The Second Amendment and Incorporation: An Overview of Recent Appellate Cases

The Second Amendment and Incorporation: An Overview of Recent Appellate Cases

The Second Amendment and Incorporation:
An Overview of Recent Appellate Cases
Vivian S. Chu
Legislative Attorney
September 21, 2009
Congressional Research Service
7-5700
www.crs.gov
R40820
CRS Report for Congress
P
repared for Members and Committees of Congress

The Second Amendment and Incorporation

Summary
The Supreme Court in District of Columbia v. Heller held that the Second Amendment protects an
individual’s right to possess a firearm, unconnected to service in a militia, and protects the right to
use that firearm for traditional lawful purposes such as self-defense within the home. The Court
conducted an extensive analysis of the Second Amendment to interpret its meaning, but the
decision left unanswered other significant constitutional questions, including the standard of
scrutiny that should be applied to laws regulating the possession and use of firearms, and whether
the Second Amendment applies to the states. Three federal appellate circuits have since addressed
whether the Second Amendment applies to the states. Two of these circuits, the Second and
Seventh, both held that the Second Amendment did not apply to the states, whereas the Ninth
Circuit has initially held that the Second Amendment is applicable to the states, although a
rehearing en banc is scheduled and may affect that decision.
This report presents an overview of the principles of incorporation, the early Supreme Court cases
that addressed the application of the Second Amendment to state governments, and the federal
appellate cases that have addressed incorporation of the Second Amendment since the Heller
decision.

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Contents
Background ................................................................................................................................ 1
What Is Incorporation?.......................................................................................................... 1
Has the Supreme Court Addressed Incorporation of the Second Amendment? ....................... 4
Analysis of Post-Heller Appellate Decisions on Incorporation ..................................................... 5

Contacts
Author Contact Information ........................................................................................................ 9

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The Second Amendment and Incorporation

Background
On June 26, 2008, the Supreme Court issued its decision in District of Columbia v. Heller, 1
holding by a 5-4 vote that the Second Amendment protects an individual’s right to possess a
firearm, unconnected to service in a militia, and protects the right to use that firearm for
traditional lawful purposes such as self-defense within the home. In Heller, the Court affirmed a
lower court’s holding that declared three provisions of the District of Columbia’s Firearms
Control Regulation Act to be unconstitutional.2 Although the Court conducted an extensive
analysis of the Second Amendment to interpret its meaning, the decision left unanswered other
significant constitutional questions, including the standard of scrutiny that should be applied to
laws regulating the possession and use of firearms, and whether the Second Amendment applies
to the states. It is the latter issue that has been most commented upon by lower courts in post-
Heller cases.
This report presents an overview of the principles of incorporation, the early Supreme Court cases
that addressed the application of the Second Amendment to state governments, and the federal
appellate cases that have addressed incorporation of the Second Amendment since the Heller
decision.
What Is Incorporation?
An incorporation analysis asks whether the protections provided for in the first eight amendments
of the Bill of Rights apply to state governments in the same manner that they directly apply to the
federal government.
Initially, in the early 19th century, the Supreme Court had ruled in Barron v. Mayor & City Council
of Baltimore that the protection of individual liberties in the Bill of Rights applied only to the
federal government, not to state or local governments.3 Chief Justice John Marshall, writing for
the Court, stated: “The constitution was ordained and established by the people of the United
States for themselves, for their own government, and not for the government of the individual
states.”4 He further stated that had the framers intended the Bill of Rights to apply to the states,
“they would have declared this purpose in plain and intelligible language.”5 Although application
of the Bill of Rights solely to the federal government would mean that state and local
governments could then be free to infringe upon these individual protections, Chief Justice
Marshall observed that “[e]ach state established a constitution for itself, and in that constitution,
provided such limitations and restrictions on the power of its particular government, as its

