The Second Amendment and Incorporation: An Overview of Recent Appellate Cases

Federal Court Cases Regarding The Second Amendment
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Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment or that its use could contribute to the common defense.

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After that decision, Congress placed greater limitations on the receipt, possession, and transportation of firearms, 8 and proposals for national registration or prohibition of firearms altogether have been made. Relying on new scholarship regarding the origins of the Amendment, 11 the Court in District of Columbia v. Heller 12 confirmed what had been a growing consensus of legal scholars—that the rights of the Second Amendment adhered to individuals. The Court reached this conclusion after a textual analysis of the Amendment, 13 an examination of the historical use of prefatory phrases in statutes, and a detailed exploration of the 18th century meaning of phrases found in the Amendment.

The latter issue was addressed in McDonald v. His speech has been misread by some scholars to rely on the Privileges or Immunities Clause, but in actuality he clearly distinguishes privileges or immunities of citizens from rights of the people. The right to keep and bear arms was a right of the people. When he made that comment about slave societies and despotisms he said, what are those rights?

He did not cite the Grand Jury Clause, but he did talk about free speech, assembly, and keeping and bearing arms.

The Puerto Rico Appellate Case Recognizing a Second Amendment Right to Carry Guns in Public

This speech, by the way, was published on the front page of the New York Times and reprinted in a lot of newspapers. Chicago said, well, you know, not many people read that. It was a really long speech. How would they understand all that? It was just too complicated.

He read the provisions of the Bill of Rights that he selected as important, including the right to keep and bear arms, and he said that this amendment is intended to protect these rights from state deprivation. Now, there are just an awful lot of people I could quote about the right to keep and bear arms at that time. Well, right after the Civil War concluded under the Black Codes, the gun seizures against African Americans were carried out by local law enforcement and by militias.

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Congress responded to that by banning the southern state militias and basically trying to protect the rights of African Americans to keep and bear arms, and after it became clear that the states could not have laws banning gun possession, the Ku Klux Klan came on the scene and deprived African Americans of firearms and basically terrorized them, if they were voting Republican ,and committed various outrages of that type.

For the entire period of Reconstruction, this was a central issue, if not the most central issue of all. The Second Amendment was the only amendment mentioned in one of the civil rights type of statutes that Congress passed in where the Court referred to the right of personal security, personal liberty, and private property, including the constitutional right to bear arms. They argue for flexibility and the ability to ban guns that are evil in their view. There might come a time when Chicago needs to ban hunting rifles with scopes in an urban area. They try to say you can do things in urban areas that you cannot do constitutionally in rural areas.

There we have it. Language can mean anything you want it to mean. An assault weapon or an assassination tool can be whatever gun you want to assign that term to therefore to justify banning it. After the decision comes down, I would fully expect they are going to try to make things as miserable for gun owners as possible if they do lose the case. Keep tuned the first couple days of the last week in June, and we should have a decision.

I will just begin with a couple of brief remarks about the significance of his work. When Steve first began his research more than 30 years ago, he had some handicaps that eventually turned out to be advantages.

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First, he was a practicing lawyer rather than a legal academic. Second, he thought that the Constitution means what the people who created it thought it meant. Now, they may not sound like handicaps to you, but they were handicaps because the Court at that time had very little interest in the original meaning of the Constitution and the legal academy had virtually no interest in what outsiders like Steve might have had to say. On top of that, the Courts and the professors universally thought that the Second Amendment was a kind of bad joke.

Eventually, Steve is going to get the credit he deserves for this remarkable reorientation of legal thought. Two years ago, as you know, the Supreme Court struck down Washington, D. As Alex mentioned, this was the first time in history that the Court has found any law in violation of the Second Amendment. Apart from its significance for the politically contentious issue of gun control, Heller was an important test case for the interpretive theory of originalism. There were virtually no relevant Supreme Court precedents, and certainly none that could be considered dispositive.

Heller was also a good test case for originalism because the Second Amendment poses some genuine puzzles.

Its text, for example, uniquely combines an explanatory phrase and a command. A different kind of puzzle arises from changes in the circumstances to which the constitutional provision must be applied. American society is dramatically different from the world in which the Second Amendment was adopted.

Incorporation of the Bill of Rights

The militia organizations extolled by the founding generation have withered away, and advances in the technology of weaponry have produced arms that are far more dangerous than those available in the founding era. That raises a question.

A Case Before The Supreme Court Could End The Second Amendment

Now, Heller was a good test case for another reason. First, the right to keep and bear arms is an individual, private right, not a right of the states to organize militias. Second, the purpose of the right is to enable individuals to exercise their inherent right of self-defense, including the right to defend themselves against criminal violence. That is not enough to resolve the initial textual puzzle about the relationship between the prefatory language and the operative clause.

Scalia tries to do this by claiming that the right to arms was a pre-existing right and that the preface of the Second Amendment merely tells us why it was codified without changing the content of the pre-existing right. First, he says that the constitutional text itself, which refers to the right to keep and bear arms, implies a reference to a pre-existing right, but that is a linguistic fallacy. You could write a law saying that the right to free medical care at government expense shall not be infringed.

