Posted by Eugene Volokh:
Argument for Incorporation of the Second Amendment Against the States
http://volokh.com/archives/archive_2008_11_30-2008_12_06.shtml#1228427102
is foreclosed by Seventh Circuit precedent, and late 1800s Supreme
Court precedent, rules the district judge in [1]NRA v. City of Oak
Park & City of Chicago:
In this instance our Court of Appeals has squarely upheld the
constitutionality of a ban on handguns a quarter century ago in
Quilici v. Village of Morton Grove, 695 F. 2d 261 (7th Cir. 1982).
And in reaching that conclusion, Quilici relied on the Supreme
Court's decision in Presser v. Illinois, 116 U.S. 252, 265 (1886):
It is difficult to understand how appellants can assert that
Presser supports the theory that the second amendment right to keep
and bear arms is a fundamental right which the state cannot
regulate when the Presser decision plainly states that "(t)he
Second Amendment declares that it shall not be infringed, but this
... means no more than that it shall not be infringed by Congress.
This is one of the amendments that has no other effect than to
restrict the powers of the National government...."
In doing so, Quilici rejected arguments (1) that later Supreme
Court decisions that had incorporated other Bill of Rights
provisions into the Fourteenth Amendment had effectively overruled
Presser and (2) that the entire Bill of Rights had been implicitly
incorporated into the Fourteenth Amendment to apply to the states.
To be sure, as the just-quoted language reflects, both Cruikshank
[an 1876 Supreme Court case] and Presser long antedated the more
modern jurisprudence of implied incorporation that began with the
initial suggestion in Gitlow v. New York, 268 U.S. 652 (1925), that
the First Amendment was brought into play against the states via
the Fourteenth Amendment, and then continued with selective
incorporation thereafter. But Heller deliberately and properly did
not opine on the subject of incorporation [or non-incorporation] of
the Second Amendment (after all, that question was not before the
Court)....
This Court should not be misunderstood as either rejecting or
endorsing the logic of plaintiffs' argument -- it may well carry
the day before a court that is unconstrained by the obligation to
follow the unreversed precedent of a court that occupies a higher
position in the judicial firmament.
This is an eminently plausible position for the district judge to
take, in light of the Supreme Court's old precedent but especially the
Seventh Circuit's much newer precedent. We'll see what the Seventh
Circuit does, and in particular whether it too thinks the Supreme
Court late 1800s cases are binding or whether it agrees with [2]Nelson
Lund's Anticipating the Second Amendment Incorporation: The Role of
the Inferior Courts that they foreclose only incorporation via the
Privileges or Immunities Clause, but do not foreclose incorporation
via the Due Process Clause:
I conclude that the lower courts, though not the Supreme Court, are
probably barred by precedent from finding that the right to keep
and bear arms is protected by the Fourteenth Amendment�s Privileges
or Immunities Clause. Part III shows that existing Supreme Court
precedent points very strongly in favor of incorporation under
substantive due process. Part IV argues, on the basis of existing
precedent, that the inferior courts need not wait for the Supreme
Court to reach this conclusion. They can best perform their role in
our hierarchical judicial system by treating the Supreme Court�s
modern incorporation jurisprudence as law. If they do, they should
conclude that the right to keep and bear arms is protected against
infringement by the state governments, just as it is protected
against the federal government.
We'll also see what the Ninth Circuit does in Nordyke v. King, which
will be argued soon. And of course we might also see in due time what
the Supreme Court does with this, given that it is of course free to
reexamine its old precedents. I think the Court should hold that the
Second Amendment applies to the states, but it might be quite a while
before the Court gets the case.
Thanks to [3]Gene Hoffman for the pointer.
References
1. http://www.hoffmang.com/firearms/NRA-v-Chicago-2008-12-04.pdf
2. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1239422
3. http://www.hoffmang.com/archives/000979.html
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