The Volokh Conspiracy - Argument for Incorporation of the Second Amendment Against the States

is foreclosed by Seventh Circuit precedent, and late 1800s Supreme Court precedent, rules the district judge in NRA v. City of Oak Park & City of Chicago:

In this instance our Court of Appeals has squarely upheld the constitutionality of a ban on handguns a quarter century ago in Quilici v. Village of Morton Grove, 695 F. 2d 261 (7th Cir. 1982). And in reaching that conclusion, Quilici relied on the Supreme Court's decision in Presser v. Illinois, 116 U.S. 252, 265 (1886):

It is difficult to understand how appellants can assert that Presser supports the theory that the second amendment right to keep and bear arms is a fundamental right which the state cannot regulate when the Presser decision plainly states that "(t)he Second Amendment declares that it shall not be infringed, but this ... means no more than that it shall not be infringed by Congress. This is one of the amendments that has no other effect than to restrict the powers of the National government...."

In doing so, Quilici rejected arguments (1) that later Supreme Court decisions that had incorporated other Bill of Rights provisions into the Fourteenth Amendment had effectively overruled Presser and (2) that the entire Bill of Rights had been implicitly incorporated into the Fourteenth Amendment to apply to the states.

To be sure, as the just-quoted language reflects, both Cruikshank [an 1876 Supreme Court case] and Presser long antedated the more modern jurisprudence of implied incorporation that began with the initial suggestion in Gitlow v. New York, 268 U.S. 652 (1925), that the First Amendment was brought into play against the states via the Fourteenth Amendment, and then continued with selective incorporation thereafter. But Heller deliberately and properly did not opine on the subject of incorporation [or non-incorporation] of the Second Amendment (after all, that question was not before the Court)....

This Court should not be misunderstood as either rejecting or endorsing the logic of plaintiffs' argument — it may well carry the day before a court that is unconstrained by the obligation to follow the unreversed precedent of a court that occupies a higher position in the judicial firmament.

This is an eminently plausible position for the district judge to take, in light of the Supreme Court's old precedent but especially the Seventh Circuit's much newer precedent. We'll see what the Seventh Circuit does, and in particular whether it too thinks the Supreme Court late 1800s cases are binding or whether it agrees with Nelson Lund's Anticipating the Second Amendment Incorporation: The Role of the Inferior Courts that they foreclose only incorporation via the Privileges or Immunities Clause, but do not foreclose incorporation via the Due Process Clause:

I conclude that the lower courts, though not the Supreme Court, are probably barred by precedent from finding that the right to keep and bear arms is protected by the Fourteenth Amendment's Privileges or Immunities Clause. Part III shows that existing Supreme Court precedent points very strongly in favor of incorporation under substantive due process. Part IV argues, on the basis of existing precedent, that the inferior courts need not wait for the Supreme Court to reach this conclusion. They can best perform their role in our hierarchical judicial system by treating the Supreme Court's modern incorporation jurisprudence as law. If they do, they should conclude that the right to keep and bear arms is protected against infringement by the state governments, just as it is protected against the federal government.

We'll also see what the Ninth Circuit does in Nordyke v. King, which will be argued on January 15. And of course we might also see in due time what the Supreme Court does with this, given that it is of course free to reexamine its old precedents. I think the Court should hold that the Second Amendment applies to the states, but it might be quite a while before the Court gets the case.

Thanks to Gene Hoffman for the pointer.

	[Eugene Volokh, December 4, 2008 at 4:45pm] Trackbacks Argument for Incorporation of the Second Amendment Against the States is foreclosed by Seventh Circuit precedent, and late 1800s Supreme Court precedent, rules the district judge in NRA v. City of Oak Park & City of Chicago: In this instance our Court of Appeals has squarely upheld the constitutionality of a ban on handguns a quarter century ago in Quilici v. Village of Morton Grove, 695 F. 2d 261 (7th Cir. 1982). And in reaching that conclusion, Quilici relied on the Supreme Court's decision in Presser v. Illinois, 116 U.S. 252, 265 (1886): It is difficult to understand how appellants can assert that Presser supports the theory that the second amendment right to keep and bear arms is a fundamental right which the state cannot regulate when the Presser decision plainly states that "(t)he Second Amendment declares that it shall not be infringed, but this ... means no more than that it shall not be infringed by Congress. This is one of the amendments that has no other effect than to restrict the powers of the National government...." In doing so, Quilici rejected arguments (1) that later Supreme Court decisions that had incorporated other Bill of Rights provisions into the Fourteenth Amendment had effectively overruled Presser and (2) that the entire Bill of Rights had been implicitly incorporated into the Fourteenth Amendment to apply to the states. To be sure, as the just-quoted language reflects, both Cruikshank [an 1876 Supreme Court case] and Presser long antedated the more modern jurisprudence of implied incorporation that began with the initial suggestion in Gitlow v. New York, 268 U.S. 652 (1925), that the First Amendment was brought into play against the states via the Fourteenth Amendment, and then continued with selective incorporation thereafter. But Heller deliberately and properly did not opine on the subject of incorporation [or non-incorporation] of the Second Amendment (after all, that question was not before the Court).... This Court should not be misunderstood as either rejecting or endorsing the logic of plaintiffs' argument — it may well carry the day before a court that is unconstrained by the obligation to follow the unreversed precedent of a court that occupies a higher position in the judicial firmament. This is an eminently plausible position for the district judge to take, in light of the Supreme Court's old precedent but especially the Seventh Circuit's much newer precedent. We'll see what the Seventh Circuit does, and in particular whether it too thinks the Supreme Court late 1800s cases are binding or whether it agrees with Nelson Lund's Anticipating the Second Amendment Incorporation: The Role of the Inferior Courts that they foreclose only incorporation via the Privileges or Immunities Clause, but do not foreclose incorporation via the Due Process Clause: I conclude that the lower courts, though not the Supreme Court, are probably barred by precedent from finding that the right to keep and bear arms is protected by the Fourteenth Amendment's Privileges or Immunities Clause. Part III shows that existing Supreme Court precedent points very strongly in favor of incorporation under substantive due process. Part IV argues, on the basis of existing precedent, that the inferior courts need not wait for the Supreme Court to reach this conclusion. They can best perform their role in our hierarchical judicial system by treating the Supreme Court's modern incorporation jurisprudence as law. If they do, they should conclude that the right to keep and bear arms is protected against infringement by the state governments, just as it is protected against the federal government. We'll also see what the Ninth Circuit does in Nordyke v. King, which will be argued on January 15. And of course we might also see in due time what the Supreme Court does with this, given that it is of course free to reexamine its old precedents. I think the Court should hold that the Second Amendment applies to the states, but it might be quite a while before the Court gets the case. Thanks to Gene Hoffman for the pointer.