Supreme Court Holds That Congress Has Incorporated Entire Bill of Rights
JB
Exclusive to Balkinization! Must cite Balkinization!
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.
This is the kind of judicial activism that would make the Warren Court proud!
In making their case for why the Second Amendment applies to the states, both Justice Alito's plurality opinion and Justice Thomas' concurrence pointed to evidence of framers' intentions in the Civil Rights Act of 1866 and the Freedman's Bureau Act of 1866.
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Both Justice Alito and Justice Thomas, pointing to the words "full and equal benefit," argued that these statutes guaranteed substantive rights as well as racial equality. Pointing to the words "including the constitutional right to bear arms," in the Freedman's Bureau Act, they argued that the intent of the framers of these acts was to secure fundamental rights like the right to bear arms.
Justice Alito points out that John Bingham, the principal drafter of the Fourteenth Amendment, believed that these two acts protected the same set of rights. Bingham, it should be noted, voted against the Civil Rights Act because he believed that Congress did not have power to enforce the Bill of Rights against the States. Nevertheless, the Republicans who voted for the Civil Rights Act believed that they did have the power to enforce the Bill of Rights against the states.
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According to the logic of the Court's argument, section 1981 already applied the Bill of Rights to the states even before the Fourteenth Amendment was ratified. This is a great day for civil liberties in the United States!
http://balkin.blogspot.com/2010/07/supreme-court-holds-that-congress-has.html
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