The case is State v. Sieyes; six Justices (including the Justice who dissented in part) took this view, two didn’t reach the question, and one signed the majority opinion but with the notation “result only,” which I take it also means that she didn’t express a view on the question.
Thanks to Aaron Bartlett and Gareth Lacy for the pointer.
Soronel Haetir says:
Funny, in a gun friendly state like WA I don’t expect much if anything to change, just like I don’t really expect very much to change in gun unfriendly places.
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February 18, 2010, 1:14 pmKazinski says:
That is interesting, according to the opinion Cruikshank is no barrier to incorporation and there is no need to overrule or ignore Cruikshank in order to incorporate.
I wonder how this analysis affects the Gura-NRA controversy over using “Due Process” or “Priviliges and Immunities” to incorporate the 2nd.
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February 18, 2010, 1:22 pmBrian Krikorian says:
Washington’s constitution actually has a delineated right for individuals to possess firearms, and is fairly liberal (no pun intended!) in granting concealed weapon permits.
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February 18, 2010, 1:46 pmcboldt says:
– according to the opinion Cruikshank is no barrier to incorporation and there is no need to overrule or ignore Cruikshank in order to incorporate. –
I believe the same is true with respect to Presser v. Illinois, the other “favorite excuse” of Circuit Courts to find that SCOTUS has held that states are free to infringe the RKBA.
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February 18, 2010, 2:28 pmmedulla oblongata says:
And you were mentioned in the decision.
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February 18, 2010, 3:00 pmSayUncle » Second amendment incorporated says:
[...] So says the Washington Supreme Court. [...]
Amused Observer says:
Washington State is not as inherently liberal as it seems. Below the bright blue facade of Seattle lies a grittier blue collar core. Before California, Microsoft, and designer coffee swept over the state there was Boing and numerous shipyards, it was a different place. Democrats have long held sway here, appealing to a defense industry pro union labor constituancy. But welders and machinists, loggers and fishermen aren’t scared of guns and even here, home of Patty Murray and Jim McDermott there are more old timers than newbies.
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February 18, 2010, 3:31 pmWhat I Think says:
Sure, we THINK this is what we wanted. But then so was Obama.
Just one more stupid results-oriented decision.
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February 18, 2010, 3:48 pmEugene Volokh says:
What I Think: That’s an interesting assertion — but do you have any explanation for why this is stupid and results-oriented, as opposed to a sensible application of the Supreme Court’s Due Process Clause incorporation jurisprudence?
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February 18, 2010, 4:19 pmKazinski says:
What I Think says:
I certainly THINK that I would like my constitutional rights respected by the states.
But why would you call it a “results oriented decision”? The Washington Supreme Court held that the statute in question was valid, even when the second amendment is incorporated. So the “result” would be the same whether or not the second amendment applies to the states.
You should read the decision next time.
I do think that having a State Supreme Court rule for incorporation is a “dog bites man” story. I don’t think any State Supreme Court that faces the voters regularly would ever rule that the US Bill of Rights does not apply to the State, and the Legislature could violate any of our civil rights no matter how controversial or obscure. A more likely course would be to punt as the NY Supreme court did, and pass taking up the issue and leave the offending law in place.
It would take a Federal Judiciary that is well isolated from the voters to decide that (some of) our constitutional protections are meaningless.
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February 18, 2010, 4:37 pmuberVU - social comments says:
Social comments and analytics for this post...
This post was mentioned on Reddit by markwhi: Pardon my lack of knowledge of constitutional law, but what exactly does that mean?...
PersonFromPorlock says:
I guess I’ll have to modify my original summary of Heller: it now reads “The right to keep and bear arms is an incorporated individual right. So?”
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February 18, 2010, 4:55 pmAlec Rawls says:
The correct ruling would have been that the 2nd Amendment applies to the states even without incorporation (i.e., that it applied to the states before the Civil War amendments), because this is how it is written. It doesn’t say “Congress shall pass no law.” It says that the right to keep and bear arms “shall not be infringed,” with no limitation on who is barred from infringing it. Potentially it even prevents private property owners from limiting the right in some circumstances.
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February 18, 2010, 4:56 pmML says:
Heller didn’t incorporate anything. What are you talking about?
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February 18, 2010, 5:05 pmML says:
Prof. Volokh, I’m no incorporation expert (just a fan of individual rights), but is there much history or precedent of federal courts of appeals or state supreme courts incorporating any of the Bill of Rights before they were incorporated by SCOTUS?
