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Wednesday, October 24, 2007

What Happened in Heller, Chapter I: The Certiorari Briefing

Pauca sed matura; yeah, that's the ticket.  Hello, all.  Despite an awesomely delayed start to my stint here at Prawfs, let’s see if I can put a couple of ripe thoughts across in the final quarter.

I've opined before that if the U.S. Supreme Court grants certiorari in District of Columbia v. Heller, the so far successful Second Amendment challenge to the District of Columbia's ban on handguns and functional long guns, then Heller will be the biggest case of the Term.  Bigger than Guantanamo, bigger than lethal injection protocols, even bigger than Medellin. The scope of the constitutional issues raised -- what is the basic meaning of a whole provision of the Bill of Rights? -- and the sheer intensity of popular concern with gun rights and gun control will propel Heller to the center of this Term, and indeed of the early legacy of the Roberts Court.

Briefing on certiorari is now complete. The District and the respondent have filed their principal cert briefs, and the District has filed a reply in support of the petition.  Unusually, both the District as petitioner and the D.C. resident who prevailed below (Mr. Heller) have urged the Supreme Court to take up the case.  The Court will likely decide whether to grant certiorari in November.  [UPDATE: SCOTUSBlog reports that the Court will consider the Heller petition on Nov. 9, and could rule on the petition by Tuesday, Nov. 13th.]

There are also several amicus curiae briefs, all in support of certiorari.    

Finally, some of the D.C. residents who were plaintiffs below have filed a cross-petition for certiorari asking the Supreme Court to reverse the D.C. Circuit's holding that they, unlike Heller, lacked standing to raise Second Amendment claims.

Thoughts on the cert briefing and the case to date:

1. Audience.  Attorneys briefing cases that are of interest only to judges and legal specialists write differently than attorneys who know they are writing for the eyes of a broader public.  The audience for this case is vast.  You could already begin to see the influence of that audience when the case (then captioned Parker v. D.C.) was before the circuit court.  It is very noticeable in the cert petition briefing, and will take on even greater prominence in the merits briefing if the Supreme Court grants certiorari.  Thus, the District's petition ended with a condemnation of the D.C. Circuit's decision as "particularly cold-hearted" because it refused to permit a complete ban on handguns, which the District argues cause "devastation" and are "the weapon overwhelmingly used" to commit violent crimes.  The District closed on a dramatic note, urging: "Whatever right the Second Amendment guarantees, it does not require the District to stand by while its citizens die."

This led to some fireworks, as Heller rejoined, in a section of his response brief tartly titled "Citizens Under Criminal Attack Are Not Required to Stand By and Die Awaiting Police Protection," that the District has no legal obligation to ensure the safety of its citizens, and has vigorously litigated its own lack of liability in suits involving urban riots, failure to prevent crime, failure to protect witnesses, and police misconduct. "In the meantime," Heller concluded,

people need not stand by and die waiting for Petitioners to provide a safe city in which to live.  The Second Amendment guarantees to citizens something that Petitioners have expressly and consistently disclaimed any legal obligation to provide: an effective means of preserving their lives.

I can only report my own reactions, admittedly those of a gun rights supporter, to such preliminary skirmishing.  This struck me as a very effective response to the District's rhetoric -- enough so that I wonder whether there was some post hoc regret by petitioners' counsel about the choice of language in the petition. 

2. The Question Presented.  There is a big threshold dispute about how whether the Court should accept the District's formulation of the question presented.  The District is trying to frame Heller as a case about whether handguns may constitutionally be banned when a citizen "may lawfully possess a rifle or shotgun to protect himself." Pet. at 28.  But one of the challenged provisions of D.C. law requires all lawfully registered firearms in the home to be kept "unloaded and disassembled or  bound by a trigger lock or similar device," D.C. Code 7-2507.02, which renders them useless for self-protection.  The D.C. Circuit invalidated this provision as well, on the theory that even if Mr. Heller were permitted to possess a handgun, the provision would prohibit him from having his pistol available in a usable condition. 

