power of the federal government. I think the BOR should be incorporated in its entirety against the states.

dantodd
02-09-2010, 1:24 PM
If you read Justice O'Scannlain's opinion in Nordyke it has a phenomenal primer on incorporation...

yellowfin
02-09-2010, 1:25 PM
Look at the first amendment

It says the "congress shall make no law". If the framers wanted to restrict laws about religion or speech or assembly then why did they not write it like this?:

I tend to think that the constitution proper (sans bill of rights) limits the power of the federal government. I think the BOR should be incorporated in its entirety against the states.It was thought unnecessary at the time because most states had most if not the entire Bill of Rights' content in their own state constitutions. It wasn't until the 1860's that the problem was really brought to attention and not until 1911 that it became as visible of a problem beyond the rights of newly freed slaves.

choprzrul
02-09-2010, 1:31 PM
Great discussion, thanks for posting. This is the type of meat and potatoes that really educates and brings us common folk up to speed.

dantodd
02-09-2010, 1:34 PM
It was thought unnecessary at the time because most states had most if not the entire Bill of Rights' content in their own state constitutions. It wasn't until the 1860's that the problem was really brought to attention and not until 1911 that it became as visible of a problem beyond the rights of newly freed slaves.

This is quite a nice idealistic thought but it is unfortunately wrong. The constitution was written at a time when a large portion of the population wished for the states to remain independent nations. The original post-revolution "constitution" was the Articles of Confederation. A confederation is a much looser aggregation of independent nation-states than the newly-proposed federal construct wished to create. Many of states demanded certain concessions and restrictions on the part of the proposed federal government. There is little or no doubt that the bill of rights was intended to apply only to the federal government and in no way was there any idea that all items protected against federal infringement were similarly protected against state infringement.

Point in fact, a number of states had official religions which, would have been expressly prohibited if the states had BoR guarantees to the citizens in the state's constitution.

RandyD
02-09-2010, 2:17 PM
This is quite a nice idealistic thought but it is unfortunately wrong. The constitution was written at a time when a large portion of the population wished for the states to remain independent nations. The original post-revolution "constitution" was the Articles of Confederation. A confederation is a much looser aggregation of independent nation-states than the newly-proposed federal construct wished to create. Many of states demanded certain concessions and restrictions on the part of the proposed federal government. There is little or no doubt that the bill of rights was intended to apply only to the federal government and in no way was there any idea that all items protected against federal infringement were similarly protected against state infringement.

Point in fact, a number of states had official religions which, would have been expressly prohibited if the states had BoR guarantees to the citizens in the state's constitution.


Well written. Many people are not aware of what you wrote, especially that many of the original 13 colonies had their own state sanctioned religions. Unfortunately, this does not support our desire here in California to have the Second Amendment incorporated. In those early times, if you did not like a state's laws, you were free to move to another state that had laws that you respected.

wildhawker
02-09-2010, 2:19 PM
Fortunately, the 14th Amendment *does* support incorporation of 2A, as we'll soon see in the outcome of McDonald.

Well written. Many people are not aware of what you wrote, especially that many of the original 13 colonies had their own state sanctioned religions. Unfortunately, this does not support our desire here in California to have the Second Amendment incorporated. In those early times, if you did not like a state's laws, you were free to move to another state that had laws that you respected.

snobord99
02-09-2010, 6:29 PM
Here's a link to a(very) quick history I posted a while ago.

http://www.calguns.net/calgunforum/showpost.php?p=2891252&postcount=36

dantodd
02-09-2010, 7:20 PM
Here is a link to a post I wrote a couple weeks ago that should answer most of your questions about incorporation....

http://www.calguns.net/calgunforum/showpost.php?p=3725771&postcount=33

bulgron
02-09-2010, 7:40 PM
Fortunately, the 14th Amendment *does* support incorporation of 2A, as we'll soon see in the outcome of McDonald.

As long as the NRA-ILA hasn't managed to screw it up.

wildhawker
02-09-2010, 8:53 PM
If there is one thing I am certain of, it is that there is *no man* more capable of mitigating any ****ups caused by ILA/Clement than Alan Gura. I hope he doesn't have to at orals, but if he's handed a turd I'm confident that we could flip it at Sotheby's for seven figures by the time he gets finished with it.

As long as the NRA-ILA hasn't managed to screw it up.

hoffmang
02-09-2010, 11:11 PM
Don Kilmer quoted Engblom in his briefs in Nordyke btw.

-Gene

GrizzlyGuy
02-10-2010, 5:22 AM
Here's a link to a(very) quick history I posted a while ago.

http://www.calguns.net/calgunforum/showpost.php?p=2891252&postcount=36

Here is a link to a post I wrote a couple weeks ago that should answer most of your questions about incorporation....

http://www.calguns.net/calgunforum/showpost.php?p=3725771&postcount=33

You guys need to get on the FAQ/wiki-writing team, if you’re not already. Those were both nicely written summaries that make the history and inside-baseball aspects of a rich, complex and important topic easily digestible.

Window_Seat
02-10-2010, 8:30 AM
Don Kilmer quoted Engblom in his briefs in Nordyke btw.

-Gene

Are you referring to Engblom v Carey (http://www.law.umkc.edu/faculty/projects/ftrials/conlaw/engblom.html)?

Whether or not, a very fascinating and highly recommended read!

Erik.