PING: Cam--Conservative Judges come out against Heller . . .

[albionmoonlight]

. . . and compare it to Roe. Them's fighting words.

Ruling on Guns Elicits Rebuke From the Right - NYTimes.com

A couple thoughts. First, I generally like Heller. I beleive that the Constitution should protect the rights of the minority against the will of the majority. So I tend to favor opinions that reasonably interpret the Constitution in such a way as to protect those rights.

(And, ironically, I don't like Roe and think that it was wrongly decided. I'm not a very good liberal sometimes.)

Second, these aren't just any two conservative judges. Wilkinson and Posner are two of the most intelligent conservatives in the world.

Third, I do agree that the weakest part of Heller, by far, was the passage about "nothing in this opinion should be read to mean that we can't take away gun rights from the wrong kinds of people, if you know what I mean." It really does taint the whole opinion and make it read like a political statement rather than an intellectually honest interpretation of the law.

(As an example, you would think that Heller, as written, will not affect the federal prohibition of felons possessing firearms. Sean Taylor (to use an example familiar to others on the board), as a former felon, could not have a firearm in his home and could not defend his life against those who broke into his home. If you are going to go as far as to say that the Constitution absolutely provides an individual right to firearms for, among other things, home defense, I don't think that the government has a compelling interest in saying that all former felons should not have that right.)

Anyway, I respect your opinion on the subject and was curious as to what thoughts you had, if any, on the various Heller discussions.

[ISiddiqui]

The argument is kinda wierd to me. I mean in the end, Wilkinson and Posner are basically saying it should be decided by the people, but in that case, what in the Hell are the restrictions in the Bill of Rights to the Constitution for?

[chesapeake]

Sean Taylor is a bad example. He was never convicted of any felonies. His plea agreement in that armed assault case in FL allowed him to avoid a felony conviction. Maybe there was another incident you were referring to. He certainly had his share.

I don't have a problem with people owning guns, and although I disagree with Scalia on most issues, I think his opinion in this case is reasonable. An individual has a right to own a firearm, but that does not preclude the State regulating the terms of purchase or the kinds of weapons that may be purchased within reason, nor does it preclude the state from making a determination of who may not be able to purchase a firearm -- typically felons convicted of violent offenses and people with histories of mental problems.

[albionmoonlight]

Originally Posted by chesapeake

Sean Taylor is a bad example. He was never convicted of any felonies. His plea agreement in that armed assault case in FL allowed him to avoid a felony conviction. Maybe there was another incident you were referring to. He certainly had his share.

Thanks for the clarification. I had heard that the reason he didn't have a gun was because of a prior felony conviction, but I certainly cannot confirm that.

[flere-imsaho]

Originally Posted by albionmoonlight

Third, I do agree that the weakest part of Heller, by far, was the passage about "nothing in this opinion should be read to mean that we can't take away gun rights from the wrong kinds of people, if you know what I mean." It really does taint the whole opinion and make it read like a political statement rather than an intellectually honest interpretation of the law.

Absolutely. I'm not sure how Scalia could write this passage with a straight face:

Originally Posted by Justice Scalia

“Nothing in our opinion,” Justice Scalia wrote, “should be taken to cast doubt on longstanding prohibitions on the possession of firearms by the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.”

Either the right of citizens to keep and bear arms should not be abridged, or they should, Antonin. I suppose one could argue that the right should not be abridged generally, but needs to be abridged in clearly common-sense cases. But if that's the case:

1. What ever happened to strict constructionism?

2. Where, exactly, do you draw the line? And why?

3. If you're going to allow the legislative branch to abridge the right anyway, why not just let them define it wholly (speaking from a theoretical standpoint, not a political standpoint)?


All of which lends me to agree with Wilkinson's/Posner's arguments that it's effectively a political decision by the judicial branch (OMG! Activist Judges!). Scalia saw an opening to plant a flag for his view on the 2nd amendment, and abandoned his cherished constructionist principles to do so.