Yet the District's petition asserts in a footnote that it "does not ... construe [7-2507.02] to prevent the use of a lawful firearm in self-defense." Pet. at 7 n.2.    The District's reply brief (Repl. at 5-6) makes its position clearer: all firearms must be kept both unloaded and disabled (locked or disassembled).  But if an "emergency" arises -- presumably, though the District is opaque here, a threat of "imminent bodily harm" of the sort that would provide the basis for an affirmative defense of self-defense under general D.C. criminal law -- then, although the D.C. Code does not say this, courts would, or should, imply an affirmative defense to liability for possessing an unlawfully loaded and functional firearm under the D.C. Code.  In theory, this could permit an otherwise lawful firearm to be used for self-defense against that threat, including by firing it against the threat. 

The reason the District's position has engendered confusion is that the concession is close to meaningless as a practical matter.  Such a firearm will still be useless in most defensive scenarios.  The point is intuitive.  The District requires that the gun be kept both unloaded and disabled until an "emergency" arises.  When someone kicks in your door at 3 a.m., however, there will simply be no time to (1) retrieve your shotgun, then (2) unlock it (which key was it?) and (3) load it (one shell at a time) in time for you to be able to use it as intended -- i.e., as a firearm.  (And by the way, that's assuming you didn't "disassemble" it, cf. D.C. Code 7-2507.02.)  This is consistent with the interpretation of 7-2507.02 that the D.C. Circuit adopted in its opinion invalidating that provision, and in its order denying plaintiffs' motion to issue the mandate in part. 

Some of the Justices may know enough about firearms to appreciate these practicalities at a glance.  Justice Scalia was on the rifle team as a teenager and Justice Thomas grew up in rural Georgia.  No doubt the respondent and/or amici will take steps to educate the other Justices about the facts if certiorari is granted.

3.  The Specter of Incorporation.  The issue of Fourteenth Amendment incorporation is lurking in the background in Heller.  No issue of incorporation is directly presented by the case.  The Bill of Rights is generally understood to apply directly to D.C., as it does to the federal government (which exercises direct supervision over D.C.), without need of the intermediation of the 14th Amendment. Indeed, the Supreme Court held in the 19th century that the Second Amendment is not incorporated against the states.  Thus Heller does not squarely raise the question of whether, say, the City of Chicago may continue to ban handguns without violating the Constitution.  It does , however, squarely raise the question of whether a Congressional handgun ban would violate the Constitution, and that is certainly importance enough.

Heller's cert respsonse brief is fairly low-key on incorporation, focusing its historical analysis on antebellum sources of constitutional meaning. Its one explicit nod to the issue is a remark that "while federal courts have not subjected state laws to Second Amendment review for lack of incorporation ... that anomaly will presumably be addressed in a future case." Resp. at 17 (emphasis added) (citing a 9th Circuit opinion asserting that older Supreme Court cases refusing to incorporate the 2d Amendment rest on a "thoroughly discredited" approach). 

Still, state and local governments are paying attention.  If the Supreme Court takes Heller and affirms, incorporation will be one of the next battlegrounds.  The amicus briefing in the D.C. Circuit brought out a fascinating regional split between the 13 midwestern, mountain, and southern states, led by Texas, who urged the court to adopt a strong individual-rights conception of the Second Amendment; and the smaller group of mostly coastal states and cities (plus Chicago; Idaho was mistakenly listed on this brief but did not join it) who urged that the DC gun ban be upheld.

I have long had some sympathy with the idea of a robust Second Amendment individual right that is nevertheless not incorporated against the States: in essence, treating the Second as a "strong federalism" provision , an individually justiciable restraint on Congress and the federal administrative state analogous to the Commerce Clause limitations recognized in United States v. Lopez. So I watch this issue with particular interest. If the Court grants certiorari, we can expect another  "roll call" of states submitting amicus briefs on the merits. Indeed, the State of New York (again on behalf of a coalition of "blue" states including Illinois, Maryland and Hawaii) has already weighed in with an amicus brief in support of certiorari.  I have only had time to read New York's brief once, but it struck me as focused and effectively written, probably the best pro-control brief to be filed before the Supreme Court in the case so far.

4. A Personal Note. I confess an atypical personal interest with respect to the certiorari petition in Heller: I will have the privilege of teaching a seminar course on Firearms Law & Policy at OCU Law in the spring of 2008.  This was scheduled well before the D.C. Circuit's decision in Parker jolted the issue of constitutional arms rights to the front of the headlines.  So although a law school seminar is obviously of miniscule importance compared to the massive constitutional, political, individual, and institutional stakes in Heller ... nevertheless, as a teacher, I admit that the prospect of this landmark Supreme Court case being argued while I am teaching a seminar directly on topic leaves me almost giddy at the thought of such academic serendipity.  Like teaching a course on the right to counsel during the pendency of -- no, not Gideon -- but Johnson v. Zerbst.

