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Sonia Sotomayor versus the Second Amendment:

Maloney v. Cuomo is a 2009 per curiam opinion of the Second Circuit, upholding New York State's complete ban on the possession of nunchaku. New York is the only state in the nation with such an extreme ban.

In the opinion by Judges Pooler, Sotomayor, and Katzmann, the per curiam judges first cite Presser v. Illinois (1886) for the proposition that the Second Amendment directly applies only to the federal government, and not to the states. They also cite a more recent Second Circuit case which relies on Presser, for the same proposition. Bach v. Pataki, 408 F.3d 75 (2d Cir. 2005).

In this regard, Judges Sotomayor et al. are plainly correct. However, they seriously misconstrue the Second Amendment itself, when they write: "The Supreme Court recently held that this confers an individual right on citizens to keep and bear arms." To the contrary, as the Supreme Court explained at length in District of Columbia v. Heller, the Second Amendment does not "confer" any right; the right to arms pre-exists the Constitution. The Second Amendment protects but does not create that pre-existing right. As the Heller Court detailed, the fact that the right to arms is pre-constitutional is elaborated in the 1875 Supreme Court case, United States v. Cruikshank.

[UPDATE: Oren's post, above, accurately points out that Heller itself uses the word "confer", so even though the word is inconsistent with Heller's own explication of the right to arms as a pre-existing right, the Maloney opinion can't be faulted for using the same word.]

Presser did not discuss whether the Due Process clause of the 14th Amendment makes the Second Amendment enforceable against the states. Indeed, Presser could not have discussed the question, since the doctrine of incorporation via the Due Process clause was not invented until later. The Sotomayor per curiam opinion ignores Due Process incorporation, even though any serious analysis of whether the Fourteenth Amendment makes the Second Amendment enforceable against the states would have to address the issue. However, Maloney's pro se brief in the case never raised selective Due Process incorporation, but only addressed the Fourteenth Amendment in the context of unenumerated fundamental rights (Meyer v. Nebraska, Griswold v. Connecticut, etc.).

The Sotomayor per curiam opinion addressed the Fourteenth Amendment by quoting a previous Second Circuit decision: "Legislative acts that do not interfere with fundamental rights or single out suspect classifications carry with them a strong presumption of constitutionality and must be upheld if 'rationally related to a legitimate state interest.'" The opinion then went on to find a rational basis, since nunchaku had sometimes been used by criminals.

In other words, the Second Amendment is not "a fundamental right." The Sotomayor panel could have offered a legal explanation for why (in the panel's opinion) nunchaku are not "arms" within the meaning of the Second Amendment, and therefore a mere rational basis test for nunchaku bans is appropriate. But the Sotomayor court did not do so. To the contrary, the Sotomayor per curiam opinion treats any Second Amendment claim as not involving "a fundamental right."

The Maloney opinion is, on this issue, entirely consistent with Judge Sotomayor's opinion in a 2004 case: "the right to possess a gun is clearly not a fundamental right." United States v. Sanchez-Villar, 99 Fed.Appx. 256, 2004 WL 962938 (2d. Cir. 2004)(Summary Order of Judges Sack, Sotomayor & Kaplan), judgement vacated, Sanchez-Villar v. United States, 544 U.S. 1029 (2005)(for further consideration in light of the 2005 Booker decision on sentencing).

Judge Sotomayor's record suggests hostility, rather than empathy, for the tens of millions of Americans who exercise their right to keep and bear arms.

rosetta's stones:
Now, this might be an avenue to attack this nominee, if she's out of step with recent court rulings. She'll still get through, but it'd be a good platform to grill her, and for senators to log some rhetorical trigger time.
5.26.2009 12:56pm
levisbaby:
Let the wingnuttery begin!!!
5.26.2009 12:56pm
Andy Bolen (mail):
What does wingnuttery have to do with this post?
5.26.2009 12:58pm
ShelbyC:
Is she making a distinction between pre-constitutional rights and fundamental rights? Cruikshank, of course, also held that the first amendment rights were pre-constitutional. The Constitution doesn't confer or create any rights, it simply protects pre-existing rights. If she doesn't understand that it sounds like she seriously misunderstands what the constitution is all about.
5.26.2009 12:58pm
Floridan:
Oh please . . . let this line of argument be a main component of the Republicans during the confirmation process.
5.26.2009 1:02pm
J. Aldridge:
Presser did not discuss whether the Due Process clause of the 14th Amendment makes the Second Amendment enforceable against the states.

Why would Presser want to do that when the author of the due process clause under the 14th made clear a dozen times that due process meant the same thing as it did under Chapter 39 of the Magna Charta and the 5th amendment? Or when congress defined liberty as freedom from arbitrary imprisonment?

Sotomayor is another quack if she believes state laws must be 'rationally related to a legitimate state interest.' From an immigration stand point she will strike down all state immigration laws as unconstitutional because she will feel they serve no "legitimate state interest."
5.26.2009 1:10pm
Justin (mail):
You mean Sotomayor signed on to an opinion which followed the binding 2005 precedent of the Second Circuit, PLUS that VERY SAME OPINION used the colloquial term "the Second Amendment confers" to describe gun rights? Clearly a left-winged activist trying to take your guns!
5.26.2009 1:13pm
Barry Loberfeld (mail) (www):
5.26.2009 1:14pm
Mike N.:
I wouldn't imagine that someone who is (1) liberal, (2) female, and (3) from the Bronx would be very friendly to the 2nd Amendment, if only because it involves something that is fairly foreign and alien to that person.
5.26.2009 1:15pm
Jim at FSU (mail):
I was wondering when someone would bring up the nunchuck case. I was really amazed at this decision, especially considering how soon it came after Heller. You can't really argue that she was unaware of the Heller decision or that our understanding of the case had drifted due to the passage of vast amounts of time. It's an unavoidable conclusion that she simply disagreed with it and decided to supplant the Court's decision with her own wisdom.

I think the overconfidence of the leftist trolls is misplaced. The Second Amendment is a really big issue in the Senate, even for the Democrats.
5.26.2009 1:16pm
ShelbyC:

PLUS that VERY SAME OPINION used the colloquial term "the Second Amendment confers" to describe gun rights?


Whoops, I misread the OP.
5.26.2009 1:17pm
Justin (mail):
Oh, I forgot to mention, the unsigned per curium opinions that Sotomayor was on both appeared to follow the binding precedent United States v. Toner, 728 F.2d 115, 128 (2d Cir. 1984) (gun possession not a fundamental right). Impeach now!
5.26.2009 1:18pm
Jim at FSU (mail):
Also, you people disingenuously claiming that she was "following a 2005 precedent" are ignoring the intervening Heller decision.

Most of the federal circuits have had their pre-Heller jurisprudence overturned. Everyone remotely attached to the legal profession should be aware of this, especially someone who is offering themselves as a candidate to sit on the Court.
5.26.2009 1:22pm
Justin (mail):
Can any of you reasonable people attacking Sotomayor explain how, in your dissent in Maloney or Sanchez-Villar (both unsigned opinions, not Sotomayor opinions AFAIK), how you would have distinguished either Bach or Toner?

Thanks.
5.26.2009 1:22pm
ShelbyC:

the binding precedent United States v. Toner, 728 F.2d 115, 128 (2d Cir. 1984) (gun possession not a fundamental right).


Justin, wouldn't this holding (which sounds like dicta) be affected by the intervening Heller decision?
5.26.2009 1:25pm
Barry Loberfeld (mail) (www):
What we don't want in her — another Breyer:

To those of us suffering under the delusion that the Constitution was supposed to "secure the Blessings of Liberty," Breyer reveals that its purpose was "to create a framework for democratic government -- a government that, while protecting basic individual liberties, permits citizens to govern themselves." But how can it protect "individual liberties" when such protection is precisely what doesn't allow "citizens to govern themselves"? Or is "basic" actually Breyerspeak for as few as possible?

