08 May 2007

Does The Second Amendment Apply To The States?

Most gun control laws are enacted by state and local governments. Are those laws subject to the Second Amendment? Maybe not. Here is part of an interesting SCOTUS blog post on the subject, in light of today's denial of rehearing en banc in a case holding the D.C. gun law (where federalism issues don't apply) invalid under the Second Amendment:

[T]here is a definite conflict among the Circuit Courts on the meaning of the Second Amendment, and the Supreme Court has not ruled on the issue since a somewhat ambiguous decision in 1939 (U.S. v. Miller). . . .

While the Fifth Circuit Court has ruled in favor of an individual right theory, it did not use that theory to strike down any specific gun control law. By contrast, the D.C. Circuit ruling was the first to apply that theory directly in nullifying a gun law. Every other Circuit Court to rule on the issue has rejected the indiviual right theory, largely based upon the Supreme Court's Miller decision. There is also a 10 to 7 split among state appellate courts on the issue.

Moreover, there is also a direct conflict over the Second Amendment as it applies specifically to the D.C. gun law -- the city's highest local court, the District of Columbia Court of Appeals, has upheld the same law by embracing the collective right theory. It reiterated that position as recently as last week, in the case of Andrews v. United States (D.C. Court of Appeals docket 02-1043) -- a ruling that the city government had brought to the Circuit Court's attention last Friday, before rehearing was denied. . . .

Because the case of Parker v. District of Columbia deals only with the Second Amendment as a federal issue, it does not raise the question of whether the Second Amendment applies at all to state and local government. The Supreme Court last faced that issue in 1886 in Presser v. Illinois, finding that the Amendment only applied to the federal government. That would not be an issue in the Parker case in the Supreme Court, but a state or local case would be almost certain to arise to test it.

The position of the U.S. Supreme Court on this constitutional issue, like almost all others, boils down to what Justice Kennedy things about it. Justice Thomas is a clear vote to adopt an individual rights theory, something he suggessted the Court do in 1997. Justice Alito would likely agree. But, how Justice Kennedy would rule in this case is anybody's guess.

While I would prefer to see the U.S. Supreme Court take this case and find that the Second Amendment does not confer an individual right, as long as Presser v. Illinois remains good law (dicta to that effect in the instant case would be good enough), it doesn't really matter that much, it simply makes gun control a state issue. I certainly don't see any obvious reason that the current incorporation theory, which asks if the due process clause of the 14th Amendment requires that a provision of the Bill of Rights be applied to the states, should lead the high court to apply the Second Amendment to the states.

Indeed, originalists on the court, while they might favor an individual rights theory of the Second Amendment, might likewise, be particularly inclined to uphold Presser v. Illinois as it resolved the issue not long after the 14th Amendment was adopted, and hence is likely to reflect the original intent of the drafters of that Amendment to the U.S. Constitution. Many conservatives, indeed, bear hostility to the incorporation doctrine that applies the Bill of Rights to the states, in general.

If a loss in Parker v. District of Columbia in the U.S. Supreme Court with a dicta upholding Presser v. Illinois gave the movement either for statehood for the District of Columbia, or the annexation of all or most of the District of Columbia by Maryland, the push it needed to pass, would that be such a bad thing?


Anonymous said...

If the second amendment does not apply to the states then I believe the 14th amendment does not apply either in which case none of those other "pesky" rights should apply either. This would immediately give the states the right to:

1) House National Guard troops in our homes. This would definitely save the state money.
2) Punish prisoners any way they see fit including death by slow torture! Think of the positive impact on crime that might have.
3) The ability to search our homes and cars any time the state wishes without a warrant and to set up random checkpoints any time to make sure our papers are in order. Imagine the positive impact on stopping terrorism this would have.
4) The ability to re-establish a "state" sponsored religion.
5) The ability to sensor our newspapers. Heck the news might even improve!

The blogger makes a good point but really needs to expound on how wonderful and safe life will be without any rights recognized by the states.

Andrew Oh-Willeke said...

The 14th Amendment applies by its terms to the states. Prior to the adoption of the 14th Amendment (and really until the early to mid-20th Century) the Bill of Rights did not apply to the states. Through the process of "incorporation", some, but not all of the requirements of the Bill of Rights have been applied to the states.

The 1st Amendment, 4th Amendment, 5th Amendment, 6th Amendment and 8th Amendment have been applied to the staets via the due process clause of the 14th Amendment. IIRC, not all of the protections of the 6th Amendment apply with equal force to the states either.

The 2nd Amendment and 7th Amendment have not been applied to the states, at least at the federal court level.

There are only about two 3rd Amendment cases on the books, and I don't recall how they came out.

The 9th and 10th Amendments are federalism roadmaps, rather than rights protecting amendments in the traditional sense.

This is simply black letter law.

Of course, almost every state constitution has a bill of rights, indeed, this is so largely because the 18th and 19th understanding was that the federal bill of rights wasn't sufficient to protect you from the parade of horribles you suggest. Most state bills of rights do protect your 1st, 4th, 5th and 8th Amendment rights in any case and in many states the state constitution is more protective of individual rights than the federal constitution. But, there are some instances when the federal constitution is more protective in some states.

The Constitution is not a sacred document. It was made by human beings who didn't have a couple of centuries of experience to guide them. Much of it is pretty good, some of it leaves something to be desired.

I don't think anyone, proponent or opponent of gun rights, would have written the 2nd Amendment the way it was actually written in the Bill of Rights. It is inherently ambiguous and muddled. It is a model of bad draftsmanship.

I also don't agree that the right to bear arms should be an individual right. History has proven that an armed population is not necessary to the security of a free state.