The American Spectator

The Public Policy

(Page 2 of 2)

Sheer numbers help as well. A majority of both houses of Congress have supported overturning the laws. So have a majority of states, calling for the court to limit their lawmaking powers. Vice President Dick Cheney signed a brief with the members of Congress, in essence publicly repudiating the administration's stance.

There are even rumors that, in oral argument, the solicitor general will deviate from those arguments that he put forth in his brief.

BUT EVEN IF the individual-right view prevails, the gun movement will face significant obstacles. The biggest is that the Bill of Rights was meant to restrict only the federal government. That has changed slowly, as a series of court cases have applied most, but not all, of the provisions to the states, "incorporating" them through the Fourteenth Amendment.

Since the District of Columbia is a part of the federal government, not a state, the court has no need to decide whether the Second Amendment is similarly incorporated. So even if pro-gunners win, they'll have to take up another round of lawsuits to touch gun bans outside of DC, but with the assurance that, once incorporated, the amendment will clear cut most gun laws.

As with most Second Amendment law, the precedent surrounding incorporation is old and scant. The Supreme Court explicitly rejected the idea, first in U.S. v. Cruikshank (1875), again in Presser v. Illinois (1886). However, though the Fourteenth Amendment was ratified seven years before Cruikshank, it wasn't until the 20th century that incorporation doctrine began taking hold elsewhere.

p>For example, Cruikshank said this of the First Amendment: br> /p>

[It] prohibits Congress from abridging 'the right of the people to assemble and to petition the government for a redress of grievances.' This ... was not intended to limit the powers of the State governments in respect to their own citizens, but to operate upon the National government alone. ... It is now too late to question the correctness of this construction.

br> However, it proved to be not too late in 1937, when the court incorporated freedom of assembly. Earlier court cases are not likely to hold much sway on the Second Amendment's incorporation, one way or the other.

The bottom line for the pro-gun crowd is: Keep your fingers crossed and your powder dry this morning, and don't get too excited if things break your way in June. There's a long fight ahead.

topics:
Constitution, Law, Supreme Court, Military