Footnote 23, Incorporation of the Second Amendment, the next big Constitutional issue

What about the rest of the country? Other than the section of the D.C. law that requires storing guns dissembled or bound by a trigger lock, no other gun regulations - federal, state, or local - are invalidated, at least for the present. The Court’s decision leaves open the question of whether the Second Amendment applies only against the federal government or whether it will be deemed to be incorporated against the states by the Fourteenth Amendment. The Court mentions this question in footnote 23. Reading that two-sentence note for clues about how the Court will eventually decide that issue is sort of like reading the Second Amendment itself: the first section leans one way and the second section leans the other. All that can be said with certainty is that the note says that this was “a question not presented by this case.” This is now the next big constitutional issue concerning the Second Amendment.

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United States v. Cruikshank, 92 U. S. 542, in the course of vacating the convictions of members of a white mob for depriving blacks of their right to keep and bear arms, held that the Second Amendment does not by its own force apply to anyone other than the Federal Government. The opinion explained that the right “is not a right granted by the Constitution [or] in any manner dependent upon that instrument for its existence. The second amendment . . . means no more than that it shall not be infringed by Congress.” 92 U. S., at 553. States, we said, were free to restrict or protect the right under their police powers. The limited discussion of the Second Amendment in Cruikshank supports, if anything, the individual-rights interpretation. There was no claim in Cruikshank that the victims had been deprived of their right to carry arms in a militia; indeed, the Governor had disbanded the local militia unit the year before the mob’s attack, see C. Lane, The Day Freedom Died 62 (2008). We described the right protected by the Second Amendment as “ ‘bearing arms for a lawful purpose’ ”22 and said that “the people [must] look for their protection against any violation by their fellowcitizens of the rights it recognizes” to the States’ police power. 92 U. S., at 553. That discussion makes little sense if it is only a right to bear arms in a state militia.[sup]23[/sup]

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[sup]23[/sup] With respect to Cruikshank’s continuing validity on incorporation, a question not presented by this case, we note that Cruikshank also said that the First Amendment did not apply against the States and did not engage in the sort of Fourteenth Amendment inquiry required by our later cases. Our later decisions in Presser v. Illinois, 116 U. S. 252, 265 (1886) and Miller v. Texas, 153 U. S. 535, 538 (1894), reaffirmed that the Second Amendment applies only to the Federal Government.

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