At this point a certain feeling may be creeping over many, an eerie kind of déjà vu. It grows only stronger when Dionne reclaims the mic. "Breyer's argument," he explains, "leads not to judicial activism but to judicial humility. He insists that courts take care to figure out what the people's representatives intended when they passed laws. You might say that justices should not behave like imperious English professors who insist they can interpret the true meaning of words better than those who actually wrote them." Now that tore away the disguise, didn't it? This isn't the "living document"/"evolving Constitution" rhetoric that the Left's been blaring all these years. The exalting of majoritarian democracy over individual liberty, the insistence that this view reflects the "intentions" of the Framers of the Constitution -- who can mistake it? Who can still not see that behind the meek figure of Stephen Breyer looms -- as his alter ego -- the monstrous presence of ...

READ THE FULL ARTICLE.
5.26.2009 1:25pm
Justin (mail):
Jim at FSU,

Can you explain how Heller overturned either Bach or Toner?

Thanks.
5.26.2009 1:26pm
Justin (mail):
First of all, I didn't read Heller as providing a fundamental right, only an individual right of some kind. That being said, Sanchez-Villar was a 2004 opinion.
5.26.2009 1:30pm
Mark Buehner (mail):

"the right to possess a gun is clearly not a fundamental right."

When this quote is brought up in the confirmation hearing, will Sotomayor explain if she still agrees with this, or will she refuse to answer the question?

Confirmation has become something of a joke, and appointments that refuse to answer general questions on constitutional principle under the thin veneer of not discussing specific questions they may run into are driving the process, not diminishing it. This is a fundamental question of constitutional understanding, and the people deserve a straight answer before a confirmation.
5.26.2009 1:32pm
ShelbyC:

I didn't read Heller as providing a fundamental right, only an individual right of some kind.


But isn't the point of the discussion of "confers" in the OP to convey that Heller found the right to be fundemental? Does it fail to do so?
5.26.2009 1:33pm
Oren:
It is not the place of Appellate Courts to reverse previous Supreme Court precedent, even when an intervening case casts doubt on the original precedent (as Heller did to Presser). All the circuits have rules to that effect.

Lower courts simply do not have the authority to do what the 2CA was asked to do in that particular case.
5.26.2009 1:40pm
Justin (mail):
ShelbyC, it surely doesn't say its a fundamental right in the opinion, though in the introduction it meantions that the right had "become fundamental in England." That being said, re-reading the opinion I can see some ambiguity (perhaps intentionally). In any event, my computer is freezing up and I have things to do, so I'll leave it at that.
5.26.2009 1:41pm
Dilan Esper (mail) (www):
What does wingnuttery have to do with this post?

Going ballistic over someone saying that the Second Amendment (or Heller) created an individual right to bear arms, like that is some sort of unacceptable heresy, is a pretty good sign of wingnuttery.
5.26.2009 1:46pm
Larua:
Hmm, the blog started loading slowly for me. Perhaps it's getting hammered by visitors anxious to glean insights on Sotomayor. Anyone else?

Could someone who's more attuned to law/academia comment on this blog post:

Link

Sotomayor is a graduate from Princeton University, where her legal theses included Race in the American Classroom, and Undying Injustice: American "Exceptionalism" and Permanent Bigotry, and Deadly Obsession: American Gun Culture. In this text, the student Sotomayor explained that the Second Amendment to the Constitution did not actually afford individual citizens the right to bear arms, but only duly conferred organizations, like the military. Instead of making guns illegal, she argues that they have been illegal for individuals to own since the passing of the Bill of Rights.


While it doesn't pass my smell test, an authoritative answer would be nice.
5.26.2009 1:46pm
Jim at FSU (mail):

how you would have distinguished either Bach or Toner?

THEY CAME BEFORE HELLER.

Toner and Bach are both classic pre-Heller statements regarding the 2nd amendment. They cite to US v Miller to casually dismiss the notion that the 2nd amendment confers any right at all. They perform no analysis of the 2nd amendment and provide no supporting argument for their assertion.

Any pre-Heller decision regarding the existence of a federal right to keep and bear arms is inherently suspect. Especially decisions that cite directly to Miller without explanation to disparage the existence of an enforceable right. This whole body of cases has been overruled.

Additionally, any attempt to cite to pre-incorporation-era 14th amendment jurisprudence for the notion that "the bill of rights only binds the federal government and the 14th amendment doesn't change this" is inherently suspect. I shouldn't have to explain this. Everyone who has taken a semester of Con Law knows it.
5.26.2009 1:46pm
Jim at FSU (mail):
Oh, and this goes double whenever a court tries to cite antebellum cases (ie, before the Civil War and the 14th amendment) for the principle that the *insert right contained within the bill of rights* does not bind the states. It's supremely disingenuous and it's not even remotely subtle.

This is the sort of shit that a law student wouldn't expect to get away with, so why do we tolerate it in our supreme court nominees?
5.26.2009 1:57pm
Tony Tutins (mail):
The fault here lies in Scalia's opinion in Heller, which nowhere states that the right to arms is fundamental. This is particularly annoying because Scalia's dissent in Lawrence v. Texas faults the majority opinion on this very point:

Though there is discussion of “fundamental proposition[s],” ante, at 4, and “fundamental decisions,” ibid. nowhere does the Court’s opinion declare that homosexual sodomy is a “fundamental right” under the Due Process Clause; nor does it subject the Texas law to the standard of review that would be appropriate (strict scrutiny) if homosexual sodomy were a “fundamental right.”

One could easily use this same criticism against Scalia's opinion in Heller, saying "Though there is discussion of “fundamental rights of Englishmen,” and “fundamental misunderstandings,” nowhere does the Court’s opinion declare that the right to keep and bear arms is a “fundamental right” under the Due Process Clause; nor does it subject the District of Columbia law to the standard of review that would be appropriate (strict scrutiny) if the right to keep and bear arms were a “fundamental right.”
5.26.2009 1:59pm
Mark Buehner (mail):

hey cite to US v Miller to casually dismiss the notion that the 2nd amendment confers any right at all.

Well that's not entirely true- the Heller dissent's reading of Miller made it clear that the state retained the right to arm itself against invasion etc. That seems perfectly reasonable crowbarred between the right of individuals to free speech and the right of individuals to be free of quartered soldiers, right?

By the way, is there another constitution in the history of the world that found it necessary to explicitly grant the state the authority to arm itself for collective defense? Isn't that ultimately the state's raison d'etre?
5.26.2009 2:00pm
Zach (mail) (www):
While she might be hostile to gun rights, the fact that Obama appointed someone who will have to recuse herself from the nunchucks in New York case shows that he's cool with Heller being expanded to the states, right? Isn't this the case that would decide that?

Is it possible that Scalia's tortured logic in Heller that allowed him to say handguns are OK while machine guns are not (because handguns are the 21st century equivalent of muskets, apparently) will allow an argument forbidding nunchucks as esoteric weapons that wouldn't be found in a common militia?
5.26.2009 2:04pm
martinned (mail) (www):

Is it possible that Scalia's tortured logic in Heller that allowed him to say handguns are OK while machine guns are not (because handguns are the 21st century equivalent of muskets, apparently) will allow an argument forbidding nunchucks as esoteric weapons that wouldn't be found in a common militia?

I would consider that a reasonable argument, but my recollection from Heller is that Scalia decided (citing EV) that the first half of the amendment is just there for decoration, without any effect on the actual meaning of the amendment. So your suggestion wouldn't fly.
5.26.2009 2:09pm
Jim at FSU (mail):
It's funny. The same constitution that supposedly confers a "right to keep and bear arms" upon the States also explicitly reserves that power to the federal government at the expense of those same States.

The States have no right to keep and bear arms. They have the power to appoint officers and train the militia, but federal government has had plenary control over the military (both standing armies and the militia) since the constitution was ratified. The "people" who retain the right to keep and bear arms are the same people who retain a right against unreasonable searches and seizures.

Straight from Article I:

reserving to the states respectively, the appointment of the officers, and the authority of training the militia according to the discipline prescribed by Congress

That's it. Federal government controls the military with three carve-outs:
-militia officers are appointed by the states
-training of militia is overseen the states
-right to keep and bear arms is reserved to the people
5.26.2009 2:10pm
Oren:


THEY CAME BEFORE HELLER.


Irrelevant. Heller did not overrule them and so a Circuit Court is obliged to follow precedent -- even questionable precedent.

