Hang on to Your Handgun
As you may know, the Ninth Circuit recently held in Nordyke that the Second Amendment is incorporated into the 14th Amendment's due process clause. Last week the Seventh Circuit held exactly the opposite in National Rifle Association v. City of Chicago (pdf). On Wednesday the NRA filed a petition for certiorari (pdf), which raises one question:
Query: if the Court grants cert, what are the strangest amici bedfellows this case could produce?
Whether the right of the people to keep and bear arms guaranteed by the Second Amendment to the United States Constitution is incorporated into the Due Process Clause or the Privileges or Immunities Clause of the Fourteenth Amendment so as to be applicable to the states, thereby invalidating ordinances prohibiting possession of handguns in the home.Incorporation cuts both ways, doesn't it?
Query: if the Court grants cert, what are the strangest amici bedfellows this case could produce?
Labels: SCOTUS
posted by Patrick Bageant at 2:15 PM
8 Comments:
I admittedly have not read either the Ninth Circuit or the Seventh Circuit opinions, nor can I remember reading any other 2nd Amendment cases. However, it seems that the 2nd Amendment should apply to the states without the 14th Amendment.
A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.
As far as I know, all militias are formed within a particular state. That is to say, there is no American Militia, but rather the potential for fifty different state militias. As such, it would seem that there is no need for a supplementary amendment to apply the 2nd to the states.
That said, the word "Militia" also appears in the 5th Amendment, and it appears to be synonymous with the army, or some other federal armed force. I suppose that could mean that the 2nd is meant only to ensure arms for a federal military force, and shouldn't inherently be applied to the states.
Either way, I am now confused as to what my original point was. I guess I no longer have one, and I should return to studying torts.
Long live the Boalt Hall Shooting Club!
The sticking point is that older SC decisions have held that the 2nd Amendment does not apply to the states, and Heller said only that it protects the right to self defense in the home. To reverse the 7th Circuit they'll have to flesh out Heller and supersede those older cases. The first few minutes of oral argument in the 7th Circuit address that point.
About a minute in to the second argument, there is a money quote from Judge Easterbrook: "The position you're taking, indeed the position of the Ninth Circuit, seems to be that as long as a Court of Appeals can think up an an argument that is not explicitly rejected by the Supreme Court, Supreme Court decisions just aren't binding on court of appeals. That may be the attitude of the Ninth Circuit, but it's not our ours."
except for your typo in that quote, it is pretty sweet.
Didn't the Second Circuit also recently hold that the Second Amendment doesn't apply to the states?
Yes. The Soto wrote the opinion didn't she?
http://www.law.harvard.edu/news/2009/06/08_fried.html
Who's left?!
wow, too bad. He was really good.
What I want to know is, what's with all the paranoid gun freaks out there since the election? You know the ones, like that creep in Pennsylvania a couple months ago who killed 3 officers, and the asshole at the Holocaust museum this week. They're so deathly afraid of the Big Bad "They" who are going to take away their guns any minute now.
At least once a week, I see nearly identical letters to the editor, using the same language that the DC shooter used in his screed. There's obviously some blogger or broadcaster or e-mailer out there fomenting the fear -- what are they hoping to gain? More fear? More senseless deaths?
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