03 June 2009

7th Circuit: 2nd Amendment Applies Only To Feds

The United States Court of Appeals For The Seventh Circuit held yesterday in the case National Rifle Association v. Chicago, in an opinion joined by two of its biggest stars, Judges Easterbrook and Posner, that the Second Amendment applies only to the federal government, not to the states. In other words, it is not a part of the Bill of Rights that is "incorporated" through the 14th Amendment due process clause against the states. A number of federal bill of rights provisions (e.g., the 7th Amendment protection of the right to a civil jury) have the same status. The United States Court of Appeals for the Second Circuit had previously reached essentially the same conclusion in another post-Heller case (Maloney v. Cuomo, 554 F.3d 56 (2d Cir. 2009)).

I've argued more than once, here and elsewhere, that this is the correct rule of law. Three old U.S. Supreme Court precedents, the most recent in 1894, say that this is the case. A recent 9th Circuit ruling reaching the opposite conclusion was dicta, in addition to overruling prior 9th Circuit precedent from the 1990s, so it doesn't necessarily create a circuit split And, there is ample evidence that an individual right to bear arms for self-defense, which is a right protected by the Second Amendment, as the U.S. Supreme Court clarified in Heller is not necessary to ordered liberty, which is essentially the test to determine if a provision of the Bill of Rights should apply to the states.

Gun control opponents still have state constitutions in most states that they can turn to in order to protect their rights. And, the Second Amendment limits the extent to which gun control may be imposed despite state policy, by federal law. It also limits the extent to which gun control may be imposed in federal enclaves like the District of Columbia where the Heller case arose.

The end result, if the 7th Circuit ruling holds, is that the Second Amendment, while not the dead letter it was prior to Heller will be minimally important, and mostly discourage new federal gun control legislation. The U.S. Supreme Court in Heller dicta has upheld in dicta almost every federal gun control law of national appliicability as a reasonable regulation of the right to bear arms for self-defense, as has every post-Heller challenge to federal gun control laws in the lower federal courts (see, e.g., here).

Of course, the U.S. Supreme Court may choose to overrule the 7th Circuit in this case. But, that doesn't mean that either the U.S. District Court judge or the 7th Circuit panel that rendered the opinion yesterday were wrong in concluding that currently binding U.S. Supreme Court precedents hold that the 2nd Amendment does not apply to the states. I would urge the U.S. Supreme Court not to incorporate the Second Amendment and to let the issue play out in the state legislative and state constitutional process. SCOTUS blog coverage of potential U.S. Supreme Court involvement in one or more of these cases can be found here.


Michael Malak said...

Of all the times for states rights to be invoked...

Cruikshank was decided a mere six years after the Fourteenth Amendment was ratified. It was so early in Fourteenth Amendment jurisprudence that the Cruikshank court proclaimed not only that the Second Amendment did not apply to states, but neither did the First Amendment.

All subsequent Second Amendment incorporation decisions trace back to Cruikshank.

It's time either for the courts to finally overturn Cruikshank or to overturn all incorporation altogether -- including federal labor laws and Roe v. Wade.

Andrew Oh-Willeke said...

Federal labor laws are based on the interstate commerce clause and have nothing to do with incorporation.

Michael Malak said...

I had in mind federal anti-discrimnation laws, which in effect have the Fourteenth Amendment equal protection overturn the First Amendment freedom of association.