EckerNet.Com

Without a doubt Heller vs DC was a pivotal case for the Second Amendment.  Really for the first time the Supreme Court confirmed that the Second Amendment was an individual right rather than a collective right.  Which permanently put an end to that silly \”militia = National Guard\” argument.  But as important as Heller was, it was also somewhat limited, in that it primarily applied to Federal laws.  Unlike every other right in the Bill of Rights, the Second Amendment has never been \”incorporated\” against the states via the Due Process Clause of the Fourteenth Amendment.

In fact on the issue of incorporation, there is a circuit split, with the ninth deciding in favor of incorporation and the second and seventh deciding against.  Incorporation essentially states that the restrictions on actions of the federal government, also apply to state and local governments.  Technically while DC cannot ban guns, the state of  Minnesota could, since DC is under federal law, while Minnesota is it\’s own state.  Incorporation would place the same restrictions on all the states.

Incorporation is the next step in the battle for the Second Amendment, as arguably just as critical, if not more, than Heller.  And we may get to see it decided in this next term of the Supreme Court.  There are three separate cases essentially regarding the same issue currently on the Supreme Court docket.   National Rifle Association v. Chicago and McDonald v. Chicago both challenge the Seventh Circuit Courts decision that incorporation does not apply against the states for the Second Amendment.  Maloney v. Rice challenges the same decision by the Second Circuit Court.

Interesting factor is that Sotomayor has already ruled on the Maloney vs Rice case, when she was part of the Second Circuit court so she would be required to withdraw from the case.  However, the same requirement does not hold for the other two cases, which makes the selection of which cases to consider an important decision for Chief Justice Roberts.  Although, since Sotomayor replaces Souter, who was part of the dissenting opinion on Heller, it\’s unlikely her addition to the court will make much of a difference.

Whether incorporation is likely is up for extreme debate.  On one hand, in the most recent case, Heller, they stated that the Second Amendment represented a pre-existing individual right to possess and carry firearms, a right not dependent upon the Constitution.  On the other hand, there are a long string of court cases, Miller v. Texas (1894); Presser v. Illinois (1886); United States v. Cruikshank (1875), that argued against incorporation.  However, in all of those cases different standards for incorporation were applied and the court makeup, while much different from 1894, is essentially the same as it was for Heller.

There also exists the potential for the Supreme Court to offer an opinion on what exactly defines a reasonable gun control regulation, an issue that Heller barely touched, which has made the battle over DC\’s gun control laws drag on to this day.

Lately the NRA has been rather inept in the promotion of their cause.  Let\’s hope that they\’ve simply been keeping their powder dry for this absolutely critical battle in the courts.  Our Second Amendment rights may very well depend on it.