A Note to the Court About Gun Rights: "From My Col

[Tilted]

Originally Posted by Novus Collectus

I believe you are missing hte point, Presser and Cruishank had a specific point to address about the 2A and were limited to the questions before them which were about the collective right ONLY.

I completely got the point you were making, that's why I addressed it in the earlier post. What I'm respectfully saying is that your notion of what those earlier rulings found, with regard to the Second Amendment's general applicability, is incorrect. Their findings were not merely that it lacked applicability to non-federal laws with regard to it being a collective right. The language of those findings was clear - the Second Amendment lacked applicability to non-federal laws, period. Even if the scope of a particular case before the Supreme Court is limited in some way, the high Court can make findings that have a broader scope and more general import.

The finding that '(t)he second amendment declares that it shall not be infringed; but this, as has been seen, means no more than that it shall not be infringed by Congress(,) (t)his is one of the amendments that has no other effect than to restrict the powers of the national government,' (U.S. v Cruikshank (1875)) was not conditioned on the context or interpretation of the Second Amendment - whether it was referring to an individual or collective right - in any way. Regardless of the purpose of the examination which that finding was pursuant to, the words of that finding are clear. That finding has been repeated, restated, and reaffirmed many times since, in many contexts, without being conditioned (on the collective right context). That finding has consistently been interpreted to mean that the Second Amendment did not apply to state laws, regardless of what the Second Amendment meant. You may well find some ideologically driven analysis that concludes otherwise, but it isn't being intellectually honest.

It should be noted that even Cruikshank wasn't really the original Supreme Court authority on this matter - though it was with specific regard to the Second Amendment - as it followed from Barron v Baltimore (1833) (*). So, even if it was only referring to Second Amendment non-federal applicability in a specific context, its finding that that amendment didn't apply to states was made in accordance with the (more general) earlier opinion of the Court that amendments 1-8 of the Bill of Rights did not apply to the states. (Just to head off a side argument over the ongoing authority of Barron, to whatever extent it is now obsolete, it certainly was not at the time of the Cruikshank decision.)

Putting all of that aside, Miller v Texas (1894) is fatal to the original notion (that there hasn't been a Supreme Court ruling that meant that the Second Amendment, to the extent that it refers to an individual right, is not applicable to non-federal laws). Though the high Court found that Miller had not preserved some of the legal grounds on which he wished to (federally) challenge the state law, it also stated that '... it is well settled that the restrictions of these amendments (the Second and Fourth) operate only upon the federal power, and have no reference whatever to proceedings in state courts.' In other words, even if there were not procedural roadblocks to Miller challenging the Constitutionality of the state law on the basis of the Second Amendment, he could not have won such a challenge because the Second Amendment did not apply to states. The procedural history and legal arguments in Miller are quite interesting, but the underlying issue, with regard to the Second Amendment challenge, clearly related to a right to bear arms outside of any militia context. The high Court would not have needed to consider the individual right question, in part because the law in question was a state law, and thus outside the reach of the Second Amendment. The Court in Miller believed that its earlier rulings meant that the Second Amendment didn't apply to state laws, even in the context of it referring to an individual right. The Court interpreted its own decisions as having rejected state applicability of the Second Amendment generally, not just specifically, as you have suggested.

I'd like to make one other point, though it doesn't really matter and is somewhat notional, and that is with regard to the notion that an individual right pursuant to the Second Amendment has never been 'un-incorporated'. It wouldn't need to have been 'un-incorporated' in order for it not to apply to state laws, rather, it would need to have been incorporated in order for it to apply to state laws. Generally speaking, the rights in the Bill of Rights need to be incorporated against the states in order to be applicable - they don't need to be 'un-incorporated' in order to not be applicable. Originally, amendments 1-8 of the Bill of Rights were not intended to place limitations on the states. The Supreme Court concluded as much in Barron.

So, while one might argue that Heller opened the door for a Circuit Court to find on its own that the Second Amendment was incorporated (though the reasoning used to do so by the Ninth Circuit panel in Nordyke v King was circuitous and arguably legally dubious), the ruling of the Sotomayor panel that the Second Amendment was still not incorporated was completely reasonable. In fairness, if either of those decisions was an example of an ideological decision in search of a legal argument to justify it, it was the Nordyke decision.

Should the Second Amendment be incorporated? Of course it should. But, the Supreme Court has said in the past that it doesn't apply to states - it should be the Supreme Court that now says that it does apply to states. As great of lengths as the Ninth Circuit panel went to in order to legally justify its ruling, the reality remains that, technically, it ruled in a manner that was contrary to Supreme Court precedent. Considering the totality of the situation, I don't think its having done so was necessarily deplorable. But, there is less room to question the ruling of Sotomayor's panel, than there is to question the Ninth Circuit one. I'm fairly certain that, in the end, the Ninth Circuit panel's general position will be the 'right' one, but that doesn't mean it was at the time. In other words, I think the Supreme Court will overturn the Seventh Circuit ruling (which was generally consistent with the Sotomayor ruling on the issue of incorporation), but the Court will have effectively and technically changed the state of the law by having done so.




(*) The 'as has been seen' in the first passage I cited from the Cruikshank decision was likely referring back to this reasoning, which preceded it in the decision. 'The first amendment to the Constitution prohibits Congress from abridging 'the right of the people to assemble and to petition the government for a redress of grievances.' This, like the other amendments proposed and adopted at the same time, was not intended to limit the powers of the State governments in respect to their own citizens, but to operate upon the National government alone. Barron v. The City of Baltimore, 7' (U.S. v Cruikshank (1875))