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February 18, 2010, 5:09 pmNot My Leg says:
I’m not sure if you are serious or not, but this isn’t how the constitution works. That would apply every amendment in the bill of rights to the states except the first. It would even extend things like grand jury indictment which have explicitly not been incorporated against the states.
Also, the Fourth Amendment would arguably require exclusion of evidence obtained by private individuals.
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February 18, 2010, 5:36 pmWashington Supreme Court Holds Second Amendment Is Incorporated | Liberal Whoppers says:
[...] the rest here: Washington Supreme Court Holds Second Amendment Is Incorporated [...]
Josh Blackman says:
I haven’t had time to read the opinion closely, but the Washington Supreme Court erroneiusly referred to the “privileges and immunities” clause of the 14th amendment, and not the “privileges or immunities” clause. Sigh. http://joshblackman.com/blog/?p=4122
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February 18, 2010, 5:43 pmPatrick J. Charles says:
I agree with Professor Volokh that it is not surprising that any court would take the Heller decision and use that decision to assert Due Process Incorporation. Courts have gone either way on this depending on their reading of the opinion. Overall, I believe Scalia laid out the opinion as if he was preparing for incorporation through the Due Process Clause from the test in Duncan v. Louisiana, including his examination of the state constitutional provisions.
Of course, based on my scholarship in this area, I do not agree with the Heller Court’s analysis. I will not get into the details of that decision, for one may read my arguments for themselves. The only surprising facet of the decision, in my opinion, is that a state court would issue this opinion when the Supreme Court is hearing oral arguments in less than two weeks. To my knowledge, all the other courts, federal and state, which have a Second Amendment issue before it have notified the parties that they are waiting for the Court’s decision in McDonald before proceeding. Why the Washington Court felt it necessary to go a different route is unknown. The only question I think worth asking here is whether this opinion, coupled with the Ninth Circut’s analysis in Nordyke, will have any impact on the the Court to incorporate.
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February 18, 2010, 5:45 pmGareth Lacy says:
I think this question was asked of amicus, The Washington Association of Criminal Defense Lawyers, during oral argument. I recall the answer being “no” as to state supreme courts. But that had more to with when the doctrine of Selective Incorporation arose: http://www.tvw.org/media/mediaplayer.cfm?evid=2009060021B&TYPE=V&CFID=5325496&CFTOKEN=50024424.
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February 18, 2010, 5:58 pmKazinski says:
Can’t the Washington State Supreme Court overrule the US Supreme Court when it comes to incorporation of the Second Amendment? Say the State Supreme Court invalidates a state law because it violates the US Constitution, I think the Supreme Court probably could reverse the State Supreme Court and reinstate the state law, but would it? It would be the sort of precedent that liberals would be leery about supporting for fear that it could boomerang, and certainly in this instance the conservatives wouldn’t support it.
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February 18, 2010, 6:31 pmchris says:
Best decision I have read in years!
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February 18, 2010, 7:01 pmPatrick J. Charles says:
The answer to your question depends on whether the Washington Supreme Court based its opinion on the state statute on state constitutional grounds or the Second Amendment itself. If it is the Second Amendment, and if the McDonald Court should incorporate the Second Amendment and elaborate on the standard set for in Heller, then the United States Supreme Court could very well overturn the Washington Supreme Court’s final holding. However, this is a lot of “if“s.
Taking the Heller Court opinion as true (which I disagree with), the attorney for the minor could have done a much better job than he did. I know there is plenty of historical support to present a case in the minor’s favor. You just have to know where to look. The problem is attorneys are bad historical researchers. Anything outside of law reviews and case law in the search engines of Westlaw and Lexis is perplexing to most attorneys.
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February 18, 2010, 7:06 pmcboldt says:
The Washington Supreme Court decision misstates the Miller case. Not that this has any effect on the outcome, just noting another example of chronic error in stating what the Miller case stands for.
Where in fact, “absent evidence,” it is not possible that the Miller case can stand for the proposition that the type of weapon in question is not linked to militia service. The case was remanded to obtain evidence, with the logic being that if the weapon did have military use, then (the short barrel shotgun part of) the 1934 NFA was unconstitutional in light of the 2nd amendment.