1 554 U.S. __; 128 S. Ct. 2783 (2008). For more on the Supreme Court’s decision, see CRS Report R40137, District of
Columbia v. Heller: The Supreme Court and the Second Amendment, by Vivian S. Chu.
2 Specifically, the three provisions ruled unconstitutional were (1) D.C. Code § 7-2502.02, which generally barred the
registration of handguns; (2) D.C. Code § 22-4504, which prohibited carrying a pistol without a license, insofar as the
provision would prevent a registrant from moving a gun from one room to another within his home; and (3) D.C. Code
§ 7-2507.02, which required that all lawfully owned firearms be kept unloaded and disassembled or bound by a trigger
lock or similar device. 128 S. Ct. at 2817-19.
3 32 U.S. (7 Pet.) 243 (1833).
4 Id. at 247.
5 Id. at 250.
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judgment dictated.”6 Although the argument continued to be made that the Bill of Rights applied
to the states, the Court rejected this contention time and time again.7
It was not until after the Civil War when the Fourteenth Amendment was ratified that claimants
resorted to the Privileges or Immunities Clause of Section 1 of the amendment for judicial
protection.8 In the Slaughter House Cases, the Supreme Court rejected the plaintiffs’ argument
that a state law, which granted a monopoly to the City of New Orleans, created involuntary
servitude, denied them equal protection of the laws, and abridged their privileges or immunities
as citizens under the Thirteenth and Fourteenth Amendments.9 In rejecting the plaintiffs’
challenge, the Court narrowly construed all of these provisions. With respect to the Privileges or
Immunities Clause, the Court held that this clause was not meant to protect individuals from state
government actions and was not meant to be a basis for federal courts to invalidate state laws.10
Specifically, the Court stated that “it is only the [privileges and immunities of the citizens of the
United States] which are placed by this clause under the protection of the Federal Constitution,
and that the [privileges and immunities of the citizen of the State] whatever they may be, are not
intended to have any additional protection by the paragraph of this amendment.”11 Furthermore,
the Court stated that “privileges and immunities relied on in the argument are those which belong
to the citizens of the States as such, and that they are left to State governments for security and
protection, and not by this article [the Fourteenth Amendment] placed under the special care of
the Federal government.”12 This ruling has never been expressly overturned, and therefore
continues to preclude use of the Privileges or Immunities Clause to apply the Bill of Rights.13
In the early 20th century, the Supreme Court in Twining v. New Jersey14 recognized the possibility
that the Due Process Clause of the Fourteenth Amendment15 incorporates provisions of the Bill of
Rights, thereby making them applicable to state and local governments. The Court observed that:
[I]t is possible that some of the personal rights safeguarded by the first eight Amendments
against National action may also be safeguarded against state action, because a denial of
them would be a denial of due process of law ... not because those rights are enumerated in
the first eight Amendments, but because they are of such nature that they are included in the
conception of due process of law.16