Only the Supreme Court can overrule the Supreme Court.
5.26.2009 2:18pm
Jim at FSU (mail):
Scalia just didn't want to open the floodgates (ie, challenges to felon in possession laws, MG possession laws, the NFA, CCW laws, etc) with the first decision.

The only real holding of Heller is that:
-2nd amendment confers individual right
-you can't ban a particular article because you haven't banned others (ie, leave long guns so banning handguns ok)
-you can't ban handguns

Everything else is very likely dicta. Dicta is obviously persuasive and it hints at the future direction of the court, but you shouldn't let it substitute for doing your own analysis.
5.26.2009 2:19pm
Zach (mail) (www):

I would consider that a reasonable argument, but my recollection from Heller is that Scalia decided (citing EV) that the first half of the amendment is just there for decoration, without any effect on the actual meaning of the amendment. So your suggestion wouldn't fly.

Not a lawyer and I didn't read the decision all that closely at the time, but it went at length to specify what types of arms are allowed -- those commonly possessed by the general population. Not necessarily what would be useful for a militia, but what the average person would bring to the table. From the opinion:

Miller said, as we have explained, that the sorts of weapons protected were those “in common use at the time.” 307 U. S., at 179. We think that limitation is fairly supported by the historical tradition of prohibiting the carrying of “dangerous and unusual weapons.”

The opinion notes that this makes the prefatory clause worthless because an American militia wouldn't compete if it were armed with common weapons, but that doesn't matter because the first half's for decoration as you note.
5.26.2009 2:21pm
Oren:


I would consider that a reasonable argument, but my recollection from Heller is that Scalia decided (citing EV) that the first half of the amendment is just there for decoration, without any effect on the actual meaning of the amendment. So

That is consistent with the current doctrine that the preamble to the Copyright Power is also decorative, not functional.
5.26.2009 2:22pm
Justin (mail):
Is Jim at FSU arguing against himself? I'm confused.
5.26.2009 2:28pm
cboldt (mail):
-- Could someone who's more attuned to law/academia comment on this blog post [link to jumpinginpools.blogspot.com omitted] --
.
That contention appeared (in a google search) first TODAY, and does not appear elsewhere, independent of the jumpinginpools story. At this point, I'm taking the approach that the contention is disinformation. That being said, I certainly find it plausible that she authored a thesis with that title (Deadly Obsession: American Gun Culture) and containing the excerpted quote. But Princeton thesis papers aren't indexed within google.
5.26.2009 2:37pm
levisbaby:

The Sotomayor per curiam opinion

Anyone else see a problem with that phrase?
5.26.2009 2:37pm
Carl in Chicago (mail):
Regarding use of the verb "confer", which commonly means "to bestow upon" or "to give" ...

It's odd that the Heller majority not only used the word several times (eg. first sentence page 22 "There seems to us no doubt, on the basis of both text and history, that the Second Amendment conferred an individual right to keep and bear arms."), but they actually discussed at length that the right to arms was NOT given nor conferred to the people via the constitution; that the second amendment merely commands that the right shall not be infringed.

This disconnect has always puzzled me, and still does. Might anyone explain the contradiction?
5.26.2009 2:40pm
Jim at FSU (mail):
All of those cases are based upon the notion that RKBA is not an individual right at all. They never seriously considered incorporation because there was (in their eyes at least) nothing to incorporate. Since Heller overturns this entire line of cases and establishes the principle that RKBA is an individual right, the analysis for incorporation must begin anew. Sotomayor didn't do this. It would be like a judge dismissing a discrimination case with a cite to Plessy v Ferguson and no analysis. That's basically what Bach does.

The supreme court didn't decide incorporation in Heller, but most Circuits have based their incorporation analysis on readings of the Second Amendment that were clearly overturned in Heller. Citing to them draws in these bad precedents and results in a flawed opinion.

There are three post-Heller approaches to incorporation analysis I've seen so far:
1) Begin analysis anew, combining Heller with existing incorporation-era 14th amendment doctrine. This is what cases like Nordyke do. This is the correct approach IMO.
2) Ignore Heller, cite to Miller without analysis, just as federal courts did for decades before Heller. This is an incorrect approach IMO and has been foreclosed by Heller.
3) Acknowledge Heller (or not) but cite to pre-incorporation era jurisprudence stating that the Bill of Rights doesn't bind the states. This is also an incorrect line of reasoning as it has been foreclosed by the 14th amendment and about 70 years of incorporation doctrine under the due process clause. This is basically what Bach does, above.
5.26.2009 2:40pm
Jim at FSU (mail):
By "incorporation era" I mean "current era"- ie, the currently accepted notion that we selectively incorporate the bill of rights via the due process clause of the 14th amendment and make them binding against the states.

You cannot begin the incorporation analysis (especially the determination of whether RKBA is a "fundamental right") without starting with Heller.
5.26.2009 2:46pm
Brett Bellmore:

Miller said, as we have explained, that the sorts of weapons protected were those “in common use at the time.”


Problem is, Miller referred the case back to the circuit, for a factual determination as to whether sawn off shotguns were used by the military, not civilians. Scalia had to jettison the 1st half of the 2nd amendment, because he didn't want to uphold the right the 2nd amendment actually exists to protect: Private ownership of military arms.

Neither side covered themselves with glory in the Heller case, because neither side wanted to uphold the actual 2nd amendment. The minority didn't want to uphold anything at all, and the majority could only bring themselves to uphold a neutered version of the amendment.
5.26.2009 2:49pm
Annoyed and Bored:
This is a pretty slapdash.

You scorn Maloney for stating that Heller held that the Second Amendment conferred on individuals the right to keep and bear arms but here is what Heller said:

"There seems to us no doubt, on the basis of both text and history, that the Second Amendment conferred an individual right to keep and bear arms." DC v. Heller, 128 S. Ct. 2783, 2799 (2008)(emphasis added).

It may be that when Scalia wrote that "the Second Amendment conferred an individual right" he mean that it codified a pre-existing right. But if Scalia can use "conferred" in that way, so can the Second Circuit, and there is nothing in the Maloney opinion to suggest its usage was inconsistent with Scalia's.

Moreover, in the past twenty years the Second Circuit has repeatedly upheld US v. Toner and found that the right to keep and bear arms is not fundamental and is subject to rational basis review. See, e.g., US v. Manuel, 64 Fed. Appx. 823, 827 (2d Cir. 2003), Lawson v. Kirshner, 152 F.3d 919 (2d Cir. 1998). Because Heller did not hold that right to keep and bear arms was incorporated against the states, see Nordyke v. King, 563 F.3d 439, 456-57 (9th Cir. 2009), there is nothing at all surprising about the fact that Maloney would follow undisputed Second Circuit precedent.
5.26.2009 2:55pm
cboldt (mail):
More on the supposed Sotomayor thesis on the 2nd amendment. I've found a cite that purports to be her writings, and the titles don't correspond to the titles in that jumpiningpools article. I think that jumpiningpools article is like a Scott Ott (Scrappleface) or "The Onion" piece.
Also, here is a link to Judge Sotomayor's note in the Yale Law Journal, "Statehood and the Equal Footing Doctrine: The Case for Puerto Rican Seabed Rights" and here's a link to her co-authored article in the Suffolk Law Review, "Returning Majesty to the Law and Politics: A Modern Approach." http://www.thefacultylounge.org/ [links omitted]

I also found recent (May 26, 2009) articles that recite "[At Princeton] She majored in history, and her senior thesis was about the impact of Luis Munoz Marin, the first democratically elected governor of Puerto Rico."
5.26.2009 2:57pm
Anderson (mail):
Judge Sotomayor's record suggests hostility, rather than empathy, for the tens of millions of Americans who exercise their right to keep and bear arms.

Jesus H. Christ, people, GET BACK ON YOUR MEDS.

A ruling as to the proper construction of the Second Amendment does not suggest "hostility ... for [towards?] tens of millions of Americans."

If gun nuts want the rest of us to respect them, then step # 1 would be, quit being nuts. Posts like the above do not help in reaching step # 1.

