bane said:
But I'm not sure how we could possibly justify that the 2A only applies to the Feds and not to the States. That would be like saying the 1st only applies to the Feds or the 5th, or any of the others. Could you imagine how ridiculous it would be for someone to actually argue that the 19th Amendment only guaranteed Women to vote in Federal elections and all other elections were up to State decision??? Or if slavery were only outlawed on Federal Land but not on Southern State land??? Obviously that was what the Civil War was about and that view lost.
I'd recommend that you read up on
Selective Incorporation. The question only really applies to the amendments 1 through 8. Amendments 11-27, by ratification, have been automatically adopted by the states, so your comparisons to suffrage and slavery above don't really work. But the core Bill or Rights, until as recently as a hundred years ago, almost certainly did NOT apply to the states. Now states do have their own constitutions that typically provided the same protections, but this was not always the case.
The idea of incorporation started after the Civil War with the ratification of
the 14th amendment in 1868. This amendment was intended to protect constitutional rights of freed slaves in states that would not guarantee them those rights. Some states had laws
(and some even state constitutional amendments) that stated that blacks were not citizens and as such had no constitutional rights. Incorporation, as defined in Section 1 of the 14th amendment, was an attempt to guarantee those rights to all Americans - free, slave, black, or white, regardless of what rights the states enumerated. Section 5 of that amendment gave Congress the power to enforce the article - and indirectly, it gave the courts the power to uphold those rights and, in some cases, to designate those rights as incorporated against the states.
Still, the amendments in the Bill or Rights (with the exception of the 10th, which applies to states directly) are only applicable to federal government, unless the Supreme Court rules that the states are to be subject to them. Up until the early 1900's, there was no real clarification as to which of the Bill of Rights applied to states. We've since had several Supreme Court rulings that have declared certain amendments - 1st, 4th, 5th (except right to grand jury indictment), 6th, and half of the 8th - as incorporated. The rest have not yet been incorporated against the states.
In the case of the 2nd amendment, the Supreme Court has ruled several times that the amendment does NOT apply to states. Now they have clarified that it is an individual right, so things might change.
The only way for the 2nd amendment to apply to states is for the Supreme Court to say it does. They did not do so in this ruling.
Of interest is Footnote 23 on page 48:
With respect to
[the nineteenth-century case of U.S. v.] Cruikshank's continuing validity on incorporation, a question not presented by this case, we note that Cruikshank also said that the First Amendment did not apply against the States and did not engage in the sort of Fourteenth Amendment inquiry required by our later cases. Our later decisions in Presser v. Illinois (1886) and Miller v. Texas (1894) reaffirmed that the Second Amendment applies only to the Federal Government.
The first sentence clearly indicates that incorporation is probably appropriate for the 2nd amendment (just as it should have been appropriate for the First Amendment in Cruikshank), but the second sentence then references two cases that clarified that the 2nd amendment does NOT apply. My interpretation - Scalia hints that incorporation is the final destination, but doesn't dare go there because it wasn't a question before the court. This argument is strengthened by several references to pre-incorporation cases involving freed-slave rights and the repeated comparisons between the incorporated First Amendment and the unincorporated Second Amendment.
A court that believes the Second Amendment is comparable to the hallowed First Amendment is unlikely to leave protection of that right to the mercy of legislative majorities in states and cities.
I know most of this flies in the face of logic and human nature, but it's just how things work. Luckily, almost all state constitutions provide equal and (in most cases) more extensive protections than the second amendment does. The fight now, is to ensure those state constitutions are interpreted the same as the U.S. Constitution now is, as an individual right. We also must to hope for a future case that will finally present the question of incorporation of the second amendment to the Supreme Court.
Of note, the next president will almost certainly be appointing one or two justices who will decide this incorporation case.
Sorry for the long rant. This is just so fascinating to me and I have learned A LOT about constitutional rights through studying and writing this.
