Here’s the bottom line of today’s SCOTUS decision regarding the incorporation of the Second Amendment, which amounts to an explicit rejection of traditional federalism on the part of the conservative majority. (Full disclosure: I’m of the Hestonian “cold, dead hands” persuasion.) Writing for the majority, Justice Alito admits the original intent of the Bill of Rights: “The Bill of Rights, including the Second Amendment, originally applied only to the Federal Government.” The Marshall Court “firmly rejected the proposition that the first eight Amendments operate as limitations on the States, holding that they apply only to the Federal Government.” Then comes the “big but” of American history: “The constitutional Amendments adopted in the aftermath of the Civil War fundamentally altered our country’s federal system.”
So the nut of the opinion is, in essence, what’s done is done. To those who would insist that original intent (of the authors of the Bill of Rights, or the legislators who voted on it, or especially the states who ratified it) matters, Justice Alito offers what might be called the DeLorean Defense or the Flux Capacitor Exception:
There is nothing new in the argument that, in order to respect federalism and allow useful state experimentation, a federal constitutional right should not be fully binding on the States. This argument was made repeatedly and eloquently by Members of this Court who rejected the concept of incorporation and urged retention of the two- track approach to incorporation. . . . Time and again, however, those pleas failed. Unless we turn back the clock or adopt a special incorporation test applicable only to the Second Amendment, municipal respondents’ argument must be rejected. Under our precedents, if a Bill of Rights guarantee is fundamental from an American perspective, then, unless stare decisis counsels otherwise, that guarantee is fully binding on the States . . .
You and I may appreciate the practical outcomes of today’s ruling, but the whole affair calls to mind something the late Mark Winchell wrote for Chronicles in November 2005 (“Reattacking Leviathan: Starving the Beast”):
Unfortunately, hoping for the appointment of “conservative” judges is not enough. By their very nature, judicial conservatives show an exaggerated deference for settled law (the principle of stare decisis). What is needed to restore the original federalist balance is the sort of counterrevolutionary judicial activism that we are not likely to see. At a more fundamental level, it is ludicrous for the states to allow their sovereignty to be defined by lifetime appointees of the central government.