Will Second Amendment Be Incorporated Through Citizenship Clause?

Federal appeals courts hearing gun rights cases after the Supreme Court's Second Amendment ruling last year in District of Columbia v. Heller are confronting an old issue: whether the amendment applies to restrict state and local laws under the incorporation doctrine.

Heller found that the Second Amendment protected an individual right to own a gun in the District of Columbia, a federal enclave. New suits challenging state and local laws have resulted in a split. Two federal appeals courts refused to apply the Second Amendment to local laws without express Supreme Court authorization. A third disagreed.

University of Texas law professor Sanford Levinson told the New York Times that the case could present a dilemma for some conservative justices who scoffed at incorporation arguments in the past. Because of the touchy issues, he says he would be surprised if the U.S. Supreme Court agrees to hear new cases on the issue.

Yale law professor Akhil Reed Amar told the Times that incorporation fell out of favor after the 1960s, but it's being resurrected by liberal scholars. Most of the Bill of Rights have been applied to the states under liberal Warren Court rulings that found the 14th Amendment required incorporation. One exception is the Seventh Amendment right to a jury trial, which has not been applied to the states.

"The precedents are now supportive of incorporation of nearly every provision of the Bill of Rights," Amar told the Times. "Now what's odd is that the Second Amendment doesn't apply to the states."

He believes the justices will support incorporation. A post at the Volokh Conspiracy after the Heller ruling cited evidence that Justice Antonin Scalia may be on board.

Scalia's Heller opinion highlights the importance to the newly freed slaves of the right to keep and bear arms in the home -- the kind of evidence used to support incorporation. One Scalia passage hints that he believes the amendment could be incorporated through the 14th Amendment's citizenship clause, rather than due process safeguards, says the Volokh Conspiracy writer, University of Minnesota law professor Dale Carpenter.