Monday, April 20, 2009

Ninth Circuit Incorporates Second Amendment

If you've been too busy obsessing (or lamenting) over the "results" of the new US News Rankings, you probably missed the biggest news to hit the legal world today: a Ninth Circuit panel issued its decision in Nordyke v. King, incorporating the Second Amendment against the states via the Fourteenth Amendment.

As Volokh Conspiracy notes:
The panel avoids the late 19th-century cases United States v. Cruikshank (1876) and Presser v. Illinois (1886) by reading them as simply foreclosing the direct application of the Second Amendment to the states, or the application of the Second Amendment to the states via the Privileges or Immunities Clause. The panel instead follows the Supreme Court's "selective incorporation" cases under the Due Process Clause, and concludes that the right to bear arms "ranks as fundamental, meaning 'necessary to an Anglo-American regime of ordered liberty.'
We encourage everyone to check out Volokh's coverage; they've already discussed an array of interesting issues including Judge Gould's concurring opinion, and the future of Second Amendment incorporation. As to the latter, Professor Volokh predicts:

[T]he Supreme Court would prefer to consider the incorporation question in a case that involves more common facts, and that doesn't raise the additional legal question of whether nunchakus qualify as "arms" for Second Amendment purposes. . . .[o]n the other hand, there is indeed a split on the incorporation question now, and the Court could certainly agree to consider only that aspect of the case, and remand to the Second Circuit [in Maloney v. Cuomo, sub nom. Maloney v. Rice] for more consideration of the splitless and underexplored question of which non-firearms qualify as "arms." This will push into the background the exotic nunchakus, and will instead allow the Court to focus on the common and important question of whether the Second Amendment applies, via the Fourteenth, to state and local governments.

It will be interesting to track this story's development.

5 comments:

  1. How would this impact the Plaxico Burress case and other such cases if other circuits followed or the Court did so?

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  2. 9.19 again. What I'm really wondering is how far does Heller go?

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