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February 18, 2010, 8:19 pmBrett Bellmore says:
It’s my understanding that state courts are free to take a more expansive, (But not more constricted) view of federal constitutional rights, as applied to state laws. So their shouldn’t be any obstacle to a state judiciary deciding that a federal Amendment is binding on the state, even if the Supreme court decides otherwise.
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February 18, 2010, 8:37 pmPersonFromPorlock says:
Originally, I maintained that Heller was so hedged about that it didn’t amount to much beyond an empty assertion that the Second Amendment is an individual right. This decision ‘incorporating the Second Amendment’ merely incorporates what Heller has left of it.
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February 18, 2010, 8:43 pmbob r says:
I don’t know that I would describe it as “fairly” liberal. In Washington, if it is legal for you to pick up a handgun, and you are over 21, there is no discretion: a permit _will_ be issued. IIRC, Washington State requirements to possess a handgun are the same as Federal requirements.
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February 18, 2010, 8:53 pmJim March says:
Well let’s ponder for a sec what other implications this ruling has beyond “teens with guns”.
Right now WA state doesn’t allow personal ownership of full-auto weapons even with federal tax stamps and related NFA paperwork. That’s obviously open to challenge.
Another problem with WA state gun laws is that while they have CCW permits available for both their own residents and visitors, they don’t recognize any other state’s permits — at all. This despite their own permits being available with no paperwork at all. So as an AZ resident, if I’m traveling to WA state, I’m disarmed until I go apply in person for a WA state permit and then wait a max of 60 days (only 30 days if I was a WA state resident). And the *only* thing WA gains out of this compared to honoring my AZ permit (which IS linked to training) is some cash for their permit.
Can somebody explain how WA state can screw me over on my basic right to arms when all they gain out of it is less than $100?
On top of everything else, this is a “cross-border discrimination” problem in which I can theoretically hose them in federal court under 42USC1983 — see also the USSC cases Saenz v. Roe (1999) and for an even closer fit, Ward v. Maryland (1872).
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February 18, 2010, 10:26 pmJim March says:
Sorry — meant to say no TRAINING at all, not “no paperwork”. Sigh.
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February 18, 2010, 10:37 pmKirk Parker says:
Jim, you’re off by a few miles. It’s Oregon that doesn’t recognize any other states’ permits. Now I’ll grant you our reciprocity is way too restrictive–e.g. we don’t recognize when the granting state allows permits to be issued to the under-21, but how hard would it be to say “If a state’s permit process otherwise meets our requirements, then reciprocity is granted as long as the holder is 21 years of age at the time of actual carry”? Our list of reciprocal states is fairly short because of this.
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February 18, 2010, 10:54 pmKirk Parker says:
Jim,
Also, you can OC if you want to–no permit required–though that doesn’t help you if you need to travel on public transportation.
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February 18, 2010, 11:00 pmWashington Supreme Court Holds 2nd Amendment is Incorporated « The Republican Heretic says:
[...] Hat tip to Eugene Volokh at the Volokh Conspiracy. The commenst there are worth reading. Categories: Law Tags: 2nd Amendment, Volokh, Washington Comments (0) Trackbacks (0) Leave a comment Trackback [...]
What I Think says:
Yes, I do. This Washington state decision is stupid because it involves a clash between the original federal Constitution, written by the states and the people, and a secondary Constitution written by the federal government, ostensibly on behalf of the people.
This is an attempt by a state government which should know better, to harmonize these two incompatible constituencies. It would be far better for the states to stand on the clear, direct sentiment of the 2nd Amendment than to carry the federal’s water and torture one more “civil right” out of a discredited document forming a political body that didn’t even exist until 1864. If the feds can’t infringe, then they can’t infringe; they were blocked at the 10th, and that is where they stay blocked then, today and forever.
BTW, we’ve had words before regarding U.S. citizenship. I was wrong and you were right. I’ve learned from you, and appreciate the effort you spend on this blog. Thank you for your hard work and sincerity!
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February 19, 2010, 12:02 amKazinski says:
Jim Marsh:
I think you are confused as to your rights. I haven’t heard any serious assertion that concealed carry is a constitutional right. Almost every state that allows concealed carry, including Washington and Arizona, require a permit, which while liberally granted is not a right.
However if paying the 100$ (actually 60$) bothers you then open carry. That is perfectly legal statewide in Washington with no permit, for residents and non-residents alike. The only place it isn’t allowed is in bars, and certain government buildings.
