The Second Amendment in the Courts
There have been three important Appeals Court decisions on the Second Amendment since the beginning of the year and together they set the stage for another major decision from the Supreme Court.
When the Court decided Heller last June, they did not address the issue of "incorporation," the application of the amendment to state and local governments. While most of us think it’s just common sense that the rights expressed in the Bill of Rights are fundamental and universal, legal doctrine says otherwise. Basically, a constitutional right is only recognized by the federal government until it is specifically "incorporated" by the Supreme Court. In the three Second Amendment cases decided this year by Appeals courts, two rejected incorporation of the amendment while one supported incorporation. This means that the Federal Appeals Court Circuits are split on this issue and that makes it much more likely that the Supreme Court will agree to review one or more of these cases and make a ruling as to whether the Second Amendment protects your rights from state and local laws and regulations.
Getting this question in front of the Supreme Court was the objective of the many lawsuits filed around the country by NRA and the Second Amendment Foundation in the wake of the Heller decision. In Heller, the Justices commented on incorporation and the precedents which restrict the Second Amendment’s effect to only the federal government. Some read those comments as an invitation to the lower courts to send up a case that the Court can use to incorporate the Second Amendment. Let’s hope that’s really what the Court was saying.
The NRA has already filed a request for Supreme Court review of their Chicago case. It is expected that the Court will announce their decision on whether to hear the case by early fall and a decision could come down by this time next year.