Posted by Michael O'Shea on October 24, 2007 at 05:59 PM in Constitutional thoughts | Permalink


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D.C has somewhat misrepresented its case to SCOTUS. They did not respond to the ruling of the appeals court for the District in their appeal to SCOTUS. They failed to show, other than as a footnote, that firearms in the District must be UNloaded and either trigger-locked or disassembled. They claim citizens have the right to self-defense, but do not permit it in practice. The police there have already been shown to have no legal obligation to protect from rapes, attempted murder and other "trivial" crimes that occur in the District. D.C. did a horrible disservice to the citizens and to the respect for the 2nd amendment in the process and ignore social and criminal statistics to back up their untenable position. Crime is up since the ban was instituted in 1976 and selective statistics will not resolve that issue. The appeal I read looks like it was written by a 10th grader and is more a laborious elucidation of policy, rather than an explanation as to why the Court should grant certiorari. Effectively disarming law-abiding citizens of the republic borders on criminality. Even Ghandi finally realized that one of the worst things ever done in his country was to disarm its people. My sense is that these leaders in the District are not uniformed or misguided, they are stupid and have learned nothing from banning handguns for some 30 years now. These same people would find it difficult to near impossible to explain why the overall violent crime rates in some 40 carry states now are DOWN. Could it be when you take away an effective means of self defense from the good guys, and leave firearms in the hands of those who would do us harm has something to do with the problem? The founders of our U.S. Constitution had a fairly good understanding of human nature and the possibility of tyranny of a government against its citizens. They were NOT stupid, thank God, if we can still say that.

Posted by: curtis41 | Nov 11, 2007 3:23:37 PM

I find it refreshing for someone to consider a downside to incorporation. The given downside scenario suggests that incorporation could make it more difficult to strike down a federal gun law because doing so would mean striking down all similar laws at every level of government, as if incorporation would mean that the Second Amendment would bind all governments equally. There seems to be different views of what incorporation would mean, from the idea that no government would have any gun control powers, to the idea that all governments would have gun control powers. I drew a little table to help me picture possible forms of incorporation and whether it would deny a power or limit a power:

federal state

deny deny (all government is denied gun control powers)
deny limit (federal power is denied, state power is limited)
limit deny (federal power is limited, state power is denied)
limit limit (all government has limited gun control powers)

I believe that there must be a distinction between federal and state governments, such that if the Second Amendment was used to limit State gun control powers it would still [u]deny[/u] federal gun control powers. I expect that trying to limit the States in the same way that the federal government is limited would result in State governments being bound so tightly that they could not maintain a society and culture (and/or a central government bound so loosely that it could dictate a society and culture).

Posted by: Hugh | Nov 9, 2007 1:36:43 PM

The Bill of Rights, though appearing simple in text and meaning to the layperson, have apparently been construed by the educated to include a rather significant amount of writing between the lines. This has elevated its interpretation above the ability of the average citizen to wield it as an effective tool of protection.

If this trend continues, we should expect to see the constitution rendered moot, if only for its convolution by the courts. The chains of tyranny will be an eloquently incomprehensible series of precedent rulings.

We must have the courage to view precedents as nothing more than an elaboratly constructed house of cards, waiting for a gently breeze of common sense to collapse them and restore our inalienable rights.

Posted by: ThePeople | Nov 6, 2007 7:11:25 AM

Would any lawyers like to comment on this? Has this simple clause been overlooked? It would appear to me that IF the founders has intended "reasonable regulation" that they would have added something to the same effect to the second amendment.


I won't pretend to know too much about legal workings, but has this ever been the basis for a case, or even mentioned in a case? I've read some of the "big" gun cases the court has dealt with, Miller and the like, but never caught this. Perhaps I missed it?

In an exercise of pure speculation while waiting on this case, would an attempt to include this kind of logic have any bearing on this case, or any other possible gun case? It seems that if you're going to the court you might as well load all your legal ammo and get ready for a real fight.

