Are not headlines the grab lines? I stand to be corrected.

(1) Respectfully, I don’t think it’s quite right to say that the Seventh Circuit “held that the individual right to bear arms is not a fundamental right applicable to the states.” The court was silent on that issue. Whether a right is “fundamental” turns on a modern substantive due process or selective incorporation analysis under the 14th Amendment — a task the Seventh Circuit expressly left for the Supreme Court. Instead, the Seventh Circuit simply noted that there are three very old Supreme Court cases still on the books which held that the Second Amendment does not apply directly against the states. These cases are so old that they pre-date the 14th Amendment incorporation doctrine, and their reasoning is quite dubious (e.g., two of them also held that the First Amendment did not limit the states). But precedent is precedent, and so the Seventh Circuit dutifully followed it (quite properly, in my view).

(2) I am biased and probably overly-sensitive, but I really wish people wouldn’t refer to this case as the “NRA” case. This case was originally brought by Alan Gura — a lawyer who has nothing to do with the NRA (and who also argued Heller). Alan’s case is McDonald v. Chicago. The NRA filed a copycat suit a day later (much like they did in Heller), and managed to get it consolidated with McDonald. But the McDonald half of the case is much more interesting and principled. Alan (along with several amici) is arguing that the incorporation of the Second Amendment should be done via the Privileges and Immunities clause, rather than the Due Process clause. This case present a very real opportunity for the Supreme Court to reverse the Slaughter-House cases (a horrible Supreme Court opinion that completely ignored the text, meaning, and history of the Privileges or Immunities clause), whereas the NRA is proceeding with a rather boring and ahistorical selective incorporation argument.

I do agree that this case has the best shot at the Supreme Court now. (The Second Circuit case probably/hopefully won’t make it, since that case implicates the additional issue of whether nunchucks are “arms” under the Second Amendment). Regardless, here’s hoping the Court will reexamine the Slaughter-House cases soon!

“we note that Cruikshank also said that the First Amendment did not apply against the States and did not engage in the sort of Fourteenth Amendment inquiry required by our later cases”

That later “inquiry” led to the incorporation of the 1A. Such an inquiry as applied to the 2A, particularly given the general “right of the people” reading given by Heller, would logically incorporate the 2A too.

Both the 2nd and 7th Circuits avoided this by short opinions of less than ten pages, basically reasserting pre-Heller precedents in their own circuits. Heller also wasn’t pro-federalism. It did not strike down a federal rule over state action. It concerned the District of Colombia. It spoke in general terms about the right to bear arms. So the 7th Circuit’s honoring federalism is somewhat dubious.

The Heller footnote did say that the SC “reaffirmed that the Second Amendment applies only to the Federal Government.” But, it did so long before the later “inquiry” began to be the rule. It did back in the day when the SC also did not apply the 1A to the states either. So just how powerful is that note?

Scalia went on ad nauseaum in Heller about the historical context of the right to bear arm (as opposed to moose arms, I suppose) and given the original placement of the amendment by Madison,* I think he is correct.

* Wiki does a pretty good job of handling the topic:

“The Bill of Rights introduced by Madison on June 8 was not intended to be added at the end of the Constitution. Instead, the Bill of Rights was to be inserted into the existing Constitution. The sentence that became the Second Amendment was to be inserted in Article I, Section 9, between Clauses 3 and 4, which list individual rights, instead of Article I, Section 8, Clauses 15 and 16, which specify the Congress’s power over the state militias.”

now I do understand, the Supreme Court has the ability to negate the Bill of Rights and constitution for whatever reason it chooses any time it can get 5 votes in favor.

Does that about sum it up?

That is, whether the 2nd Amendment provisions will be held incorporated against the other States in the other Federal judicial circuit court jurisdictions.

But since the ratification of the 14th Amendment, many, but not all, of the protections of the Bill of Rights DO apply to the States. The states cannot do away with trials or due process, because those protections have been apllied to states by the Supreme Court.

Read JT’s commentary. The question for the Supreme Court will be whether the 2d Amendment right should be added to the list of protections applicable to the states.

Thanks, Vince Treacy. I am a NRA member and I reside in the 9th Circuit’s jurisdiction.

So we have rights that the Federal government cant take away but we dont have any rights at all if the state decides to do away with them? So the Bill of Rights and the Constitution were established to protect us from the federal government but not state governments?

I think I understand, if California dosent like the 2nd amendment they can outlaw guns and if Montana doesnt want to have to worry about trials and due process they just get rid of the 5th amendment. I understand now.

You’re darn tootin’ is doesn’t apply to the midwest. I just saw a truck driver who’s bumperstickers made that very clear–”If you want gun control, use both hands. and Criminals prefer unarmed victims”. So there you have it!

http://en.wikipedia.org/wiki/Selective_incorporation

CharlesC has stated the law, known as selective incorporation, correctly. The Bill of Rights at first limited only the Federal Government. For example, the states continued to support established churches, until the 1830s in Massachusetts when it amended its state constitution to disestablish the Congregational and Unitarian churches.

The 2d Amendment initially applied to the Federal Government. It now applies to the District of Columbia, according to Heller. The issue for the Supreme Court will be whether it applies to the States. It now applies to states in the 9th Circuit (western states) but not to states in the 7th (midwest.

as an engineer I can safely say that if you take one brick out it wont fall, unless of course it is a keystone.

That was confusing for a layman, so the second amendment is not a fundamental right applicable to the states? I don’t understand that one. If I understand the Bill of Rights correctly they are individual rights granted to individuals and have nothing to do with state or federal governments conferring those rights. Dosent the Declaration say something about men being endowed with hard core rights just because they are humans and doesn’t the Bill of Rights codify those rights or at least enumerate some of the most basic ones as thought about by our founders?
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Surely you Jest. The 4th Amendment has no applicability outside the US, so do it not make sense that the 2nd Amendment is being decided this way? I was all against the Noreiga decision. It is kinda of like that stupid seat-belt law. It started out as a secondary offense and soon became an officers tool as a reason to do a pretextual stop. Take one brick out of the wall and how long does it take for the wall to fall?

I am really confused, we say that the people have a right to bear arms, the second amendment no less, but at the same time we say that the states can deny ownership of guns or even regulate them into obscurity.

Will one of the great lawyers on this web site help me understand how individual rights can be extinguished by a state because a fundamental right is not a fundamental right.

I must be missing something because I have no legal training.