Posted by Eugene Volokh:
Seventh Circuit Rules That, Under Supreme Court Precedent, the Second Amendment
Is Not Incorporated Against the States:
http://volokh.com/archives/archive_2009_05_31-2009_06_06.shtml#1243963229
The case is [1]NRA v. City of Chicago, the challenge to the Chicago
handgun ban. The core argument:
Cruikshank, Presser, and Miller [v. Texas] [late 1800s Supreme
Court precedents -EV] rejected arguments [for applying the Second
Amendment to the states -EV] that depended on the privileges and
immunities clause of the fourteenth amendment. The Slaughter-House
Cases, 83 U.S. (16 Wall.) 36 (1873), holds that the privileges and
immunities clause does not apply the Bill of Rights, en bloc, to
the states.... [P]laintiffs contend that we may use the Court�s
�selective incorporation� approach to the second amendment.
Cruikshank, Presser, and Miller did not consider that possibility,
which had yet to be devised when those decisions were rendered.
Plaintiffs ask us to follow Nordyke v. King, 563 F.3d 439 (9th Cir.
2009), which concluded that Cruikshank, Presser, and Miller may be
bypassed as fossils.... Another court of appeals has concluded that
Cruikshank, Presser, and Miller still control even though their
reasoning is obsolete. Maloney v. Cuomo, 554 F.3d 56 (2d Cir. 2009)
[that's the nunchaku case in which Judge Sotomayor was on the panel
-EV]. We agree with Maloney ....
Repeatedly, in decisions that no one thinks fossilized, the
Justices have directed trial and appellate judges to implement the
Supreme Court�s holdings even if the reasoning in later opinions
has undermined their rationale. �If a precedent of this Court has
direct application in a case, yet appears to rest on reasons
rejected in some other line of decisions, the Court of Appeals
should follow the case which directly controls, leaving to this
Court the prerogative of overruling its own decisions.� Cruikshank,
Presser, and Miller have �direct application in [this] case�.
Plaintiffs say that a decision of the Supreme Court has �direct
application� only if the opinion expressly considers the line of
argument that has been offered to support a different approach. Yet
few opinions address the ground that later opinions deem sufficient
to reach a different result. If a court of appeals could disregard
a decision of the Supreme Court by identifying, and accepting, one
or another contention not expressly addressed by the Justices, the
Court�s decisions could be circumvented with ease. They would bind
only judges too dim-witted to come up with a novel argument.
Anyone who doubts that Cruikshank, Presser, and Miller have �direct
application in [this] case� need only read footnote 23 in Heller.
It says that Presser and Miller �reaffirmed [Cruikshank�s holding]
that the Second Amendment applies only to the Federal Government.�
The Court did not say that Cruikshank, Presser, and Miller rejected
a particular argument for applying the second amendment to the
states. It said that they hold �that the Second Amendment applies
only to the Federal Government.� The Court added that �Cruikshank�s
continuing validity on incorporation� is �a question not presented
by this case.� That does not license the inferior courts to go
their own ways; it just notes that Cruikshank is open to
reexamination by the Justices themselves when the time comes. If a
court of appeals may strike off on its own, this not only
undermines the uniformity of national law but also may compel the
Justices to grant certiorari before they think the question ripe
for decision. State Oil Co. v. Khan, 522 U.S. 3 (1997), illustrates
the proper relation between the Supreme Court and a court of
appeals. After Albrecht v. Herald Co., 390 U.S. 145 (1968), held
that antitrust laws condemn all vertical maximum price fixing,
other decisions (such as Continental T.V., Inc. v. GTE Sylvania
Inc., 433 U.S. 36 (1977)) demolished Albrecht�s intellectual
underpinning. Meanwhile new economic analysis showed that requiring
dealers to charge no more than a prescribed maximum price could
benefit consumers, a possibility that Albrecht had not considered.
Thus by the time Khan arrived on appeal, Albrecht�s rationale had
been repudiated by the Justices, and new arguments that the
Albrecht opinion did not mention strongly supported an outcome
other than the one that Albrecht announced. Nonetheless, we
concluded that only the Justices could inter Albrecht. See Khan v.
State Oil Co., 93 F.3d 1358 (7th Cir. 1996). By plaintiffs� lights,
we should have treated Albrecht as defunct and reached what we
deemed a better decision. Instead we pointed out Albrecht�s
shortcomings while enforcing its holding. The Justices, who
overruled Albrecht in a unanimous opinion, said that we had done
exactly the right thing, �for it is this Court�s prerogative alone
to overrule one of its precedents.�
I don't think this reasoning (from Judge Frank Easterbrook, joined by
Judge Richard Posner and Judge William Bauer) does justice to the
plaintiffs' arguments. "Selective incorporation" isn't just a
different "line of argument" for incorporation -- it is an argument
under a different constitutional clause, the Due Process Clause of the
Fourteenth Amendment (something the opinion doesn't mention). The late
1800s cases rejected direct application of the Second Amendment to the
states, and incorporation via the Privileges and Immunities Clause of
the Fourteenth Amendment. They didn't discuss in any detail whether
state restrictions on the right to bear arms were potentially
unconstitutional under the Second Amendment as incorporated via the
Due Process Clause -- the very clause through which most of the Bill
of Rights was later incorporated.
