If the SC takes the DC gun ban case, will it have any effect on state and city gun laws? Can the court even reach the question of whether the 2nd amendment is incorporated against the states?
If they take the case, and if they uphold the district court decision, I don’t see how that could be anything less than incorporation due to the Supremacy Clause. Whatever the Supreme Court rules becomes the interpretation in effect throughout the land.
Of course, the Supreme Court could rule against it, and that would also be covered by the Supremacy Clause. Or they could deny cert, in which case it would stand as a precedent in the jurisdiction covered by the District Court, which would be Washington, DC only.
I’m sure a lawyer will be around to correct me on the finer points, but that’s my read on it, layman that I am.
Just because the 2nd amendment applies against action of the federal government does not mean that it applies against the states and I don’t see how that question can come up in this case since no state laws are at issue.
The Supremacy Clause would not be issue unless the SC actually ruled on the issue of incorporation.
No state laws are at issue? Are you making the argument that the dissenting judge made, that DC is not a state and therefore the 2nd Amendment does not apply? That’s a dangerous road to go down, my friend, because if that’s true, none of the other Amendments apply either in DC.
The Second Amendment has never been specifically incorporated, that is, the SC has never ruled it applies to the states, and did make a contrary ruling in 1875. See here and here.
Why would a DC gun law involve incorporation in any way, shape, or form? It doesn’t involve any action of a state government or any entity created by a state government.
The peripheral issue invoked by the dissenting judge has nothing to do with incorporation; rather, she suggests a reading under which the Second Amendment would bar federal action against citizens of a state but not of a federal territory or district. I believe this construction is ridiculous, but either way, it doesn’t involve incorporation.
The “contrary ruling” was United States v. Cruikshank in 1875. That case involved racial violence perpetrated by whites against blacks. Members of the white mob were charged with violation of the civil rights of the victims. The Supreme Court ruled that there was no crime because the First Amendment right to assembly did not limit the powers of the State governments, just the federal government, and that the Second Amendment similarly applies only to the powers of the federal government.
While the First Amendment portion of Cruikshank has been explictly overruled (DeJonge v. Oregon) the Second Amendment never has. Nonetheless, given the era in which it was written and the fate of half its rationale, I believe Cruikshank is ripe for reversal.
However, I will say this: unlike Miller, Cruikshank is directly on point here, and it would require the Supreme Court to overrule precedent.
Actually, it’s extremely improbable that SCOTUS would address incorporation in their decision on this case. Only if the Court came down with a resounding Hugo-Blackian “’…shall not be infringed’ means ‘shall not be infringed.’ By any government body, anywhere, under any circumstances,” would the issue even come up, and the Court traditionally avoids making a decision any more broadly applicable than it needs to be to enunciate the principle at issue.
D.C.'s law is Federal law, in the same way as the laws of the New Mexico territorial legislature were Federal law, but St. Louis’s municipal code is Missouri law. That is, the authority under which it is promulgated is the national sovereignty, delegated to the D.C. city government. A ruling narrowly tailored to whether the Federal government, or regulatory bodies subject to it, may regulate firearms based on the Second Amendment, has little or nothing to do with whether the Second Amendment defines a right of citizens of the United States which the states are prohibited by the Fourteenth Amendment from abridging. And such a narrowly tailored ruling is the preferred vehicle of SCOTUS whenever possible, on what is essentially a meta-precedent.
The OP’s reference to incorporation and state laws is, I assume, referring to the 14th Amendment. Assuming the Supreme Court upholds the lower court decision, it would presumably only be a decision that the 2nd Amendment restricts federal action. No real surpise there. But would it also restrict the ability of the states to pass similar laws?
That in turn leads to the 14th Amendment. When the Bill of Rights was first passed, it only applied to the federal government. In Palko v. Connecticut, 1937, Justice Cardozo for the Court set out the principle that the 14th Amendment selectively incorporates parts of the Bill of Rights, which then apply to the States. However, not all clauses of the Bill of Rights have been held to be incorporated by the 14th Amendment. One notable example is the right to a jury in civil matters, protected by the 7th Amendment. The Supreme Court has held that the 14th Amendment does not incorporate that right and make it binding against the States.
So, would the 14th Amendment incorporate the 2nd Amendment, and make it binding against the States, like it has with the 1st Amendment and most of the other protections of the Bill of Rights? Or would the Court conclude that the 2nd Amendment is primarily aimed against the federal government, and therefore is not incorporated by the 14th Amendment, and so does not apply to the state governments?
