Thursday - February 18, 2010

Really Good News, Slghtly Bad News

We must answer whether the Second Amendment applies to the states—an issue Heller explicitly sidestepped. Id. at 2813 n.23.

Incorporation is “[t]he process of applying the provisions of the Bill of Rights to the states by interpreting the 14th Amendment’s Due Process Clause as encompassing those provisions.”

Heller also found universal support for an individual right to bear arms in pre-Civil War case law and commentary.

The Heller Court also analyzed post-Civil War case law and commentary to conclude a key purpose of the Fourteenth Amendment was to ensure freed blacks had the right to keep and bear arms.

Considering Cruikshank:

Moreover Cruikshank merely held the federal Constitution does not apply to private individuals: “The only obligation resting upon the United States is to see that the states do not deny the right. This the [Fourteenth] amendment guarantees, but no more. The power of the national government is limited to the enforcement of this guaranty.”

Courts that rely on this precedent misunderstand its holding.  Because Cruikshank and Presser predate the Supreme Court’s process of selectively applying the Bill of Rights to the states under Duncan, they cannot impede the current incorporation doctrine. Nevertheless in early 2009 the Second Circuit puzzlingly and reluctantly relied on Presser to reject incorporation.

On the other hand a three-judge panel of the Ninth Circuit recently abandoned Cruikshank, Presser, and Miller v. Texas as obsolete. Nordyke v. King, 563 F.3d 439 (9th Cir. 2009). But on July 29, 2009 the court voted to rehear the matter en banc.

Although it cannot be cited as precedent “by or to any court of the Ninth Circuit,” Nordyke v. King, 575 F.3d 890, 891 (9th Cir. 2009) (Nordyke II), the panel decision persuasively applied the Second Amendment to the states via the due process clause.

Bottom Line:

Pursuant to Duncan the Second Amendment protects an individual right to bear arms from state interference through the due process clause of the Fourteenth Amendment. This right is necessary to an Anglo-American regime of ordered liberty and fundamental to the American scheme of justice.

CONCLUSION
The Second Amendment right to bear arms applies to the states through the due process clause of the Fourteenth Amendment.

So we have a state supreme court finding that the 2nd is incorporated, a few weeks before SCOTUS is scheduled to hear arguments on McDonald v. City of Chicago, which asks the same question. (that case will be heard March 2, 2010)

The Washington State Supreme Court found that the 14th incorporates the 2nd. Will SCOTUS do the same? Stay tuned.

Is this a good decision? Yes. But then again no.

The best decision would be to say that the 14th merely re-affirms by incorporation what already existed under the 2nd. That the 2nd applies even without the 14th existing. Shades of difference perhaps, but the “universal support for an individual right to bear arms in pre-Civil War case law” found by Heller means exactly that. The right could not be infringed BEFORE the 14th existed, so the 14th really doesn’t need to be used as justification now that it does exist. But it doesn’t hurt to say that it can’t be infringed NOW because of the 14th, so there ya go. An extra layer of armor I guess.

Oooh, I’m getting a nice feeling about this. I think Slaughterhouses is going to be overturned. I can’t wait to read Scalia’s consent and Sotomayor’s dissent.

Read more about the Sieyes decision at The Voloch Conspiracy. Read the decision yourself, it’s only 24 very widely spaced and footnoted pages, so it reads fast. The kid (Sieyes) lost. His claim was that the 2nd let him have a gun when he was under age because he’s still a citizen. He didn’t prove that. But the people won. That’s a good thing.

Posted by Drew458     on 02/18/2010 at 05:29 PM   
Filed Under: • Guns and Gun Control •  
• Comments (2) • Trackbacks(0)  Permalink •  

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