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February 19, 2010, 12:09 amJim March says:
Kirk, you’re partially right: WA does recognize a few state permits that have a 21-year-old or more limitation. But they don’t honor AZ and I’m 43 years old with a bit of gray hair to prove it, so the “21 year” thing can’t possibly apply.
I remain convinced that WA’s restriction on my carry there without paying fees and waiting a couple of months (and appearing in person first, doubling my travel costs!) is an improper discrimination against me as an out-of-stater AND is a pure money-grubbing measure.
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February 19, 2010, 12:12 amJ. Aldridge says:
Pretty amazing how the courts can amend the Constitution without the consent of the governed.
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February 19, 2010, 3:30 amVicki says:
I assert that concealed carry is a constitutionally protected right. I offer as argument the 2nd and 9th amendments. In particular the 9th which clearly states
Since ALL rights come from our creator and not from the state (I.E. Government) and since the right to self defense expressed in the 2nd (shall NOT be infringed) I conclude that telling Mr Marsh how he must carry his chosen tools of defense does directly infringe on his enumerated right to keep and bear arms.
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February 19, 2010, 3:30 amKharn says:
Please verify you’re actually reading the Constitution and not a box of Crackerjacks.
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February 19, 2010, 7:00 amRight to Bear Arms by Minors | Snowflakes in Hell says:
[...] The ruling from Washington State Supreme Court yesterday which recognized the Second Amendment as incorporated, shows some promise when it comes to the Right to Keep and Bear Arms as applied to minors. It would seem to me that it’s correct to say minors can’t be outright prohibited from possessing arms, but that states may require adult supervision of the possession. [...]
That’s One State… « Tai-Chi Policy says:
[...] Right to Keep and Bear Arms, The Second Ammendment, The Supreme Court, Washington State trackback Washington State has had their Supreme Court rule that the Second Ammendment is incorporated. Now we just have to get the federal Courts to rule on the [...]
zippypinhead says:
Nordyke’s panel decision was vacated pending en banc reconsideration, and the en banc Ninth Circuit won’t rule until after SCOTUS decides the incorporation issue, so I’m not sure how much weight the panel decision will carry. This case may have some very limited persuasive authority and might even get a cite somewhere in a pro-incorporation SCOTUS opinion, but I have to believe the issues in McDonald are sharp enough by this point that a new state supreme court case from the Left Coast isn’t going to actually sway any of the Justices’ votes.
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February 19, 2010, 12:49 pmJ. Aldridge says:
I am reading it and see that it says nothing about any of the first ten amendments having anything to do with the states but only as “security against the apprehended encroachments of the general government—not against those of the local governments.”
Seems to me if that was to change the federal constitution would need amending which I seriously doubt any state would agree to since they are happy with their own constitutions and bill of rights and quiet capable of changing their constitutions if needed.
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February 19, 2010, 6:00 pmBrett Bellmore says:
So, essentially, your argument is that the 14th amendment couldn’t have been intended to incorporate the Bill of Rights against the states, because the states would never have agreed to it? The counter-argument, of course, is that some of the states ratified because they had no objection to incorporation; They saw it as redundant, since their own constitutions already guaranteed the same rights. While other states ratified essentially at gun point, being under military occupation, and becoming self-governing again being conditioned on ratification.
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February 19, 2010, 11:03 pmKazinski says:
Why would the framers word the First amendment “Congress shall make no law....”, while the second amendment is a blanket “shall not be infringed.” Why also would the Constitution be self executing as the Supreme Law of the land if the bill of rights did not apply to the states, except where it wasn’t clearly indicated that it only bound the Federal Government:
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February 20, 2010, 12:28 amJ. Aldridge says:
Exactly. The only Bill of Rights they felt they were incorporating was Article IV, Section II, Due Process and the Equal Protection of the laws of Due Process. Had there been any hint they were surrendering their authority over their own laws of justice there would never had been any attempt to pass the 14A.
Instead, the northern states simply believed they were codifying the Civil Rights Bill of 1866 which protected citizens of the United States against the organic acts of rouge states that deny black citizens the same recourse whites had in the administration of justice in state courts.
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February 20, 2010, 3:50 amJ. Aldridge says:
It is declaratory much like the Ninth and Tenth Amendments are. It simply states the obvious: The military power of the states (and the union) remain with each state and no power was delegated to Congress to disarm the militias and replace them with a National standing army.
Standing armies was the #1 objection with everyone. Jefferson did not approve of the constitution until security against standing armies was included, and hence, the Second Amendment.
