Tuesday, March 02, 2010

The New York Times and the Second Amendment 

You can almost see the figurative "head" of the editors of the New York Times exploding at the prospect of "incorporating" the recently reinforced Second Amendment to the States. On the one hand, they hate the Second Amendment with all the intensity that the Pope hates a woman's right to choose.* On the other hand, they love extending the Bill of Rights to the States, which under more than 130 years of jurisprudence happens on a case-by-case, provision-by-provision basis.

To their credit, the editors come down in favor of incorporating the Second Amendment and call for the reversal of "the Slaughterhouse Cases," which screwed up the interpretation of the Fourteenth Amendment (which in one fashion or another extends the Bill of Rights to citizens of States) in the first place. It's a blue moon, so I agree with the editors.

But that's not the really great part. This is (emphasis added):

A group of respected constitutional scholars and advocates is asking the court to switch to the privileges or immunities clause as the basis for applying the Bill of Rights to states and cities. That would be truer to the intent of the founders, and it could open the door to a more robust constitutional jurisprudence that would be more protective of individual rights.

Never mind that this is the first time in the history of the universe, or at least in my sentient lifetime, in which the editors have endorsed the "intent of the founders" as a basis for Constitutional interpretation. Conservatives should bookmark this editorial for the next time the editors endorse Congressional representation for the District of Columbia or mock an opinion of Justices Thomas or Scalia on that basis. My specific question is this: What do the sainted "founders" have to do with the Fourteenth Amendment, which was passed during Reconstruction? If we know anything at all about the "intent of the founders," it was that the Bill of Rights should apply only against federal action. The Fourteenth Amendment reversed the intent of the founders. Just as well for we libertarians, but definitely not in accord with the "intent of the founders."

Even when you agree with the editors of the New York Times, you don't really want them arguing your case.
*Stolen from comedian Todd Barry.


By Anonymous Daran, at Tue Mar 02, 10:13:00 AM:

'the Pope hates a woman's right to choose'. That is pretty brutal. I'm sure we can find a more fitting phrase.

My suggestion: they hate the Second Amendment as much as they hate black people voting for Republicans.  

By Anonymous Anonymous, at Tue Mar 02, 12:47:00 PM:

Spot on in all respects, TH. It's a scary event to find oneself in agreement with the NYT.

In defense of the Slaughterhouse court, I think the decision needs to be read in historical context. The events leading to the case took place in 1869 and the case was decided in 1873. Much of the South still lay in ruins as a result of the "war of northern aggression." Separatist embers still burned throughout the South. An expansive reading of the Privileges and Immunities Clause in 1873 would have been like throwing kerosene on the fire. In some respects the decision was a wise exercise of judicial restraint, incrementalism if you will. Modern scholars unfairly judge the case by modern standards.

Having said that, this case is probably ripe for reversal. Or at least it was until Obama and his minions began stirring talk of secession.  

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