(Fyi, I have a .38 and a .357, neither of which I expect Obama or Sotomayor to snatch away from me.)
5.26.2009 3:01pm
cboldt (mail):
-- Neither side covered themselves with glory in the Heller case, because neither side wanted to uphold the actual 2nd amendment. --
.
Just so. 9 of 9 got Miller wrong, and that is no accident. "The judgment in the [Miller] case upheld ... convictions" Heh.
.
Quite a house of cards built up.
5.26.2009 3:04pm
Andy Bolen (mail):
Desiderius,

What in the heck are you talking about?
5.26.2009 3:10pm
Tony Tutins (mail):
in the past twenty years the Second Circuit has repeatedly upheld US v. Toner and found that the right to keep and bear arms is not fundamental and is subject to rational basis review.

Just like the right to homosexual sodomy.

A law that banned ownership of all operable handguns was clearly in conflict with an individual right to arms, but Heller did not specify the boundaries of the right. Sotomayor would have been acting above her pay grade had she asserted the right to keep and bear arms was fundamental.
5.26.2009 3:12pm
Dilan Esper (mail) (www):
This disconnect has always puzzled me, and still does. Might anyone explain the contradiction?

It's a semantic issue more than anything else. The reality is, outside of a few right-wing nuts, nobody excepts natural law as a source for legally enforceable rights. (It does get appealed to rhetorically occasionally, such as in the Declaration of Independence. But you can't go into court and enforce your "natural" right unless positive law recognizes it.)

But many gun rights advocates feel very strongly, in their hearts, that the right to keep and bear arms is an inalienable aspect of humanity. So they get very mad when people use the ordinary language of legal positivism and say that the Second Amendment or Heller conferred the right.

In the end, of course, it makes no difference whether the right to keep and bear arms is "preexisting" or not-- it's the scope that matters. But you can't reason with some people on this issue.
5.26.2009 3:15pm
NickM (mail) (www):
Dilan - there are a lot of people who accept natural law in the context of an implied necessity defense to criminal charges (usually argued as some form of due process).

Nick
5.26.2009 3:34pm
Desiderius:
Andy Bolen,

Try this.

"I have already intimated to you the danger of parties in the State, with particular reference to the founding of them on geographical discriminations. Let me now take a more comprehensive view, and warn you in the most solemn manner against the baneful effects of the spirit of party generally.

This spirit, unfortunately, is inseparable from our nature, having its root in the strongest passions of the human mind. It exists under different shapes in all governments, more or less stifled, controlled, or repressed; but, in those of the popular form, it is seen in its greatest rankness, and is truly their worst enemy.

The alternate domination of one faction over another, sharpened by the spirit of revenge, natural to party dissension, which in different ages and countries has perpetrated the most horrid enormities, is itself a frightful despotism. But this leads at length to a more formal and permanent despotism. The disorders and miseries which result gradually incline the minds of men to seek security and repose in the absolute power of an individual; and sooner or later the chief of some prevailing faction, more able or more fortunate than his competitors, turns this disposition to the purposes of his own elevation, on the ruins of public liberty."

There are those, here, whose allegiance transcends mere party. If yours does not, I'm sure there are ample other fora on these internets to air your views, and have them comfortably echoed back to you.
5.26.2009 3:39pm
Andy Bolen (mail):
Desiderius,

I have no idea what you could possibly be shrieking about. I've only made two comments here, neither relating to party allegiance or baseball. Are you confusing me with someone else?
5.26.2009 3:59pm
Andy Bolen (mail):
Desiderius,

It's incredible to me that you would be so rude to me without even taking care to make sure you were responding to my comments. I wish DK would block you from the blog, or at least delete your original post. This sort of screeching incivility just makes it no fun to be here.
5.26.2009 4:00pm
Dilan Esper (mail) (www):
Dilan - there are a lot of people who accept natural law in the context of an implied necessity defense to criminal charges (usually argued as some form of due process).

Oakland Cannibis Buyer's Collective would seem to reject that argument.

In any event, I actually doubt there are THAT many people who argue that even a necessity defense is assertable BECAUSE of natural law. Rather, they think that some constitutional or common law principle requires its recognition.

Only on the extreme right wing do you get the sort of claim that alleged natural law rights that are NOT recognized by positive law should nonetheless be enforceable in court proceedings and should trump positive law.
5.26.2009 4:06pm
Zach (mail) (www):
@Andy - I assume Desiderius meant levisbaby instead of you; comments make sense in that context although they add more noise than they eliminate.
5.26.2009 4:08pm
Andy Bolen (mail):
Zach,

I think you're right that he must've had levisbaby's comments in mind. He named me, though, apparently because he's neither careful nor courteous.
5.26.2009 4:39pm
Oren:

All of those cases are based upon the notion that RKBA is not an individual right at all. They never seriously considered incorporation because there was (in their eyes at least) nothing to incorporate. Since Heller overturns this entire line of cases and establishes the principle that RKBA is an individual right, the analysis for incorporation must begin anew.

Absolutely wrong. Heller did not (and could not) overturn anything involving incorporation of the 2A against the States. Heller pertains only to what was at issue at Heller.

Lower courts are bound to respect Presser &Cruishank until the Supreme Court overrules them. As a District Court judge said quite eloquently in NRA v. Oak Park

This Court should not be misunderstood as either rejecting or endorsing the logic of plaintiffs' argument — it may well carry the day before a court that is unconstrained by the obligation to follow the unreversed precedent of a court that occupies a higher position in the judicial firmament.

If Presser is to be overturned, that's a decision for the Supreme Court, not the inferior courts.
5.26.2009 4:42pm
Oren:
By the way, different CAs have different rules about whether a panel can overturn a previous panel. The 9CA is the most liberal (heh) about this -- allowing any 3-judge panel to overturn another panel when intervening SCOTUS rulings cast that into question. In the 7CA, by contrast, only an en banc can reverse a panel.
5.26.2009 4:47pm
Oren:

It would be like a judge dismissing a discrimination case with a cite to Plessy v Ferguson and no analysis. That's basically what Bach does.

Except that Brown v. Board explicitly overturned Plessey.

Heller did not overturn Presser (and could not, because DC is not a State). Sure, it calls Presser into question, but it did not remove the central holding.
5.26.2009 4:49pm
cboldt (mail):
-- If Presser is to be overturned, that's a decision for the Supreme Court, not the inferior courts. --
.
Just use Presser to correct the instances where it's been misconstrued.
It is undoubtedly true that all citizens capable of bearing arms constitute the reserved military force or reserve militia of the United States as well as of the states, and, in view of this prerogative of the general government, as well as of its general powers, the states cannot, even laying the constitutional provision in question out of view, prohibit the people from keeping and bearing arms, so as to deprive the United States of their rightful resource for maintaining the public security, and disable the people from performing their duty to the general government.
Presser v. Illinois, 116 U.S. 252, 265 (1886)
5.26.2009 4:55pm
zippypinhead:
Dave, some friendly advice - If you're using this post as a beta test of an argument you'll be making in the next issue of America's 1st Freedom or an NRAILA Action Alert, methinks this isn't the most intellectually honest way to rally the troops. There's far less to Maloney than meets the eye - Even beyond Professor Kerr's callout of your making too much of the use of the word "confer," I think you're trying to dress up a cop-out per curiam decision as more sinister and significant than it is. At most, I would argue that the Maloney panel was lazy in declining to do the analysis necessary to either intellectually reaffirm or abrogate a pre-Heller line of Second Circuit cases that had been based on Presser's and Cruishank's obsolete (but not yet explicitly overruled) Supreme Court precedent.

In fact, one could argue that from a pro-Second Amendment tactical standpoint, the Maloney case is a gift -- it gives us an honest-to-goodness Circuit split on incorporation. As you know, the Ninth Circuit's Nordyke case on the other side of the split isn't terribly certworthy, because of the unfortunate "you win but you lose" holding. But Maloney is both straightforward and weakly-reasoned enough to be a very attractive vehicle for SCOTUS to directly hold that the Second Amendment is incorporated. In fact, I daresay it would be hard for a Court of Appeals to concoct a better straw man to tee up for a Scalia-led majority to knock down on the incorporation issue if you tried (leaving aside the semi-irrelevant issue of Mr. Maloney's rather unusual "arms").

