One of the core tenets of the “activist judges” and “states’ rights” arguments thrown around by conservatives has to do with discontent about incorporation of the Bill of Rights to the states via the 14th Amendment. This is the basis on which almost all civil rights, privacy and criminal procedure cases have been decided where a state law and/or court decision was overturned in the Federal court system. We hear this refrain repeatedly - states’ rights, will of the people, activist decision, etc, etc. Almost every last bit of it can be directly attributed to incorporation. And conservatives point to incorporation as one of the greatest evils, while liberals point to it as the greatest good.

The one striking Amendment that has not been incorporated via the 14th is the 2nd Amendment.

And now you see a stunning display of Constitutional hypocrisy coming into play, equally by both sides.

The conservative side is bringing up Sonia Sotomayor’s involvement in Maloney v. Cuomo (PDF file), a per-curiam decision holding that Heller doesn’t apply to the states, because the 2nd Amendment is not incorporated via the 14th Amendment. Rich noted this yesterday in his broader discussion about 2nd Amendment issues. SCOTUSblog also has an article up about this:

The Maloney decision (Second Circuit docket 07-581) involves the next major issue on the Constitution’s Second Amendment, which guarantees a “right to keep and bear arms.”  The issue is whether that Amendment applies to state and local government, thus restricting their power to control individuals’ private possession of pistols and other guns.  The Supreme Court ruled last year, in District of Columbia v. Heller, that the Amendment protects an individual right to have a gun, for self-defense, in the home.

The Court, however, did not settle whether the Amendment operates against any level of government other than the federal government and a federal entity, the District of Columbia.  The Second Circuit, in the Maloney case, ruled that prior Supreme Court precedent saying that the Amendment only applied at the federal level is still binding law.  Sotomayor was a member of a three-judge panel that issued the unsigned ruling.

In reaction to her nomination, supporters of broad rights under the Second Amendment exploded.  For example, Curt Levey, executive director of the conservative advocacy group, Committee for Justice, wrote: “Now every red and purple state Democratic senator who considers voting for Sotomayor will be forced to explain to his constituents why he’s supporting a nominee who thinks those constituents don’t have Second Amendment rights.  Because they can send red state Democrats running for cover, gun owners are the one interest group that could completely change the political equation on judicial nominations if they’re drawn into the debate. Obama’s selection of Sotomayor makes that virtually certain.”

This has gone so far that the NRA is suing in Federal court to have the 2nd Amendment incorporated:

Another case on the same issue involves the leader of the Nation’s gun rights forces — the National Rifle Association.  Its lawsuit seeking to have the Second Amendment apply to state and local government (National Rifle Association v. City of Chicago) was heard Tuesday by a three-judge panel of the Seventh Circuit Court (docket 08-4241).  An early decision is expected in that case; indications at the oral argument were that two of the judges were deeply skeptical of the NRA’s plea (see this analysis by law professor Randy Barnett at the Volokh Conspiracy blog.  Thanks to Howard Bashman of How Appealing blog for this link.)

Here is a copy of the NRA’s filing (PDF file).

Anyone starting to see the hypocrisy coming into play here? Incorporation is a great evil affront to states’ rights when it applies to “liberal” issues, but failing to incorporate the 2nd Amendment is also a great evil. And this goes exactly both ways - the fiercest advocates of incorporation for “liberal” issues are equally opposed to incorporation of the Heller decision.

Most people seem to have a skewed view on incorporation, in that they like it when it suits their basic philosophy and don’t like it when it doesn’t. An extreme example of this is Justice Thomas’ view on incorporation of the First Amendment - he believes that the First Amendment is incorporated except for the Establishment Clause, as expressed in his concurrence in Elk Grove Unified School District v. Newdow

Because I agree with The Chief Justice that respondent Newdow has standing, I would take this opportunity to begin the process of rethinking the Establishment Clause. I would acknowledge that the Establishment Clause is a federalism provision, which, for this reason, resists incorporation. Moreover, as I will explain, the Pledge policy is not implicated by any sensible incorporation of the Establishment Clause, which would probably cover little more than the Free Exercise Clause.

He goes on to expand on this in his opinion, which you can read. But to me, this begs a fundamental question - how can a single clause of an amendment not be incorporated when the rest of the amendment is? (I won’t digress into a discussion of why I find Thomas’ Establishment Clause analysis fundamentally flawed; I’ll save that for another day). And to take that further, I fail to understand how part of the Bill of Rights can be incorporated.

To me, in my nascent-Constitutional-scholar analysis, the Bill of Rights is incorporated, or it is not. I do not fathom how the 14th Amendment can be interpreted any way other than incorporating the entirety of the Bill of Rights to the states. The fact that the SCOTUS emasculated the Privileges or Immunities Clause of the Amendment in Slaughter House Cases has lead to a tortured history of piecemeal incorporation via the Due Process clause. The SCOTUS really should overturn Slaughter House Cases, which, I believe, is the tack the NRA is taking in their 2nd Amendment argument in their basing their assessment on the intent of the 14th Amendment (see pages 17-26 of the NRA filing)..

But many people continue to pick & choose where they want incorporation to apply, based on their personal philosophy, and hence there is a fundamental hypocrisy expressed by advocates on both ends of the spectrum. I wonder if the “big thinkers” on either side actually think this through.