[chesapeake]

Originally Posted by flere-imsaho

All of which lends me to agree with Wilkinson's/Posner's arguments that it's effectively a political decision by the judicial branch (OMG! Activist Judges!). Scalia saw an opening to plant a flag for his view on the 2nd amendment, and abandoned his cherished constructionist principles to do so.

And in so doing, Scalia established a reasonable precedent for gun ownership in America. Kick him in the nuts if you have to for giving a nuanced opinion, which I would agree goes against his standard MO, but the practical outcome of it is good.

[CamEdwards]

Sorry it took me awhile to get to this... I didn't see the post until I was already on the air last night.

I've read Wilkinson's article, but I haven't read Posner's piece. I also don't have anywhere near the legal mind of these two, so I fear this is going to be like a first grader challenging a PhD, but here goes.

Wilkinson, for one, seems to object not only to the Heller decision but also anticipates a future decision regarding incorporation (which could come if the SC decides to take the Nordyke case in a few years). But isn't that in itself a bit of judicial reaching?

I mean, at issue in Heller was whether or not three ordinances in D.C. violate the 2nd Amendment rights of non-militia members wanting to use firearms in their homes. This isn't a local issue, legally speaking, because Congress has ultimate oversight of the District, even if they've allowed the District a great deal of self-government since the 1970's. There was a reason the D.C. gun ban was challenged first, as opposed to Chicago's. You don't have to get into an incorporation issue with D.C.

Secondly, we are dealing with an enumerated right, as opposed to an unenumerated right in Roe. If you believe in the concept of judicial review, then it seems a no brainer that the Court would want to take this case. Posner and Wilkinson don't mention the split that had occured in the lower courts, which was another reason the Court had to step in, IMO.

The Court didn't issue a sweeping proclamation overturning local gun laws. It addressed the narrow question before the court, and avoided (for the most part) putting a stamp of approval or disapproval over various gun control laws. Yes, that will mean a number of additional court challenges to various gun control laws... just like we've seen with 1st Amendment cases.

Scalia's statement is an odd one, and even Alan Gura and Bob Levy have said they're not fans of that statement. (I'll have to cut this short and pick up my train of thought later... have to do a conference call. Feel free to edumacate me while I'm gone though.)

[Surtt]

Originally Posted by flere-imsaho

Absolutely. I'm not sure how Scalia could write this passage with a straight face:



Either the right of citizens to keep and bear arms should not be abridged, or they should, Antonin. I suppose one could argue that the right should not be abridged generally, but needs to be abridged in clearly common-sense cases. But if that's the case:

1. What ever happened to strict constructionism?

2. Where, exactly, do you draw the line? And why?

3. If you're going to allow the legislative branch to abridge the right anyway, why not just let them define it wholly (speaking from a theoretical standpoint, not a political standpoint)?


All of which lends me to agree with Wilkinson's/Posner's arguments that it's effectively a political decision by the judicial branch (OMG! Activist Judges!). Scalia saw an opening to plant a flag for his view on the 2nd amendment, and abandoned his cherished constructionist principles to do so.

Once you commit a felony you lose many rights normaly garenteed in the constitution.
You can not vote, hold office, etc...

I do not see your argument that this should be an all or nothing deal when it is not in other places.

[cartman]

Originally Posted by Surtt

Once you commit a felony you lose many rights normaly garenteed in the constitution.
You can not vote, hold office, etc...

I do not see your argument that this should be an all or nothing deal when it is not in other places.

Actually, the Supreme Court has taken a section of the 14th amendment as allowing the right to disenfranchise those who commit felonies.

As for running for state office as a felon, that falls to the individual states to decide. Many states disallow it in their state constitutions. But as to running for Federal office, the Supreme Court has said that there is nothing in the Constitution to forbid a convicted felon from running for Federal office. So you could have the situation where a convicted felon ran for the US Senate, but might not be able to cast a vote for himself.

[Surtt]

Originally Posted by cartman

Actually, the Supreme Court has taken a section of the 14th amendment as allowing the right to disenfranchise those who commit felonies.

