Category Archives: Incorporation of the Bill of Rights

Rights ch 3

Standards and Fundamental Freedoms

On February 12, 2013 Lyle Denniston wrote for the Constitution Center about the constitutional standard that the Court would apply to challenges to gun control laws in the wake of Heller (2009) and MacDonald (2010).[1]  Given the Court’s reluctance to take any more 2nd Amendment cases, Lyle is most likely right—we do not yet know what constitutional standard the Court will apply.  Thus far, the Court has dealt with two of the most restrictive gun control laws in the country, so the standard for deciding less clear-cut has yet to be enunciated clearly.  However, as those of us who teach constitutional law we know what standard MacDonald implies is appropriate.  It is the lesson of Palko v. Connecticut (1937) and Duncan v. Louisiana (1968), and this lesson comes very early in any course focusing on civil rights or civil liberties.  By incorporating the 2nd Amendment, the Court has already made a determination.


In Heller, the Court determined that the 2nd Amendment right to bear arms is an individual right, and Scalia’s opinion suggests that this right is a limited one—the right to self-defense in the home.  In MacDonald, the Court incorporated this right to the states via the due process clause of the 14th Amendment.  In doing so, the Court added this individual right to the ‘honor roll of rights’ that are “fundamental principles of liberty and justice which lie at the base of al our civil and political institutions[.]”[2]  In essence, the act of incorporation demands that the highest constitutional standard be applied to government attempts to constrain that right.  This is the lesson of Palko and why some parts of the Bill of Rights have yet to be incorporated.


Certainly, the Court can then make distinctions within the case law that provides more discretion for governmental action (valid time, place, or manner restrictions or the O’brien test come to mind), but these are deviations from the standard demanded by incorporation—strict scrutiny.  If a law is content based, if a law is directed toward the suppression of expression, free exercise of religion, or association, as an incorporated honor roll right, the 1st Amendment gets strict scrutiny.  In US v. Jones (2012), the Court reminded us that, “the physical penetration standard and the reasonable expectation of privacy approach exist together,”[3] combining to provide a strong protection against intrusion of the incorporated 4th Amendment.  It does not matter that the Court has also created exceptions to this standard (plain view, incident to arrest, hot pursuit); the standard for an incorporated right rests strongly on the side of the individual.


I expect, as Denniston notes, that the Court will provide some, if not a great deal of, wiggle room for the federal and state governments when dealing with the newly incorporated 2nd Amendment.  However, the initial standard is already understood.




[2] Palko v. Connecticut, page 77, second column CLCA: Rights, Liberties and Justice, 8th edition.

[3] US v. Jones, page 475, second column CLCA: Rights, Liberties and Justice, 8th edition.


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Filed under Incorporation of the Bill of Rights, The Right to Keep and Bear Arms

It is not unusual to see an innovative statute or policy spread throughout the states.  A current obvious example would be gay marriage.  Bans on gay marriage made the ballots in waves beginning late in the 20th Century.  Hawaii and Alaska were early adopters in 1998, then Nevada in 2002.  Eleven states in 2004 adopted a ban.  Connecticut and Texas followed in 2005, and Alabama, Colorado, and Tennessee in 2006.  Florida joined this group in 2008 and North Carolina did so in the most recent election.  Now we see some diffusion of the acceptance of the right to marry as well.  Right to work laws are another example.  Political scientists often document this type of policy diffusion.

Does diffusion also work among courts?  Most certainly yes, and we have an important example that greatly affects the definition of due process and, perhaps, sharpens the right to confront witnesses.  In 2011, New Jersey recognized decades of work by psychologists and criminologists that show that eyewitness testimony can be terribly unreliable.  In State v. Henderson 208 NJ 208 (2011), we see a story of police intervention.  A witness views a photo line-up and cannot identify the perpetrator once it was narrowed down to two.  The police officers suggested that one of the two was the perpetrator then the witness identified the defendant.  The justices of the New Jersey Supreme Court first heard the case and appointed a Special Master to “evaluate scientific and other evidence about eyewitness identifications.” (page 2)  After receiving an extensive report, the justices decided that:

“We are convinced from the scientific evidence in the record that memory is malleable, and that an array of variables can affect and dilute memory and lead to misidentifications. Those factors include system variables like lineup procedures, which are within the control of the criminal justice system, and estimator variables like lighting conditions or the presence of a weapon, over which the legal system has no control. To its credit, the Attorney General’s Office incorporated scientific research on system variables into the guidelines it issued in 2001 to improve eyewitness identification procedures…

In the end, we conclude that the current standard for assessing eyewitness identification evidence does not fully meet its goals. It does not offer an adequate measure for reliability or sufficiently deter inappropriate police conduct. It also overstates the jury’s inherent ability to evaluate evidence offered by eyewitnesses who honestly believe their testimony is accurate.”

The justices of the New Jersey court determined that a defendant may raise the issue of “suggestiveness” at the pre-trial stage.  “Suggestiveness” indicates that the testimony was subject to suggestion by investigators and is unreliable.   Additionally, the judicial system must create new language for jury charges when dealing with eyewitness testimony.  The justices were very direct in their charge to the Criminal Practice Committee and the Committee on Model Criminal Jury Chargers.  The court instructed the two committees “to consider all of the system[1] and estimator[2] variables in section VI for which we have found scientific support that is generally accepted by experts…”  The justices did not require the committees to adopt the language from the Innocence Project, they did ask the committees to examine their recommendations in the course of their work.