6 Id. at 247.
7 See Livingston’s Lessee v. Moore, 32 U.S. (7 Pet.) 469 (1833); Permoli v. First Municipality, 44 U.S. (3 How.) 589
(1845); Fox v. Ohio, 46 U.S. (5 How.) 410 (1847); Smith v. Maryland, 59 U.S. (18 How.) 71 (1855); Withers v.
Buckley, 61 U.S. (20 How.) 84 (1858); Pervear v. Massachusetts, 72 U.S. (5 Wall.) 475 (1867); Twitchell v.
Commonwealth, 74 U.S. (7 Wall.) 321 (1869).
8 U.S. Const. amend. XIV, § 1. “No State shall make or enforce any law which shall abridge the privileges or
immunities of citizens of the United States.” See also Constitution Annotated, 1001 (2004).
9 Slaughter House Cases, 83 U.S. (16 Wall.) 36, 85 (1873).
10 Id. at 77-78.
11 Id. at 74.
12 Id. at 78.
13 The Court, however, did revive the Privileges or Immunities Clause in Saenz v. Roe, 526 U.S. 489 (1999), by using it
to protect the right to travel.
14 211 U.S. 78 (1908).
15 U.S. Const. amend. XIV, § 1. “[N]or shall any State deprive any person of life, liberty, or property, without due
process of law.”
16 Twining, 211 U.S. at 99.
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Although the Court acknowledged that the Due Process Clause included “principles of justice so
rooted in the tradition and conscience of our people as to be ranked fundamental,”17 and therefore
“implicit in the concept of ordered liberty,”18 the Court, despite debate, has never endorsed total
incorporation of all of the Bill of Rights. Rather, the Court embraced what is known as the
doctrine of “selective incorporation,” which holds that the Due Process Clause incorporates the
text of certain provisions of the Bill of Rights.19 It was in Gitlow v. New York that the Supreme
Court for the first time said that the First Amendment’s protection of freedom of speech applies to
the states through its incorporation into the Due Process Clause of the Fourteenth Amendment.20
Although the Court held that New York’s criminal anarchy statute did not violate the Fourteenth
Amendment because the state was properly exercising its police power, the Court, in finding
incorporation, stated, “[F]reedom of speech and of the press ... are among the fundamental
personal rights and ‘liberties’ protected by the due process clause of the Fourteenth Amendment
from impairment by the States.”21
Thus far, the Supreme Court has found the following provisions of the Bill of Rights to be
incorporated:
• The First Amendment’s establishment clause,22 free exercise clause,23 and
protection of speech,24 press,25 assembly,26 and petition.27
• The Fourth Amendment’s protection against unreasonable searches and seizures
and the requirement for a warrant based on probable cause; also the exclusionary
rule, which prevents the government from using evidence obtained in violation of
the Fourth Amendment. 28
• The Fifth Amendment’s prohibition of double jeopardy,29 protection against self-
incrimination,30 and requirement that the government pay just compensation
when it takes private property for public use.31
• The Sixth Amendment’s requirements for speedy32 and public trial,33 by an
impartial jury,34 with notice of the charges,35 and for the chance to confront

17 Palko v. Connecticut, 302 U.S. 319, 325 (1937) (citations omitted).
18 Id.
19 See also Constitution Annotated, 999-1008 (2004).
20 Gitlow v. New York, 268 U.S. 652 (1925).
21 Id. at 666.
22 Everson v. Board of Ed., 330 U.S. 1 (1947); Illinois ex rel. McCollum v. Board of Education, 333 U.S. 203 (1948);
Wallace v. Jaffree, 472 U.S. 38 (1985).
23 Hamilton v. Regents, 293 U.S. 245, 262 (1934); Cantwell v. Connecticut, 310 U.S. 296 (1940).
24 Gitlow v. New York, 268 U.S. 652 (1925); Fiske v. Kansas, 274 U.S. 380 (1927); Stromberg v. California, 283 U.S.
359 (1931).
25 Near v. Minnesota ex rel. Olson, 283 U.S. 697 (1931).
26 DeJonge v. Oregon, 299 U.S. 353 (1937).
27 DeJonge v. Oregon, 299 U.S. 353 (1937); Hague v. Committee for Industrial Organization, 307 U.S. 496 (1939);
Bridges v. California, 314 U.S 252 (1941).
28 Wolf v. Colorado, 338 U.S. 784 (1949); Mapp v. Ohio, 367 U.S. 643 (1961).
29 Benton v. Maryland, 395 U.S. 784 (1969).
30 Malloy v. Hogan, 378 U.S. 1 (1964); Griffin v. California, 380 U.S. 609 (1965).
31 Chicago, Burlington & Quincy R.R. Co. v. City of Chicago, 166 U.S. 226 (1897).
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adverse witnesses,36 to have compulsory process to obtain favorable witnesses,37
and to have assistance of counsel if the sentence involves possible
imprisonment.38
• The Eight Amendment’s prohibition against excessive bail39 and cruel and
unusual punishment.40
Over time, the Court has articulated various tests for deciding whether a provision of the Bill of
Rights is incorporated through the Due Process Clause of the Fourteenth Amendment. The
Supreme Court in Duncan v. Louisiana summarized these formulations, stating, “the question has
been asked whether a right is among those ‘fundamental principles of liberty and justice which lie
at the base of all our civil and political institutions,’ whether it is ‘basic in our system of
jurisprudence,’ and whether it is a fundamental right, essential to a fair trial.’”41 The Court also
noted, in discussing state criminal processes, that “the question is ... whether given this kind of
[common-law] system a particular procedure is fundamental—whether, that is, a procedure is
necessary to an Anglo-American regime of ordered liberty.”42
Has the Supreme Court Addressed Incorporation of the
Second Amendment?
Over 100 years ago, the Supreme Court held in United States v. Cruikshank43 that the Second
Amendment does not act as a constraint upon state law. In its brief treatment of the Second
Amendment, the Court in Cruikshank stated that “it is not a right granted by the Constitution.
Neither is it in any manner dependent upon that instrument for its existence.”44 Furthermore, it
held that “this is one of the amendments that has no other effect than to restrict the powers of the
national government.”45 This holding was reaffirmed in Presser v. Illinois.46 In Presser, it is
interesting to note that the Court further commented that because “all citizens capable of bearing
arms constitute the reserved military force or reserve militia of the United States as well as of the
States,” the “States cannot, even laying the constitutional provision [aside], prohibit the people

