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Second Amendment: Incorporation

On June 26, 2008, the Supreme Court issued its decision in District of Columbia v. Heller, holding by a 5-4 vote that the Second Amendment protects an individual right to possess a firearm, unconnected to service in a militia, and protects the right to use that firearm for traditional lawful purposes such as self-defense within the home. In Heller, the Court affirmed a lower court’s holding that declared three provisions of the District of Columbia’s Firearms Control Regulation Act unconstitutional. Although the Court did an extensive analysis of the Second Amendment to interpret the meaning of the Second Amendment, the decision left unanswered many questions of significant constitutional magnitude, including the standard of scrutiny that should be applied to laws regulating the possession and use of firearms, and whether the Second Amendment applies to the states. It is the latter issue which has been most commented upon by lower courts in post-Heller cases.

Over 100 years ago, the Court held in United States v. Cruikshank (and reaffirmed in Presser v. Illinois) that the Second Amendment does not act as a constraint upon state law. Both of these decisions, however, were decided prior to the advent of modern incorporation principles. The Court in Heller briefly commented upon the issue of incorporation stating, “[w]ith 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.” It further noted that subsequent Supreme Court cases had reaffirmed the holding that the Second Amendment applies only to the federal government. While these statements could be viewed as indicating that the Court would continue with this precedent, it could also be interpreted as indicating that the Court would support the application of modern incorporation doctrine principles to the Second Amendment.

Since the Heller decision, three federal appellate circuits have addressed whether the Second Amendment applies to the states. The first decision to address this issue was a three-judge per curiam opinion by the Second Circuit in Maloney v. Rice, in which Judge Sotomayor was one of the judges. In Maloney, the plaintiff sought a declaration that a New York penal law that punishes the possession of nunchukas was unconstitutional. On appeal, the plaintiff argued that the state statutory ban violates the Second Amendment because it infringes on his right to keep and bear arms. Here, the court, citing Presser v. Illinois, held that the state law did not violate the Second Amendment because “it is settled law ... that the Second Amendment applies only to limitations the federal government seeks to impose on this right.” The court noted that, although Heller might have questioned the continuing validity of this principle, Supreme Court precedent directs them to follow Presser because “[w]here, as here, a Supreme Court precedent ‘has direct application in a case, yet appears to rest on reasons rejected in some other line of decisions, the Court of Appeals should follow the case which directly controls, leaving to the Supreme Court the prerogative of overruling its own decisions.’”

After the Second Circuit decision, the U.S. Court of Appeals for the Ninth Circuit in Nordyke v. King held the opposite and concluded that the Due Process Clause of the Fourteenth Amendment incorporates the Second Amendment and applied it against the states and local governments. The court stated that there are three doctrinal ways the Second Amendment could apply to the states: (1) direct application; (2) incorporation by the Privileges and Immunities Clause of the Fourteenth Amendment, or (3) incorporation by the Due Process Clause of the Fourteenth Amendment. The court held that it was precluded from finding incorporation through the first two options and embarked on an analysis under the Due Process Clause by determining whether the right under the Second Amendment is “deeply rooted in this Nation’s history and tradition.” After engaging in an historical analysis of the right during the Founding era, the post- Revolutionary years, and the post-Civil War era, the court concluded that the Second Amendment was incorporated because “the crucial role [of this] deeply rooted right ... compels us to recognize that it is indeed fundamental [and] necessary to the Anglo-American conception of the ordered liberty that we have inherited.”

On June 2, 2009, the United States Court of Appeals for the Seventh Circuit issued its decision in National Rifle Ass’n of America v. City of Chicago and Village of Oak Park. Here, the Seventh Circuit followed the Second Circuit and also held that the Second Amendment does not apply to the states. Like the Second Circuit, the Seventh Circuit stated that the Supreme Court’s decisions in Cruikshank, Presser, and Miller still control as they have direct application in the case. The court noted that, although Heller questioned Cruikshank, this “[did] not license inferior courts to go their own ways.... If a court of appeals may strike off on its own, this not only undermines the uniformity of national law but also may compel the Justices to grant certiorari before they think the question ripe for decision.”