As for running for state office as a felon, that falls to the individual states to decide. Many states disallow it in their state constitutions. But as to running for Federal office, the Supreme Court has said that there is nothing in the Constitution to forbid a convicted felon from running for Federal office. So you could have the situation where a convicted felon ran for the US Senate, but might not be able to cast a vote for himself.

OK, so I used a bad example.

I still do not see "We can not do this because we would need to draw a line" as a legitimate argument.
As you pointed out, if most state legislatures have no problem with it for voting, how can it be any more of a problem for gun ownership?

[GrantDawg]

Originally Posted by cartman

Actually, the Supreme Court has taken a section of the 14th amendment as allowing the right to disenfranchise those who commit felonies.

As for running for state office as a felon, that falls to the individual states to decide. Many states disallow it in their state constitutions. But as to running for Federal office, the Supreme Court has said that there is nothing in the Constitution to forbid a convicted felon from running for Federal office. So you could have the situation where a convicted felon ran for the US Senate, but might not be able to cast a vote for himself.

And that depends on the State. Most states allow convicted felons to vote once they are no longer on probabtion/parole.

[ISiddiqui]

All of which lends me to agree with Wilkinson's/Posner's arguments that it's effectively a political decision by the judicial branch (OMG! Activist Judges!). Scalia saw an opening to plant a flag for his view on the 2nd amendment, and abandoned his cherished constructionist principles to do so.

Even strict constructionists don't believe that all of the Constitution is absolute. Everyone has seen a "Calling fire in a crowded theater" exemption in the 1st Amendment, for example.

[CamEdwards]

There's an interesting post over at Balkinization about this topic.

Balkinization

With respect to Posner's views on constitutional interpretation, I've often wondered whether standard left/right, liberal/conservative categories are helpful. Posner describes himself as a pragmatist, but this term provides no hint of how alienated Posner is from anything resembling standard or traditional methods of constitutional interpretation. In this respect, Posner's opposite number is not a usual liberal suspect like Laurence Tribe, but Philip Bobbitt, who argues for the value of multiple modalities of interpretation.

Posner won praise from liberals for criticizing Robert Bork's originalism when Bork was nominated for the Court. But what liberals tend to miss about Posner is that he feels the same way about all proposed methods of interpretation, whether they are based on text, history, structure, doctrine, common law tradition, it doesn't matter. All have to swim in the same acid vat of Posnerian skepticism. You could accurately call Posner a radical if he appeared to understand the techniques of interpretation and rejected them wholesale for good reason. But Posner rarely tries. Standard constitutional arguments leave him cold.

So is this "conservative?" Certainly not. Posner has rarely mentioned anything worth conserving in the American constitutional tradition, except perhaps Holmes. Is it on "the right?" If the right typically rejects all forms of constitutional interpretation as meaningless from a pragmatic point of view, then yes. Otherwise, we should appreciate that Posner writes from a perspective on American constitutionalism that is virtually unique.

I don't know enough about Posner's history to know if this is accurate or not, but thought I'd throw it out there. It does seem that a purely pragmatic approach couldn't really be labeled conservative, and certainly couldn't be labeled "originalist".

[flere-imsaho]

Maybe Posner's a conservative in the dictionary sense of the word. Something like not wanting to assume/conclude too much from what's written. It would explain why he provides a savage beatdown on a regular basis to anyone who has a "structure" or "methodology" for arguing off of the Constitution's text.

[albionmoonlight]

Update:

Sentencing Law and Policy: "The New Second Amendment: A Bark Worse Than Its Right"

Seems like the lower courts have taken Cam's observation about Heller being a narrow case (and my observation about "the wrong kinds of people") to heart. So far, every court to address the issue has rejected Heller based challenges to firarms laws.

[flere-imsaho]

So is this basically a rejection of Scalia's opinion, or a faithful interpretation of it?

[albionmoonlight]

I think that, like most SCOTUS opinions, Heller left the heavy lifting to the lower courts (which isn't, in itself, a bad thing). Basically, it could have gone in any of several directions and not been inconsistent with the opinion.

Personally, I was most interested in whether Heller would call into question any existing federal gun crimes. And, without a further nudge from SCOTUS, it appears very unlikely to do so.

