June 22, 2009

An Anti-Incorporation Decision

I lamented here that the Supreme Court’s decision in District of Columbia v. Heller, __ U.S. __, 128 S. Ct. 2783, 171 L. Ed. 2d 637 (2008), seemed about to be “incorporated” into the Fourteenth Amendment’s Due Process Clause—that is, enforced against the states.  Since then, however, comes news that a New Jersey appellate court has now found the Second Circuit’s decision not to “incorporate” more persuasive.  Mayhap sanity will reign.

Maybe, on the other hand, the Supreme Court will have to take up the issue.  It generally dislikes conflict among circuits, as has now developed between the Second and Ninth.  That would give some enterprising originalist an opportunity to level a blast at the Incorporation Doctrine generally.  (It would also provide phony “originalist” Antonin Scalia an opportunity to explain that he doesn’t want to refight the incorporation battle.)

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