The Volokh Conspiracy

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).