[CamEdwards]

Originally Posted by albionmoonlight

Update:

Sentencing Law and Policy: "The New Second Amendment: A Bark Worse Than Its Right"

Seems like the lower courts have taken Cam's observation about Heller being a narrow case (and my observation about "the wrong kinds of people") to heart. So far, every court to address the issue has rejected Heller based challenges to firarms laws.

I have several problems with the article you mentioned. For one, I'd like to know how many of these cases are dealing with prohibited persons as opposed to non-prohibited persons challenging various federal statutes. I'm guessing that the vast majority of the cases referenced were already "in the system" and a 2nd Amendment argument was simply tacked on by the defense attorneys. For instance, Winkler says that among the challenges rejected is a challenge regarding sawed-off shotguns. Well, that question wasn't decided by Heller, it was decided by Miller in 1939. The quantity of the challenges doesn't indicate the quality of them.

Secondly, I'd say a lot of this is fairly unimportant until we get the incorporation issue decided (oral arguments before the 9th Circuit in one possible case are coming up on the 15th of this month). I think the impact ofHeller is going to be decided in terms of decades, not months. But I'm sure it was a nice rallying cry for those who were disappointed by the Supreme Court's decision last year.

[Fighter of Foo]

I have nothing to add other than "prohibited persons" could possibly be the least American sounding phrase I've ever heard.

[flere-imsaho]

And not expectedly, the 7th Circuit Court upheld Chicago and Oak Park's (IL) local handgun bans. Easterbrook & Posner were part of the 3-judge panel, all conservatives, apparently.

The WaPo (link above) also thinks it ties into the SCOTUS nomination:

Supreme Court nominee Sonia Sotomayor has been called an "anti-gun radical" by some gun rights activists for joining an opinion this year that said the Second Amendment does not prevent state and local governments from restricting arms ownership.

But yesterday a panel of conservative luminaries on the U.S. Court of Appeals for the 7th Circuit reached the same conclusion. The unanimous ruling rejecting a challenge to Chicago's tough handgun law could complicate efforts to portray Sotomayor as a judicial activist trying to undermine the Supreme Court's landmark decision last year holding that the amendment protects the right to own a gun for self-defense.

It also tees up the issue for review by the high court and raises questions about whether Sotomayor would be able to participate, should she be confirmed to the court.

Gun rights advocates have criticized Sotomayor for a decision by a panel of the Court of Appeals for the 2nd Circuit of which she was a member. The unsigned opinion dismissed a challenge to a New York law that banned nunchakus, a martial arts weapon.

The challenger had relied on the Supreme Court's decision in Heller v. District of Columbia, which struck down Washington's ban on handguns and said individuals have the right to keep arms at home for self-defense.

But the panel on which Sotomayor served said it was clear from Supreme Court precedent that the Second Amendment could be applied only to the federal government, or in a federal enclave such as Washington. It said the Supreme Court has "the prerogative of overruling its own decisions."

Gun rights advocates point to the decision in Maloney v. Cuomo as Exhibit A in their description of Sotomayor as an "anti-gun radical."

"Sotomayor, a politically correct lover of centralized government power (as long as she is part of the power elite), immediately went into counter-attack mode against the Heller decision," said a statement by the Gun Owners of America.

But yesterday, a panel of the 7th Circuit, hearing a challenge to gun laws in Chicago and the suburb of Oak Park, came to the same conclusion. "We agree with Maloney," said the opinion, referring to the 2nd Circuit's decision. The 7th Circuit's decision was written by the circuit's chief judge, Frank H. Easterbrook, one of the nation's leading conservative jurists, along with two Republican-appointed judges, including conservative favorite Richard A. Posner.

The 7th Circuit opinion said it is not up to appeals courts to evade the Supreme Court's precedents by agreeing with unique arguments from lawyers that tried to undermine them.

If that were the case, Easterbrook wrote, the court's decisions "would bind only judges too dim-witted to come up with a novel argument."

