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March 2, 2010

Could there be five votes for only "partial" incorporation of the Second Amendment?

I have only so far had a chance to skim part of the oral argument transcript from today's McDonald Second Amendment case (which is available here).  But I have already been intrigued and pleased to see that, during the arguments, Justice Stevens discussed at some length the idea that the Second Amendment might only be partially incorporated against the states. 

I find this idea especially intriguing and pleasing because I filed this McDonald amicus brief (together with two terrific students from my Second Amendment seminar) which developed a partial incorporation argument with a special emphasis on the special challenges facing localities in the arena of gun regulation.  Here is the opening substantive paragraph from this amicus brief:

District of Columbia v. Heller clarified that the Second Amendment protects an individual right “to keep and bear arms,” and this case presents this Court’s first opportunity to consider not just whether, but also how, this right is to be incorporated against states and localities.  Though “jot for jot” incorporation became the modern norm for how most constitutional rights will be applied to states and localities, the Court has sometimes taken an alternative approach to the incorporation of certain Bill of Rights provisions.  For example, though the Sixth Amendment jury trial right has been incorporated against the states, the unanimity requirement applied in federal court does not apply to state criminal justice systems. Similarly, First Amendment doctrines are in various ways expressly attentive to distinctive state and local standards and to distinctive state and local concerns.  The modern development of Second Amendment jurisprudence in the wake of Heller should likewise include a formal and express recognition of distinct state concerns and it should be especially attentive to the unique public-safety interests and distinctive structural dynamics surrounding the regulation of firearms by localities.

Though I doubt that Justice Stevens will succeed in getting five votes for a partial incorporation approach to the Second Amendment, I am excited that these ideas are getting some serious play.

March 2, 2010 at 07:41 PM | Permalink


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Where does the actual science on the issue enter into the question?

Isn't there a burden on Chicago et al to produce real science to support their contention that a fundamental right can or should be restricted? It seems clear given the CDC/DOJ comprehensive studies and the experiences of 48 of the states over 20+ years now (not to mention the suggestively correlative relationship between "good" (high) Brady state gun law scores and high actual crime rates) that restricting lawful possession and carry as a means of affecting crime or safety rates has no significant statistical (or even logical) basis in support.

Unlike grand jury trials, where it can be argued that multiple viewpoints are valid ways to reach a common goal of justice, the case against adding gun restrictions beyond existing Federal purchase and possession regulations and the loosest of the State possession and carry laws (Alaska/Vermont/Utah et al) for safety/crime prevention on the scientific side is pretty much settled.

Lawful possession and carry has no documentable negative effect on crime or public safety, therefore there is no compelling public interest in further restricting it.

Law school applicant.

Posted by: Matthew Carberry | Mar 2, 2010 9:49:24 PM

I would agree it is exciting that these issues are being brought to light, but I would agree that I am pretty questionable on Justice Stevens. We will see.

Attorney Services

Posted by: Disability Insurance | Mar 2, 2010 11:54:22 PM

Since Heller's endorsement of the individual right theory, there has been considerable speculation here whether state and federal regulation on previously convcted criminals' possessing a firearm could still stand.

From what I have read about the argument, that speculation just got a fork stuck in it. Even if Stevens' theory is turned away, which I suspect it will be, the majority is likely to make clear that the states retain broad discretion to continue firearms disabilities pretty much as they see fit.

Based on stare decisis, there is a pretty good chance the opinion will be unanimous.

Posted by: Bill Otis | Mar 3, 2010 3:17:26 AM

I'm with Bill, I've never quite understood the excitement about Heller vis a vis cons with guns. Scalia was pretty clear in Heller that the decision was not an impediment in any way to states restricting gun ownership for felons, crazy people, and law professors.

Posted by: Ferris Bueller | Mar 3, 2010 9:08:16 AM

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