Amidst the jubilation among freedom lovers following the U.S. Supreme Court's decision last year in District of Columbia v. Heller, which held that the Second Amendment creates an individual right to keep and bear arms, many overlooked a possible huge exception: whether the amendment restricts only national laws (including ordinances passed by the District of Columbia), and not state laws. If so, the celebration was premature.
Earlier this year, the U.S. Court of Appeals for the Second Circuit upheld a New York law on the grounds that the Second Amendment only limits national restrictions. That decision rested on older U.S. Supreme Court opinions of questionable vitality--but they were never overruled.
The question turns on an arcane but vitally important constitutional dispute: whether the 14th Amendment, adopted following the Civil War, "incorporates" Bill of Rights protections against state governments. Many constitutional scholars and lawyers (including me) believe the 14th Amendment's guarantee of the "privileges or immunities" of citizens incorporated all of the Bill of Rights. But in a display of muddled thinking, the U.S. Supreme Court adopted a doctrine of "selective incorporation"--only "fundamental" rights are protected (as if anything important enough to list in the Bill of Rights is not fundamental).
The Ninth Circuit--a court not generally known for its conservative proclivities--this week ruled that the Second Amendment does restrict the states. Applying the applicable constitutional test, the court in a decision by Judge Diarmuid O'Scannlain held that "the right to keep and bear arms is 'deeply rooted in this Nation's history and tradition'," and therefore protected against state infringement.
So the Second Amendment applies in states such as Arizona and California, but not in New York or Connecticut. Something tells me the U.S. Supreme Court will be answering a call for help on the issue of Second Amendment rights again soon.
Clint Bolick is director of the Goldwater Institute Scharf-Norton Center for Constitutional Litigation.
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