The issue touches on the question of whether the Bill of Rights applies to state and local governments.

Lawyers challenging gun restrictions and some legal scholars contend that they do, through the due-process clause of the 14th Amendment. And that was the finding of the U.S. Court of Appeals for the 9th Circuit earlier this year. The Supreme Court's 5 to 4 decision last year in the Heller case which for the first time found that the Second Amendment provided an individual right to bear arms, specifically left the decision of whether it applied to the states for another day.

The conflicting opinions among the various circuit courts could bring the issue to the Supreme Court, raising the question of whether Sotomayor, if confirmed, would be able to participate.

"I don't think a justice should sit in review of her own decision," said Steven Lubet, a judicial ethics expert at Northwestern University Law School. But the situation could be different if the court were considering the 9th Circuit or the 7th Circuit cases. Justices make their own decisions about recusal.

Walter E. Dellinger III, who argued the Heller case for the District and who has worked with the White House in supporting Sotomayor's nomination, said yesterday's decision should end the attack on her over gun rights.

"When two of the most highly regarded, conservative judges agree that courts of appeal should not reach out and make new law on this issue, it renders Judge Sotomayor's opinion on this subject beyond criticism," Dellinger said.

But David B. Kopel, a lawyer who has supported the proposition that the Second Amendment applies to the states and who has been sharply critical of Sotomayor, said the 7th Circuit decision is not likely to change the views of gun rights activists that the New York judge is "anti-gun" and that the opinion in Maloney was intellectually "dishonest."

[larrymcg421]

I actually disagree with Sotomayor's opinion that the 2nd Amendment does not apply to the states. If it is found to be an individual right as it was in Heller, then it is certainly covered by the due process clause of the 14th Amendment.

However, I would agree that Heller does not prohibit laws banning the ownership of nunchuks. As Scalia wrote, "l]ike most rights, the Second Amendment is not unlimited. It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.

[flere-imsaho]

Originally Posted by larrymcg421

I actually disagree with Sotomayor's opinion that the 2nd Amendment does not apply to the states. If it is found to be an individual right as it was in Heller, then it is certainly covered by the due process clause of the 14th Amendment.

I don't think that's what she (or Easterbrook) are saying, though. Although they're probably coming from different origin points in their arguments, both conclude (as of today) that the 2nd Amendment doesn't restrict the right of state or local governments to restrict gun ownership.

[ISiddiqui]

Originally Posted by flere-imsaho

I don't think that's what she (or Easterbrook) are saying, though. Although they're probably coming from different origin points in their arguments, both conclude (as of today) that the 2nd Amendment doesn't restrict the right of state or local governments to restrict gun ownership.

How is that any different than what larry just said?

[larrymcg421]

But the panel on which Sotomayor served said it was clear from Supreme Court precedent that the Second Amendment could be applied only to the federal government, or in a federal enclave such as Washington.

This is the part I'm talking about. Since Heller found this ot be an individual right, then prior SCOTUS rulings need not be overruled insofar as how Heller pertains to state and local governments, since individual rights are automatically applied to the states via the 14th Amendment.

Furthermore, the 2nd Amendment doesn't even have the same restrictive language that makes this a problem ("Congress shall make no law"). In fact, it definitavely states, "the right shall not be infringed." Whatever your opinion of the breadth of the 2nd Amendment's guarantee, it certainly applies to the states as well.

[flere-imsaho]

Originally Posted by ISiddiqui

How is that any different than what larry just said?

Actually it isn't. I had another thought in my head, mixed the two, and didn't formulate that well. Let's just ignore that post of mine for now.

[ISiddiqui]

Originally Posted by larrymcg421

This is the part I'm talking about. Since Heller found this ot be an individual right, then prior SCOTUS rulings need not be overruled insofar as how Heller pertains to state and local governments, since individual rights are automatically applied to the states via the 14th Amendment.

Eh.. I wouldn't use the phrase "automatically". Each Amendment in the Bill of Rights had to be individually applied to the states through a SCOTUS ruling ("selective incorporation").

Most likely, due to Heller, the SCOTUS will soon incorporate the 2nd Amendment to the states.

