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The Incorporation Genie

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by: Abassos • November 29, 2009 • no comments

Per Ryan:

"Hey all,

According to Professor Berman at Sentencing Law and Policy blog, the incorporation of the 2nd Amendment is a fait accompli.

It seems to me that an expansion of the incorporation doctrine could easily impact other as-yet unincorporated principles, such as the right to a GJ for sentence enhancements.

The OSC has previously held, in Sawatzky:

Finally, the indictment clause of the Fifth Amendment applies to only federal prosecutions, because the Fourteenth Amendment does not require that it apply to the states. Hurtado v. California, 110 US 516, 4 S Ct 111, 28 L Ed 232 (1884).

While we are obligated to recognize adverse precedent, it seems a significant change is likely to happen this year in the incorporation doctrine, and that the genie, once out of the bottle, could have broader implications. So, if you've got a sentence enhancement case where the enhancements haven't been plead, it's still worth preserving."

Ryan