June 2, 2009
Second Amendment Not Applicable to States, Seventh Circuit Rules
A three-judge panel of the Seventh Circuit ruled today that the Second Amendment does not apply to the states and therefore does not restrict state and local governments from enacting gun-control laws.
The ruling addresses the central question left open by the Supreme Court in D.C. v. Heller, its Second Amendment case last term: Does the Fourteenth Amendment incorporate the Second Amendment to the states?
The Seventh Circuit (Chief Judge Easterbrook, writing, and Judges Bauer and Posner) unanimously rejected the plaintiffs' two main arguments: that the Fourteenth Amendment Privileges or Immunities Clause incorporates the Second Amendment; and that the individual right to bear arms, protected by the Second Amendment, is fundamental and therefore should be incorporated under the prevailing "selective incorporation" approach.
The court's ruling was quite modest--i.e., non-"activist"--adhering to Supreme Court precedents that, while questionable (at best) in their reasoning, nevertheless remain on the books. Thus on the P or I claim, the court declined to read around the Slaughter-House Cases (holding that the P or I Clause does not incorporate the Bill of Rights, en bloc, to the states), and U.S. v. Cruikshank, Presser v. Illinois, and Miller v. Texas (all rejecting arguments that the P or I Clause incorporates the Second Amendment to the states):
Although the rationale of Cruikshank, Presser, and Miller is defunct, the Court has not telegraphed any plan to overrule Slaughter-House and apply all of the amendments to the states through the privileges and immunities clause, despite scholarly arguments that it should do this.
Slip Op. at 5 (citing Amar's America's Constitution: A Biography).
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 [these cases] 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 vitality on incorporation" is "a question not presented by this case."
Slip Op. at 3-4 (internal citation omitted).
The court thus declined to read the P or I Clause as a vehicle for Second Amendment incorporation, leaving that question to the Supreme Court. (For more on the P or I Clause and incorporation, see here.)
As to fundamental rights and selective incorporation, the court also deferred, relying on the unique federalism feature of the Second Amendment:
One function of the second amendment is to prevent the national government from interfering with state militias. It does this by creating individual rights, Heller holds, but those rights may take a different shape when asserted against a state than against the national government. Suppose Wisconsin were to decide that private ownership of long guns, but not handguns, would best serve the public interest in an effective militia; it is not clear that such a decision would be antithetical to a decision made in 1868 [the year the Fourteenth Amendment was ratified]. . . .
Federalism is an older and more deeply rooted tradition than is a right to carry any particular kind of weapon. How arguments of this kind will affect proposals to "incorporate" the second amendment are for the Justices rather than a court of appeals.
Slip Op. at 6-7, 9.
The ruling creates a split: the Second and Seventh Circuit have now both rejected incorporation; the Ninth Circuit has accepted it (although that case is on en bancreview). (Judge Sotomayer was on the Second Circuit panel rejecting incorporation.)
The issue will surely go to the Supreme Court; the only question is when. This'll give the Court a chance not only to rule on whether to incorporate the Second Amendment to the states, but, perhaps even more importantly, how.
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