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February 20, 2010, 4:01 amBrett Bellmore says:
Except, of course, that the 2nd amendment did not bar the federal government from maintaining a standing army, under any interpretation whatsoever. It merely barred it from disarming people not in that army. The real bar, for as little as it’s proven to be worth, to a standing army, is actually to be found in Article 1, Section 8: “To raise and support armies, but no appropriation of money to that use shall be for a longer term than two years;” Nor does the 2nd amendment bar the federal government from effectively taking over state militias, as it doesn’t repeal a couple other grants of power in that Section:
“To provide for calling forth the militia to execute the laws of the union, suppress insurrections and repel invasions;
To provide for organizing, arming, and disciplining, the militia, and for governing such part of them as may be employed in the service of the United States, reserving to the states respectively, the appointment of the officers, and the authority of training the militia according to the discipline prescribed by Congress;”
Congress can, constitutionally, take control over the state militias at any time. The 2nd amendment does nothing to change that.
The actual function of the 2nd amendment in furthering the militia system, is to ensure a pool of citizens who are suitably armed and skilled with those arms, from which a militia might be raised in extremity, even if the government set out to abolish the militia system. That’s why it has to be a right to weapons suitable for militia use, possessed by the people, not the militia. Otherwise you could render raising a militia infeasible by disarming the populace, render the amendment moot by failing to enroll anybody in the militia.
The founders may have thought a militia system necessary to the security of a free state, but they didn’t assume the government would WANT the state to remain free. The 2nd amendment aims to secure the possibility of raising a militia in the face of a government that wants to abolish that possibility.
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February 20, 2010, 5:53 amArnie says:
Brett, J, and Kazinski: thank you all for your studious comments! I am learning so much from your debate over the 2A and the Bill of Rights in general, as well as the 14A. I have read from various sources (particularly from the Kennedy Bros.) something similar to Brett’s revelation that the 14A was never legitimately ratified due to several fraudulent actions including the armed duress Brett mentioned. I don’t think such an issue would ever prevent 2A incorporation because it would open a nightmarish can of worms on all sorts of previous restrictions on State sovereignty. But it is a fascinating elephant in the room. Comments?
Arnie
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February 20, 2010, 11:44 amJ. Aldridge says:
Under limited and well spelled out instances, yes, other times, no. There was not much concern for national government to raise an army or navy during peace. The standing army feared was the kind that lived and stood over communities where people lived. The constitution was effective in preventing this as evidence by the fact it was never done.
The 2A effectively said this isn’t possible because the people themselves provide for their own security within their own states.
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February 20, 2010, 6:52 pmJ. Aldridge says:
No that was not the purpose of the 2A. If that was its function then it would had been included with the original constitution. It strictly declares no power was delegated over the armed militias of the people within the states. Congress can make rules of discipline but it is up to the states to train and govern their militia’s under these rules of discipline.
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February 20, 2010, 7:05 pmKharn says:
J. Alridge,
Considering your view did not get a single Justice’s approval in Heller, maybe you’re way off in left field?
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February 22, 2010, 5:58 amJ. Aldridge says:
The majority wanted to avoid the historical view so they could present the NRA’s view which explains why their opinion was riddled with inconsistencies.
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February 22, 2010, 5:15 pmJ. Aldridge says:
Oh, didn’t Scalia write earlier that the 2A when “properly understood” was no limitation on the states?????
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February 22, 2010, 5:22 pmKharn says:
Scalia was talking about the 2nd, he didn’t mention how the 14th changed that relationship. And we must be reading different history books.
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February 22, 2010, 10:01 pmJ. Aldridge says:
Seems to me the 14A was part of the constitution at the time of Scalia’s comments :-)
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February 23, 2010, 2:16 amArnie says:
J Aldridge — I’m afraid Kharn has the better of you on this one. Your own previous comment described Scalia’s statement as referring exclusively to the 2A without regard to the impact of the subsequently adopted 14A. Although I agree with you that the Founders (and Scalia) intended the 2A to limit only Federal infringement of our natural right to arms, the 14A was seemingly intended by its “founders” to extend the imposition of that limit to the State governments as well. Whether that is also Mr. Scalia’s opinion will be revealed in MacDonald.
Thank you both for your thought-provoking intercourse!
Arnie
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May 20, 2010, 7:28 amelectronic display says:
which I take it also means that she didn’t express a view on the question.
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June 14, 2010, 2:14 am