Posted by: Tom | Nov 6, 2007 3:17:56 AM

Rats. I'm the age of "70-year-old Justice Kennedy" and I just didn't know until I read the comment by DC Resident that the gun I carry is one I "likely won't be able to aim properly."

The thing is that my guns do seem to be aimed properly when I shoot them in the training courses I take a few times each year with much younger students from the military and law enforcement in various states.

And my guns also seem to be aimed properly when I teach such courses. A few months ago I participated in teaching a course in which the median age of students probably was about 72 or so. The oldest student was 84 years old. He scored 100% in the state mandated shooting qualifier after he managed to shuffle to the line with the aid of his metal cane.

Several others among those ancients also shot scores of 100%. The worst of those old students scored 97% in that qualifier, including one old man who lost his trigger finger in an accident years earlier.

In April 2007, 82-year-old Venus Ramey (who was Miss America of 1944) used her .38 caliber revolver to shoot the tires out on a burglars' vehicle and held one of them at gunpoint until the police arrived. But that was in Waynesburg, Kentucky, not Washington, D.C.

So is it possible that there is something wrong with Washington, DC, that makes the elderly incapable of manipulating a simple mechanical device? Maybe our nation's capitol needs to be closed for renovations until people can perform properly within the District.

Or maybe DC Resident is a fool with more mouth than knowledge or intelligence? Perhaps he is a law student.

Posted by: Ancient Age | Nov 6, 2007 12:48:26 AM

On incorporation - Deprivation of the right to bear arms by the states was an explicit reason for adopting the Fourteenth Amendment.

Posted by: Ed Stone | Nov 3, 2007 4:22:34 PM

I think one point being missed here is the Cruikshank case. This was a direct statement by the US Supreme Court in 1875 that the 2nd doesn't apply to the states. Yet it's very rarely cited directly - most people who still support that decision cite Presser v. Illinois (1886) but Presser really just cites and re-hashes Cruikshank. I've only seen Cruikshank directly cited in a few 1980s-era 9th Circuit cases and once around 2000ish by the California Attorney General in a position paper on the 2nd Amendment.





So why not cite to Cruikshank?

Cruikshank was about a group of men (mixed local police/gov't figures and private citizens) in Louisiana who were upset with local blacks attempting to vote following the passage of the 15th Amendment. They stripped the blacks of arms first (under color of authority) and then launched three days of arson, riot and murder culminating in the burning of the courthouse that had become "defiled" by black attempts to vote there. Federal troops moved in to restore order. Cruikshank and other defendants were charged Federally with violating the rights of blacks to peacefully assemble under the 1st Amendment, keep arms under the 2nd and vote under the 15th.

The US Supreme Court ruled that NONE of these civil rights could be protected by the Federal government, effectively gutting the whole 14th Amendment (whether "due process clause" or "privileges and immunities clause" hardly matters.

Thus Cruikshank is beyond "fatally flawed". It was racist to it's core, acting as a sort of "endangered species act" for the Klan and was a leading factor in the Federal non-involvement with civil rights that led to thousands of lynchings and millions of acts of discrimination. Worse, it's ruling was identical with respect to the 1st, 2nd and 15th amendment rights. Today, if a state withheld the vote along racial lines and cited Cruikshank as authority, Federal troops by the convoy-load would be sent in to convince them otherwise.

Worst of all: the pattern of disarming people for the specific purpose of abusing them has not stopped. After Katrina, citizen disarmament was followed by illegal displacement, with the flooding used as an excuse to permanently dislodge lower-income black citizens and "gentrify" the place. It would also be instructive to compare rates of police misconduct (actual criminal convictions for example) in areas where gun control is strict versus more in line with the 2nd Amendment - we're likely to find a distinct correlation between police abuse of the citizenry and a disarmed population.

Jim March

Posted by: Jim March | Oct 27, 2007 7:52:30 PM

Well, Mike, I'd have to say, I'd prefer case 2, where the 2nd amendment isn't being treated as a second class right. Seems to me that the same "The RKBA isn't really the same sort of right as the rest." reasoning might cause the Court to be lax in enforcing it against the federal government, too.

I understand that the lower courts have to defer to Supreme court precedent, no matter how blatantly wrong. And the Supreme court has an obvious interest in avoiding explicitly acknowledging that some past rulings were issued in bad faith... It might, after all, tend to further legitimize common criticisms of some of the Court's more recent cases of dubious reasoning!

