Help: Incorporation of the 2nd Am.

[silvae]

Hello,

I am working on a grad school paper regarding the potential incorporation of the 2nd amendment, which is supposed to be more analytical (how the incorporation would affect current state laws, any pros and cons, etc) rather than procedural (how the incorporation would operate under modern incorporation doctrine, historical issues, etc). For instance, I seem to recall reading that the NRA initially did not want to see the Court grant certiorari in Heller because it might open the door to a future upset in the "law of the land," so to speak, regarding gun rights protected by state constitutions. What would their concerns be? I cannot find an article that discusses this, so I'm relying on memory here.

I have a very VERY liberal professor and she has indicated she will be critical of my analysis. That's good for me in the sense I have to get my arguments strong, but it's also bad because I am feeling like I'm drowning here.

I was wondering if anyone here who has more knowledge on the subject than I could offer some thoughts on post-incorporation legal topography and how the incorporation might change things for worse or better. I would really appreciate it, and your help might help score a victory here in Lefty University Land.

[Jared McLaughlin]

Youch. You're staking your graduate career on this? Not that I don't side with your position, to a degree... but unless you are a serious student of the law, I think this is going to be hard to argue. As a non-lawyer I don't even know where to start.

[awkx]

Hello,

I am working on a grad school paper regarding the potential incorporation of the 2nd amendment, which is supposed to be more analytical (how the incorporation would affect current state laws, any pros and cons, etc) rather than procedural (how the incorporation would operate under modern incorporation doctrine, historical issues, etc). For instance, I seem to recall reading that the NRA initially did not want to see the Court grant certiorari in Heller because it might open the door to a future upset in the "law of the land," so to speak, regarding gun rights protected by state constitutions. What would their concerns be? I cannot find an article that discusses this, so I'm relying on memory here.

I have a very VERY liberal professor and she has indicated she will be critical of my analysis. That's good for me in the sense I have to get my arguments strong, but it's also bad because I am feeling like I'm drowning here.

I was wondering if anyone here who has more knowledge on the subject than I could offer some thoughts on post-incorporation legal topography and how the incorporation might change things for worse or better. I would really appreciate it, and your help might help score a victory here in Lefty University Land.

Well, being that most of the circuits have effectively written 2A out of existence, I don't see any direct, immediate cons for state laws if the robed ones rule that it is incorporated. I could be wrong, but I thought that the NRA's main fear in Parker v. DC was that the Supreme Court would rule against the Second Amendment (either by adopting a collective rights misinterpretation or by adopting a 'flexible' standard of review) and set binding precedent.

Also, what kind of course is this? Is it a law course, a poli-sci course, etc.?

[silvae]

Youch. You're staking your graduate career on this? Not that I don't side with your position, to a degree... but unless you are a serious student of the law, I think this is going to be hard to argue. As a non-lawyer I don't even know where to start.

Haha... yeah, that's why I'm feeling like I'm drowning at the moment. It might also have something to do with the fact that I've read a lot on the subject (though mostly on arguments of whether it's a collective or individual right, which is not my paper's subject) and now it's all blending together into a sticky goo in my head. And oh, the 25 page is for an independent study in law. I thought the subject would be fun, but now I'm wondering...

Awkx: I agree that on the face of it, if the SCOTUS rules that the 2nd Am is unincorporated, it would appear it would have limited impact. I read somewhere that 44 of the 50 states have legislation or constitutional amendments supporting gun ownership. A ruling that the 2nd Am is not incorporated against the states wouldn't nullify these - but if SCOTUS basically says gun ownership is not a fundamental right, could that slow the momentum of any future advancement in the the right to bear arms? Or, on the flip side, would it strengthen the states' resolve to protect individual rights? It might be similar to the way that big eminent domain case a few years back (New London, I believe) caused a flurry of reactive legislation in the states to protect private land owners.

And if "the robed ones," as you aptly called them, rule it is a collective right, this should likewise have the same effect, since (a) it will only affect the federal gov, and (b) a collective (state) right cannot be incorporated against the states.

Obviously, I would imagine the incorporation of the 2nd would trigger an onslaught of cases testing the edges and terms of the incorporated 2nd am, but that's not necessary bad. I'm not too sure about what the first "edges and terms" would be tackled first... That might be worth mentioning in my paper...

(sigh)... I'm just thinking out loud here... Thank you again for your input! If anyone else has any thoughts, please post them!

[Philadelphia]

Hello,

I am working on a grad school paper regarding the potential incorporation of the 2nd amendment, which is supposed to be more analytical (how the incorporation would affect current state laws, any pros and cons, etc) rather than procedural (how the incorporation would operate under modern incorporation doctrine, historical issues, etc). For instance, I seem to recall reading that the NRA initially did not want to see the Court grant certiorari in Heller because it might open the door to a future upset in the "law of the land," so to speak, regarding gun rights protected by state constitutions. What would their concerns be? I cannot find an article that discusses this, so I'm relying on memory here.

I have a very VERY liberal professor and she has indicated she will be critical of my analysis. That's good for me in the sense I have to get my arguments strong, but it's also bad because I am feeling like I'm drowning here.

I was wondering if anyone here who has more knowledge on the subject than I could offer some thoughts on post-incorporation legal topography and how the incorporation might change things for worse or better. I would really appreciate it, and your help might help score a victory here in Lefty University Land.

I'm not exactly a constitutional scholar and incorporation has so much dust on it I can't remember much if anything about it.

That said, the little advice I can give you is to look to other rights in the bill of rights that have been explicitly incorporated and the effect that has had on state laws. As a general principle, a particular state's laws would be reviewed by both state and federal courts under federal constitutional law. So, let's assume the Court holds that the right to own a gun in one's own home is an individual right protected by the 2A and that right is incorporated and thus applicable to state gov't. No state could ban ownership of functional guns in the home of a law abiding citizen.

As years go by, it's likely that a flood of litigation will have refined and clarified the limits of the 2A as a matter of federal law. No state will be allowed to violate your rights under the federal constitution as a basic "floor" that they must allow.

The danger is that whatever conduct is not determined to be a federal right may be outlawed under federal law (same as illegal drugs -- states can't make illegal drugs legal, although California is trying). So, if many years down the road the case finally comes around squarely requiring a determination of whether, say, concealed carry is a federal right under the 2A and the Supreme Court says it's not, the feds can make it nationally illegal. If the Court says it is a federal right, the states would have to allow it.

The best analogy that immediately jumps to mind is abortion rights under the federal constitutional right of privacy. Once found and incorporated as it has been, state law can't ban abortion, etc. The contours of the law of privacy are what federal constitutional law says it is, and the states have to abide by that.