At the end of November 2012, the Oregon Supreme Court explicitly followed New Jersey’s lead and went a bit farther.  In Oregon, the state now bears the burden of proving that the eyewitness testimony should be admissible, rather than having the defendant have to prove that the testimony is questionable.  Even if the state meets the burden, the defendant can still argue that the evidence is prejudicial and the judge can exclude it.

The Oregon case was really two similar cases placed together; at issue in both was the use of eyewitness testimony from witnesses that “had been subject to an unduly suggestive police procedure…” (page 1 of opinion).  In State v. Lawson, a husband and wife were shot while camping in a national forest.  The wife, Mrs. Hilde, spoke to medical personnel at the scene and to the police several times while receiving treatments and after being discharged from the hospital.  In each interview, Mrs. Hilde could not identify the perpetrator until the final interview.  This interview took place more than a month after the incident. In the fourth interview, “one of the detectives and Mrs. Hilde reviewed her answer to the leading questions that she had been asked at the first interview.” (page 4)  Afterwards, she picked out the squatter as the shooter.  In the intervening years before trial, the police showed Mrs. Hilde the defendant’s picture several more times.

In the second case, State v. James, a local grocery store was robbed and a store employee provided descriptions of the suspects and details of the theft as soon as peace officers arrived.  Later that day, the officer saw two men that fit the descriptions, found them in possession of alcohol similar to that taken, and asked the suspects to accompany him to the grocery store.  The suspects agreed and they were identified as the perpetrators.  (page 9)

Will this new trend diffuse to other states?  It’s quite likely.  The American Judges Association’s journal, Court Review, just came out.  The American Judges Association boasts 3,000 current and former judges as its members.  It is a special issue focusing solely on eyewitness evidence, and includes articles from some of the top researchers in the field.

While the Innocence Project and others have researched, published, and debated the efficacy of eyewitness testimony, judges and/or legislators must accept these results for change to occur.  Now the results of the scientific work are being codified in state law.  The New Jersey Supreme Court’s opinion in Henderson reads, in many places, like a research article.  Here we see the clear use of a great deal of scientific evidence to enhance the underlying purpose of the criminal justice system—the state must prove guilt beyond a reasonable doubt.  The use of faulty or unreliable testimony to incarcerate individuals works against that very purpose.  If the testimony is, by definition, doubtful, then more caution should be shown before accepting the statements of eyewitnesses.



[1] System variables are those within a state’s control. The system variables are: blind administration; pre-identification instructions; lineup construction; avoiding feedback and recording confidence; multiple viewings; simultaneous v. sequential lineups; composites; show-ups.

[2] Estimator variables are those beyond the state’s control.  The estimator variables are: stress; weapon focus; duration; distance and lighting; witness characteristics; characteristics of perpetrator; memory decay; race-bias; private actors; speed of identification.

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Filed under Attorneys, Trials, and Punishments, Incorporation of the Bill of Rights

Gun control on campus

Yesterday, the Oregon University System and the State Board of Higher Education (OUS) issued its new policy regarding guns on campus.  The new policy interprets an earlier Oregon Court of Appeals decision (Doe v. Medford School District 549C.  OUS states that the opinion “distinguished between attempts to ‘regulate’ firearms—which would likely be preempted by the Oregon Legislature—and internal policies regarding employment or property.”  Late in 2011, the Oregon Court of Appeals determined that Oregon law preempted OUS’s current ban on firearms.[1]

OUS’s new policy seeks to control only its property and those affiliated with the universities.  However, the policy defines affiliates broadly.  For example, anyone attending courses at an OUS institution, all business partners, any person attending any ticketed event, anyone “leasing, renting, or reserving” OUS property.  The next section notes that no one can “possess a firearm” in any OUS building, at any OUS sporting or performance venue, or at any OUS workplace.[2]  In this way, OUS is simply regulating its own property and employees.

Try as I might, I cannot think of any way an individual, besides those involved in military exercises or peace officers, that could carry a firearm on campus.  In this way, the regulation is equivalent to a full ban on OUS property.  Even if the distinction made by OUS passes muster in terms of pre-emption in Oregon courts, there is still the question of analysis under the 2nd Amendment.  Laws restricting the ability to keep and bear arms must pass strict scrutiny due to the Court’s recognition of the fundamental nature of this right.  Can OUS overcome this test?[3]

The right to keep and bear arms was incorporated to the states in MacDonald v. City of Chicago, IL (2010).[4]  In District of Columbia v. Heller (2008), Justice Scalia noted that “…nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms…in sensitive places such as schools…”.  Perhaps I am mistaken, but my reading of the eminent justice’s language suggests it is not aimed at higher education.  Like many campuses, Oregon State University has a large campus encompassing green and recreational spaces, living quarters, research facilities, professional offices, libraries, food service venues, etc.  The breadth of the campus and the facilities therein hardly seem to be within the narrow exceptions to which Justice Scalia refers.  Therefore the question remains can OUS ban firearms from all its employees, affiliates, and contractors as well as ban firearms from all OUS buildings and ticketed events?  Would the interest in safety and security be compelling?  Is this a narrowly tailored policy?

[1] Oregon Firearms Educational Foundation v. Board of Higher Education and Oregon University System (2011)

[2] There are exceptions for law enforcement and military personnel.

[3] My co-blogger, Liane Kosaki, notes that Wisconsin has legalized concealed carry, and gun possession cannot be banned on state owned grounds, including the University of Wisconsin, Madison.  The University can ban guns from university buildings if all buildings post signs.


Filed under Incorporation of the Bill of Rights, The Right to Keep and Bear Arms