I would suggest that during the confirmation hearing the Judiciary Committee ought to seek a commitment from Sotomayer that she really WILL recuse herself when the incorporation and "fundamental right" issues reach the Supreme Court in light of her participation in Maloney. But attempting to derail her nomination just for being part of that cop-out isn't going to go very far.

If things go according to script, the likely next move is going to occur when SCOTUS grants cert in one or more of these conflicting Court of Appeals cases (perhaps after the Seventh Circuit weighs in as well?), and Sotomayor faces pressure to recuse herself as having been on the panel in one of the lower court cases in question. Making the most likely outcome a 5-3 or perhaps even 6-2 decision in favor of incorporation.

The more interesting question about Sotomayor is where she is likely to come out on the appropriate standard of review for Second Amendment restrictions in general. What, if any, skeletons are in her judicial closet on the Constitutional standard of review issue? When has she opined that strict scrutiny is (or is not) appropriate?
5.26.2009 5:11pm
Oren:

At most, I would argue that the Maloney panel was lazy in declining to do the analysis necessary to either intellectually reaffirm or abrogate a pre-Heller line of Second Circuit cases that had been based on Presser's and Cruishank's obsolete (but not yet explicitly overruled) Supreme Court precedent.

A Circuit Court simply cannot abrogate an on-point Supreme Court case. It is just not within their power to even entertain the notion. If the SCOTUS said that the 2A is not incorporated, that's the end of the line for the CA. They are not "Supreme Court Lite" and they are certainly not entitled to ignore precedent in the way that you suggest.


Making the most likely outcome a 5-3 or perhaps even 6-2 decision in favor of incorporation.

5 from the Heller majority, but who is going to be #6? Breyer?
5.26.2009 5:35pm
zippypinhead:
A Circuit Court simply cannot abrogate an on-point Supreme Court case. It is just not within their power to even entertain the notion.
True, but as the Ninth Circuit did in Nordyke, it can find that its own precedent erroneously applied Presser and Cruikshank, insofar as those Supreme Court cases did not address selective incorporation through the due process clause. Thus, the Nordyke panel declined to follow the holding in Fresno Rifle.

The Maloney per curiam opinion is, to put it bluntly, more than a little thin in the 14th Amendment analytical rigor department. I don't know what the Second Circuit's internal standard is for a panel in effect overturning another panel decision (which may be relevant), but since the Maloney opinion never even went near that issue, I'm suspicious that it even considered the point (unlike in the Seventh Circuit cases, where I seem to recall that issue having been briefed).

At bottom, my biggest beef with Maloney is that it is dismissively conclusory rather than analytical. It feels like something a busy District Court might write in response to a Rule 29 motion -- not something authored by jurists at a level "where policy is made" (to quote Judge S...) while wrestling with one of the hottest Constitutional issues of the year.
5.26.2009 6:14pm
http://volokh.com/?exclude=davidb :

I think you're trying to dress up a cop-out per curiam decision as more sinister and significant than it is.

I'm reminded of DK's comments on the threat to U.S. firearm ownership posed by.... the laughably irrelevant and impotent United Nations.
5.26.2009 6:48pm
Jim at FSU (mail):
The Supreme Court hasn't decided incorporation in regards to the 2nd. The only exception to this is found in the old pre-incorporation era cases.

When Shadur dodged on the incorporation issue in the Chicago handgun suit, he was deferring to the 7th circuit, which he is obliged to do, no argument there. Are you arguing that the the 7th circuit wouldn't be allowed to decide the issue completely from scratch as they are doing now? Or perhaps that the 9th circuit erred in deciding the issue in Nordyke?

Sotomayor is obliged to decide the issue for the reasons I outlined above. There's no valid, preexisting jurisprudence that answers the question. Everyone who doesn't have an anti-gun agenda knows that Presser(1886) and Cruikshank(1894) haven't been good law for decades, especially regarding incorporation. The notion that the bill of rights only constrains the federal government is a completely dead concept that hasn't been seriously argued in decades.
5.26.2009 7:28pm
Jim at FSU (mail):

At bottom, my biggest beef with Maloney is that it is dismissively conclusory rather than analytical. It feels like something a busy District Court might write in response to a Rule 29 motion -- not something authored by jurists at a level "where policy is made" (to quote Judge S...) while wrestling with one of the hottest Constitutional issues of the year.


Exactly. Thank you for putting that in words.
5.26.2009 7:33pm
Oren:
zph, good points. On the other hand, I don't know if a 2CA panel is empowered to reverse a prior 2CA panel in the way that the 9CA allows.
5.26.2009 7:36pm
cboldt (mail):
-- Cruikshank(1894) --

1875
5.26.2009 7:38pm
Oren:

The Supreme Court hasn't decided incorporation in regards to the 2nd. The only exception to this is found in the old pre-incorporation era cases.

What?

The right there specified is that of 'bearing arms for a lawful purpose.' This is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence. The second amendment declares that it shall not be infringed; but this, as has been seen, means no more than that it shall not be infringed by Congress.

That was never overruled, the 2A applies only to Congress until the Supreme Court rules otherwise. I think the panel in Nordyke vastly overstepped their bounds in declaring incorporation in the face of absolutely unmistakable precedent from an unreversed superior court.

Now, one could divine that, given current incorporation doctrine the court today would rule otherwise. I agree wholeheartedly -- there are least 5 votes for incorporation of the 2A against the states. The function of the lower courts, however, is to apply precedent how it is, not how it might be.
5.26.2009 7:50pm
Jim at FSU (mail):
Sorry, I misremembered the date. My point was that it was in the post-war (Civil War) period before the court sort of changed their mind about The Slaughterhouse Cases and began selectively incorporating the bill of rights.
5.26.2009 7:52pm
Jim at FSU (mail):
Oren, who do you think you're fooling? Everyone knows that 14th amendment jurisprudence has come a long way since the late 19th century.

The majority in Heller helpfully pointed out (in a footnote, using Cruikshank as the example) that these old cases didn't engage in the necessary analysis that the 14th amendment due process jurisprudence currently requires.

In other words, the question hasn't been decided yet.
5.26.2009 7:59pm
cboldt (mail):
-- Sorry, I misremembered the date. --
.
No problem. I just happened to know, on account of just reviewing both cases, that Presser cited to Cruikshank and the "logic of the cases" depends on that order. As a matter of pure theory, it's interesting to observe the assumptions of SCOTUS, which inform the conclusion that enforcing constitutional limits on federal government against state and local governments was seen as superfluous.
5.26.2009 8:00pm
Desiderius:
Andy Bolen,

And I misidentified you. Abject apologies. I'm sometimes courteous, but presently I'm grumpy because I wanted Kagan and I'm not happy about what the pick says about my man Obama.
5.26.2009 11:25pm
Desiderius:
Desiderius,

"It's incredible to me that you would be so rude to me without even taking care to make sure you were responding to my comments. I wish DK would block you from the blog, or at least delete your original post. This sort of screeching incivility just makes it no fun to be here."

All true. I would second the deleting suggestion. I hope that you'll stay. I hereby ban myself for a week as recompense.
5.26.2009 11:27pm
Tony Tutins (mail):

The notion that the bill of rights only constrains the federal government is a completely dead concept that hasn't been seriously argued in decades.

Except for the Second Amendment. There that idea is still good law, at least in the Seventh Circuit: QUILICI V. VILLAGE OF MORTON GROVE, 695 F.2d 261 (7th Cir. 1982)

In fact, the Quilici court refuted an assertion similar to the one quoted above:

First, appellants offer no authority, other than their own opinions, to support their arguments that Presser is no longer good law or would have been decided differently today. Indeed, the fact that the Supreme Court continues to cite Presser, Malloy v. Hogan, 378 U.S. 1, 4 n. 2, 84 S.Ct. 1489, 1491 n. 2, 12 L.Ed.2d 653 (1964), leads to the opposite conclusion. Second, regardless of whether appellants agree with the Presser analysis, it is the law of the land and we are bound by it. Their assertion that Presser is illogical is a policy matter for the Supreme Court to address. Finally, their theory of implicit incorporation is wholly unsupported. The Supreme Court has specifically rejected the proposition that the entire Bill of Rights applies to the states through the fourteenth amendment. Adamson v. California, 332 U.S. 46, 67 S.Ct. 1672, 91 L.Ed. 1903 (1947), overruled on other grounds, Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653 (1964); Palko v. Connecticut, 302 U.S. 319, 58 S.Ct. 149, 82 L.Ed. 288 (1937); Twining v. New Jersey, 211 U.S. 78, 29 S.Ct. 14, 53 L.Ed. 97 (1908).
5.26.2009 11:29pm
Oren:

Oren, who do you think you're fooling? Everyone knows that 14th amendment jurisprudence has come a long way since the late 19th century.