[larrymcg421]

Originally Posted by ISiddiqui

Eh.. I wouldn't use the phrase "automatically". Each Amendment in the Bill of Rights had to be individually applied to the states through a SCOTUS ruling ("selective incorporation").

You don't have to wait for SCOTUS to incorporate. For instance, the 9th circuit ruled that the 2nd Amendment was incorporated in Nordyke v. King because the 2nd Amendment met certain factors ("individual right") for incorporation. I agree with that ruling as opposed to Sotomayor's.

Most likely, due to Heller, the SCOTUS will soon incorporate the 2nd Amendment to the states.

I have no doubt that they will. Any other ruling would not make sense.

[ISiddiqui]

Originally Posted by larrymcg421

You don't have to wait for SCOTUS to incorporate. For instance, the 9th circuit ruled that the 2nd Amendment was incorporated in Nordyke v. King because the 2nd Amendment met certain factors ("individual right") for incorporation. I agree with that ruling as opposed to Sotomayor's.

Well, most circuits tend to wait for the SCOTUS's lead on it, as every other Bill of Right (well most of every other BoR... the 5th Amendment right to a grand jury and 7th Amendment right to a jury trial in civil lawsuits also has yet to be incorporated - well, and the 3rd Amendment hasn't come up in most jurisdictions) has been incorporated by a SCOTUS case. In a footnote in Heller, it specifically states that the incorporation question is not up before the court.

[CamEdwards]

The good news about this is the timing: the 7th Circuit heard oral arguments in this case a week ago, and released their opinion today. From what I understand, the NRA will seek cert from the Supreme Court, which, if it's granted, could put the case on the fall calendar.

I've read the opinion, and (again, not being an attorney), it seems that both the 2nd Circuit and the 7th Circuit both punted on the issue of incorporation, saying that Cruickshank, Presser, and Miller all denied direct application of the 2nd Amendment to the states, and therefore it's not up to the appeals court to contradict the Supreme Court. Of course, as Scalia pointed out in a footnote in the Heller decision, in at least one of those cases the 19th Century Supreme Court also declined to apply the 1st Amendment to the states, which has now happened.

The 7th (and Sotomayor's 2nd) could easily have reached the same conclusion as the 9th, in my opinion, and it wasn't judicial conservatism that kept them from it.

[ISiddiqui]

I don't think it was necessarily activist either. It really can be read either way in incorporation grounds and there are plenty of instances where Appeals Courts would rather the SCOTUS rule upon reversing its own precedents.

[larrymcg421]

It's good to generally show deference for SCOTUS opinions in the name of stare decisis, but we're not talking about settled law here. This isn't Roe v. Wade. These are 100 year old precedents and the conditions have sufficiently changed to suggest they are no longer good law.

[ISiddiqui]

100 year old precedents are still used . Especially when there are so few cases on point.

[larrymcg421]

Didn't say they weren't used, but certainly a court would be less likely to overturn recently settled precedent (like my Roe example) than they would a 100 year old precedent that was handed down before the new rules of incorporation were even adopted. Those new rules combined with the Heller decision clearly undermine the old precedent to the point where a court should reasonably rule that it is no longer good law.

[larrymcg421]

And having read the 9th circuit's opinion in Nordyke, they note that Cruikshank only rejected two forms of incorporation (direct application, privileges and immunities). They did not rule on a due process claim, which is the current precedent for determining incorporation. Therefore, a circuit court need not overrule Cruikshank to come to the conclusion that the 2nd is incorporated.

[ISiddiqui]

As the Heller footnote states:

Our later decisions in Presser v. Illinois, 116 U. S. 252, 265 (1886) and Miller v. Texas, 153 U. S. 535, 538 (1894), reaffirmed that the Second Amendment applies only to the Federal Government.

Therefore it is quite reasonable to assume that Heller does not extend the right to the states quite yet. Blame Scalia for not writing dicta to change that (then again, he may not have had all the other justices in majority opinion on board for that).

