Second amendment thread

David Bernstein davidebernstein at
Wed Apr 18 10:29:44 PDT 2007

Yes, I think this goes back to Justice Black.  His goal in "incorporating"
the Bill of Rights was to both protect basic fundamental rights, and to try
to ensure that courts had as little discretion as possible in "creating"
rights.  Applying different standards to the states and the federal
government would open the door to what Black would have considered what we
today call "judicial activism."  Not coincidentally, Black is the source of
the idea that Bolling v. Sharpe was an equal protection case that requires
the same standard be enforced against the feds under the 5th Amendment's
due process clause as is applied against the states under the EP clause.
Black was responsible for Warren deleting language from Bolling that would
have made it clear that Bolling was actually a "substantive due process"
case, and for later opinions asserting that Bolling was all about equal


For (much) more on Bolling, see my Georgtown Law Journal article, Bolling,
Equal Protection, Due Process, and Lochnerphobia, available at



From: conlawprof-bounces at
[mailto:conlawprof-bounces at] On Behalf Of Mark Rahdert
Sent: Wednesday, April 18, 2007 1:01 PM
To: DavidEBernstein at; michael.lawrence at;
rosentha at; mtushnet at; CONLAWPROF at;
crossf at
Subject: Re: Second amendment thread


Yet the Court has always insisted on applying the guarantees in the same
fashion and with the same interpretation to both the federal government and
the states.  That was one of the big points in Adarand Constructors.

Mark Rahdert

At 12:30 PM 4/18/2007, DavidEBernstein at wrote:

I think Kurt Lash is right to suggest that we can't literally "incorporate"
or even "apply" the Bill of Rights to the States. How can this possibly
work, for example, with regard to the Establishment Clause?  What we can do
is suggests that either due process or "privileges or immunities" was meant
to include the same general rights applied against the states as are applied
against the Federal government.  That doesn't necessarily meant that the
rights have exactly the same scope vis a vis the feds as with regard to the

Mark C. Rahdert
Professor of Law
Temple University
Beasley School of Law
1719 North Broad Street
Philadelphia, PA  19122

Phone: 215-204-8966
Fax: 215-204-1185
Email: mark.rahdert at

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