At this stage, I would think it hard to predict how that would play out. Much would depend on the (at-this-stage-hypothetical) Supreme Court decision upholding the lower court decision - how broadly or narrowly worded it might be. I would guess that that even if the Supremes uphold the lower court decision in the D.C. case, they would want to leave all their options open for a case brought against a State, alleging a state infringment of the 2nd Amendment.
With respect to the Supremacy clause issue raised by Airman Doors, before you get to the Supremacy issue, there’s the question whether the 2nd Amendment is incorporated by the 14th and applies to the states. If the Supreme Court were to rule that the 2nd did apply to the states, then the Supremacy Clause would apply and the state courts would be bound to respect it.
Thank you very much for the correction.
I have a question for you, though: is there any case in the country where the states are permitted to be more restrictive than the Federal government? If the feds have a law, it is generally as restrictive as you are allowed to be, isn’t it? I can’t think of any instances where something like that would be the case.
Environmental law. Local laws can be more restrictive, but never less restrictive than EPA set limits.
(Environmental Science degree, not law)
Airman Doors, I don’t know enough to give you an example, but Bobtheoptomist’s looks like a good one.
The issue is complicated because of the shifting sands of the federal power, particularly the commerce clause. Early on, if a matter was not considered to be subject to federal jurisdicion, then the states could do as they pleased.
But as the commerce power expanded, giving the feds greater powers, there developed the idea of the dormant commerce clause: that if the feds did not regulate something that was within interstate commerce, the states could not touch that area either, which sounds like what you’re thinking of. However, Congress in passing a law can also say that it will not be construed as a ceiling, only a floor, which would leave it open to the states to adopt a more rigourous standard, like the environmental laws Bobotheoptomist cites.
It’s been a long while since I had to look at this area, so maybe someone more up-to-date will come along and explain it better.
If a state pursues criminal charges against an individual the state does not have to get a presentment or indictment of a Grand Jury before they can try that individual. Basically, individuals have no right to a indictment from a grand jury.
The text is:
“No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger”
As noted above individuals do not have a right jury trial in civil cases if the trial is a state trial.
Basically, individuals have no right to a indictment from a grand jury FROM A STATE.
Another example: There are several state constitutions which explicitly guarantee a right to privacy, and/or which have an equal protection clause more stringent than the bare statement in Amendment XIV. It’s been held that the more stringent state protections bind their legislatures even though the Federal guarantees may not apply to the specific circumstances in question.
true, the state constitutions can bind the state legislatures to a higher standard than the federal Constitution binds the federal government (e.g. - the celebrated Massachussetts equal protection clause :). ) But I understood Airman Doors to be looking for examples where the state laws, enacted by the legislatures, are more restrictive on the individual than are the federal laws in the same area that apply to individuals. Is that right, Airman? In this case, the hypothetical example of a state law banning handguns that is more restrictive than a federal law banning handguns?
Thank you for the examples. I would note, though that in the cases where the rules are more stringent, they afford more protection to the individual. In the cases where the federal government acts as a ceiling, again, it affords more individual protection.
I can’t quite put it in words what I’m saying, but it’s something like this: any restrictions or allowances above and beyond what the Federal government enforces by its laws always lean toward the individual, which means to me that if the case is found in favor of individual rights the states will not be able to be more restrictive than the Federal government without abridging the finding of the Supreme Court. That’s what I mean when I say that this case can’t help but be a test on the incorporation of the 2nd Amendment if the SCOTUS takes it.
How would this be different from not having a right to a grand jury indictment or a jury trial in a civil case when the state is involved. You have no right of protection in these cases because these part of fifth and seventh amendments do not apply to the state. If 2nd amendment does not apply to the states, the question of whether the state should make arms illegal is a policy question for the state. Just like it is a policy decision as to whether the state will give individuals the right to grand jury or a jury in a civil trial.
To put it another way you have less of right to a grand jury or jury in civil cases from a state in that you have no right to these things (unless the state independently gives you that right).
The holding of the Court has been, in greatly simplified summary, that you have a right to procedural due process of law in a case in a state court. The state is not obliged to require indictment by a grand jury before convicting you of a felony, but it is obliged to protect your rights to a fair trial in an equally stingent manner – a D.A. with a “case of ass” cannot decide to charge all those he dislikes with felonies and ram their convictions through a summary trial before a complacent judge. If the state abolishes the grand jury, it must be at least as solicitous of due process as what the grand jury is intended to protect. I’m fairly sure the same sort of stringent procedural requirement applies to civil trials without a jury, though I don’t know the specifics in that case.