It starts?
Senior Norfolk Judge Henry Coke Morgan held in a local federal case the day after Heller was decided that the individual right created by the Second Amendment does not impose any obligations whatsoever on state or local governments: only the federal government.
July 3rd, 2008 at 11:02 am
I left a similar comment at David Codrea’s:
Judge Morgan is bound by Federal precedent in Cruikshank and Presser where both Supreme Court cases state explicitly that the Second Amendment protections don’t apply to the states. He is bound by that. Only the Supreme Court can overturn the Supreme Court.
And that’s why we have to get an “incorporation” decision IN the Supreme Court.
I’m figuring it will take at least five years to work its way through the system.
July 3rd, 2008 at 11:46 am
What about his state Constitution?
From the Virginia Constitution:
Section 13. Militia; standing armies; military subordinate to civil power.
That a well regulated militia, composed of the body of the people, trained to arms, is the proper, natural, and safe defense of a free state, therefore, the right of the people to keep and bear arms shall not be infringed; that standing armies, in time of peace, should be avoided as dangerous to liberty; and that in all cases the military should be under strict subordination to, and governed by, the civil power.
July 3rd, 2008 at 2:36 pm
What about his state Constitution?
Did he raise a claim under that? Or did he claim the second amendment? If he claimed the second amendment, the court can’t consider a state right to bear arms claim if it wasn’t asked to.
July 3rd, 2008 at 2:46 pm
Kevin,
I don’t think they actually are. There are modern cases that offer guidelines for when a right should be incorporated. Namely Duncan v. Louisiana and a few others I can’t think of right now. Once the Second Amendment was declared an individual right by the Supreme Court, I think the pre-incorporation cases could be safely read as dead letter by lower courts, and the modern incorporation cases could be applied.
July 3rd, 2008 at 3:14 pm
Doesn’t Heller compel the local government of Washington, D.C. an obligation to allow legal gun ownership in some form?
July 3rd, 2008 at 4:51 pm
D.C. is a federal enclave, there is no incorporation sheild as it is directly governed by the feds. It’s one of the reasons why the challenge was brought in D.C.: Very few complicating factors.
July 3rd, 2008 at 5:07 pm
“…the individual right created by the Second Amendment…”
I’m not registered over there, but I find it necessary to point out here that the 2nd Amendment most certainly does NOT create a right to arms. The 2nd acknowledges a pre-existing inalienable right while protecting said right from government infringement. Scalia got this right in Heller, and we need to keep hammering this point home.
July 3rd, 2008 at 9:03 pm
No State may create law, either by Legislation or by Judicial Fiat, which specifically denies any right directly given in the Constitution or it’s Amendments.
This was how the Jim Crow laws went down in Ol Virginny, so the Judge in this case doesn’t even know his own State’s judicial history. He is a pinhead.
July 3rd, 2008 at 10:13 pm
He was asking for damages. I do not know what staute he was asking it under for damages. He already had charges dropped and gun returned as violation of VA law.
The 2 A is not incororated at this time. If asking for civil right damages under federal stutes then they may not apply.
July 4th, 2008 at 10:23 am
Even **WAY** liberal Oregon gets it right:
Oregon State Constitution, Article 1, Section 27
“The people shall have the right to keep and bear arms for the defense of themselves and the state, but the military shall be kept in strict subordination to the civil power.”
July 6th, 2008 at 2:29 pm
Kevin is right, incorporation really should be done by the Supreme Court, not the lower courts who are probably still bound by Presser and Cruikshank. Here’s hoping the four good guys and the sometimes good bad guy are still on the court when that case comes up.
Manish:
Yes, but as Yu-Ain has suggested, “state or local” in this context is really just a lazy shorthand for “state or part of a state.” A citywide handgun ban anywhere in Puerto Rico or Guam would be vulnerable under Heller. Come to think of it, now that the Supreme Court has ruled that Guantanamo is part of the U.S., I guess they have a right to guns, too. Maybe we should load up the locals on constitutionally protected firearms and then let the lease with Cuba run out.