(...continued)
32 Klopfer v. North Carolina, 386 U.S. 213 (1967).
33 In re Oliver, 333 U.S. 257 (1948).
34 Irvin v. Dowd, 366 U.S. 717 (1961); Turner v. Louisiana, 379 U.S. 466 (1965). See also Duncan v. Louisiana, 391
U.S. 145 (1958) (holding that the Sixth Amendment is incorporated to the states and guarantees a jury trial for serious
criminal offenses).
35 In re Oliver, 333 U.S. 257 (1948).
36 Pointer v. Texas, 380 U.S. 400 (1965); Douglas v. Alabama, 380 U.S. 415 (1965).
37 Washington v. Texas, 388 U.S. 14 (1967).
38 Powell v. Alabama, 287 U.S. 45 (1932); Gideon v. Wainwright, 372 U.S. 335 (1963).
39 Schilb v. Kuebel, 404 U.S. 357 (1971).
40 Louisiana ex rel. Francis v. Resweber, 329 U.S. 459 (1947); Robinson v. California, 370 U.S. 660 (1962).
41 Duncan v. Louisiana, 391 U.S. 145, 148-49 (1968) (citations omitted).
42 Id. at 149-50 n. 14.
43 92 U.S. 542, 553 (1875).
44 Id.
45 Id.
46 116 U.S. 252, 265 (1886).
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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 general
government.”47 Both of these decisions were decided prior to the advent of modern incorporation
principles (discussed above).
In Heller, the Court commented upon the issue of incorporation, stating:
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 decisions in Presser v. Illinois (citation omitted) and Miller v. Texas,
153 U.S. 535, 538, 14 S.Ct. 874, 38 L.Ed. 812 (1894), reaffirmed that the Second
Amendment applies only to the Federal Government.48
This statement could be viewed as indicating that the Court would continue with long-standing
precedent, or it could be interpreted as indicating that the Court would support the application of
modern incorporation doctrine principles to the Second Amendment.
Analysis of Post-Heller Appellate Decisions
on Incorporation
Since the Heller decision, three federal appellate circuits have addressed whether the Second
Amendment applies to the states. Two of these circuits, the Second and Seventh, both held that
the Second Amendment does not apply to the states, whereas the Ninth Circuit held that the
Second Amendment is applicable to the states.
The United States Court of Appeals for the Second Circuit was the first to address and rule on this
issue in Maloney v. Rice.49 In Maloney, the plaintiff sought a declaration that a New York penal
law that punishes the possession of nunchukas50 was unconstitutional. On appeal, the plaintiff
argued that the state statutory ban violates the Second Amendment because it infringes on his
right to keep and bear arms. Here, the court, citing Presser, held that the state law did not violate
the Second Amendment because “it is settled law ... that the Second Amendment applies only to
limitations the federal government seeks to impose on this right.”51 The court noted that, although
Heller might have questioned the continuing validity of this principle, Supreme Court precedent
directed them to follow Presser because “[w]here, as here, a Supreme Court precedent ‘has direct
application in a case, yet appears to rest on reasons rejected in some other line of decisions, the
Court of Appeals should follow the case which directly controls, leaving to the Supreme Court the
prerogative of overruling its own decisions.’”52

