The Second Amendment
When Maloney v. Spitzer (later Maloney v. Cuomo and now Maloney v. Rice) was commenced in 2003, the idea that the Second Amendment to the United States Constitution guaranteed an individual right to keep and bear arms was far from being universally accepted as the law of the land. For more than 200 years, the meaning of that provision in the Bill of Rights remained essentially uninterpreted by the U.S. Supreme Court. But on June 26, 2008, the Supreme Court, in the case of District of Columbia v. Heller, held that the Second Amendment does indeed guarantee an individual right to keep and bear arms.
The immediate key questions are whether, to what extent,* and by what means** the Second Amendment will be incorporated, i.e., held by the Supreme Court to protect citizens from infringements by state governments and their political subdivisions.
Although the United States Court of Appeals for the Second Circuit has twice held that the Second Amendment is not incorporated (in both Maloney v. Cuomo and in Bach v. Pataki, see link below), on April 20, 2009, the United States Court of Appeals for the Ninth Circuit created a circuit split, holding that the Second Amendment does apply to the states. For a pdf copy of the decision, Nordyke v. King, click here.
On June 2, 2009, the United States Court of Appeals for the Seventh Circuit joined the Second Circuit in holding that Supreme Court precedent prevents a lower court from holding that the Second Amendment applies to the states. For a pdf copy of the decision, NRA v. Chicago, click here. On the very next day, the NRA filed its petition for certiorari, authored in substantial part by Stephen Halbrook, who, 35 years ago, published an article, "Oriental Philosophy, Martial Arts and Class Struggle" in a social science journal. For a scanned pdf copy, click here.
*To what extent ("keep" or "keep and bear"?)
In D.C. v. Heller, the proposition that "keep and bear Arms" was a unitary term of art was rejected. The majority opinion went on to comment that the grouping of "multiple (related) guarantees under a singular 'right'" was not unusual in either the federal or state constitutions of the founding period. 128 S. Ct. 2783, 2797. The Court also noted that there is "no evidence whatsoever to support a military reading of 'keep arms.'" Id.
**By what means?
I.e., Due Process Clause or Privileges or Immunities Clause of Fourteenth Amendment? (See, e.g., Maloney v. Rice petition for certiorari at pages 28-36; NRA v. Chicago petition for certiorari at pages 22-25; McDonald v. Chicago petition for certiorari at pages 22-28.)
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