Let's assume that Balkin's argument is correct. How is anyone going to
persuade any court (let alone the Supreme Court) to accept the
implications (whatever they may be) of what Balkin himself says was an
"inadvertent" so-called holding? That would require a rather significant
reorientation of judicial practice.
Joseph E. Olson wrote:
No. I think that Balkin's point is more subtle. Actually, he is
trying to undercut the Constitutional *precedent* of McDonald by
claiming it could have been decided by merely applying a federal
statute and the Supremacy Clause. Jack Balkin is no friend.
*****************************************************************************************
Professor Joseph Olson, J.D., LL.M.
o- 651-523-2142
Hamline University School of Law (MS-D2037) f-
651-523-2236
St. Paul, MN
55113-1235 c-
612-865-7956
jol...@gw.hamline.edu http://law.hamline.edu/node/784
>>> "Joseph E. Olson" <jol...@gw.hamline.edu> 7/5/2010 8:04 PM >>>
From the Volokh Conspiracy:
News Flash: Supreme Court Inadvertently Holds That the Entire Bill
of Rights Applies to the States
<http://volokh.com/2010/07/05/news-flash-supreme-court-inadvertently-holds-that-the-entire-bill-of-rights-applies-to-the-states/>
Randy Barnett <http://volokh.com/author/randy/> • July 5, 2010 2:44 pm
Jack Balkin explains the startling news:
On Monday, June 28, 2010, in /McDonald v. City of Chicago/, the
Supreme Court inadvertently held that Congress had already applied
the entire Bill of Rights to the states through the Civil Rights
Act of 1866. The Court held that the Civil Rights Act was intended
to protect substantive rights, including the Second Amendment
right to bear arms. The same evidence of legislative intent,
however, shows that Congress sought to enforce the Bill of Rights
generally against the states. This means, among other things, that
Congress has enforced all of the remaining provisions of the Bill
of Rights against the states: The Third Amendment, the Fifth
Amendment Grand Jury trial right the Seventh Amendment civil jury
right (depending on what that right actually is), and the Eighth
Amendment’s ban on excessive fines. Under the Court’s new
reinterpretation of this venerable civil rights statute, the Civil
Rights Act of 1866, currently codified at 42 U.S.C. section 1981,
offers a general guarantee of basic constitutional liberties
against the states.
*Read the entire detailed analysis at *
http://balkin.blogspot.com/2010/07/supreme-court-holds-that-congress-has.html
<http://balkin.blogspot.com/2010/07/supreme-court-holds-that-congress-has.html>.
Here is the conclusion:
And this leads us to the last, shocking revelation: If the Court’s
argument about Congress’s intent in /McDonald /is correct, it
follows that the main holding in /McDonald /is completely
superfluous and the Court reached out unnecessarily to decide a
constitutional question.
After all, if the Court is correct that the Civil Rights Act of
1866 was designed to enforce a substantive right to bear arms, the
Chicago ordinance is preempted to the extent that it conflicts
with 42 U.S.C. section 1981. Thus, the Court could simply have
noted that the Reconstruction Congress intended to apply the right
to bear arms to the states through the 1866 and 1870 Civil Rights
Acts, and then deferred the constitutional question. Why Justice
Alito felt compelled to keep going at this point is puzzling.
Perhaps he did not realize that the Civil Rights Act of 1866 is
still in effect!
*****************************************************************************************
Professor Joseph Olson, J.D., LL.M.
o- 651-523-2142
Hamline University School of Law (MS-D2037) f-
651-523-2236
St. Paul, MN
55113-1235 c-
612-865-7956
jol...@gw.hamline.edu http://law.hamline.edu/node/784
<http://law.hamline.edu/node/784>
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