Second Circuit to Second Amendment: Drop Dead…


…you still don't apply to state and local regs. Well, the federal Second Circuit Court of Appeals has said it before (in the 2005 case Bach v. Pataki), and now they've said it again, in Maloney v. Cuomo. CrimProf Blog has some details:

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….

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…..

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…..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…..

The case on the nearest horizon that holds the most hope for generating a new, post-Heller, consideration of the Second Amendment incorporation question is the Ninth Circuit case Nordyke v. King. Damon Root wrote about it back in October

For a bunch of history on the incorporation question, and the whole story of Heller and the Second Amendment, read my new book, Gun Control on Trial, excerpted in the December 2008 issue of Reason magazine.