Next up--incorporation.

[TPaine7]

Briefs on Whether the Second Amendment Should Apply to the States Via the Fourteenth:

This is the "incorporation" question, and it's raised in Nordyke v. King, a case now pending before the Ninth Circuit; the pro-incorporation and the anti-incorporation briefs are now both available.

Source: http://www.volokh.com/posts/1221258797.shtml

My heart sank when I saw that it was pending before the Ninth Circuit. But then I read Reasoner's post:

Before Heller, this same panel of judges made a ruling in this same case that said they might uphold the 2nd Amendment if they weren't bound by precedent. Now that we have Heller, the precedent is void. This panel seems to be pretty supportive of the 2nd Amendment.

I thought the Ninth was sure to set anti gun precedent, and that other courts would use their rulings to bolster their own anti-gun agendas. Reasoner seems to think differently.

Does anyone know what he's talking about? Did the luck of draw give us a pro Second Amendment subset of one of the most anti-gun courts in America?! This bears investigation.

Note: Briefs are linked to at the source.

[Boomer 50]

1. Remember...

The Ninth Circuit deemed home made machine guns were not regulatable by 1934 or the Hughes Amendment (machine gun ban). SCOTUS remanded the case. This disparity will be addressed leaving the Hughes Amendment and the 1934 dead in the dust where they both belong.

[Will E Orwontee]

2. RE: Next up--incorporation.

Maybe Silveira v Lockyer (322KB pdf)?

"Our court, like every other federal court of appeals to reach the issue except for the Fifth Circuit, has interpreted Miller as rejecting the traditional individual rights view. In Hickman v. Block, we held that “the Second Amendment guarantees a collective rather than an individual right.” 81 F.3d at 102 (citation and quotation marks omitted).10 Like the other courts, we reached our conclusion regarding the Second Amendment’s scope largely on the basis of the rather cursory discussion in Miller, and touched only briefly on the merits of the debate over the force of the amendment. See id.11

Appellants contend that we misread Miller in Hickman.12 They point out that, as we have already noted, Miller, like most other cases that address the Second Amendment, fails to provide much reasoning in support of its conclusion. We agree that our determination in Hickman that Miller endorsed the collective rights position is open to serious debate. We also agree that the entire subject of the meaning of the Second Amendment deserves more consideration than we, or the Supreme Court, have thus far been able (or willing) to give it." -- SILVEIRA V LOCKYER pgs. 18-19

And of course since Silveira, SCOTUS has given the Amendment the consideration it deserves . . .

[TPaine7]

5. Truer words were rarely spoken

"Our court, like every other federal court of appeals to reach the issue except for the Fifth Circuit, has interpreted Miller as rejecting the traditional individual rights view. In Hickman v. Block, we held that “the Second Amendment guarantees a collective rather than an individual right.” 81 F.3d at 102 (citation and quotation marks omitted).10 Like the other courts, we reached our conclusion regarding the Second Amendment’s scope largely on the basis of the rather cursory discussion in Miller, and touched only briefly on the merits of the debate over the force of the amendment. See id.11

Appellants contend that we misread Miller in Hickman.12 They point out that, as we have already noted, Miller, like most other cases that address the Second Amendment, fails to provide much reasoning in support of its conclusion. We agree that our determination in Hickman that Miller endorsed the collective rights position is open to serious debate. We also agree that the entire subject of the meaning of the Second Amendment deserves more consideration than we, or the Supreme Court, have thus far been able (or willing) to give it." -- SILVEIRA V LOCKYER pgs. 18-19

Wow! If I've read this before, I have thoroughly forgotten it. The honesty is shocking.

[jody]

3. Thanks for the post and link. Have a pleasant evening. n/t

[iverglas]

4. incorporations have taken over the world!!!

What's that? Violence on TV?

Never mind.

[jody]

6. Can RKBA be a fundamental right at the fed level and not a fundamental right at the state level?

APPELLEES’ SUPPLEMENTAL BRIEF argues:

V. CONCLUSION
It is one thing to conclude the Second Amendment was intended to create a constitutional barrier so that the federal government, which is denied the power to regulate in the interests of the public health and safety, cannot disarm citizens who wish to have a firearm in the home because they believe it is useful for self defense. It is quite another to conclude that individual firearms possession for personal self-defense is a right fundamental to the American scheme of liberty and justice. Our English ancestors did not enjoy any such fundamental right because Article 7, the right to have arms under the English Bill of Rights, was a qualified right (by class, religion and other factors), and was not enforceable against Parliament. There is also no evidence that there is, or ever has been, any consensus in this country that individual possession of firearms for personal self-defense is a fundamental right. It is a minority position.

But SCOTUS said in Heller:

By the time of the founding, the right to have arms had become fundamental for English subjects. See Malcolm 122–134. Blackstone, whose works, we have said, “constituted the preeminent authority on English law for the founding generation,” Alden v. Maine, 527 U. S. 706, 715 (1999), cited the arms provision of the Bill of Rights as one of the fundamental rights of Englishmen. See 1 Black-stone 136, 139–140 (1765). His description of it cannot possibly be thought to tie it to militia or military service. It was, he said, “the natural right of resistance and self-preservation,” id., at 139, and “the right of having and using arms for self-preservation and defence,” id., at 140; see also 3 id., at 2–4 (1768). Other contemporary authorities concurred. See G. Sharp, Tracts, Concerning the Ancient and Only True Legal Means of National Defence, by a Free Militia 17–18, 27 (3d ed. 1782); 2 J. de Lolme, The Rise and Progress of the English Constitution 886–887 (1784) (A. Stephens ed. 1838); W. Blizard, Desultory Reflections on Police 59–60 (1785). Thus, the right secured in 1689 as a result of the Stuarts’ abuses was by the time of the founding understood to be an individual right protecting against both public and private violence.

[LN3]

7. +1

[SteveM]

8. "Incorporation" doesn't set well with many conservatives:

From J. Aldridge's blog at the same link in OP:

"I fail to see how the Second or any of the first eight amendments can be incorporated against the states, and to a more extreme degree, against municipals. The 14th doesn't say anything about the second amendment, just the 5th. The same guys who adopted it could find no rational to apply the first amendment establishment clause against the states and were forced to attempt amend the constitution to do so.

"No court before the adoption of the 14th ever said the privileges and immunities belonging to United States citizens included any of the first eight amendments. It was universally agreed by all involved that the 14th added nothing new to the privileges and immunities of U.S. citizens... and these P&I's had nothing to do with citizens of under their own state constitutions."

If 2A is incorporated, it will be bitter-sweet for these conservatives.