Friday, February 19, 2010

Washington Supreme Court rules that the 2nd Amendment is incorporated against the states

This story is a bit off-topic since it doesn't deal with religion and the founding, but I thought it might be of interest to our readers because of the significance of the court's ruling, dealing as it does with one of the most controversial components of the Bill of Rights.

Here's some analysis of the Washington supreme court's decision in State v Sieyes, courtesy of the informative Washington State Supreme Court Blog, a website run by the Evergreen Freedom Foundation. The case represents a major victory for gun-rights, although interestingly enough it was a defeat for the appellant in the case before the court.  For what it's worth, I think that Justice Stephens had the better approach; the state supreme court probably should have refrained from addressing the issue of incorporation until the federal Supreme Court decided the issue. But that's a question of prudential judgment. I think the majority's opinion is pretty persuasive.

Here's my favorite line from the majority's opinion:
Accordingly we regard the history, lineage, and pedigree of the Second Amendment right to bear arms necessary to an Anglo-American regime of ordered liberty and fundamental to the American scheme of justice. It is deeply rooted in this Nation’s history and tradition.
Amen to that.

Of course, as the Washington supreme court points out in its ruling, the Washington constitution itself provides significant protections for gun owners. In article 1, section 24 the state constitution explicitly states that:
The right of the individual citizen to bear arms in defense of himself, or the state, shall not be impaired, but nothing in this section shall be construed as authorizing individuals or corporations to organize, maintain or employ an armed body of men.
The Washington constitution makes clear that the right to keep and bear arms, at least under state law, is a right designed not only to allow for a state controlled militia, but also for personal defense.

Which makes me wonder, couldn't the court have decided the case on narrower grounds, basing its decision on the Washington constitution alone, without addressing the question of the 2nd Amendment? This is why I think Justice Stephens' more prudential approach has merit. Why decide a question federal constitutional law if it isn't necessary to do so? And why decide a question of federal constitutional law that is currently before the federal Supreme Court? Wouldn't it have been better to wait to see what the federal Supreme Court will do?


bpabbott said...

I'm also fan of Justice Stephens' prudent approach. By minimizing the impact of each decision, law may be refined without drastic changes in direction.

I think that approach serves to keep politics out of the court.

Mark D. said...

Yes. And in this particular case it serves another function as well. If the Supreme Court rules that the 2nd Amendment isn't incorporated against the states (an unlikely outcome but one that is well within the real of possibility), then the Washington supreme court's ruling will be undone. The Wash. court would be in the position of having jumped the gun (pun intended!) on the question, with disastrous consequences for its ruling. Justice Stephens' approach would avoid that problem.

So, not only is it more restrained from a judicial point of view, it is more institutionally stable. If her approach had been followed, the court's decision would stand regardless of how the Supreme Court decides the question of incorporation. If one is concerned about the stability of precedent, that's a good approach to take.

Tom Van Dyke said...

If I recall correctly, Justice Sotmayor's last decision before heading for the Supreme Court was that the 2nd Amendment didn't incorporate against the states, and that local gun bans were legal.

Should be fun.

Mark D. said...

No kidding. But the judge she replaced (Souter) was no fan of gun rights, so I doubt that her appointment will shift the Supreme Court. I imagine it will be a 5-4 decision in favor of incorporation, but it is possible that Stevens and Breyer might join with the majority -- unlikely but possible. Both Stevens and Breyer are strong supporters of the incorporation doctrine.

Tom Van Dyke said...

Thx, Mark. According to this

swing vote Kennedy tends to go for a "libertarian" view, which would 5-4 it as you say.

I'd feel the earth move if Stevens or Breyer incorporated the 2nd when push came to shove. But even Scalia surprises his critics occasionally.

Sotomayor and Ginsburg we would think are in the bag. Like Justice O'Connor, they favor pragmatism above all.

BTW, Chief Justice Roberts is on record as favoring decisions as narrow as possible for the reasons you admire; Scalia favors decisions as broad as possible to establish principle and precedent so that various lower courts don't jump the gun and start building a Tower of Babel---reasons you note as well in the Washington court's decision.

I have sympathy for both points of view.