47 Id.
48 Heller, 128 S. Ct. at 2813, n.23.
49 554 F.3d 56 (2d Cir. 2009) (petition for writ of certiorari pending).
50 A “chuka stick” (or “nunchuka”) is defined as “any device designed primarily as a weapon, consisting of two or
more lengths of a rigid material joined together by a thong, rope or chain ... capable of being rotated in such a manner
as to inflict serious injury upon a person.” Id. at 58 (citing N.Y. Penal Law § 265.01(1)).
51 Maloney, 554 F.3d at 58.
52 Id. at 59 (quoting Rodriguez de Quijas v. Shearson/Am. Express, Inc., 490 U.S. 477, 484 (1989) (affirming a Fifth
(continued...)
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On June 2, 2009, the United States Court of Appeals for the Seventh Circuit issued its decision in
National Rifle Association of America v. City of Chicago and Village of Oak Park.53 The Seventh
Circuit’s decision came after the United States Court of Appeals for the Ninth Circuit decided
Nordyke v. King (discussed below). In the Seventh Circuit case, the National Rifle Association
appealed the decision of the lower court to dismiss its suits against these two municipalities on
the ground that Heller dealt with law enacted under the authority of the national government,
while Chicago and Oak Park are subordinate bodies of a state.54 The Seventh Circuit followed the
Second Circuit and also held that the Second Amendment does not apply to the states in affirming
the lower court’s decision to dismiss the suits against the municipalities. Like the Second Circuit,
the Seventh Circuit also stated that the Supreme Court’s decisions in Cruikshank, Presser, and
Miller still control, as they have direct application in the case. The court noted that, although
Heller questioned Cruikshank, this “[did] not license inferior courts to go their own ways.... If a
court of appeals may strike off on its own, this not only undermines the uniformity of national
law but also may compel the Justices to grant certiorari before they think the question ripe for
decision.”55
On April 20, 2009, the United States Court of Appeals for the Ninth Circuit in Nordyke v. King
held that the Due Process Clause of the Fourteenth Amendment incorporated the Second
Amendment and applied it against the states and local governments.56 On July 29, 2009, Chief
Judge Alex Koszinski issued an order stating that upon a vote of a majority of nonrecused active
judges, the Ninth Circuit will rehear this case en banc and that the three-judge panel decision
issued in April 2009 shall not be cited as precedent by or to any court of the Ninth Circuit.57
Despite this recent development in the Ninth Circuit, this report proceeds to examine the April
2009 opinion, as it may influence how this circuit or other circuits examine the issue of
incorporation and the Second Amendment.
Nordyke stated that there are three doctrinal ways the Second Amendment could apply to the
states: (1) direct application, (2) incorporation by the Privileges or Immunities Clause of the
Fourteenth Amendment, or (3) incorporation by the Due Process Clause of the Fourteenth
Amendment. The court held that it was precluded from finding incorporation through the first two
options. It acknowledged that Supreme Court precedent foreclosed the first option, as its decision
in Barron held that the Bill of Rights applies only to the federal government.58 It also
acknowledged that the Slaughter House Cases preclude analysis through the Privilege or
Immunities Clause of the Fourteenth Amendment, citing that the clause “protects only those
rights that derive from United States citizenship, but not those general civil rights independent of

