WA Supreme Court: ‘2nd Amendment applies to the states via 14th Amendment due process

[gjones77]

If, as some have hypothesized here, that the SCOTUS will incorporate the 2nd Amendment under the P&I clause (either through the NRA's logic or through Gura's), then is it reasonable to assume that the next huge battlefield will be the word "infringed" in the second amendment? If the right to bear arms shall not be infringed, per a literal reading, how/what will the SCOTUS use to decide what laws/regulations/licensure procedures would be considered infringing and which one's wouldn't. What about the so-called disqualifications to get an LTC/carry-permit/etc...?

The infringement argument would be thrown out, because you would have to define infringe in the legal sense, that and in the Heller ruling Scalia stated that there can be common sense restrictions, so if a state allows you to keep and bear arms, but only allows certain types (like Mass) they're not infringing in a legal sense because you can still purchase various guns.

Don't get me wrong, I would love to see it defined more narrowly, but it isn't going to happen.

 

[AppleSeeds]

The infringement argument would be thrown out, because you would have to define infringe in the legal sense, that and in the Heller ruling Scalia stated that there can be common sense restrictions, so if a state allows you to keep and bear arms, but only allows certain types (like Mass) they're not infringing in a legal sense because you can still purchase various guns.

Don't get me wrong, I would love to see it defined more narrowly, but it isn't going to happen.

So, in other words, if incorporated as predicted the only affect it will really have is that outright bans will be unconstitutionall?
Beyond that, anything goes. In other words, if a state wants to only allow citizens to purchase one type of firearm only (say they specifically say only Remington 870 shotguns shall be permitted) that that would be considered constitutional?

Correct me if I'm wrong but Chicago had a handgun ban, but not long guns. Would that still constitute not infringing based on what you said above?

 

[gjones77]

So, in other words, if incorporated as predicted the only affect it will really have is that outright bans will be unconstitutionall?
Beyond that, anything goes. In other words, if a state wants to only allow citizens to purchase one type of firearm only (say they specifically say only Remington 870 shotguns shall be permitted) that that would be considered constitutional?

Correct me if I'm wrong but Chicago had a handgun ban, but not long guns. Would that still constitute not infringing based on what you said above?

No, that isn't the case, because the Heller ruling also stated that making a firearm inoperable and incapable of being used for defense in the home is also Unconstitutional, so Mass firearms storage laws would also be challenged, so yes this ruling does have an effect on us and would allow challenge to almost every restrictive Mass law, what I'm saying is that the EOPS list and AG list wouldn't fall under this ruling, and if there is a law stating you can only buy one type of firearms would also be seen as Unconstitutional since it still places over reaching restrictions on rights.

 

[RKG]

My point was that if 'incorporation' never occurs, then one would have to assume that the SC intends that only citizens of Washington D.C. have an individual right to keep and bear arms. . . .

The Court does not have an "intention." The Court only decides the issues that are necessary to resolve the dispute before it. The dispute in Heller involved whether Mr. Heller, a resident of the District of Columbia, could be banned from having a ready firearm in his home. The question of whether the Second Amendment should be "incorporated" into the Fourteenth Amendment, so as to bind the states as well as the federal government, was simply not on the Court's radar scope in deciding that case.

 

[gjones77]

The Court does not have an "intention." The Court only decides the issues that are necessary to resolve the dispute before it. The dispute in Heller involved whether Mr. Heller, a resident of the District of Columbia, could be banned from having a ready firearm in his home. The question of whether the Second Amendment should be "incorporated" into the Fourteenth Amendment, so as to bind the states as well as the federal government, was simply not on the Court's radar scope in deciding that case.

I actually already answered that, it was along the lines that the Heller ruling only affected DC and not the states since DC is a Federal District and not a state, meaning that the ruling only limited the Federal Government from creating laws that restricted the 2A rights.

And you're right, incorporation never came up since it wasn't a states matter.

 

[strangenh]

On the question of defining "infringed" -- The Court has yet to even nail down the level of scrutiny whatever rights there are under the 2nd will receive. I.e., strict scrutiny, etc. There are a lot of questions yet to come before the Court.

 

[gjones77]

On the question of defining "infringed" -- The Court has yet to even nail down the level of scrutiny whatever rights there are under the 2nd will receive. I.e., strict scrutiny, etc. There are a lot of questions yet to come before the Court.

The SCOTUS will probably won't give a definite definition of "infringed", that may very well be something that comes up in a later court case, like if Massachusetts' approved fire arms list infringe on your 2A rights, one could say yes since it prevents you from owning a particular type or brand of firearm, some may say no since you're not completely barred from owning a firearm.

You could also look at Mass licensing, does a Class-B or restricted Class-A infringe on your rights? Again you could say yes since it prevents you from carrying (bearing) arms based on it's restrictions, or one could claim no since it does allow you to own a firearm.

These are things that even the McDonald case won't solve, it's going to take far more legal challenges to finally get these things resolved.

 

[AppleSeeds]

On that same note, given everything posted here regarding Mass. laws, have there ever been any cases (regardless of what level court they ascended to, if any) that have ever been filed challenging any part of Mass. law?

 

[KBCraig]

I'm curious how a state court, even the state's supreme court, can hold on incorporation without precedent?

State courts routinely rule on established precedents, because doing otherwise would be moot. Unless the 9th Circuit has declared that the 2nd is incorporated, how can the Washington court do so?

Don't get me wrong, that's nice for Washington and all, but the Washington Supreme Court rules on matters of Washington's constitution and previously established federal constitutionality. I have to think that a ruling like this will be weighed in McDonald about the same as the multiple state attorney general amici briefs.

FYI, this is only my layman's grasp of appellate law; if I'm incorrect, I welcome enlightenment.

 

[strangenh]

KBCraig, that's a good question.

State courts do hold forth on matters of federal law. Holdings about law systems other than the state's own are only precedent within the state's own system, except as comity and/or Full Faith and Credit apply to the parties. There have been many instances where a state's interpretation of federal law is at odds with the federal courts', and then, since Judiciary Act of 1789, the appeal is from the state courts to the federal (including right to the SCOTUS) (see Martin v. Hunter's Lessee).

It's up to the state what its own courts are allowed to hear. A state could in theory give its courts the right to decide matters of French law (believe it or not, questions of foreign law come up all the time in international contracts, let alone of federal or other states' law); not that it would necessarily hold sway in France except under comity or treaty. French courts would of course have little or no power to enforce a "correction" (except under comity or treaty) but the feds do.

I deal with choice of law issues daily, but Fed appellate isn't my area, so I am sure if I am off above, one of our other attys will chime in.