Working Paper No. 08-50:
Anticipating the Second Amendment Incorporation: The Role of the Inferior Courts

Author(s):

Nelson Lund

Date Posted: August 2008

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Abstract:

In District of Columbia v. Heller, the Supreme Court finally decided that the Second Amendment really does protect the right of the people to keep and bear arms, and that this includes at least the right to keep a handgun in the home for self defense. Understandably, all eyes have turned to the next logical question. Is the right to arms protected only from federal infringement, as in Heller, or is it also good against state and local governments? Test cases have already been filed challenging Chicago’s handgun ban, which is similar to the regulation invalidated in Heller. The “incorporation” issue—whether the Fourteenth Amendment protects the right to keep and bear arms from infringement by the states - may be virtually dispositive in those cases, and it will be a threshold issue in many others as well.

This short essay reviews the principal precedents that the courts will have to confront. Part II concludes that the lower courts, though not the Supreme Court, are probably barred by precedent from finding that the right to keep and bear arms is protected by the Fourteenth Amendment’s Privileges or Immunities Clause. Part III shows that existing Supreme Court precedent points very strongly in favor of incorporation under substantive due process. Part IV argues, on the basis of existing precedent, that the inferior courts need not wait for the Supreme Court to reach this conclusion. They can best perform their role in our hierarchical judicial system by treating the Supreme Court’s modern incorporation jurisprudence as law. If they do, they should conclude that the right to keep and bear arms is protected against infringement by the state governments, just as it is protected against the federal government.