Second Circuit to Second Circuit Citizens: No Second Amendment for You

Tuesday, February 10th, 2009

Appeals Court says Heller doesn’t apply to the states.

It’ll be interesting to see how traditionally anti-incorporation conservatives and pro-incorporation lefties line up on this one.

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24 Responses to “Second Circuit to Second Circuit Citizens: No Second Amendment for You”

  1. #1 |  Burrow Owl | 

    “The Second Amendment guarantee of the right to bear arms does not apply to override state firearms bans, the U.S. Court of Appeals for the Second Circuit declared Jan. 28. Under the incorporation doctrine, only certain provisions of the Bill of Rights apply to the states, and the Second Amendment is one of those that does not, the Second Circuit held….”

    Because, after all, the Constitution is just a goddamned piece of paper.

    Ah, well, the Constitution has been dead and decaying for years.
    The sad part is that most Americans haven’t even noticed the smell yet.

  2. #2 |  Dave Krueger | 

    The Federal court system seems to think it’s job is to defend the government(s) from citizens who keep throwing obstacles in front of it, those obstacles being the claim of certain rights. They apparently think that, if not for them, the other branches of government would be completely at the mercy of it’s citizens.

  3. #3 |  Nick T | 

    Without knowing nearly anything baout this new case, I’ve always been taught that the 2nd Amend. NOT being incorporated through the 14th Amendment is a pretty well-established rule. So, I don’t know how much leeway the 2nd Circuit had to rule that that Amendment applies to the state government.

    They can’t go overturning established Supreme Court jurisprudence no matter how much they may want to.

  4. #4 |  SJE | 

    Dude: he was prosecuted for possessing nunchuks in his home. WTF?

  5. #5 |  Omar | 

    Guys, don’t mod Nick T down for pondering the legalities of the situation.

    Even though I don’t agree with the result, that’s the strongest case I’ve read for why the courts would vote against our preferred outcome. It’s a better argument than “because judges are all a bunch of statist liberals”, which very well may be the case.

  6. #6 |  chance | 

    Out of curiosity, what limits do you think are reasonable when it comes to weapons ownership? If you don’t believe any significant restrictions are reasonable, then what would be the ramifications if such a policy were put into effect?

  7. #7 |  Robert | 

    By this reasoning, ANY amendment should be able to be overturned by the states.

    Tired of having to get search warrants? Just pass a state law saying they aren’t necessary.

    Don’t want people reading controversial materials? Just pass a state law banning books that particular state doesn’t approve of.

    Not that anyone pays much attention to the constitution these days.

  8. #8 |  Cynical In CA | 

    @ #6 chance

    If you impose limits on self-defense, then who limits the limiters?

    A majority of blog posts on this site is dedicated to that seemingly insoluble problem.

    Not sure if it’s been tried, but there could be no limits. Then every adult individual would be responsible for his/her own self-defense.

    FWIW, I foresee a brief period of confusion and a probable uptick in bloodshed (relatively evenly dispersed) while individuals adjust to the new paradigm, followed by a period of great order and increased respect for one’s fellow man. More important, all the predations of the State would cease — until humans panicked and reinstituted the State, restarting the cycle, taking us right back to where we are.

    That’s just my opinion. And I’m beginning to see the wisdom in getting drunk, stoned and laid every chance I get for the rest of my days.

  9. #9 |  Mattocracy | 

    I guess some believe that “state’s rights” means the states have the right to ignore the constitution.

  10. #10 |  Al Dente | 


    Nuclear, Biological, or Chemical perhaps. Things that make a mess that are hard to clean up. I think that if there were no significant restrictions, not much would change. A-holes would still be A-holes, nice people would still be nice.

  11. #11 |  Robin | 

    #7 Robert–No man, as said above somewhere, except for a few exceptions, the rest of the bill of rights has been held under the 14th amendment to apply to the states. Though it does make these basic rights seem a little less guaranteed, eh?

  12. #12 |  PA | 

    Mattocracy said “I guess some believe that “state’s rights” means the states have the right to ignore the constitution.”

    This is not a “state’s rights” issue, it is an interpretation issue. Read the Bill of Rights. Many of the Amendments start out by saying “Congress shall pass no law …” This has been specifically held to refer to the U.S. Congress, and by its plain meaning, does NOT apply to the states. Barron v. Baltimore.

    It was not until 1890 that the Supreme Court first held that SOME of the Amendments in the Bill of Rights applied to the states by virtue of the 14th Amendment Due Process clause.

  13. #13 |  Aaron | 

    This pro-incorporation lefty is solildy for incorporation and against this ruling.

  14. #14 |  chance | 

    Thanks for your viewpoints.

  15. #15 |  PersonFromPorlock | 

    Fourteenth Amendment aside, can’t it be argued that the Bill of Rights is incorporated in toto by 18 USC242, which makes it a crime for people acting “under color of law” to deny rights secured to individuals by the Constitution?

  16. #16 |  supercat | 

    Many of the Amendments start out by saying “Congress shall pass no law …” This has been specifically held to refer to the U.S. Congress, and by its plain meaning, does NOT apply to the states. Barron v. Baltimore.

    It’s perfectly reasonable to hold that the First Amendment applies only to the actions of Congress, since it begins with “Congress shall make no law….” I see no legitimate basis for a holding that the First Amendment (whose text explicitly refers to Congress) is somehow less applicable to states than the Second (which says “…shall not be infringed.”)

