Sueven wrote:Initially, none of the rights in the Constitution were applicable to the states. The constitution is about federal, not state, government. A doctrine called "incorporation" arose in order to make those rights applicable to the states. I forget exactly what the rationale is; I think it basically employs the 14th amendment to make various rights in the bill of rights applicable as to the states.
At various times in history, most of the rights contained in the bill of rights have been incorporated, meaning that state government action is curtailed by the Constitution in the same way that federal government action is. This has happened in an independent Supreme Court decision for every right that has been incorporated. Most, but not all, explicit constitutional rights have been incorporated. Evidently, the second amendment is not among those rights.
The opinion (is it even Sotomayor's, or was she simply on the panel of judges that issued it?) is very brief and states a simple legal fact: The Second Amendment is not incorporated against the states. The most recent relevant precedent is the 1886 case mentioned, which says that it's not incorporated. It is likely that the Court of Appeals was not the appropriate legal forum to rule on whether the right should be so incorporated, especially since there is direct Supreme Court precedent on point (Supreme Court decisions are binding on Courts of Appeal).
In the aftermath of Heller, it's likely that the second amendment will be incorporated at some point, as I believe it should be. But this will take the form of a Supreme Court decision. For a Court of Appeals to ignore clear and longstanding Supreme Court precedent in order to incorporate a previously unincorporated right would be the most clear sort of "judicial activism" imaginable.
Without reading the opinion and knowing only its legal posture, I'm quite confident that it contains no substantive second amendment analysis whatsoever.
Some clarifcations have been previously issued as the 2nd has not been specifically brought before SCOTUS.
On April 20, 2009, under Nordyke v. King the Court of Appeals for the Ninth Circuit held that the Second Amendment was incorporated.[20] This is a binding authority over Alaska, Arizona, California, Hawaii, Idaho, Montana, Oregon, Washington, and the U.S. territories of Guam and the Northern Mariana Islands, but is only a persuasive authority over the remainder of the United States.
So there have been previous cases in the appeals courts which they ignored.
Nordyke v. King, ___ F.3d ___ (9th Cir. 2009), was a decision of the United States Court of Appealsfor the Ninth Circuit in which a ban of firearms on all public property was ruled constitutional. Additionally, the court ruled the Second Amendment was incorporated against the states.
The Circuit Court ruled that the Second Amendment was incorporated through the Fourteenth Amendment's Due Process Clause and applies against the states and local governments.[3] In coming to that conclusion, the court found the right to keep and bear arms is "deeply rooted in this Nation’s history and tradition", a key factor under Duncan v. Louisiana for incorporation.[4]
There have been no SCOTUS rulings on the issues since 1875.
The court has ruled that the second amendment codifies a pre-existing individual right to possess and carry firearms, which is not in any manner dependent on the Constitution for its existence,[16] and some commentators suggest that incorporation is likely,[17] or that incorporation can hardly be escaped if the inferior courts take the Supreme Court's incorporation jurisprudence seriously as law—as they are required to do.[18]
Obviously this was ignored.
