The 2nd Amendment and the Revenge of the Incorporation Doctrine

With a hat tip to Reason.com we find out from the CrimeProf Blog that there’s an ill wind blowing for Second Amendment enthusiasts from the Second Circuit Court. It comes in the form of Maloney v. Cuomo and brings the Incorporation Doctrine roaring back on the scene.

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 (Maloney v. Cuomo, 2d Cir., No. 07-0581-cv, 1/28/09).

The statute at the center of this case, N.Y. Penal Law §265.01(1), provides criminal penalties for possession of a broad range of items, including weapons used in martial arts. The plaintiff was charged under the statute after police found fighting sticks, or nunchaku, in his home. He ended up pleading guilty to a different charge and then filed a lawsuit against the county prosecutor and others seeking a declaration that the law offends his Second Amendment right to bear arms.

You can read the entire decision here, but the majority opinion pulled no punches on Incorporation vs. the Second Amendment, and the Bill of Rights once again came out on the short end of the stick. I can already hear some of you arguing, “Wait a minute! Didn’t we just win this fight? What about District of Columbia vs. Heller?” The Second Appellate was quick to preempt that line of thinking by weaving Heller into their current decision.

The Second Amendment provides: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” U.S. Const. amend. II. The Supreme Court recently held that this confers an individual right on citizens to keep and bear arms. See District of Columbia v. Heller, 128 S. Ct. 2783, 2799 (2008). It is settled law, however, that the Second Amendment applies only to limitations the federal government seeks to impose on this right. See, e.g., Presser v. Illinois, 116 U.S. 252, 265 (1886) (stating that the Second Amendment “is a limitation only upon the power of congress and the national government, and not upon that of the state”); Bach v. Pataki, 408 F.3d 75, 84, 86 (2d Cir. 2005) (holding “that the Second Amendment’s ‘right to keep and bear arms’ imposes a limitation on only federal, not state, legislative efforts” and noting that this outcome was compelled by Presser), cert. denied, 546 U.S. 1174 (2006). Heller, a case involving a challenge to the District of Columbia’s general prohibition on handguns, does not invalidate this longstanding principle.

Each time questions of the Incorporation Doctrine arise, we always seem to get a few readers who are floored to find out that this is almost uniformly considered stare decisis among jurists. Many of us wander about, secure in the comforting but completely illusory notion that the entire bill of rights protects us like a blanket. In point of fact, the bill of rights protects you from actions by the Federal government, but several of those rights may be trumped by your home state’s legislature at the drop of a hat. This includes your right to keep and bear arms. The Supreme Court pretty much set this in stone back in 1963 with their decision in Gideon v. Wainwright.

“This Court has looked to the fundamental nature of original Bill of Rights guarantees to decide whether the Fourteenth Amendment makes them obligatory on the States. Explicitly recognized to be of this “fundamental nature” and therefore made immune from state invasion by the Fourteenth, or some part of it, are the First Amendment’s freedoms of speech, press, religion, assembly, association, and petition for redress of grievances. For the same reason, though not always in precisely the same terminology, the Court has made obligatory on the States the Fifth Amendment’s command that private property shall not be taken for public use without just compensation, the Fourth Amendment’s prohibition of unreasonable searches and seizures, and the Eighth’s ban on cruel and unusual punishment.” See Gideon 372 U.S. at 341-42.

Those are the rights which have been “incorporated” from the Federal level and mandated to the states. You will note that the Second Amendment is not among them, along with several others. The bottom line is that Heller has ensured that the Federal Government won’t be restricting your individual right to keep and bear arms any time soon. But if the state where you live decides that you’ll get life without parole for having a Daisy air rifle in your closet, you’d best pack a bag and find somebody to smuggle cigarettes for you, because you’re heading for the crowbar motel anyway.