Pennsylvania Supreme Court Treats Second Amendment as Involving an Individual Right:

D'Allesandro v. Pennsylvania State Police involves the question whether hearsay rules apply to administrative proceedings governing the issuance of concealed carry permits. Here's the brief discussion of the Second Amendment (paragraph break added):

[T]his Court has stated that an individual should not be faced with sacrificing “‘inherent and indefeasible rights’” for the sake of prosecutorial convenience in the administrative setting. A.Y., 641 A.2d at 1150. In A.Y., an individual sought removal of her name from the Statewide Child Line and Abuse Registry as a suspected child abuser following an administrative determination based solely on hearsay evidence. Noting the common evidentiary problems accompanying child abuse cases and the serious consequences for an individual labeled as a suspected child abuser, this Court adopted the evidentiary guidelines in Rule 807 of the Uniform Rules of Evidence for use in administrative proceedings in suspected child abuse cases, guidelines which are similar to the standard later adopted at 42 Pa.C.S. § 5985.1 by the General Assembly for use in criminal proceedings involving child abuse. Id. at 1152.

The present matter involves appellee’s right to bear arms, which implicates the Second Amendment of the United States Constitution, U.S. CONST. amend. II. (“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.”). It has been the practice of Pennsylvania courts to afford heightened evidentiary protection of “inherent and indefeasible rights” in administrative proceedings.

For the purposes of this opinion, we assume such a right is implicated, and thus, we will evaluate a denial of a license to carry a firearm according to the standard hearsay rules governing more formal judicial proceedings....

The opinion is not entirely clear here on many points, but the one thing it pretty clear does do is treat the right to bear arms as individual. I don't think the court is treating the Second Amendment as binding in these situations -- among other things, the court would then have had to discuss whether the right is incorporated against the states via the Fourteenth Amendment. Nor is it expressly saying the right is "inherent and indefeasible," since it's just assuming this for the purposes of this opinion.

But the court is saying that cases involving individual gun rights "implicate" the Second Amendment, which requires a judgment that the Second Amendment is about individual rights, not just a state's right or a right belonging to some state-run National Guard-type organization. In this, the court seems to be joining several state court systems that have held the same, and opposing slightly more that have held the opposite. From the D.C. Circuit's decision in Parker v. D.C.:

Of the state appellate courts that have examined the question, at least seven have held that the Second Amendment protects an individual right, see Hilberg v. F.W. Woolworth Co., 761 P.2d 236, 240 (Colo. Ct. App. 1988); Brewer v. Commonwealth, 206 S.W.3d 343, 347 & n.5 (Ky. 2006); State v. Blanchard, 776 So. 2d 1165, 1168 (La. 2001); State v. Nickerson, 126 Mont. 157, 247 P.2d 188, 192 (Mont. 1952); Stillwell v. Stillwell, 2001 Tenn. App. LEXIS 562, 2001 WL 862620, at *4 (Tenn. Ct. App. July 30, 2001); State v. Anderson, 2000 Tenn. Crim. App. LEXIS 60, 2000 WL 122218, at *7 n.3 (Tenn. Crim. App. Jan. 26, 2000); State v. Williams, 158 Wn.2d 904, 148 P.3d 993, 998 (Wash. 2006); Rohrbaugh v. State, 216 W. Va. 298, 607 S.E.2d 404, 412 (W. Va. 2004), whereas at least ten state appellate courts (including the District of Columbia) have endorsed the collective right position, see United States v. Sandidge, 520 A.2d 1057, 1058 (D.C. 1987); Commonwealth v. Davis, 369 Mass. 886, 343 N.E.2d 847, 850 (Mass. 1976); In re Atkinson, 291 N.W.2d 396, 398 n.1 (Minn. 1980); Harris v. State, 83 Nev. 404, 432 P.2d 929, 930 (Nev. 1967); Burton v. Sills, 53 N.J. 86, 248 A.2d 521, 526 (N.J. 1968); In re Cassidy, 268 A.D. 282, 51 N.Y.S.2d 202, 205 (N.Y. App. Div. 1944); State v. Fennell, 95 N.C. App. 140, 382 S.E.2d 231, 232 (N.C. Ct. App. 1989); Mosher v. City of Dayton, 48 Ohio St. 2d 243, 358 N.E.2d 540, 543 (Ohio 1976); Masters v. State, 653 S.W.2d 944, 945 (Tex. App. 1983); State v. Vlacil, 645 P.2d 677, 679 (Utah 1982); see also Kalodimos v. Village of Morton Grove, 103 Ill. 2d 483, 470 N.E.2d 266, 269, 83 Ill. Dec. 308 (Ill. 1984) (stating in dicta that Second Amendment protects collective right).

