Ripped From the Headlines--Incorporation and the 2nd Amendment

The Court, Incorporation, and the 2nd Amendment

Reference CNN Page: http://www.cnn.com/2009/CRIME/09/30/scotus.state.guns/index.html?iref=allsearch

Reference Chicago Tribune: http://www.chicagotribune.com/news/local/chicago/ct-news-chicago-gun-ban-20100129,0,3152673.story

Hippocampus: Lesson 6, Lesson 28, Lesson 30, Lesson 32

Sometimes news stories can really pull together many of the concepts we try to teach. This Tuesday the Supreme Court will be hearing the case of McDonald v. the City of Chicago, a 2nd Amendment issue. McDonald is asking the Court to strike down a city gun ban that would have far reaching effects on municipalities and states. In effect, the Court has been asked to incorporate the 2nd Amendment. No fewer than 49 amicus curiae have been filed in this case. The Supreme Court last year decided on a Washington, D.C. gun ordinance. Now many are wondering if the Court will reverse 140 years of precedent and open the door to new rights in gun ownership.

For teachers of APGOPO, this case offers a unique look at not only the Court, but also the concept of incorporation. There are several things one could do with this case. In my class, I will have the students do a short Internet research on the history of gun cases in the Supreme Court starting with the Presser case and ending with the Heller case. I will then have them present the findings of the Court in class in each of the cases that they find. We will then follow this case's oral arguments and see what basis the Court will use to determine if the 2nd Amendment is to be incorporated.

Historically, the 14th Amendment has been the justification for incorporation. Will that hold true in this case? When the Court releases its findings and the opinions are brought down, we will ultimately read the opinions and glean the Constitutional issues the Court used in its decisions. This is case will most likely produce not only a majority opinion, but also concurring and minority opinions. It should be a textbook in Constitutional reasoning and justification.

We seldom have an opportunity to watch the incorporation of a right. Since the Warren Court in the 1950s and 1960s, those few provisions of the original Bill of Rights not incorporated have been off limits to the Court. McDonald v. City of Chicago offers us a rare glimpse of incorporation of a right in the making. Some have even suggested that the Court could overturn the Slaughterhouse Case (Hippocampus Lesson 32), rendering the concept of selective incorporation obsolete and radically changing American jurisprudence.

This case can be used in several places within the Hippocampus curriculum. Early on in the year it can be used with Underpinnings Unit in Lesson 6. In Lesson 28 on the Court you could use this case to demonstrate how the Court finds and accepts cases as well as looking at the process of making decisions and rendering the opinions. Lesson 30 concerning judicial review could also benefit from using this case. In addition (and possibly most importantly), it can be used along with Lesson 32 on the concept of selective incorporation.

Depending on how the Court finds following the March 2nd oral arguments, McDonald v City of Chicago might become as important of a case as Mapp v. Ohio, Gideon v. Wainwright, or Miranda v. Arizona to those of us teaching APGOPO. Its probably a good time now to add it to your curriculum.

Selective Incorporation

What AP Students Should Know

This week I am launching a series of blog entries that will cover the Bill of Rights and civil liberties lasting for the next several weeks. During this series, I intend on covering the important cases that students should be familiar with and the aspects of the Bill of Rights that could be covered on the AP Exam. I will do this in the order of the rights as given starting with the two aspects of religion, moving to free speech and ending eventually with the 10th Amendment. This week, however, before getting to the Bill of Rights itself, I wish to discuss the concept of Selective Incorporation and what the test taking AP student should understand concering this topic. In my opinion, this is putting the horse before the wagon!

As I have found over the years, the concept of Selective Incorporation can be tricky to teach. For the average 17 year old, the legal concepts are abstract and the constitutional arguments don't necessarily make a whole ton of sense. In my early years of teaching APGOPO, I was not particularly successful in getting the concepts through to the kids as seen in exam results. I have experimented with several approaches, and the following seems to be the most successful.

I begin my lesson on Incorporation with a discussion on why the Bill of Rights was written in the first place. We discuss the Anti-federalist fear of powerful national government, the individual states' Bills of Rights included in their own constitutions, and the Enlightenment foundations the Framers were working under during this period in history. For most of the students, this is a review of material that they learned in AP US History with slight augmentation. My main point in this time of discussion is that the Bill of Rights was intended to protect the citizens from the excesses of the national government, not from their respective state governments that were solidly founded in civil liberty.

I then move the discussion to Barron v. Baltimore (1833), the Marshall Court case that answered the question, "Should states be required to follow the national Bill of Rights in dealing with their citizen's civil liberties?" Marshall in his landmark decision said no, that under the original intention of the Framers the Bill of Rights was intended on securing the blessings of liberty from the national government and not the individual states.

Continuing this evolution of the concept, we then discuss the 14th Amendment and the equal protection and due process clause. Again, for most of the students this is not new information, just a new way of viewing the 14th. I stress that the 14th was the means by which the Federal government was forcing compliance of the Southern states following the Civil War during Reconstruction. The Amendment would also be used to extend the power of the national government over the states in other areas outside of civil rights, at times running contrary to the 10th Amendment.

From this point, I move the discussion to Gitlow v. NY (1925). This case was the first incorporation case in which the Court applied the 1st Amendment's free speech clause directly to a state. We take a short look at the specifics of Gitlow, but I stress to the students the critical nature of the element of incorporation over other case details. We also discuss the Court's refusal to incorporate all of the Bill of Rights, but choice to look at each of the individual rights on a case by case basis...thus Selective Incorporation.

To solidify these concepts, I ask the students to include in their study notes the evolution of the concept with the following headings: Framer's intent, Barron v. Baltimore, 14th Amendment, and Gitlow v. NY. If they can remember this short list of headings, they will have begun to master this difficult to learn doctrine.

Because many of the cases that are necessary for the students to learn are incorporation cases, setting up your civil liberties and civil rights units with a solid understanding of selective incorporation will get the ball rolling in the right court (pun intended!). Next week, I will begin to look at the First Amendment with the Establishment Clause. Until then...