Incorporation of 2A Rejected in 7th Circuit

Decision here.  It seems to rest Cruikshank, Presser and Miller still being valid law, even though the last of those cases was decided in 1894, before the modern selective incorporation doctrine.

The Court did not say that Cruikshank, Presser, and Miller rejected a particular argument for applying the second amendment to the states. It said that they hold “that the Second Amendment applies only to the Federal Government.” The Court added that “Cruikshank’s continuing validity on incorporation” is “a question not presented by this case”. Ibid. That does not license the inferior courts to go their own ways; it just notes that Cruikshank is open to reexamination by the Justices themselves when the time comes. If a court of appeals may strike off on its own, this not only undermines the uniformity of national law but also may compel the Justices to grant certiorari before they think the question ripe for decision.

Despite a lot of obvious bias against the Second Amendment coming through, what they have done here is essentially kicked ball over to the Supreme Court.  The circuit split makes it very likely the Supreme Court will hear the appeal.

6 thoughts on “Incorporation of 2A Rejected in 7th Circuit”

  1. Not terribly surprised by this and I am rather surprised by how much I agree with the opinion of the Court. Cruikshank, Presser and Miller are still valid law – the opinion is correct to point out that Heller didn’t touch this issue – and the only proper thing for the Court of Appeals to do is kick the ball up to SCotUS.

  2. I have to agree with Ish. For them, controlling law still is those old 1800’s cases until instructed otherwise. The difference in California is that their Constitution is automatically incorporating, so the Heller ruling applied there immediately (in my limited understanding of the law.)

  3. It doesn’t really have anything to do with the California Constitution. The 9th Circuit chose to follow the modern Supreme Court cases that outline the criteria for incorporation, and concluded that the Second Amendment met that criteria for incorporation. The 7th circuit chose to stuck with the 19th century cases and punt to the Supreme Court.

  4. If this does come up to SCOTUS in 2010 it will keep the pressure on the blue dogs.

  5. Mind you, I don’t _like_ the outcome and think that this whole “incorporation” thing was hooey in 1870-whatever and is still hooey in 2009. The entire dicta section of the opinion is anti-gun hooey as well…

    But it does set the stage for a nice an tidy split Circuit question to put before SCotUS.

  6. Agreed Ish. It’s a shame we didn’t end up with full incorporation which Justice Black was always a big proponent of.

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