[Jon]

[quote=larrymcg421;2040883]You don't have to wait for SCOTUS to incorporate. For instance, the 9th circuit ruled that the 2nd Amendment was incorporated in Nordyke v. King because the 2nd Amendment met certain factors ("individual right") for incorporation. I agree with that ruling as opposed to Sotomayor's.


But just because the 9th Circuit said it was, doesn't meant it is incorporated everywhere. 9th Circuit decisions are not binding on the other circuits. Cam is right, what's happened is circuit conflict. Whether this amounts to a sufficient conflict that there are 4 justices willing to grant cert is a separate issue. There have been cases where the Supreme Court has waited until every circuit has agreed but 2 or 3 and cert wasn't granted. I don't think this will happen here, because the conservative justices are waiting to decide whether the individual right to bear arms is such a fundamental right that it is incorporated into the due process clause of the Fourteenth Amendment.

[ISiddiqui]

In addition, due process incorporation decisions don't turn on "individual rights", but rather:

http://www.ca9.uscourts.gov/datastor...20/0715763.pdf

We therefore conclude that the right to keep and bear
arms is “deeply rooted in this Nation’s history and tradition.”
Colonial revolutionaries, the Founders, and a host of commentators
and lawmakers living during the first one hundred
years of the Republic all insisted on the fundamental nature
of the right. It has long been regarded as the “true palladium
of liberty.” Colonists relied on it to assert and to win their
independence, and the victorious Union sought to prevent a
recalcitrant South from abridging it less than a century later.
The crucial role this deeply rooted right has played in our
birth and history compels us to recognize that it is indeed fundamental,
that it is necessary to the Anglo-American conception
of ordered liberty that we have inherited.17 We are
therefore persuaded that the Due Process Clause of the Fourteenth
Amendment incorporates the Second Amendment and
applies it against the states and local governments.18

Nordyke v. King pg. 29

Basically, Heller's conclusion that it was an individual right was far less swaying that the history that was spelled out in Heller (which, yes, partially was used to declare it an individual right, but also as vast historical cover).

[larrymcg421]

And both Presser and Miller also worked under the "privileges and immunities" challenge, and the 9th circuit affirmed those opinions on those grounds. None of those opinions, including Cruikshank, dealt with the due process claim, so they weren't overruling any of them. In Gitlow v. NY and subsequent cases, incorporation was based on a Due Process theory, and I think the 9th circuit correctly found that the 2nd Amendment meets the Due Process requirements for incorporation, specifically citing the standards set forth in Duncan v. LA.

[larrymcg421]

[quote=Jon;2041038]

Originally Posted by larrymcg421

You don't have to wait for SCOTUS to incorporate. For instance, the 9th circuit ruled that the 2nd Amendment was incorporated in Nordyke v. King because the 2nd Amendment met certain factors ("individual right") for incorporation. I agree with that ruling as opposed to Sotomayor's.


But just because the 9th Circuit said it was, doesn't meant it is incorporated everywhere. 9th Circuit decisions are not binding on the other circuits. Cam is right, what's happened is circuit conflict. Whether this amounts to a sufficient conflict that there are 4 justices willing to grant cert is a separate issue. There have been cases where the Supreme Court has waited until every circuit has agreed but 2 or 3 and cert wasn't granted. I don't think this will happen here, because the conservative justices are waiting to decide whether the individual right to bear arms is such a fundamental right that it is incorporated into the due process clause of the Fourteenth Amendment.

I never said that it was controlling anywhere else. I'm simply arguing, as Cam said, that the other circuits should have reached the same conclusion as the 9th. The Cruikshank, Miller, and Presser decisions don't even deal with the 2nd Amendment as it relates to due process, so I don't see why either of those decisions would be considered binding. That amounts to ignoring Gitlow and subsequent cases that spell out the current standards for incorporation.

[ISiddiqui]

Originally Posted by larrymcg421

And both Presser and Miller also worked under the "privileges and immunities" challenge, and the 9th circuit affirmed those opinions on those grounds. None of those opinions, including Cruikshank, dealt with the due process claim, so they weren't overruling any of them. In Gitlow v. NY and subsequent cases, incorporation was based on a Due Process theory, and I think the 9th circuit correctly found that the 2nd Amendment meets the Due Process requirements for incorporation, specifically citing the standards set forth in Duncan v. LA.