But it seems to me, as a layman who has had some interest in the subject, that, just as a matter of sheer history, that the 14th amendment was supposed to incorporate amendments 1-8 is simply indisputable. Just as it can scarcely be disputed that the Slaugherhouse rulings were just a case of the Court setting out to render moot an amendment it didn't like.

No, I really don't think there are any principled arguments against uniform incorporation of the entire Bill of Rights on an equal basis. And I'm not impressed with the notion that mistakes, let alone cases of deliberate bad faith, gain tenure with the passage of time, and have to be preserved.

That's not the way it works in any other field besides law.

Posted by: Brett Bellmore | Oct 26, 2007 9:08:42 PM

Hello Prof. O'shea,

Thanks for your review of the case, I founf it very interesting and educational. If you don’t mind, I have two questions for you.

Regarding the SCOTUS refusal to incorporate some rights, I was under the (admittedly perhaps mistaken) impression that the standard was that the right had to be “related to an ordered sense of liberty” or something like that. Also, other than the right to a grand jury indictment clause of Amendment 5, when has SCOTUS addressed incorporation and not decided to incorporate? Even non-enumerated rights, like those found in Griswald and Casey, are incorporated. I realize that with such a vague and subjective standard that anything is possible, but even under the due process model, is a refusal to incorporate the 2nd really likely?

As to DC reframing the question, it seems to me that as presented, the question is so far away from the actual facts of the case that it renders the case not to be an “actual case or controversy” and therefore, the Court is unlikely to look at that question. Am I way off base on this one?

Thank you

Posted by: Jim | Oct 26, 2007 5:47:05 PM

It's likely that though Heller does not raise the incorporation issue, it's lurking the background. You say also:

"It does , however, squarely raise the question of whether a Congressional handgun ban would violate the Constitution, and that is certainly importance enough."

Replace "handgun" with "machinegun" (!) and that's exactly the situation we have today. All machinegun ownership is banned in the United States after 1986 - if it wasn't in the registry of machineguns before then, civilians can't own it.

Therefore, a possible next case isn't just in Chicago challenging the handgun ban there, it's a federal case to reopen the machinegun registry and let civilians buy new machineguns again.

Posted by: jlbraun | Oct 26, 2007 5:42:56 PM

If the framers intended only to limit the power of the central government, would they not have used terminology similar to the 1st Amendment?

"Congress shall make no law"

The words "shall not be infringed" sounds like the protection was intended to be universal.

What say the legal experts?

Dr. Michael S. Brown
Doctors for Sensible Gun Laws

Posted by: Dr. Michael S. Brown | Oct 26, 2007 4:48:47 PM

Prof. O'shea,

What happens to all the other plaintiffs if SCOTUS grants the cross-petition?

If I am remembering correctly, one of them has a desire to possess a functional rifle. Right now the only thing keeping DC's limited question of handguns and allowing rifles is that the lower courts finding the functional ban unconstitutional for Heller only involved the handgun portion.

It seems if the cross petition is granted that SCOTUS must rule on the total functional ban. Which means they would have to reject DC's question as presented since it relies on Hellers case regarding only handguns. If the lower court had ruled they had standing, then from the opinion of the lower court they would have ruled the whole functional ban as unconstitutional.

Posted by: Gunstar1 | Oct 26, 2007 4:09:19 PM

DC Resident-

I think the point of the liability comment was broader than that:

In their statement about standing by while citizens die, DC is indicating that their hands would be tied by the inability to arrest or prosecute someone for mere possession of a firearm.

Heller is indicating that he lacks safety and protection because 1) DC is unable to protect its citizens 2) DC law prevents him effective means of self-defense, and 3) he has no recourse for any failure under (1) because DC isn't liable for the protection of its own citizens (I believe extensive citing was used in the brief). Also, he's making light and humor of the fact that DC is fighting for the right to be the sole means of protection even when it argues up and down through the courts that it bears no responsibility for its own negligence in this arena.

Posted by: fuzzymak | Oct 26, 2007 3:41:58 PM

DC Resident "To me, the respondents' brief was throughly unpersuasive on the tort immunity point. D.C. was raising the argument that handguns will result in more dead citizens, and the response is . . . the inability of those dead citizens to sue D.C. for tort liability?"

Go back and read it again, because you missed some things.