(...continued)
Circuit Court of Appeals decision but stating “We do not suggest the Court of Appeals on its own authority should have
taken the step of renouncing Wilko [v. Swann]. If a precedent of this Court has direct application in a case, yet appears
to rest on reasons rejected in some other line of decisions, the Court of Appeals should follow the case which directly
controls, leaving to this Court the prerogative of overruling its own decisions.”)).
53 Nat’l Rifle Ass’n v. City of Chicago, Illinois and Village of Oak Park, Illinois, 567 F.3d 856 (7th Cir. 2009)
[hereinafter NRA] (petition for writ of certiorari pending).
54 Id. at 2.
55 Id. at 4.
56 Nordyke v. King, 563 F.3d 439 (9th Cir. 2009).
57 Nordyke v. King, No. 07-15763, 2009 U.S. App. LEXIS 16908 (Jul. 29, 2009).
58 Id. at 446 (citing Barron, supra note 3, at 247-51).
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the Republic’s existence.”59 The court explained that the “rights independent of the Republic’s
existence” refer to rights pre-existing the Bill of Rights, and that the Second Amendment is one
such right that “pre-dates the Constitution,” making it a right not granted by the Constitution.60
The Ninth Circuit concluded that a Privileges or Immunities Clause analysis was precluded
because the clause did not extend to the Second Amendment, as it was not a right of the United
States.61
The court then embarked on an analysis under the Due Process Clause of the Fourteenth
Amendment.62 It began by noting that “[s]elective incorporation is a species of substantive due
process, in which the rights the Due Process Clause protects include some of the substantive
rights enumerated in the first eight amendments of the Constitution.”63 The court stated that
addressing either selective incorporation, which addresses enumerated rights, or substantive due
process, which addresses unenumerated rights, requires the court to answer if “a right is so
fundamental that the Due Process Clause guarantees it.”64
To answer this, the Ninth Circuit, although acknowledging other standards used by the Supreme
Court in selective incorporation analyses, applied another standard the Supreme Court used
“outside the context of incorporation” to determine whether an individual right unconnected to
criminal or trial procedures is a fundamental right protected by substantive due process.65
Specifically, the Ninth Circuit inquired “whether the right to keep and bear arms ranks as
fundamental, meaning ‘necessary to an Anglo-American regime of ordered liberty’ ... [which
compelled them] to determine whether the right is ‘deeply rooted in this Nation’s history and
tradition.’”66
After engaging in a historical analysis of the right during the Founding era, the post-
Revolutionary years, and the post-Civil War era, the court concluded that the Second Amendment
was incorporated and applies against state and local governments because “the crucial role [of
this] deeply rooted right ... compels us to recognize that it is indeed fundamental [and] necessary
to the Anglo-American conception of the ordered liberty that we have inherited.”67
When a right is deemed fundamental, the court must use the strict scrutiny test as the standard of
review, meaning that “a law will be upheld if it is necessary to achieve a compelling government