I'm not fooling anyone.

I understand that the 14A has changed.

I agree that under current doctrine the 2A would be incorporated.


The majority in Heller helpfully pointed out (in a footnote, using Cruikshank as the example) that these old cases didn't engage in the necessary analysis that the 14th amendment due process jurisprudence currently requires.

That is correct.


In other words, the question hasn't been decided yet.

The question has been decided -- the 2A is a restriction only on Congress. It says so in plain language, whether or not you want to ignore it.

At the core of this argument is your assertion that when a ruling undercuts the doctrinal basis for a previous ruling, that ruling is no longer precedent. That just isn't true. The Supreme Court has repeatedly held that the precedential value of cases is limited to actual holding and the reasoning to get there. The 9CA explains it best:

Stare decisis is the policy of the court to stand by precedent; the term is but an abbreviation of stare decisis et non quieta movere -- "to stand by and adhere to decisions and not disturb what is settled. " Consider the word "decisis." The word means, literally and legally, the decision. Nor is the doctrine stare dictis; it is not "to stand by or keep to what was said." Nor is the doctrine stare rationibus decidendi -- "to keep to the rationes decidendi of past cases." Rather, under the doctrine of stare decisis a case is important only for what it decides -- for the "what," not for the "why," and not for the "how." Insofar as precedent is concerned, stare decisis is important only for the decision, for the detailed legal consequence following a detailed set of facts.


None of the legal conclusions in Heller touch on the matter is Presser/Cruikshank and so Heller leaves those decisions absolutely undisturbed.
5.26.2009 11:34pm
Oren:

Their assertion that Presser is illogical is a policy matter for the Supreme Court to address.

Indeed. The best thing the appellate courts can do is dispose of these cases quickly so the SCOTUS can grant cert if they want to revisit the precedent.
5.26.2009 11:36pm
AST (mail):
How does she feel about switchblades?
5.27.2009 12:36am
cboldt (mail):
-- The Supreme Court has repeatedly held that the precedential value of cases is limited to actual holding and the reasoning to get there. --
.
Readers are encouraged to find the precedential value of Presser when that filter is applied. Here is my attempt.
.
States and municipalities may forbid the people from associating together as military organizations, or to drill or parade with arms in cities and towns, unless authorized by law, and unless the people are petitioning the government for redress of grievances. "The exercise of this power by the states is necessary to the public peace, safety, and good order. To deny the power would be to deny the right of the state to disperse assemblages organized for sedition and treason, and the right to suppress armed mobs bent on riot and rapine."
.
Excerpting the phrase, "the amendment is a limitation only upon the power of Congress and the national government, and not upon that of the state," (and similar phrases in the opinion) without complete context, is misleading as to the precedential value of Presser. The Court, in Presser, also said, "the states cannot, even laying the constitutional provision in question out of view [2nd amendment to the US Constitution], prohibit the people from keeping and bearing arms ... we think it clear that the sections [of municipal law] under consideration do not have this effect."
5.27.2009 8:01am
Melancton Smith:
As a layman I wonder why there isn't a basic smell test for sanity done. I hear alot of precedential nonsense and discussion about what power a state has versus what power the Fed has but not much about the plain simple matter at hand.

Why is it that the residents of the urban metropolis of Washington DC have the right to defend themselves and their families and homes with handguns but the residents of the urban metropolis of Chicago do not? From a practical standpoint, how do the two sets of residents differ in their self defense needs? How do the local governments involved (DC City Council v. Chicago City Council) differ in their police power needs?

How can the situation in these two cities be so radically different? It makes no sense. The law, at some point, should be sensical.
5.27.2009 9:54am
cboldt (mail):
-- As a layman I wonder why there isn't a basic smell test for sanity done. --
.
The practice of law is not bound to rigorous sanity checks, or even to internal consistency. It is about power and control.
.
The lawyers' explanation for the radical difference in law between municipalities will be "that's not a bug, it's a feature," and "federalism is all about respecting diversity in law." True enough for some matters, utterly false for others.
5.27.2009 10:08am
Oren:

Readers are encouraged to find the precedential value of Presser when that filter is applied. Here is my attempt.

I was thinking Cruikshank.

The second amendment declares that it shall not be infringed; but this, as has been seen, means no more than that it shall not be infringed by Congress.

Plain English, relevant to the result of the case.
5.27.2009 10:31am
cboldt (mail):
-- I was thinking Cruikshank. --
.
Presser built on the segment of Cruikshank that you present in isolation, and did so in plain English.
5.27.2009 11:01am
Andy Bolen (mail):
Desiderius,

Thanks, forget about it.

I myself am irritated that it wasn't Wood.
5.27.2009 11:07am
cboldt (mail):
-- the precedential value of cases is limited to actual holding and the reasoning to get there --
.
In Cruikshank, the holding with regard to the 2nd amendment turned on whether or not a private (non-government) actor can perpetrate an encroachment on the 2nd amendment. The fact pattern did not involve a state or municipal regulation pertaining to the keeping and/or bearing of arms.
5.27.2009 11:32am
M Gallo (mail) (www):
Mike N. said:

"I wouldn't imagine that someone who is (1) liberal, (2) female, and (3) from the Bronx would be very friendly to the 2nd Amendment, if only because it involves something that is fairly foreign and alien to that person."


Mike, you should know that a latina woman has more life experiences (and better judgement) than a white man; nothing is foreign or alien to her. What kind of dumb rednecks wouldn't know that? Sheesh, she even told us so...
5.27.2009 11:34am
ShelbyC:
If anybody's still reading, I have a question about the imprecission of the language around the modern doctrine. Since people today tend to say "Amendment X prevents the states from doing Y" when they mean "the due process clause of the 14th amendment, operating through amendment X, prevents the states from doing Y", what precential value does a statement in 1875 or 1886 that the 2nd amendment doesn't apply to the states have on the answer to that same question today, when today it really is whether or not the 14th prevents the states from requlating arms?
5.27.2009 12:36pm
cboldt (mail):
-- what precential value does a statement in 1875 or 1886 that the 2nd amendment doesn't apply to the states have on the answer to that same question today, when today it really is whether or not the 14th prevents the states from requlating arms? --
.
As to the precedential value of Cruikshank and Presser (decided in 1875 and 1886), the gun grabbing lobby and its enablers find that the expression "The second amendment declares that it shall not be infringed; but this, as has been seen, means no more than that it shall not be infringed by Congress" represents the law of the land, and it must stand as expressed in that isolated sentence, until that isolated sentence is expressly overturned by the United States Supreme Court. Until that event happens, goes the argument, no Circuit Court may properly invoke the 2nd amendment via the 14th amendment, against a state or municipal enactment.
5.27.2009 12:52pm
Oren:

In Cruikshank, the holding with regard to the 2nd amendment turned on whether or not a private (non-government) actor can perpetrate an encroachment on the 2nd amendment. The fact pattern did not involve a state or municipal regulation pertaining to the keeping and/or bearing of arms.

However, in getting to that conclusion, the Court had to first determine whether the 2A applied to the States in the first place or else Congress would not have been in their power to pass the law in question at all.

Like I said, the 2A will be incorporated, but I don't see why everyone thinks the lower courts are going to be the ones to do it. If the SCOTUS wants to incorporate, they can grant cert and do so. If they don't want to incorporate, they can deny cert to these cases just as easily as they can reverse it if the lower courts rule in favor of incorporation. It all ends up the same way in the end.

See Randy's post about Easterbrook and Posner for their thoughts on it, which are right on the money (and I wish Randy had comments on).
5.27.2009 1:00pm
Oren:

decided in 1875 and 1886

The weight of a precedent in "vertical" stare decsis (higher courts unto lower courts) does not diminish with time.


