Footnote 23 - Incorporation Dead?

[vis-à-vis]

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.

It seems that the court specifically rules out incorporation here. Thoughts?

 

[AntiqueCollector]

Since they point out that Cruikshank said the first amendment also did not apply to states, yet now it does, I don't think they ruled it out but suggested in the future they may incorporate the second amendment.

 

[M1911Owner]

Well, it's a footnote and dicta. It sounds like they are merely listing out what the precedents are.

Significant is the fact that they point out that Cruikshank also ruled against incorporation of the First Amendment, which of course has since been incorporated. I take that is saying, "Don't assume that Cruikshank's ruling against incorporation still holds."

They specifically state that the question of incorporation was not presented by this case. Meaning that they're not ruling on that question.

 

[M1911Owner]

Also, I suspect the reason they list out Presser and Miller is that it's their way of saying, "When you bring an incorporation suit, don't forget to address these two precedents."

 

[awkx]

The First Amendment was incorporated against the states in the 1920s. The 1800s cases are not controlling anymore.

 

[Bartholomew Roberts]

I think M1911Owner explained it pretty well. Scalia isn't ruling out incorporation. If anything, he is inviting a challenge to it and laying out the key issues that have to be addressed to succeed. That is about all I would read into that footnote.

 

[vis-à-vis]

"Well, it's a footnote and dicta. "

What does that mean?

 

[Bartholomew Roberts]

"Well, it's a footnote and dicta. "

What does that mean?

A footnote is the source of some assertion made in the main body of the opinion.

Dicta is a part of that opinion that is not necessary to reach the holding in that case. Since Heller did not involve any incorporation questions, any comments discussing the incorporation of the Second Amendment would be dicta.

Dicta is persuasive commentary that influences courts; but it is not binding on lower courts and they can ignore it.

 

[Jim March]

The Heller court repeatedly warns that Cruikshank is a very slender thread to hang state and local-level gun control on.

Cruikshank was a racist fiasco. Not only did it allow a local government to restrict 1st and 2nd amendment rights without a possibility of Federal oversight, it allowed local and state governments to restrict minority voting rights as well - again, without possibility of Fed oversight.

And it allowed the restriction on 2nd amendment rights even though the restriction was for the express purpose of facilitating mass murder. OVER 100 PEOPLE DIED IN THE THREE DAYS FOLLOWING THOSE CIVIL RIGHTS RESTRICTIONS. Look up "colfax massacre".

The Supremes in Heller specifically cite this book:

http://www.amazon.com/Day-Freedom-Died-Massacre-Reconstruction/dp/0805083421

...which in turn means they full well understood that Cruikshank is dead law.

However, look at this cite from the 9th Circuit:

The Supreme Court, however, has held that the Second Amendment
constrains only the actions of Congress, not the states. See
United States v. Cruikshank, 92 U.S. 542, 553, 23 L.Ed. 588 (1876)
("The second amendment declares that [the right to bear arms] shall
not be infringed; but this ... means no more than that it shall not
be infringed by Congress. This is one of the amendments that has
no other effect than to restrict the powers of the national
government. . . . "); Presser v. Illinois, 116 U.S. 252, 264-65, 6
S.Ct. 580, 583-84, 29 L.Ed. 615 (1886) (same). We are therefore
foreclosed from considering these arguments.

That quote is from 1992 in Fresno Rifle:

http://www.ninehundred.com/~equalccw/fresnorifle.txt

Cruikshank is cited with approval by the 9th Circuit even later than that - 2002(!) in the Nordyke case.

The Heller court has, with any luck, driven a stake through Cruikshank's stained heart once and for all.

 

[sailortoo]

That pesky "Presser v. Illinois" - from above post; "However, look at this cite from the 9th Circuit:" (excerpt from Presser v. Illinois). Presser et al. keeps being quoted IN PART, without context. I see it over and over, to make a single point, without the full reading. The part that contradicts the above quoted text; (from Presser v. Illinois) "... it is undoubtedly true that all citizens capable of bearing arms constitute the reserved military force or reserve militia of the United States as well as of the states, and, in view of this prerogative of the general government, as well as of its general powers, the states cannot, even laying this constitutional provision in question out of view, prohibit the people from keeping and bearing arms, so as to deprive the United States of their rightful resource for maintaining the public security, and disable the people from performing their duty to the genreal government." (underlined for accent by me) In plain language (my interpretation), since the US Government depends on the (self) armed public to be the militia, the states may not dis arm the public. Anyone else read that any differently?
sailortoo