Diary

Second Circuit: Second Amendment Doesn't Apply To The States Unless The Supreme Court Tells Us Otherwise

NunchakuThe United States Court of Appeals for the Second Circuit, the federal appeals court sitting in Manhattan, rejected this morning a legal challenge by an attorney convicted on Long Island of possession of nunchaku, or chuka sticks, who argued that the Second Amendment protects his right to bear these traditional Okinawan weapons.

The court’s decision, however, did not address whether the Second Amendment protects a right to have nunchaku in your home, as it instead disposed of the legal challenge on the considerably more significant grounds that the Second Amendment is not “incorporated” as a restriction on state government by the Fourteenth Amendment:

It is settled law… that the Second Amendment applies only to limitations the federal government seeks to impose on th[e individual] right [to keep and bear arms recognized in Heller]. 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). Heller, a case involving a challenge to the District of Columbia’s general prohibition on handguns, does not invalidate this longstanding principle. See Heller, 128 S. Ct. at 2813 n.23 (noting that the case did not present the question of whether the Second Amendment applies to the states). And to the extent that Heller might be read to question the continuing validity of this principle, we “must follow Presser” because “[w]here, as here, a Supreme Court precedent ‘has direct application in a case, yet appears to rest on reasons rejected in some other line of decisions, the Court of Appeals should follow the case which directly controls, leaving to the Supreme Court the prerogative of overruling its own decisions.'” Bach, 408 F.3d at 86 (quoting Rodriguez de Quijas v. Shearson/Am. Express, Inc., 490 U.S. 477, 484 (1989))…Thus, N.Y. Penal Law §§ 265.00 through 265.02 do not violate the Second Amendment.

I will leave it to the Second Amendment scholars to discuss the proper reading of Presser; suffice it to say that judicial conservatives who argued that the Fourteenth Amendment does not incorporate the whole Bill of Rights into prohibitions against the states lost that fight years ago, and it will be an ironic twist if liberal champions of incorporation (including the new Justice Department) suddenly rediscover skepticism about the doctrine to protect state-level gun controls. Conservatives as well will face the issue of how to square the weight of pro-incorporation precedent with arguments for reconsidering the doctrine and limiting its further expansion. But make no mistake: sooner or later the Supreme Court is going to have to return to the issue, and its decision will have vast impact on whether Heller becomes a limitation on state and local gun controls or remains limited to federal gun control.

It also remains to be seen, given the novelty of the weapon involved, whether the Supreme Court will be interested in taking up this question in this case, if a certiorari petition is filed, and what position Obama’s Justice Department will take if one is and it is asked by the Court to weigh in. Stay tuned.