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September 30, 2009

What is the best argument that Heller should only impact the feds? Will it get any votes?

How Appealing does an effective job here assembling the early major news coverage of the Supreme Court's decision to grant cert in McDonald v. Chicago, the case concerning whether the Second Amendment as interpreted in Heller is applicable as a limit on state and local gun regulations.  This is big news for lots of reasons, especially because it seem to me all but certain that the Supreme Court will declare Heller applicable to the states.

Indeed, as I have been thinking about this issue in the course of discussing it with student in my Second Amendment seminar, I have had a hard time developing a very strong argument that Heller should only apply to the feds.  Lower courts, understandably, decided against incorporation because they were bound by old precedent that the Second Amendment only applied to the states.  But a majority of Supreme Court can decide to (and seems likely to want to) overrule that precedent, and thus folks who want to limit Heller's reach will need to come up with other arguments.

The problem is, now that all important substantive constitutional rights are thought to constrain all levels of government, how can and should one develop an argument that Heller applies only to the feds.  Of course, proponents of gun control can make strong policy arguments that states and localities should be allowed to make their own distinct gun regulation choices, but are there any really good legal arguments that states and localities should not be subject to the same Second Amendment rules that limit the federal government?  And, moving to predictive mode, can anyone predict whether any Justice will embrace these arguments (as opposed to just contending that Heller was wrong and should not be extended).

September 30, 2009 at 03:14 PM | Permalink


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I think one could make some fairly persuasive arguments that the personal ownership of firearms is not "implicit in the concept of ordered liberty," as normally required for incorporation. I doubt that those arguments will prevail, but they are certainly there to be made.

Posted by: JC | Sep 30, 2009 3:43:38 PM

Probably the best argument (in a very brief nutshell) is that the right to bear arms was concerned about the federal government overtaking the states--in essence, an armed state citizenry was the last check against federal tyranny. If states want to take away the last line of defense against the feds (in essence, disband their own militia), it's their funeral.

Don't think it's going to fly, though. Heller talked about the right to self-defense (and to hunt) as a grounding for the right to bear arms. Thus, Heller already jettisoned the original purpose of the amendment and foreclosed said argument. When the right is framed in that broad of terms, it's damn near impossible to say that the states shouldn't also be required to recognize the (ironically, unenumerated) right to self-defense.

Posted by: Res ipsa | Sep 30, 2009 4:35:45 PM

I think one could make some fairly persuasive arguments that the personal ownership of firearms is not "implicit in the concept of ordered liberty," as normally required for incorporation.

Even though the amendment contains the language, "being necessary to the security of a free State?" That's pretty much the same concept phrased another way.

Posted by: Jonathan Edelstein | Sep 30, 2009 5:02:47 PM

Res Ipsa hits a pretty good note -- that even though self-defense is now a part of the right, it still is important only because it's part of militia preparedness. Because states have plenary control over their militia training, they have the freedom to abridge that right. If the Court holds otherwise, does the prefatory clause retain *any* meaning?

Also, what of the ample regulation of guns and other weapons at the state level in the 19th century? I know that's not dispositive (cf. segregation), but it doesn't seem like many states thought that there was a fundamental right to, say, nunchucks when they were all busy banning slung shot and brass knuckles, and even (in some cases) banning carrying weapons altogether. If the question is what the 14th Amendment framers intended to incorporate, then this may matter more than it does in, say, Equal Protection analysis.

Posted by: just another lurker | Sep 30, 2009 6:37:16 PM

If Heller is accepted as good law, it is hard not to apply it to the states -- if a law applied only to the nation's capital, a high crime area at that, is problematic, how to differentiate?

U.S. v. Lopez pointed to a different sort of case. As Kennedy noted, there are many ways for states to handle gun violence near schools, and a one size fits all national rule is problematic.

The libs agree in this context, but Heller set forth a fundamental right (said as much; the next ruling is therefore sort of easy), so they are stuck.

I think a Breyer path, continuing to dissent on Heller's specific holding but accepting some right in theory at least, might be used.

Posted by: Joe | Oct 1, 2009 10:16:15 AM

For my article arguing against incorporation, which concedes Fourteenth Amendment protection for an unenumerated right of self-defense while denying incorporation of the 18th-century version of the right to bear arms found in the Second Amendment (published at 42 Urb. Law.1), see http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1245402

Larry Rosenthal
Chapman University School of Law

Posted by: Larry Rosenthal | Oct 1, 2009 3:35:53 PM

I think res ipsa offers a facially reasonable (and persuasive to me) rationale for distinguishing between federal and state regulation in this context, and one that the Court can rely on if it wants to pull back, but if the Court is intent on moving forward (which my unfounded intuition indicates is likely) I'm sure it can easily find a way around this distinction.

Posted by: Observer | Oct 2, 2009 12:49:08 PM

i'm not sure where you all went to school but where i went we discovered PEOPLE HAD WEAPONS long BEFORE WE HAD A CONSTITUTION. Therefore that right PREDATES IT.

