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More on the 7th Circuit Ruling

From Eugene Volokh.   I’m particularly interested in this footnote in Heller:

With respect to 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.

I was discussing with some other bloggers yesterday whether or not we’ll get incorporation.  I’m optimistic that we will, and this particular footnote is at least a little glimmer of evidence that perhaps we have a majority for incorporation as well.  I think the trick will be moving this case forward as quickly as we can, to cement that.  Incorporation is the keystone of this whole process.  Once we have that, we can argue about the boundaries of where the right begins, end and where government is allowed to exercise power.   But if the amendment can never be applied to the states, it will be a useful boundary on federal power, but strategically not nearly as valuable for our movement.

One Response to “More on the 7th Circuit Ruling”

  1. Turk Turon says:

    I read the decision and listened to the oral arguments. The justices just didn’t want to know. This case is going on to SCOTUS and everybody involved knew it, so why spend a lot of time on it? And they did have a point that only SCOTUS can overrule a SCOTUS decision. But they gave no weight to Gura’s argument that the Equal Protection clause had never been explored; they didn’t even want to hear it.

    I’m also reasonably confident that we’ll get incorporation, at least for the Heller parameters: a common firearm kept unlocked in one’s own home. If SCOTUS does not incorporate the Second Amendment, New Jersey will be a gun-free state in a few years, if current trends continue. But if incorporation fails, I doubt that the rest of the U.S. will see a rush by the states to push new gun-control laws: most state legislators never believed that the Second Amendment applied to them anyway! And they’re terrified of the power that gun owners have shown at the ballot-box.

    Incorporation would allow challenges to proceed against state and local laws that make exercise of the 2A nearly impossible, and help “flesh out” the Heller decision, more clearly defining the Second Amendment. The one positive aspect of the Chicago decision is that it was so prompt! Less than a week from argument to decision.

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