... represents the law of the land, and it must stand as expressed in that isolated sentence, until that isolated sentence is expressly overturned by the United States Supreme Court.

Yup, that's the case. The quicker the lower courts deal with it, the quicker the SCOTUS can grant cert and reverse.
5.27.2009 1:05pm
Dilan Esper (mail) (www):
I think this is all much ado about nothing. There are lots of things the lower courts decide that are never reviewed by the Supreme Court. But this isn't one of them. Everyone knows the Supreme Court-- and only the Supreme Court-- is going to settle whether the 2nd Amendment is incorporated. And that means that what the lower courts do doesn't matter very much, and a rational lower court judge knows this and isn't going to put a lot of effort into a 2nd Amendment incorporation case.
5.27.2009 1:08pm
cboldt (mail):
-- However, in getting to that conclusion, the Court had to first determine whether the 2A applied to the States in the first place or else Congress would not have been in their power to pass the law in question at all. --
.
How so? the indictment in question was brought under a federal law. The question of whether or not the 2nd amendment inhibits states from enacting laws is irrelevant to the decision in this case.
.
-- If the SCOTUS wants to incorporate, they can grant cert and do so. --
.
If the basis for absence of incorporation is the Cruikshank/Presser pair, the Circuit Courts are free to read Presser anew, isolate a different sentence, and produce the result of reversing their own precedent that finds the states empowered to pass laws that run afoul of the 2nd amendment. I don't need to hear Easterbrook and Posner in order to facilitate my own reading of Presser, and neither does anybody else. The cases are public for a reason, in part so the public can view the machinations of the law and form their own impression of how it works.
5.27.2009 1:13pm
ShelbyC:

I think this is all much ado about nothing.


I agree, but I'm personally interested in the technical legal issues.


The weight of a precedent in "vertical" stare decsis (higher courts unto lower courts) does not diminish with time.


I agree, but I'm arguing that the meaning of certain legal phrases has changed, so that when a court in 1875 or 1886 says, "The second amendmnet doesn't inhibit the states..." I has a different meaning than when a court says that today.

Today, talking about the Bill of Right's application to the states has become legal shorthand for talking about the due process clause of the 14th.

IOW, do the court's 19th century holdings count as a rejection of the argument that the due process clause of the 14th prevents the states from infringing on the right protected from Congress by the 2nd, even though they didn't address it? (I don't remember, they might have addressed the P&I clause, but I doubt the addressed the DP clause.)
5.27.2009 1:32pm
Melancton Smith:
And, according to Gura's arguments, there is no Supreme Court precedent forclosing the selective incorporation of the Second Amendment.

Didn't the Heller majority urge the lower courts to apply modern (selective) incorporation doctrine?
5.27.2009 1:41pm
cboldt (mail):
-- IOW, do the court's 19th century holdings count as a rejection of the argument that the due process clause of the 14th prevents the states from infringing on the right protected from Congress by the 2nd, even though they didn't address it? --
.
They do if a Circuit Court says so. See the 2009 Maloney decision linked in the original post for a direct cite to Presser

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).
.
The Fourteenth Amendment similarly provides no relief for Appellant. "Legislative acts that do not interfere with fundamental rights or single out suspect classifications carry with them a strong presumption of constitutionality and must be upheld if rationally related to a legitimate state interest.'" Beatie v. City of New York, 123 F.3d 707, 711 (2d Cir. 1997) (quoting City of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 440 (1985)). We will uphold legislation if we can identify "some reasonably conceivable state of facts that could provide a rational basis for the legislative action. ...
5.27.2009 1:44pm
cboldt (mail):
-- Didn't the Heller majority urge the lower courts to apply modern (selective) incorporation doctrine? --
.
No. The majority made a set of half-true observations in footnote 23, and invited the conclusion that Presser and Miller settled the question of incorporation of the 2nd.

With respect to Cruikshank's continuing validity on incorporation, a question not presented by this case, we note that Cruikshank also said that the First Amendment did not apply against the States and did not engage in the sort of Fourteenth Amendment inquiry required by our later cases. Our later decisions in Presser v. Illinois, 116 U. S. 252, 265 (1886) and Miller v. Texas, 153 U. S. 535, 538 (1894), reaffirmed that the Second Amendment applies only to the Federal Government.
5.27.2009 1:50pm
ShelbyC:

They do if a Circuit Court says so.


Although the Maloney court didn't do so, it seem that, since the modern incorporation question is as much about the meaning of the 14th as of the 2nd, and since there have been ample intervening SCOTUS decisions about the meaning of the 14th since 1886, a circuit court wanting to address the incorporation issue without being bound by Presser has plenty of justification for doing so.
5.27.2009 2:22pm
Oren:

How so? the indictment in question was brought under a federal law. The question of whether or not the 2nd amendment inhibits states from enacting laws is irrelevant to the decision in this case.

The Federal Law was (purportedly) made under the power granted of Congress by the 14A (as opposed to, say, the commerce clause).

Section 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.


Thus, if the 14A does not incorporate the 2A, the Federal legislation in question is unconstitutional for not falling in one of the enumerated areas in which Congress may legislate*. That was precisely the conclusion in Cruikshank:

(1) The 14A has nothing to do with the 2A.
(2) Thus, Congress may not enforce the 2A by dint of the power granted to it by 14AS5.


* Colloquially -- the law exceeds Congress' power. I don't like that phrase because Congress does not have "power", it has enumerated powers. That's a quibble.


If the basis for absence of incorporation is the Cruikshank/Presser pair, the Circuit Courts are free to read Presser anew, isolate a different sentence, and produce the result of reversing their own precedent that finds the states empowered to pass laws that run afoul of the 2nd amendment.

So long as that ruling is consistent with the decision in Cruikshank/Presser, sure. I don't think there is any way to do so.
5.27.2009 2:32pm
Oren:

IOW, do the court's 19th century holdings count as a rejection of the argument that the due process clause of the 14th prevents the states from infringing on the right protected from Congress by the 2nd, even though they didn't address it? (I don't remember, they might have addressed the P&I clause, but I doubt the addressed the DP clause.)

Please read the quoted paragraph from the 9CA about the difference between stare decisis et non quieta movere and stare rationibus decidendi. The 19th century holdings don't count (and don't need to count) as the rejection of any argument because precedent covers only the decision. If we had a system that was stare rationibus decidendi, the P/C would have absolutely been considered to be overridden at this point.

You guys are all absolutely right -- doctrinal shifts make Presser and Cruikshank absolutely illogical in the current framework for the 14A. Nevertheless, lower courts are bound to stand by the decision, not the rationale of higher court rulings. When and how to resolve the inconsistency in those rulings is a matter for the Supreme Court.
5.27.2009 2:48pm
Oren:

a circuit court wanting to address the incorporation issue without being bound by Presser has plenty of justification for doing so.

The notion of a lower court not bound by the decision of a higher court is incompatible with the basic idea of vertical stare decisis.
5.27.2009 2:51pm
Oren:
From the Heller opinion:

With respect to Cruikshank's continuing validity on incorporation, a question not presented by this case

Heller could not disturb anything involving incorporation for precisely that reason.

Of course, Heller might persuade a future Court to revisit Presser and Cruikshank, but that's horizontal stare decisis, not the vertical variety we've been talking about.
5.27.2009 2:53pm
ShelbyC:

Thus, if the 14A does not incorporate the 2A, the Federal legislation in question is unconstitutional for not falling in one of the enumerated areas in which Congress may legislate*. That was precisely the conclusion in Cruikshank:


(1) The 14A has nothing to do with the 2A.
(2) Thus, Congress may not enforce the 2A by dint of the power granted to it by 14AS5.