    I see no reason to regard the Second Amendment as saying anything less than “No government may legitimately perform any act which, by intent or effect, discourage or prevent free people from obtaining and carrying any and all such weapons as would be useful in a well-functioning citizen army.”

    Note also that neither the Supremacy Clause nor anything else in the Constitution makes the Constitution subordinate to edicts from the Nine. Interpretation is appropriate in some ambiguous cases, but such interpretations are legitimately subordinate to anything else which would otherwise remove ambiguity.

  17. #17 |  PA | 

    supercat — My comment was referring to incorporation doctrine in general, and not specific to the Second Amendment. The missing language “Congress shall pass no law” from the Second will undoubtedly be discussed and argued both in legal scholarship, and future appeals.

    Regarding your reference to the “Supremacy Clause,” I’d refer you to Marbury v. Madison. The issue of whose job it will be to interpret the Constitution was decided a long time ago. Conveniently, SCOTUS decided that SCOTUS was going to do it.

    Regardless, if you’re expecting the Supremacy Clause to pop up off of a piece of paper and smack the Justices around, feel free to hold your breath. Likewise, if you’re lead argument to the Court is that it has no power to issue opinions in the course of applying the law, good luck.

  18. #18 |  TGGP | 

    The 2nd Amendment is a great favorite of mine, but I’m anti-incorporation. I wasn’t even sure about Heller.

  19. #19 |  supercat | 

    The Supreme Court does have the authority to resolve ambiguous situations arising under the Constitution (including those in MvM). Nothing, however, gives the Supreme Court any authority to declare its edits to be superior to the text of the Constitution itself in cases that are not ambiguous.

  20. #20 |  Shygetz | 

    supercat: And who gets to decide which cases are and are not ambiguous? Yours is a distinction without a difference. If the SCOTUS has the right to interpret the Constitution, then the Constitution reads exactly how the SCOTUS says it reads.

    As a pro-incorportion left-leaning civil libertarian, I am unsurprisingly for incorporation of Heller. But then again, I think the meaning of the Second Amendment is dependent on the militia framework that has been phased out in favor of a standing national army. So I’m way behind the times.

  21. #21 |  qwints | 

    @Nick T, there’s really no controlling law on 2nd amendment incorporation. I learned in my undergrad con law class that “it’s the only amendment that hasn’t been incorporated” (although I can’t think of a relevant 3rd amendment case). There are a few decisions (Miller and Printz) which allowed the federal government to ban machine guns and sawed-off shotguns respectively.

  22. #22 |  supercat | 

    And who gets to decide which cases are and are not ambiguous?

    Each and every person who is bound to uphold the Constitution of the United States (including jurors) has a duty to regard it as superior to all other laws and edicts, including those of the U.S. Supreme Court. If the Constitution clearly requires something, such people are required to do it, regardless of what the Supreme Court says. If it clearly forbids something, such people are forbidden from doing it, again regardless of what the Supreme Court says.

    To be sure, awkward and ugly situations can arise if the Supreme Court issues decisions which are widely viewed as being clearly wrong, and which are consequently widely disregarded. On the other hand, I would suggest that the recognized possibility of such situations arising would serve as a deterrent to the Court straying from its Constitutional mandate.

    To believe that the Court’s rulings must never be questioned is to believe the Nine should be able to pass any decree they want, provided that at least 34 Senators think it tolerable, and such decree shall be deemed superior to anything in the Constitution. While many people have been conditioned to believe that, I for one recognize that notion as total rubbish.

  23. #23 |  supercat | 

    There are a few decisions (Miller and Printz) which allowed the federal government to ban machine guns and sawed-off shotguns respectively.

    The syllabus for Miller does not accurately relate the real holding. Miller states that Second-Amendment protection cannot be applied to a particular weapon without showing that the weapon is of a type suitable for use in a well-functioning militia. Thus, battle rifles would be protected, while things like pen guns might not.

    The Court did not find that short shotguns are not suitable weapons; it merely found that no evidence had been produced to show that they were. Since Miller/Layton hadn’t yet had an opportunity to introduce any evidence of anything, they would have had an opportunity to prevent evidence of military suitability when the case went to trial.

    Unfortunately, after the Supreme Court said the government could bring the case to trial, the government declined to do so. Had it done so, it is entirely possible that Layton (the surviving defendant) would have been acquitted.

    Note that the only sensible interpretation of U.S. v. Miller is that a jury should have been instructed to acquit the defendants if they could demonstrate that their weapon was militarily useful. Had the case gone to trial without the defendants being allowed to make a case for military usefulness, that would have been a basis for appeal, and the Court would have had to take the case a second time while still lacking the factual findings it needed. Would that have made any sense?

  24. #24 |  kahnson, jake, l. | 

    In comment concerning the preservation of the Supreme constitution, Of couse as every one knows, without the constitution, America would cease to exist. Also every one knows that there are foreighn govts., that would like to make america dissapear. and then all americans would become a slave labor nation to there opressors. much like it is today. the second ammendment was initiated in order to provide each and every citizen the right by law to defen them selves from potential hostile aggressors. to defend each other, and the entire nation. the second amendment is more than the right to own and bear arms. but the right by law to own and bear private property, including your car. in communist countries, there are no rights by law , and the govt., or guru of these nations can claim all. that is why there is such a contest today over the second amendment, because these forces would wish to own all you have, including your bank account. We must do what ever it takes to protect and to preserve the Supreme constitution in its entirity, lest the Govt., the communists take all that you have.