That would not imply that the right already existed. Of course, there was a pre-existing right to arms, and the Second Amendment could be referring to that right. But then you would have to try to figure out the scope of the right. In practice, the pre-existing right was almost unlimited because there were almost no laws restricting the right in America at that time and none from the federal government at all. Alternatively, you might try to figure out what kinds of restrictions would have been acceptable if legislators had wanted to impose them, but there was almost no discussion of such questions in the founding period because there was no reason for anybody to have such discussions.

His explanation of the purpose of the codification makes no sense. The text of the Second Amendment refers to a well-regulated militia, not to the militia. They are not synonymous terms, and Scalia himself acknowledges as much when he distinguishes between an organized and an unorganized militia. Building on his fallacious premise, Scalia claims that the Constitution assumes that the militia is already in existence, and that it means all able-bodied men. The most difficult textual question, which Scalia never even addresses, is how codifying the right to arms could have been expected to preserve, promote, or prevent the elimination of a well-regulated militia.

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The Court concludes that it is unconstitutional, but the only reasons that Scalia offers are that handguns are popular weapons for self-defense among Americans today and that he thinks there are good reasons why handguns are popular. That is not a historical or Originalist argument. What is even more striking is that he also includes a series of astounding and unnecessary comments endorsing various forms of gun control that were not at issue in the case. First, he says that nothing in our opinion should be taken to cast doubt on long-standing prohibitions on the possession of firearms by felons and the mentally ill.

I guess that sounds reasonable, at least at first, but how long-standing have these prohibitions been? That was years after the adoption of the Second Amendment and less than a decade before the D. On what understanding of that core right does it make any sense at all to leave American citizens defenseless in their own homes for the rest of their lives on the basis of nothing more than a non-violent felony like tax evasion or insider trading?

It would make more sense to say that these felons can be silenced for the rest of their lives. Next, Scalia endorses prohibitions on the carrying of firearms in sensitive places such as schools and government buildings. Scalia provides no evidence that Americans were forbidden to carry firearms in schools and government buildings prior to Nor does he explain what makes these places sensitive or how courts are supposed to go about determining the scope of this newly announced exception to the right to arms. Is a university campus more sensitive than a shopping mall across the street?

Is a government-owned cabinet, a national forest, more sensitive than a privately owned hotel? Did the whole city of New Orleans become a sensitive place after Hurricane Katrina thus justifying the government forcibly disarming law-abiding citizens whom the government was unable to protect from roving bands of criminals? The Heller majority next endorses laws imposing conditions and qualifications on the commercial sale of arms.

Once again, Scalia presents no historical evidence about the nature or even existence of pre commercial regulations. If the Court means that it would impose only reasonable conditions and qualifications, it failed to say so, and it suggested no criteria based in history or anything else by which reasonable restrictions could be distinguished from unreasonable restrictions. The Court also endorses bans on the concealed carrying of firearms.

Once again, Scalia provides no evidence that such bans existed prior to and no evidence that anyone thought they would be permissible. Instead, he vaguely relies on some nineteenth-century state cases. None of the cases that he could have cited provides any evidence about the original meaning of the Second Amendment, and every one of them employed interpretive techniques that the Heller Court expressly rejected. What is more, the two state cases that Scalia does cite rely on the proposition that only assassins have a reason to hide their weapons whereas honest men carry their guns out in the open.


An Overview of Recent Appellate Cases appellate cases that have addressed incorporation of the Second Amendment since the Heller. Buy The Second Amendment and Incorporation: An Overview of Recent Appellate Cases: Read Kindle Store Reviews -

Now, that may have been true in Georgia in and in Louisiana in , which is where those cases came from, but it may not have been true throughout America when the Bill of Rights was adopted. It is certainly not true today. Where did that come from?

Golden State gun owners may soon be an endangered species, and no one is talking about why.

Scalia invokes a precedent in support of his conclusion, but his interpretation of the case is really completely wacky. He said only that it was illegal to carry them in public when doing so would terrify the good people of the land. Meanwhile, I think Heller will stand as a monument to a peculiar kind of jurisprudence, which might charitably be called half-hearted Originalism.

Now, as Alex and Steve described, immediately after this decision was announced, several Chicago residents filed a federal lawsuit claiming that a similar law in that city violates the Fourteenth Amendment. The plaintiffs relied on both the Privileges or Immunities Clause and the Due Process Clause, which they maintain render the Second Amendment applicable to state and local governments. This is the McDonald case, which the Supreme Court is scheduled to decide in a few weeks.

The Bill of Rights originally applied only to the federal government, and that is what was at issue in Heller. With the adoption of the Fourteenth Amendment in , the Constitution put new restrictions on the states, including the two limitations at issue in McDonald. They are as follows: No state shall make or enforce any law, which shall abridge the privileges or immunities of citizens of the United States.