Waldensian (mail):

which requires a judgment that the Second Amendment is about individual rights, not just a state's right or a right belonging to some state-run National Guard-type organization

The individual rights thrust of the 2nd Amendment seems obvious to me when one considers that the RKBA is set forth in the same (or essentially the same) language in many state constitutions. If the 2nd Amendment is protecting a "state's right" in the federal constitution, then what is the same language protecting in all those state constitutions?
11.27.2007 8:17pm
Dougger (mail):
I notice that in the court's discussion of the 2nd Amendment, the quoted text of the amendment has the words State and Arms capitalized. My copy of the Constitution published by Applewood Books shows them in all lower case. Capitalizing the word State is a subtle way to change the inferred meaning of the text. Which way is the original text written?
11.27.2007 8:36pm
JoshL (mail):

Which way is the original text written?


Both, depending on the source. There are multiple versions, the versions ratified by each state were not consistent in terms of punctuation and capitalization, and neither of those things were standardized in the late 18th century.
11.27.2007 8:41pm
puzzled:
Ummm. Professor Volokh,
As I read the opinion, the court was faced with the choice of deciding whether to uphold the denial of a gun license in light of two potential hearsay rules. One was more protective, one was less protective. It stated, "For the purposes of this opinion, we assume such a right is implicated, and thus, we will evaluate a denial of a license to carry a firearm according to the standard hearsay rules
governing more formal judicial proceedings." But the court then held that the contested statements were admissible even under the more stringent standard. How does this assumption, undertaken for ease of analysis in an otherwise routine hearsay case, constitute any sort of authority?

If a court holds, "we assume for the sake of this analysis that the Second Amendment does not implicate an individual right, but hold that a law banning women from owning guns is an unconstitutional violation of equal protection," does that statement say anything about whether the Second Amendment actually implicates and individual right?
11.27.2007 9:04pm
Eugene Volokh (www):
The court said, without a "we assume" that "The present matter involves appellee’s right to bear arms, which implicates the Second Amendment of the United States Constitution, U.S. CONST. amend. II." It then said, "It has been the practice of Pennsylvania courts to afford heightened evidentiary protection of 'inherent and indefeasible rights' in administrative proceedings. For the purposes of this opinion, we assume such a right is implicated, and thus, we will evaluate a denial of a license to carry a firearm according to the standard hearsay rules governing more formal judicial proceedings." So it assumed that the right was "inherent and indefeasible," but it stated -- without a "we for the purposes of this opinion, assume" -- that the Second Amendment right was indeed involved.
11.27.2007 9:29pm
Jack Diederich (mail) (www):
So there is a state law that says PA must comply with federal law firearms restrictions. The case hinged on whether the guy's misdemeanor assault, recorded and prosecuted by PA authorities, should be considered domestic violence too.

If everything was in-state business why bother using the federal constitution to cite firearms ownership as an inalienable right? The Pennsy constitution is even clearer on the issue than the federal constitution. "The right of the citizens to bear arms in defence of themselves and the State shall not be questioned" State constitutional rights are still inalienable rights, right?
11.27.2007 10:20pm
geekWithA.45 (mail) (www):
Y'all forgot Nunn v State of Georgia for the individual rights side.
11.28.2007 12:15am
Wallace:
Peensylvania's constitution section 21 states "The right of the citizens to bear arms in defense of themselves and the State shall not be questioned." So of course the judges had to assume that the 2nd Amendment to the United States constitution protected an individual right; if they had questioned it, they would have been breaking the state constitution.
11.28.2007 8:22am
CWuestefeld (mail) (www):
Assuming that the SCOTUS finds against DC, that the Second Amendment is an individual right, it must have some degree of protection from infringement, and I would expect part of this would be a requirement for due process.

So, again assuming that the Court finds as expected, will the Lautenberg Amendment be the very next thing to fall?
11.28.2007 9:18am
therut:
One can only hope.
11.28.2007 11:18am
Anonymous Coward #39841:
Okay, so the guy was convicted in 1989, but the law depriving him of his right to bear arms was only enacted in 1996? How is that not an ex post facto law?!  (Footnote 3 on page 8.)
11.28.2007 12:10pm
Ratel (mail):
Assuming the SCOTUS, in the DC, case finds that the Second Amendment grants an individual right, it does exactly nothing to the states because the Second Amendment has never been incorporated in to the Fourteenth Amendment and does not actually currently apply to the states.

It is a reasonable assumption that it would be incorporated but that is not definite. As to the PA Court, most likely the attorney was sloppy and did not raise a state constitutional claim in his brief.
11.28.2007 3:37pm
CWuestefeld (mail) (www):
Ratel: I assume you're referring to my question about the Lautenberg amendment following a hoped/expected SCOTUS decision about the nature of the Second Amendment. If so, I also assume that you're not familiar with the Lautenberg amendment.

This piece of federal legislation prohibits from owning or using guns anyone who has been the subject of a domestic restraining order. Thus, a finding absent any of the normal legal process can negate a fundamental right. This happens at the federal level, independent of the States, so I can't see that Incorporation enters into the picture.

More info on the legislation here:
11.28.2007 5:14pm
CWuestefeld (mail) (www):
11.28.2007 5:16pm