DC's claim: The 2nd does not prevent DC from the duty of protecting its citizens.
Heller: DC has no legal requirement to protect its citizens as shown in tort cases AND conversly DC residents should not be forced by law to rely on protection that the DC police do not have to provide.

So DC is saying that its citizens must rely on a service they legally do not have to provide. If you don't rely on it you can be arrested, if you do rely on them and they fail to protect you (no legal obligation) then you are out of luck.

Why again do you find that unpersuasive?

Also, claiming that one of the nations worst cities for homicide would be far worse without the ban is just sad. There is no proof that claims of gun bans reducing violent crime or homicides are true. Do you really think DC is so full of homicidal maniacs that the only thing keeping the death rate as low as it is (usually the highest in the US) is the lack of legal gun ownership?

Posted by: Gunstar1 | Oct 26, 2007 3:34:53 PM

DC resident is more than just cynical.He's a pompous anti-gun fool.
Because Justice Kennedy is 70 years old does this mean he is too fossilized and senile to handle a gun properly?I see 80 year olds on the range every month that can outshoot most local law enforcement.
And yeah, DC has been doing a great job since 1976 disarming criminals.They've led the U.S. in homicides most of the past 31 years.
DC resident is a sheep living in a wolve's paradise.

Posted by: n.f.douglas | Oct 26, 2007 1:46:33 PM

DC Resident - Just how good a job has DC done taking away the guns of the 'potential' assailants? Do you think your every neighbor is just another potential assailant that only lacks a gun with which to come after you? Kind of cynical.

Mr. Shaw,
What do you think of the historical research that indicates that the intent of the 14th was to include the 2nd? Also, how many people today regard their State citizenship versus their U.S. citizenship the same way that the citizens in the 1790s did? In many ways we need to protect ourselves from our State and municipal governments as much as our Federal government. Oh and if 'Militia' and 'free State' was purely a Federal term, why did it get written into several state constitutions around the same time?

Posted by: dwlawson | Oct 25, 2007 10:40:04 PM

Dear Mike:

I think the reaction to the briefs really does come down to your political leanings. To me, the respondents' brief was throughly unpersuasive on the tort immunity point. D.C. was raising the argument that handguns will result in more dead citizens, and the response is . . . the inability of those dead citizens to sue D.C. for tort liability? An immunity that, I should note, is legally bulletproof and thus a complete waste to time to question. I could see the rhetorical point, but it was so marginal to me that I found it bordering on the irrelevant.

An additional point to note: the issue has special saliance to D.C. residents, including all the judges involved in this case. The salience, of course, could go both ways, as indicated by the decision of the D.C. Cir. But does 70-year-old Justice Kennedy feel safer knowing he has a constitutional right to carry a gun that he likely won't be able to aim properly, or safer knowning that the D.C. government can take the gun away from his potential assailant?

Posted by: DC resident | Oct 25, 2007 10:15:47 PM

Yours is a fair question, Tom. Let me say just a bit about it here.

For the last century or so, the Supreme Court has handled questions of incorporation by looking to the Due Process Clause of the 14th Amendment. Its thinking has been that the 14th DP Clause incorporates, i.e., renders applicable against the states, some, but not all, of the guarantees in the Bill of Rights. And when confronted with a specific question of incorporating this or that provision of the BoR, the Court has engaged in a fairly ill-defined inquiry that has taken different forms, but basically boils down to whether the right is sufficiently "fundamental" that it should be applied against the states as a matter of due process.

When applying this inquiry in the 20th century, the Court has usually chosen to incorporate particular provisions against the states, though not always.

Suppose the Court takes up anew the question of Second Amendment incorporation (revisiting its 19th century decisions refusing to incorporate the 2A). The Roberts Court so far has been pretty reluctant to overturn constitutional apple carts, preferring not to overrule major precedents if it can be avoided. If, then, the Court sticks with its traditional, due process based, "selective incorporation" approach to the 14th Amendment, then it is possible that the Court could decline to incorporate the Second.

This is partly because there is language in the 2A (the reference to militias and to "a free State") that arguably suggests that the Amendment is particularly focused on preventing federal encroachment on arms rights that would undermine sources of resistance to federal power; and partially because the due process selective incorporation framework is simply so vague that no outcome would be surprising.

