Heller Discussion Board: Incorporation and the Need for Further Litigation

The following post was written by David J. Schenck of the Jones Day office in Dallas. He filed an amicus brief on behalf of State Firearm Associations in support of the respondents.

It is not hyperbole to describe today’s decision in Heller as the most significant opinion of this century, and likely, of the last two generations.  Two particular thoughts immediately come to mind.  First, the extent to which today’s decision effectively opens the door for future litigation regarding the Second Amendment to further clarify the extent of the now confirmed, but long understood, individual right to keep and bear arms.  Second, this is an election year.  This decision, closely divided as it is, will likely provide a rallying cry for the millions of the Americans who recognize that their Second Amendment rights came down to a single vote.

In reading Justice Scalia’s opinion, there is an overwhelming theme that to interpret the Second Amendment as not protecting an individual right would gut the amendment of meaning and defy logic.  It is, after all, the Second Amendment, not the two hundredth.  This is not an obscure line buried among thousands of pages of text.  It is inconceivable that the framers would have given it the priority they did, placing it ahead of so many other critical rights, if they only meant it to apply to militias as the dissenting justices suggest.

But as emphatic as Justice Scalia’s opinion is, however, it leaves open the question of whether the Second Amendment is selectively incorporated so as to apply to the States through the Fourteenth Amendment.  This is a particularly important question for my clients – 47 state rifle associations – on whose behalf I filed an amicus brief.  But while the opinion itself is clear in confirming an individual right, it conspicuously leaves the question of selective incorporation dangling.  To be sure, this is attributable to the fact that the question was not before the Court.  But nevertheless, footnote 23 of Justice Scalia’s opinion is particularly vague:

“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.”

This footnote at first suggests that Cruikshank was simply wrong – after all, it left out the First Amendment as well, and there’s no doubt about its incorporation.  But that same footnote proceeds to recite the Court’s subsequent affirmances, in ancient cases, that “reaffirmed” the lack of incorporation – something that didn’t happen to the First Amendment.  This conspicuously leaves the question open – and indeed, it wasn’t at issue in Heller so any disposition of it would have been dicta.

But the one obvious reason for including this footnote would be to suggest the need for further litigation.  Indeed, the Court notes how long it has taken for the Second Amendment to reach this point.  Logic dictates that from this point going forward, there will indeed be further litigation, at least some of which will have to reach the Supreme Court.  For starters, there is the unanswered incorporation question which Justice Scalia has offered up as low hanging fruit.  The opinion also avoids establishing a standard of scrutiny (likewise, the First Amendment contains no express standard and necessitated the Supreme Court establishment thereof) and suggests that current gun restrictions at the federal level are permissible, but does not establish as much.  These are all important questions that will need to be resolved.