Which doesn't necessarily matter because the footnote in Heller seems to give them different status than Cruikshank. That language indicates to me that it is perfectly reasonably to indicate the 2nd Amendment is not incorporated until the Supreme Court indicates otherwise. Obviously, Scalia could have made it easier if he indicated that Presser falls under Cruikshank in the incorporation discussion. But he didn't.

Miller, btw had to do with a National Firearms Act.

[ISiddiqui]

Originally Posted by larrymcg421

That amounts to ignoring Gitlow and subsequent cases that spell out the current standards for incorporation.

Well, you'd have to decide if they were fundamental rights or liberties, and sometimes you want the SCOTUS to make that call. Obviously, since incorporation has been selective and over the years, there may be some disagreement as to whether certain rights are fundamental enough... if there wasn't, the SCOTUS would have taken the Justice Black view and done direct incorporation.

[larrymcg421]

Right, but the 2nd circuit didn't even rely on that for their ruling. They simply fell back on Presser, Miller, and Cruikshank. If they had said the right wasn't fundamental, then their opinion would be more sound. I still agree with the final judgment in the case, much like the 9th circuit ruling that still upheld the restriction even after incorporating the right.

Direct incorporation might be the only thing I agree with Justice Black on.

[molson]

Originally Posted by ISiddiqui

As the Heller footnote states:

Therefore it is quite reasonable to assume that Heller does not extend the right to the states quite yet. Blame Scalia for not writing dicta to change that (then again, he may not have had all the other justices in majority opinion on board for that).

The whole incorporation of the 2nd ammendment this depresses me because it really reveals how decisions are based on policy views and not real contsitutional interpretation. I'm pretty sure that with few exceptions, judges that are all for every other right being interpreted broady and extended to the states would be against this one being so (because it's about guns). And similarly, those judges that prefer a more convervative constitutional view will be all for the broadening and incorporation of this particular right (because it's about guns). Sure, they'll both try to distinguish the 2nd amendment as special in some way, to keep of the myth that they're being consistent, but it's obvious that the legal justification came after the policy decision.

That's just my assumption, I haven't read much of anything about the actual issue, or Heller.

[larrymcg421]

Actually, as noted in flere's article above, two conservative justices on the 7th circuit ruled against incorporation, while the very liberal 9th circuit ruled for incorporation.

As for incorporation of other rights, I don't believe any justice currently thinks other rights should not be incorporated. You're not going to see a conservative justice rule that the 1st amendment doesn't apply to the states.

[ISiddiqui]

As I've pointed out though, there are portions of other rights not incorporated, such as parts of the 7th and 5th Amendments.

[CamEdwards]

Originally Posted by ISiddiqui

Which doesn't necessarily matter because the footnote in Heller seems to give them different status than Cruikshank. That language indicates to me that it is perfectly reasonably to indicate the 2nd Amendment is not incorporated until the Supreme Court indicates otherwise. Obviously, Scalia could have made it easier if he indicated that Presser falls under Cruikshank in the incorporation discussion. But he didn't.

Miller, btw had to do with a National Firearms Act.

Actually, this is a different Miller case... Miller v. Texas, also from the 19th century.

MILLER V. TEXAS, 153 U. S. 535 (1894) -- US Supreme Court Cases from Justia & Oyez

The interesting thing about Miller is that the Supreme Court basically said incorporation was an issue that should have been raised in the trial court, rather than on appeal. So the Miller decision really had nothing to do with the merits of the argument.

[CamEdwards]

Dola:

The NRA has officially petitioned the Supreme Court to grant cert. Here's the petition:

http://volokh.com/files/nrapetition.pdf

[flere-imsaho]

So anyone want to speculate what's going to happen here when it gets to the Supreme Court?

[larrymcg421]

They'll uphold the 9th circuit and incorporate it via due process.