Posted by: rodsmith3510 | Oct 2, 2009 5:16:18 PM

I am not an attorney or professor but I can't believe any of you are arguing the 2nd not be incorporated under the 14th. In reading the history of the 14th it's pretty clear one of the rights Senator Bingham was trying to secure for recently freed blacks was the right to keep and bear arms as everyone at the time thought it to be a fundamental right of US citizenship and thus should be protected for all.
I am further somewhat baffled that anyone could be blind to the racism inherent in every single piece of gun control legislation throughout this nations history. We can start with the prohibitions restricting blacks from bearing arms during the 1700s or the laws proscribing the sale of firearms to Indians which essentially led to the American genocide. The black code laws of the reconstruction south also barred blacks from bearing arms leaving them at the mercy of the Klan and other racists well into the 20th century. The purchase permits required by many states were a way for local sheriffs to be sure only the "right" people be armed. It's a well known fact that well into the sixties it was impossible for African Americans to legally buy handguns in much of the south. The 1934 NFA created a tax so onerous only the rich could afford machine guns, short barreled rifles and shotguns or sound suppressors. The 1968 GCA used great chunks of the Nazi German gun laws passed in 1938. When the Black Panthers marched in LA with rifles and shotguns the California legislature and Governor Reagan prohibited open carry in urban areas.
There is no way to deny the racism and classism inherent in gun control laws in the US. There is equally no way to read the founders writings and the text of the 2nd amendment itself and not see the intent was for all citizens to have the right to keep and bear military grade weaponry. One could IMHO legitimately argue regulations on ownership and storage of crew served weapons such as mortars, tanks and artillery or WMD's but to argue that any citizen be denied the right to an infantryman's M-4 or M-9 is ludicrous and runs afoul of the 2nd, 9th and 14th amendments.

Posted by: Scott Murphy | Oct 3, 2009 3:33:50 PM

...even though self-defense is now a part of the right, it still is important only because it's part of militia preparedness. Because states have plenary control over their militia training, they have the freedom to abridge that right.
State militias at the founding (and for many decades thereafter) consisted of all able-bodied males. This also corresponded closely with the founding definition of citizenship (only white males, sometimes only landowners, too). Antebellum state limitations on the rights of those not considered to be full-fledged citizens (women, African Americans, etc.) tell us little in about the scope of constitutional guarantees in today's world.

Today's National Guard has little or no analog in the early militias. So Second Amendment analyses based upon modern day state Guard regulation are off-base.

Also, as an explicit recognition of a pre-existing right, the Second Amendment also explicitly enumerates an underlying "right of self-defense."

Posted by: Glen | Oct 4, 2009 9:16:11 PM

A few other good arguments, in addition to the notion of the Second Amendment as a federalism doctrine:

1. The question under incorporation doctrine, particularly in the right to a jury trial and grand jury cases, was whether the right found in the Bill of Rights is necessary to well ordered liberty. If Japan and Britain managed creditable parliamentary democracies without the Second Amendment, and no federal case enforced the Second Amendment to strike down any state or federal law prior to Heller, may it is merely desirable and not necessary.

2. To the extent that originalism and stare decisis matters, the fact that prior SCOTUS precedents rejected incorporation in more than one case is relevant.

3. From a purely prudential perspective, saying "yes" to incorporation means dozens of future SCOTUS cases that have to be addressed, saying "no" means that there may never be another Second Amendment SCOTUS case again.

4. From a policy perspective, the lesson that the conservative movement tried to draw from Roe v. Wade, and that the liberal movement tried to draw from Lochner, is that SCOTUS is better off not dictating a particular result on an issue that is a major political controvery, when legislatures are better suited to doing so and might produce a more stable compromise. This is particular true in the area of gun control where there are bona fide reasons to believe that rules that might work in Wyoming might not make sense in New Jersey. In contrast, there is far less reason to think that different rules on abortion or birth control might make sense in different places in some kind of utilitarian/cost-benefit/what regulation is reasonable sense.

The policy argument plays out in the details of state constitutions. While many state constitutions protect some right to bear arms, there is considerable variation in how that right is posed. For example, Colorado's state constitution talks about a distinction between concealed and non-concealed weapons.

5. If the 9th Circuit en banc reverses its Second Amendment determination, there isn't a circuit split and SCOTUS may not need to intervene.

Posted by: ohwilleke | Oct 20, 2009 6:40:57 PM


Japan and Germany also don't have jury trials. Does that mean that the right to trial by jury is not a fundamental right?

Also, the 9th circuit put the Nordyke rule on hold until the Supreme Court decided on incorporation, so basically the ball is on the Supreme Court right now. Also, if you've listened to the oral argument, you'll know that they really didn't discuss incorporation much, which would indicate that they are taking it as given.

Posted by: Vasco | Nov 26, 2009 6:39:38 AM

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