10.01.09
Conservatives Have Legal Dilemma
Two pillars of the conservative movement are (1) gun rights and (2) states’ rights. Both of these underlie — or stem from — the basic conservative position against “big government,” by which they mean “big federal government.” The devotion to gun rights is an anti-government stance, insomuch as it says “The government cannot take away my guns!” And the devotion to states’ rights is similar, saying “The federal government cannot tell the individual states what to do!” Looking at both pillars in this way, it seems obvious that they are consistent with one another. And they are.
That is, until they aren’t.
Think about it. What happens when an individual state wants to restrict gun rights? Here in Texas, it ain’t ever gonna happen — not on any broad or large scale. But other states — bluer states — occasionally pass laws that are pretty restrictive of gun rights. And what does a hardcore, gun-loving, states’-rights conservative do in that situation? I mean, if you advocate for the gun rights, you pretty much have to ask the federal government to step in and tell the states that they can’t do what they’re doing. (So much for states’ rights!) And if you advocate for the states’ rights, you pretty much have to surrender to the fact that some states will — or at least might — severely restrict the right to bear arms. (So much for gun rights!)
It’s a bit of a pickle. (And by the way, this same dilemma arises when conservatives want to advocate for a federal ban on abortion, or to advocate against a state’s effort to legalize marijuana. Next time your conservative buddy cries for “states’ rights,” just ask him about these contradictions.)
The pickle gets even picklerier (yes, I made it up) when you consider the actual legal mechanisms involved in the gun-rights issue. In a nutshell, the right to bear arms is a 2nd Amendment right. The Bill of Rights (the first 10 Amendments) is technically a constraint on the federal government — i.e., a protection of individual rights against federal government restrictions or impingement. For a long time, the Bill of Rights did not apply to the individual state governments — that is, a state government could impinge on your Constitutional rights all it wanted, because the Constitution only protected you against federal government action.
This changed with the so-called “incorporation” of the Bill of Rights, which has been largely a 20th-century phenomenon. Over time, mostly thanks to a progressive Supreme Court led by Chief Justice Earl Warren (and the “Liberal Lions,” Justices Brennan and Douglas), the individual rights enumerated in those first 10 Amendments were applied to state governments with the same force that they applied to the federal government. The Court accomplished this by “incorporating” these rights into the protections offered by the 14th Amendment — which applies directly to the states. In other words, the 14th Amendment protects individual rights against state-government action, and most of the individual rights protected in the first 10 Amendments — against federal-government action — have gradually been “incorporated” under the 14th Amendment, so that they are protected against state-government action, too. Get it?
In other words, where actions by the state government are concerned, your speech isn’t really protected by the 1st Amendment — it’s protected by the 14th Amendment, which “incorporates” the speech rights of the 1st Amendment, and applies against state-government actions. Your 1st Amendment rights apply directly only to federal-government actions.
Thank heavens for the 14th Amendment, right? And for “incorporation” and the Warren Court!
Of course, most of you know that conservatives can’t stand the Warren Court. And most conservatives who know anything about legal doctrines and legal mechanisms don’t care much for “incorporation” either. See, most of those Constitutional rights that have been “incorporated” exist in the context of criminal law — the right to a jury, the right against cruel and unusual punishment, the right to counsel, the right against unreasonable searches and seizures, the right against self-incrimination, etc. In the mid-20th century, especially in the South, criminal laws, prosecutions, and punishments were closely tied to racist beliefs and practices — so the incorporation of these rights against the states, by the Warren Court, was strongly tied to the Civil Rights movement and the protection of the rights of black people. Obviously, most Southern conservatives hated the Warren Court for these interventions into the Southern (racist) way of life. And ideological conservatives hated the Warren Court for its supposed impingement on “states’ rights.”
(All of this, by the way, is why “states’ rights” has often been seen as code-speak for segregation, racism, etc. The original proponents of “states’ rights” were, of course, the Confederates in the Civil War, who wanted “states’ rights” in the name of protecting a state’s “right” to have slavery.)
The point is, conservatives don’t like “incorporation” very much. They see it as an expansion of federal power and an impingement on states’ rights — which, in a way, it is. And strict constructionists — i.e., people who believe in strict, formalistic readings of the Constitution — don’t like “incorporation” either, because it seems to them to be a loosey-goosey way of interpreting the Constitution. As you can imagine, most strict constructionists are…well, conservatives.
But those conservatives have a problem. See, a few of those rights from the first 10 Amendments — including the 2nd Amendment right to bear arms — have not yet been addressed in this manner, by the Court, and thus have not yet been incorporated under the 14th Amendment. That means that, right now, while the federal government cannot place much restriction on the right to bear arms, an individual state — or an individual city — can. Legally, if the state of New York, or the city of Chicago (for example), wanted to ban guns altogether, it would have a pretty good argument for being able to do so, because the 2nd Amendment doesn’t apply to them.
And that brings us to the conservatives’ dilemma. The Supreme Court has just agreed to hear a big 2nd-Amendment case involving a Chicago restriction on firearms. In this case, the Court will have to decide the question of whether or not the 2nd Amendment is “incorporated” under the 14th Amendment to apply to the states (and by extension to cities and municipalities), and thereby prevents them from restricting gun rights. The dilemma is that the conservatives on the Court — particularly the “Conservative Cougars,” Justices Scalia and Thomas (yes, I made that up too) — hate the “incorporation” mechanism, because (a) they are strict constructionists and (b) they associate incorporation with the liberal Warren Court, which they also hate.
So what will the conservatives do? Conservatives still enjoy a 5-4 majority on the Court, as they have for a few decades now. Will they eschew incorporation in favor of states’ rights — because they don’t like incorporation as a legal mechanism, and because they disfavor the expansion of federal power — and thereby sacrifice their devotion to gun rights? Or will they embrace incorporation in order to protect gun rights — and thereby sacrifice their devotion to states’ rights and embrace and legitimize a “liberal” legal mechanism that they detest?
Who knows. But it should be very interesting to see what happens, and it’s always a little fun to watch your ideological opponents get tied in knots over contradictions in their beliefs.* Stay tuned….
* It should be noted, in fairness, that all belief systems — when pressed — can give rise to these sorts of contradictions. Progressives and liberals ought to be well aware of the conflicts and contradictions that can arise within progressivism and liberalism. That’s why, after all, we often tend to fall back on pragmatism. Where conservatives — especially the right-wingers — tie themselves up in knots is in their tendency toward ideological fundamentalism (the opposite of pragmatism). Contradicti0ns such as the one outlined above are much harder to cope with, for fundamentalists.