However, this holding depends on the meaning of both the 14A and the 2A. So the holding is good law so long as there are no intervening SC decisions affecting the relevant portions of the meaning of either the 14A or the 2A. Now, I can't do the research to find the exact decision right now, but I'm sure the meaning of the 14th has changed with the incorporation of the rest of the BOR.
5.27.2009 2:54pm
cboldt (mail):
-- That was precisely the conclusion in Cruikshank:
(1) The 14A has nothing to do with the 2A.
(2) Thus, Congress may not enforce the 2A by dint of the power granted to it by 14AS5.
--
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Your explanation doesn't address "the Court had to first determine whether the 2A applied to the States in the first place or else Congress would not have been in their power to pass the law in question at all."
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The indictment fell on as as applied basis in light of the 1st amendment. Even though the Court didn't incorporate the 1st amendment, it described a situation in which it would have upheld the indictment in light of the 1st amendment.

If it had been alleged in these counts that the object of the defendants was to prevent a meeting for such a purpose [to meet peaceably for consultation in respect to public affairs and to petition for a redress of grievances], the case would have been within the statute, and within the scope of the sovereignty of the United States.


The indictment fell as to the 2nd, on the basis that the 2nd amendment provides no protection against private actors ("leaving the people to look [to the states/municipalities] for their protection against any violation by their fellow-citizens ...").
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-- So long as that ruling is consistent with the decision in Cruikshank/Presser, sure. --
It is undoubtedly true that ... the states cannot, even laying the [2nd amendment] out of view, prohibit the people from keeping and bearing arms
5.27.2009 3:15pm
Oren:




However, this holding depends on the meaning of both the 14A and the 2A. So the holding is good law so long as there are no intervening SC decisions affecting the relevant portions of the meaning of either the 14A or the 2A.

No -- the holding is good law until the decision is reversed. The standard is stare decisis, not stare rationibus decidendi. Precedent attaches to the decision and the decision only. If subsequent holding effect the rationibus decidendi to the point where the decision is no longer tenable, that's a matter for the Supreme Court and ONLY the Supreme Court to decide.



Now, I can't do the research to find the exact decision right now, but I'm sure the meaning of the 14th has changed with the incorporation of the rest of the BOR.

I've stipulated to that point a dozen times, you don't need to do the research to convince me of that, I already believe it.

You seem to think that lower courts are bound to following the reasoning of higher court rulings. That is FALSE. Lower courts are bound to follow the decisions of higher courts. That's what vertical stare decisis is all about.
5.27.2009 5:31pm
Warren Dew (mail) (www):
Oren, it is obvious that Heller overturns Cruikshank's statement about restricting Congress only because Heller overturned a law not passed by Congress. Cruikshank's statement that the second amendment right "means no more than that it shall not be infringed by Congress" is obviously no longer valid law.
5.28.2009 2:18am
cboldt (mail):
-- Cruikshank's statement that the second amendment right "means no more than that it shall not be infringed by Congress" is obviously no longer valid law. --
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Taken in isolation as the various Courts have done, that phrase never did accurately represent the position of the Supreme Court in Cruikshank/Presser, as it saw the power of the states against keeping and bearing arms. One only need to read three paragraphs of Presser to discern the convenient cherry-picking.
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An entire body of law has been built up on the convenient/dishonest fiction, so that the Courts are now faced with either coming clean (they never do that - and too few people read the cases deep enough to voice an effective discrediting of the institution of the Courts), or building on their own fiction. The point that "means no more than that it shall not be infringed by Congress" is effectively "the law," in a similar way that Santa Claus and the Easter Bunny are real in the minds of those to young to discern for themselves. IOW, in Court, this false representation of Cruikshank/Presser -IS- "the law." As laws in the District of Columbia are made on direct authority of Congress, as opposed to States which are theoretically completely independent of Congress, Heller's invalidating of DC gun law amounts to invalidating a law of Congress. Further, the Heller majority directly expressed that it did not consider the issue of "incorporation."
5.28.2009 5:35am
Oren:

Oren, it is obvious that Heller overturns Cruikshank's statement about restricting Congress only because Heller overturned a law not passed by Congress. Cruikshank's statement that the second amendment right "means no more than that it shall not be infringed by Congress" is obviously no longer valid law.


What are you talking about? DC is under Congress and Congress only. DC Law is made only by Congress. Heller could not overturn Cruikshank because incorporation was not part of the case or controversy (and, I'd like to remind you, dicta are not binding).
5.28.2009 10:46am
Oren:

The point that "means no more than that it shall not be infringed by Congress" is effectively "the law," in a similar way that Santa Claus and the Easter Bunny are real in the minds of those to young to discern for themselves.

Except that what the law is for the purposes of precedent in the lower court is entirely a construct of the Supreme Court. It's not like an objective reality (whether or not the EB exists, for instance) but more like "bedtime" -- it is what they say it is.

For instance, consider the following conversation (and my commentary in []_):


Child: Daddy, why is the earth round.
Father: Because I said so. [ False, whether the earth is round is an objective fact independent of the father's words.]

Child: Mommy, why is my bedtime 8PM instead of 9PM.
Mother: Because I said so. [ True, what the parents say is bedtime is the bedtime independent of any objective facts. ]


I'm not saying that Presser/Cruikshank are objectively correct -- you know that I personally find them to be objectively incorrect. What I'm saying is that, for the purposes of a lower court following the superior court, what the superior court says goes.

That is, you need to make a distinction between the law in the abstract (what is the correct way to parse those words) and the law as actually applied. In the former case, you are bounded only by your own consistent logic. In the latter case, you are bound by the precedent and modes of analysis present in the system as it actually exists.
5.28.2009 10:52am
cboldt (mail):
-- Except that what the law is for the purposes of precedent in the lower court is entirely a construct of the Supreme Court. --
.
As to Presser, your statement is false, in that it omits additional statements in the Presser case that shed light on how the Supreme Court, in Presser, saw a boundary on state power as against the people's right to keep and bear arms. What the law of Presser is as how the Circuits see it, is a construct of the Circuits.
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While the Circuit Courts are free to cherry-pick (and you are too), it is objective reality that the Supreme Court, in Presser, said "It is undoubtedly true that ... the states cannot, even laying the [2nd amendment] out of view, prohibit the people from keeping and bearing arms."
.
-- you need to make a distinction between the law in the abstract (what is the correct way to parse those words) and the law as actually applied. --
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I did. Presser says what it says, and the Circuit Court cherry-picked a sentence to make Circuit law, where the Circuit law does not accurately represent Presser. Just the same, Circuit law is Circuit law -- the Courts are free to misread and misapply precedent until they get called on it by a superior.
5.28.2009 11:07am
Oren:


As to Presser, your statement is false, in that it omits additional statements in the Presser case that shed light on how the Supreme Court, in Presser, saw a boundary on state power as against the people's right to keep and bear arms.

It is undoubtedly true that ... the states cannot, even laying the [2nd amendment] out of view, prohibit the people from keeping and bearing arms.


This statement is ober dicta -- it has no precedential or legal value whatsoever because it is not relevant to the disposition of the case or controversy. The weight of precedent attaches only to the actual findings of the court.

It's not cherry-picking (especially when I "cherry pick" a statement that I find to be repulsively incorrect) to distinguish the findings from the dicta.
5.28.2009 12:58pm
cboldt (mail):
-- This statement is ober dicta -- it has no precedential or legal value whatsoever because it is not relevant to the disposition of the case or controversy. The weight of precedent attaches only to the actual findings of the court. --
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The phrase you incessantly cite as "the decision of the case" is likewise not necessary to reach the holding. The case was about a state law that required a permit to parade in military gear, and the Court in Presser expressed WHY this law was an appropriate exercise of a police power reserved to the state. It also said (as dicta) that this legitimate exercise of police power was not an infringement of the people's right to keep and bear arms. Ergo, ANY statement about the extent of force or origin of "the right to keep and bear arms" is dicta.
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That's repetitive of the same point I made above, in this thread, describing the decision (which is the only thing preserved as precedent) and rationale.
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Now, as to the Circuit Court, I agree that it took the phrase that you similarly hold as a necessary point (and is "the law"), from Presser -- and that as far as the Circuit goes, it is the law. But both you and the Circuit are misconstruing Presser, as anybody who takes the time to read and understand Presser will figure out. It's not SCOTUS (in Presser) that's "wrong." As far as SCOTUS (in Presser) is concerned, the states are not free to infringe the right to keep and bear arms -- but they are free to require permits for public military parade.
5.28.2009 1:17pm

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