59 Id. (citing Slaughter House Cases, supra note 9, at 74-5).
60 Id. at 447.
61 Id.
62 The court addressed an earlier Ninth Circuit case, Fresno Rifle & Pistol Club, Inc. v. Van de Kamp, 965 F.2d 723 (9th
Cir. 1992) which held that the Second Amendment applies only to the federal government. The court found that Fresno
Rifle only decided that the Second Amendment was not incorporated via direct application of the Privileges or
Immunities Clause of the Fourteenth Amendment, and that the decision did not reach the question of whether the
Second Amendment could be incorporated via the Due Process Clause of the Fourteenth Amendment.
63 Id. at 449.
64 Id.
65 Id. at 451.
66 Id. The inquiry “deeply rooted in this Nation’s history and tradition” stems from Moore v. City of East Cleveland,
431 U.S. 494, 503 (1977), where the Supreme Court recognized a fundamental right to keep family together that
includes an extended family. Noting that “incorporation is logically a part of substantive due process,” (Nordyke, 563
F.3d at 450) the court in Nordyke applied the standard from Moore because that case noted “the similarity between ...
general substantive due process and the incorporation inquiry stated in Duncan.” Moore, 431 U.S. at 503 n.10.
67 Nordyke, 563 F.3d at 457.
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purpose.”68 Although the Ninth Circuit concluded that the Second Amendment was a fundamental
right, it did not apply the strict scrutiny test to the challenged county ordinance.69 Rather, it noted
that the Supreme Court in Heller did not announce a standard of review and held that the
challenged ordinance, which prohibited the possession of firearms or ammunition on county
property, “fits within the exception from the Second Amendment for ‘sensitive places’ that Heller
recognized.”70 Judge Gould in his concurrence made a point of noting that “the recognition of the
individual’s right in the Second Amendment, and its incorporation ... is not inconsistent with the
reasonable regulation of weaponry... [I]mportant governmental interests will justify reasonable
regulation of rifles and handguns, and the problem for our courts will be to define ... what is
reasonable and permissible and what is unreasonable and offensive to the Second Amendment.”71
It is interesting to note that the Seventh Circuit decision (discussed above), in addition to holding
that the Second Amendment is not incorporated because of precedent, also commented upon the
use of the selective incorporation doctrine. In particular, the Seventh Circuit wrote “[h]ow the
second amendment will fare under the Court’s selective (and subjective) approach to
incorporation is hard to predict.”72 In stating that selective incorporation “cannot be reduced to a
formula,” the court pointed out that the Supreme Court has not held that states are bound by the
Seventh Amendment’s civil jury trials even though that “institution also has deep roots.”73
Because it is uncertain what states will think is best for their citizens—for example, a state might
think it best that people cornered in their homes surrender rather than fight back, thus making
self-defense a crime—or the fact that many states have altered their common-law self-defense
statutes74 to require persons to use non-lethal force when retreat is not possible, the court felt that
these evaluations should be made in scholarly journals and the political process “rather than
invocation of ambiguous texts that long precede the contemporary debate.”75 Furthermore, the
Seventh Circuit stated that another theme stressed in the debate over incorporation is “[t]hat the
Constitution establishes a federal republic where local differences are to be cherished as elements
of liberty rather than extirpated in order to produce a single, nationally applicable rule.”76 Stating
that “[f]ederalism is an older and more deeply rooted tradition than is a right to carry any
particular kind of concealed weapon,” the Seventh Circuit felt that these types of arguments that
could affect a court’s analysis of incorporating the Second Amendment are best left to the Justices

68 Erwin Chemerinsky, Constitutional Law: Principles and Policies §§ 6.5, 10.1.2 (3d ed. 2006).
69 The Alameda County ordinance that was challenged was one that “makes it a misdemeanor to bring onto or to
possess a firearm or ammunition on County property.” Nordyke, 563 F.3d at 442.
70 Nordyke, 563 F.3d at 460 (citing Heller, 128 S.Ct. at 2816-17, “nothing in our opinion should be taken to cast doubt
on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the
carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and
qualifications on the commercial sale of arms”).
71 Id. at 465.
72 NRA, at 858-9.
73 Id. at 859.
74 The common-law doctrine of self-defense within the home, sometimes referred to as the Castle Doctrine, generally
holds that a person is not bound to retreat when assaulted in his own house, but such person may not be entitled to kill
the assailant unless he has reason to believe that he is in danger of great bodily harm from the assault. Over time,
jurisdictions have altered the common-law. For example, some require the accused to retreat if practicable before using
lethal force if the assailant is somebody who is also entitled to be on the premises. See 40 Am. Jur. 2d Homicide §§ 163
et seq. (2008).
75 NRA, at 859-60.
76 Id at 860.
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rather than a court of appeals.77 Whether the Ninth Circuit in rehearing the Nordyke case en banc
chooses to follow the sentiment of the Seventh and Second Circuits or to analyze the Second
Amendment in a manner similar to the three-judge panel in their own circuit remains to be seen.

Author Contact Information

Vivian S. Chu

Legislative Attorney
vchu@crs.loc.gov, 7-4576

77 Id.
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