February 22, 2010
Washington Supreme Court Incorporates Second Amendment
The Washington Supreme Court ruled late last week in State of Washington v. Sieyes that the Second Amendment applies against the State of Washington by way of the Fourteenth Amendment Due Process Clause. The decision came down less than two weeks before the U.S. Supreme Court is scheduled to hear arguments on the incorporation issue in McDonald v. City of Chicago.
The Washington case involved a 17-year-old young man charged with unlawful possession of a firearm--a loaded Bursa .380 semiautomatic under his car seat. The trial court found the defendant guilty and sentenced him to 10 days' juvenile detention, 1 year of supervision, 30 hours of community service, and a $100 fine. Sieyes appealed, arguing, among other things, that the Washington State general prohibition on possession of firearms by minors violated his Second Amendment right to bear arms.
The Washington Supreme Court ruled that the individual right to bear arms in the Second Amendment, see D.C. v. Heller, applied to the states under the Fourteenth Amendment Due Process Clause and the incorporation test set out in Duncan v. Louisiana.
The decision is surprising for its timing, for the issues it addresses, and for the issues it doesn't address. As Justice Stephens wrote in concurrence, "Restraint is particularly appropriate here because the very question is currently pending before the United States Supreme Court. . . . I do not believe this is an instance where [a state court ruling on a federal constitutional question can serve any purpose], particularly as our opinion is likely to be eclipsed before the ink it takes to print it is dry."
Indeed it's not clear what the Washington Supreme Court intended to accomplish with its ruling. Its analysis draws heavily on Heller and follows a predictable path to incorporation under the Due Process Clause. (The Washington court criticized the Second and Seventh Circuits for their restrained approaches, rejecting incorporation until the Supreme Court rules, and lauded the Ninth Circuit for its ruling incorporating the Second Amendment via the Due Process Clause.) Thus the Washington Court said nothing new about Due Process incorporation that might guide or influence the Supreme Court.
At the same time the Washington court ruled that its own state constitution also protected a right to bear arms and suggested that its own provision may well be stronger than the Second Amendment. The analysis suggests that its entire ruling on the Second Amendment was not only unnecessary, but that its own constitutional provision provided a stronger basis than the Second Amendment for an individual right to bear arms. But, oddly, the court deemphasized its analysis of its own state constitutional provision, hanging its hat (primarily) on the Second Amendment.
All the while the court entirely ignored incorporation via the Fourteenth Amendment Privileges or Immunities Clause--the claim that the appellants and others are pressing hardest at the Supreme Court.
This odd mix of timing, rulings, and non-rulings makes the case hard to explain. Whatever the Washington court's purposes in issuing this ruling last week--simply to move it off the docket, or to guide or influence the Supreme Court--it might have done much better by limiting its ruling to the state constitutional issue.
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