Some Thoughts on the Heller Case

There's been a lot of commentary today about the meaning and ramifications of the Supreme Court's landmark Second Amendment decision in District of Columbia v. Heller. There's one very basic point, however, that everyone seems to be ignoring: the decision doesn't necessary apply to state governments.

The Court held that the Second Amendment forbids the federal government--of which the District of Columbia is a part--from unreasonably restricting one's right to bear arms. As most people who've had to suffer through a constitutional law course remember, the Bill of Rights did not originally apply to state governments, just the federal government. Rather, through a series of post-Civil War Supreme Court decisions, most rights enumerated in the Bill of Rights were found to have been "incorporated" through the Fourteenth Amendment (which is specifically directed at the states) so as to apply to state and local governments. That's why, for instance, when you're challenging an improper search made by a state official (i.e., a cop) you have to assert that the search violated the defendant's "Fourth and Fourteenth Amendment rights."

But not all rights contained in the Bill of Rights are "incorporated" rights. Indeed, several Supreme Court cases have held that the Second Amendment was not incorporated by the Fourteenth Amendment. And here's what Scalia's majority opinion in Heller has to say on that point (footnote 23 on page 48):

With respect to [the nineteenth-century case of U.S. v.] Cruikshank's continuing validity on incorporation, a question not presented by this case, 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. Our later decisions in Presser v. Illinois (1886) and Miller v. Texas (1894) reaffirmed that the Second Amendment applies only to the Federal Government.

As Dale Carpenter notes, that's a bit of a schizophrenic footnote. While the Court makes clear that the question of incorporation is not presented in Heller itself (because the case involves D.C. and not a state), the first sentence seems to suggest that prior precedent on the issues is stale and of questionable validity. The second sentence, however, states quite plainly that subsequent decisions have held that the Second Amendment applies only to the federal government.

It will be interesting to see what lower courts choose to do on this issue. It will be an unavoidable threshold issue in all challenges to state gun laws, of which there will now be many. I suspect we'll soon see a circuit split develop, with some courts holding that the Second Amendment doesn't apply to state governments and others holding that it does. The Supreme Court will then have to revisit the issue and resolve the split.

As to the merits of the decision itself, I'm somewhat torn. On the one hand, I find it more than a little hypocritical that conservatives are lavishing such praise on a decision that is quite clearly an example of the sort of "judicial activism" they supposedly deplore. Here we have the court recognizing an individual right to own a kind of firearm that didn't even exist at the time the Second Amendment was written and thereby overturning a local law that has been in effect for many decades and was enacted democratically in order to deal with very real local problems. Which goes to show that conservatives don't really have a problem with judicial activism per se, they just like some rights (property and gun rights in particular) more than others.

On the other hand, I think the Court's reading of the Second Amendment is a plausible one (though other interpretations are plausible too), and I think the practical effects of this decision will be minimal. The gun control debate has for years been diminishing in importance at the national level. The advocates of strict gun control have all but conceded defeat. With the exemption of assault weapons, no one is really trying to ban the possession of guns. D.C.'s law was the exemption, not the rule.

If anything, this decision may serve to move the gun control debate further into the background by providing some reassurance to the NRA crowd that their right to own a gun isn't hanging precariously in the balance during every election. I'm sure that Republicans and the NRA will still try to convince these folks that Democrats want to take away their guns, but perhaps that particular scare tactic will lose at least some of its resonance now.