But on the other hand, the Court could rethink its approach to incorporation when it takes up the incorporation of the Second. It could overrule the Slaughter-House Cases, and shift the focus of the incorporation inquiry to the Privileges or Immunities Clause of the Fourteenth Amendment, as Justice Black, Justice Thomas, and many other jurists and scholars, before and since, have urged it to do. If the Court chooses to address the question of Second Amendment incorporation through the P or I Clause, then I agree with you, the historical record will make it extremely difficult for them to avoid incorporating the Second against the states.

I don't want to say too much more, since I'm writing an article about this stuff. But let me leave you with a suggestion as to why arms rights proponents might actually embrace, or at least accept, the non-incorporation of the Second as a policy matter. I'll boil it down into a single, concrete scenario.

Suppose in 2010 there's a sufficient majority in Congress to pass a renewal of the 1994 federal semi-auto ban (the "Assault Weapons Ban") that sunsetted in 2004. Under which circumstance do you think gun rights supporters are more likely to be able to convince the federal courts to invalidate all or a significant part of this statute as a violation of the Second Amendment?

1. When the Second Amendment is not incorporated, so that such a holding leaves state and local governments free to adopt their own regulations on the covered weapons, so that the courts can say, "This is an area the Constitution leaves up to the States, not to Congress or the discretion of the BATFE. Our holding today, by invalidating the federal statute, allows jurisdictions as different as Montana and NYC a corresponding freedom to differ on whether, and how extensively, modern firearms should be regulated."


2. When the Second Amendment has been incorporated, so that the courts cannot strike down the federal ban without thereby holding that every jurisdiction in the country -- Manhattan, Chicago, Marin County, whatever -- must forthwith allow the sale and possession of AR-15s with regular-capacity, 30-round magazines.


PS: The kind comments above impel me to note that I am not a "Doctor," unless it's a Juris Doctor. I have an M.A. but not a Ph.D. Law teaching is one of the few fields where (though this is growing rarer) there are still "Prof. So-and-So"s who are not also "Dr. So-and-So"s!

Posted by: Mike O'Shea | Oct 25, 2007 10:02:48 PM

In your penultimate pararaph you have expressed the opinion that the 2nd amendment should not necesarily apply to the states but only the federal government.

Please explain the difference in my rights as a citizen of the United States protected by the 2nd amendment as specified in the 14th amendment and the power of my state to 1)void my rights as a US citizen and how those rights can, under your statement, 2) also differ from state to state. Also, the effect on my right to travel from state to state without giving up basic rights.

There would appear to be a conflict between saying I have a right as a US citizen but that the right can be abrogated by my state of residence.

Posted by: Tom | Oct 25, 2007 7:27:15 PM

Dear Dr. O'Shea:

Many thanks for a well-written, accurate summary of what has transpired in Parker v DC and DC v Heller. You are almost certainly correct in stating that this case has a vast audience. I too have been following the case closely, and the major points you covered are spot-on.

Thanks also for commenting on the "spectre of incorporation." I feel that Heller was wise to mention, but not belabor, this issue. While only somewhat relevant, perhaps if nothing else, the mention will place the issue of 2A incorporation out on the radar screen. This is a subject in which I have personal in addition to constitutional interest; I live in Illinois and work in Chicago - a state and city with some of the most restrictive firearm regulations (and prohibitions) in the nation. Each year, no less than one dozen bills aiming to further restrict firearm ownership are introduced (nearly always by Chicago legislators) into the IL state senate and house. The IL state constitution ("SECTION 22. RIGHT TO ARMS) reads: "Subject only to the police power, the right of the individual citizen to keep and bear arms shall not be infringed." Although this guarantee is more explicit than the federal for omitting militia reference, the right to arms is, in Illinois, "subject to police power." Because state police power is subject to the state legislature, and because the second amendment (US constitution) is not [yet] incorporated, Illinoisans effectively have ZERO protection from government infringement on their right to keep and bear arms; the state of Illinois is not constitutionally limited on this issue. Surely, this cannot stand much longer. There are just too many interested, intelligent, and motivated people following these issues - they will eventually force these issues, and prevail (in my admittedly biased prediction).

I trust you will continue to keep your readers informed by summarizing the proceedings. Thanks also for allowoing me to comment semi-ambiguously. Best regards to you and keep up the good work.

Posted by: Carl in Chicago | Oct 25, 2007 12:40:05 PM

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