2nd Amendment Incorporation Doctrine
I’ve been emailing with some friends about the 2nd Amendment. I just got done explaining the incorporation doctrine and how there are a couple post civil-war cases that say the doctrine does not apply to the 2nd Amendment. This lead to a question I couldn’t answer off the top of my head. Being lazy and all, I thought I’d ask you folks:
Has the Supreme Court ever applied any 2nd Amendment protection to a state law? I’m aware they never reversed the decision not to incorporate, but have they slid around it at all?
December 8th, 2006 at 12:35 pm
They’ve never even applied it to a federal law, let alone a state law. To the best of my knowledge, no gun control law has ever been nullified in the federal courts because of the second amendment.
December 8th, 2006 at 1:51 pm
This thread at THR is good, especially the long post by Jim March.
December 8th, 2006 at 3:34 pm
They’ve never even applied it to a federal law, let alone a state law. To the best of my knowledge, no gun control law has ever been nullified in the federal courts because of the second amendment.
Not quite. IIRC, the district court judge in the Miller case overturned the NFA as unconstitutional. Of course, he was overruled later int he process.
December 8th, 2006 at 9:21 pm
There are three 2nd Amendment cases most people consider significant — Cruikshank, Presser, and Miller. Two of them pre-date the incorporation doctrine. The incorporation doctrine really dates only back to 1925, the case of Gitlow v. New York. Miller is the only major post-incorporation-doctrine 2nd Amendment case. The Miller opinion contains a lot of material that indicates the 2nd protects an individual right. In fact the decision goes further, and strongly suggests that military firearms are more strongly protected by the 2nd than nonmilitary ones are.
December 9th, 2006 at 12:17 am
Then again, Miller involved only federal law, so incorporation wasn’t an issue there. That leaves zero Supreme Court cases in which the Second Amendment either was, or could have been, incorporated. However, in the otherwise horrendous case of Silveira, The Ninth Circuit seemed to assume that whatever the hell the Second Amendment means, applies to states and the federal government alike.
December 9th, 2006 at 1:43 am
SCOTUS has never held one way or the other. The question gets decided by the circuit courts and certiorari is never granted regardless of the outcome. There has been a split at least since Emerson.
I got banned from THR, but back in the day I made a post that split the 2nd amendment jurisprudence into 3 distinct periods, not counting the current one:
1)pre civil war- 2nd amendment is uncontroversial- numerous state court decisions mention it as a guarantee of a preexisting right. Idea of states wanting to disarm citizens hasnt really occurred to anyone yet.
2) reconstruction- “slaughterhouse cases” essentially kills the 14th amendment for the next 60 years. No privileges and immunities, no incorporation. Note that this applies to the entire bill of rights, not just the 2nd.
3) modern era- incorporation doctrine is active but 60 year wave of anti-gun sentiment sweeps through government starting in the 30s and tapering of in the 90s. During 60s and 70s, gun control reaches peak at same time as violence from civil rights movement.
4) current era- serious scholarship on the 2nd amendment reveals that standard model is the correct one. Multiple justices comment on circuit split over 2nd amendment interpretation.
December 11th, 2006 at 12:21 pm
Thanks, all, for the information. Not that I’m doing anything useful with it, but I’m still glad to have it.