And I know of no precedents holding that lower courts must reject
arguments against a statute under one constitutional clause just
because similar statutes have been upheld against challenges under a
different constitutional clause. Such arguments under different
constitutional clauses don't call on the lower court "to overrule one
of [the Court's] precedents," because the precedent deals only with an
earlier clause. For instance, when the Court held that the mandatory
federal Sentencing Guidelines generally violate the Jury Trial Clause,
it wasn't overruling its past precedents that upheld the Guidelines
against separation of powers challenge; it was considering a different
constitutional challenge.
Likewise, when the Court held that closing a criminal trial, even with
the defendant's permission, presumptively violated the First
Amendment, it wasn't overruling the then-one-year-old precedent that
upheld such a closure against a Public Trial Clause challenge. And
when the Court held that preferences in city-funded construction
contracts for city residents violated the Privileges and Immunities
Clause of Article IV, it wasn't overruling the then-one-year-old
precedent that upheld such preferences under a Commerce Clause
challenge. And lower courts would similarly not have been barred from
adopting such arguments, because they wouldn't have been trying to
"overrule" a past precedent. See, e.g., Waters v. Churchill, 511 U.S.
661, 678 (1994) (plurality opinion) ("[C]ases cannot be read as
foreclosing an argument that they never dealt with.") (citing United
States v. L.A. Tucker Truck Lines, Inc., 344 U.S. 33, 38 (1952)); see
also Miller v. California Pac. Med. Ctr., 991 F.2d 536, 541 (9th Cir.
1993) ("It is a venerable principle that a court isn't bound by a
prior decision that failed to consider an argument or issue the later
court finds persuasive.").
Moreover, the Court itself made clear, in roughly the era in which the
cited cases were decided, that the two amendments might have separate
coverage: "[Defendants] appeal to another clause of the 14th
Amendment, and insist that the self-incrimination which they allege
the instruction to the jury compelled was a denial of due process of
law. This contention requires separate consideration, for it is
possible that some of the personal rights safeguarded by the first
eight Amendments against national action may also be safeguarded
against state action, because a denial of them would be a denial of
due process of law." Twining v. New Jersey, 211 U.S. 78, 99 (1908)
(since reversed as to the substantive question whether the privilege
against self-incrimination should indeed be applicable to the states
via the Due Process Clause).
Nor does the quotation from footnote 23 of Heller fully dispose of the
plaintiffs' arguments. That "Presser v. Illinois, 116 U. S. 252, 265
(1886) and Miller v. Texas, 153 U. S. 535, 538 (1894), reaffirmed that
the Second Amendment applies only to the Federal Government" doesn't
speak to whether the Due Process Clause applies the right to bear arms
to state laws, under
This having been said, figuring out the exact scope of the Court's
precedents on this matter isn't easy. Heller did start the quoted
footnote with the phrase, "With respect to Cruikshank�s continuing
validity on incorporation, a question not presented by this case, we
note that Cruikshank also said that the First Amendment did not apply
against the States and did not engage in the sort of Fourteenth
Amendment inquiry required by our later cases." This could reasonably
be read as saying that Cruikshank was indeed dispositive of the
incorporation question (though that it might no longer be valid, which
is to say might merit overruling). It also treats the Fourteenth
Amendment as a unitary basis for incorporation, rather than treating
the two clauses separately. Other Court decisions have likewise spoken
in broad terms, see, e.g., Knapp v. Schweitzer, 357 U.S. 371, 378 n.5
(1958) ("By 1900 the applicability of the Bill of Rights to the States
had been rejected in cases involving claims based on virtually every
provision in the first eight Articles of Amendment," citing among
other things Cruikshank as to the "right to keep and bear arms"),
overruled as to the substantive question of incorporation of the
privilege against incrimination, Murphy v. Waterfront Comm'n, 378 U.S.
52 (1964). (Presser also said in passing that, "The argument of the
plaintiff in error that the legislation mentioned deprives him of
either life, liberty, or property without due process of law, or that
it is a bill of attainder or ex post facto law, is so clearly
untenable as to require no discussion," but not having the briefs in
front of me it's hard to tell whether this was a rejection of the
incorporation-via-due-process argument or of a separate procedural
claim.)
So it's not implausible, I think, to treat the Court's precedents as
stare decisis on the question of incorporation via the Fourteenth
Amendment generally, rather than solely of incorporation via the
Privileges or Immunities Clause (though I'd probably be inclined to
the other position). But it seems to me that the case is not nearly as
clear as the Seventh Circuit's analysis suggests, and that the
opinion's not discussing the difference between the two Clauses of the
Fourteenth Amendment is a significant weakness.
References
1.
http://www.ca7.uscourts.gov/fdocs/docs.fwx?submit=showbr&shofile=08-4241_002.pdf
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