Second Circuit Holds Second Amendment Not Applicable to States

The Second Amendment guarantee of the right to bear arms does not apply to override state firearms bans, the U.S. Court of Appeals for the Second Circuit declared Jan. 28. Under the incorporation doctrine, only certain provisions of the Bill of Rights apply to the states, and the Second Amendment is one of those that does not, the Second Circuit held (Maloney v. Cuomo, 2d Cir., No. 07-0581-cv, 1/28/09).

The statute at the center of this case, N.Y. Penal Law §265.01(1), provides criminal penalties for possession of a broad range of items, including weapons used in martial arts. The plaintiff was charged under the statute after police found fighting sticks, or nunchaku, in his home. He ended up pleading guilty to a different charge and then filed a lawsuit against the county prosecutor and others seeking a declaration that the law offends his Second Amendment right to bear arms.

Incorporation Doctrine

For the first half of its life, the U.S. Constitution's Bill of Rights was interpreted as constraining only the federal government—not the states. However, in the late 1800s and early 1900s, the U.S. Supreme Court began ruling that certain rights were incorporated into the limits on state governments imposed by the 14th Amendment's due process clause. The provisions selected for incorporation so far include most, but not all, of the rights that come into play in criminal cases. For example, the right to indictment does not apply to the states.

Back before the incorporation doctrine took hold, the Supreme Court held, in United States v. Cruikshank, 92 U.S. 542 (1875), and Presser v. Illinois, 116 U.S. 252 (1886), that the Second Amendment is a limitation only on the power of the federal government and thus does not constrain state regulations. The Supreme Court's subsequent Second Amendment cases, United States v. Miller, 307 U.S. 174 (1939), and District of Columbia v. Heller, 76 U.S.L.W. 4631 (U.S. 2008), both involved federal regulations, so the incorporation issue was not really in play. Nevertheless, in a footnote in Heller, the Supreme Court had this to say:

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. Our later decisions in Presser v. Illinois, 116 U.S. 252, 265 (1886) and Miller v. Texas, 153 U.S. 535, 538 (1894), reaffirmed that the Second Amendment applies only to the Federal Government.

The Second Circuit, in contrast, has directly addressed the incorporation issue in recent years. In Bach v. Pataki, 408 F.3d 75, 73 U.S.L.W. 1677 (2d Cir. 2005), the court rejected a challenge to a state gun-control law on the ground that the states' power to regulate firearms is not limited by the Second Amendment right to bear arms.

"A bill of rights is what the people are entitled to against every government on earth, general or particular; and what no just government should refuse, or rest on inferences." --Thomas Jefferson to James Madison, 1787. ME 6:388, Papers 12:440

IIRC many of the States adopted the language of the BOR in their State Constitutions, or similar language. And I believe that one of the Amendments that has not been adopted in the MN Constitution is the 2nd. Of course I think that it should be