Second Amendment incorporation and the Supreme Court monopoly onoverruling prior cases

[Sanford Levinson]

I'm eager to read the paper.  Given that Cruickshank and Presser both
say that the Amendment is not incorporated, I don't understand how a
lower court can hold that it is, unless, of course, it finds such a
right to exist via the Ninth Amendment and finesses the Second Amendment
entirely.

sandy

-----Original Message-----
From: nlund at gmu.edu [mailto:nlund at gmu.edu] 
Sent: Monday, August 18, 2008 4:08 PM
To: Sanford Levinson
Cc: conlawprof at lists.ucla.edu
Subject: Re: Second Amendment incorporation and the Supreme Court
monopoly onoverruling prior cases

They're not authorized by the Supreme Court to overrule Cruikshank and 
Presser. But they are nevertheless free to "incorporate" the right to 
keep and bear arms. I'm working on a short paper on this topic, and I 
hope to have a draft posted on SSRN within the next few days.

Nelson Lund
George Mason

Sanford Levinson wrote:

>Given the Supreme Court's (nutty) doctrine that only it can overrule a
>prior case, even if it is clear that the prior doctrine is shaky, would
>any "inferior court," at least in the federal system, be authorized to
>overrule Cruickshank and Presser, which held quite clearly that the
>Second Amendment applied only to the national government and not at all
>to the states:
>
>"We think it clear that the sections under consideration, which only
>forbid bodies of men to associate together as military organizations,
or
>to drill or parade with arms in cities [116 U.S. 252, 265] and towns
>unless authorized by law, do not infringe the right of the people to
>keep and bear arms. But a conclusive answer to the contention that this
>amendment prohibits the legislation in question lies in the fact that
>the amendment is a limitation only upon the power of congress and the
>national government, and not upon that of the state. It was so held by
>this court in the case of U. S. v. Cruikshank, 92 U.S. 542 , 553, in
>which the chief justice, in delivering the judgment of the court, said
>that the right of the people to keep and bear arms 'is not a right
>granted by the constitution. Neither is it in any manner dependent upon
>that instrument for its existence. The second amendment declares that
it
>shall not be infringed, but this, as has been seen, means no more than
>that it shall not be infringed by congress. This is one of the
>amendments that has no other effect than to restrict the powers of the
>national government. . . . , 
>
>PRESSER v. STATE OF ILLINOIS, 116 U.S. 252, 264-65 (1886)  
>
>sandy
>_______________________________________________
>To post, send message to Conlawprof at lists.ucla.edu
>To subscribe, unsubscribe, change options, or get password, see
http://lists.ucla.edu/cgi-bin/mailman/listinfo/conlawprof
>
>Please note that messages sent to this large list cannot be viewed as
private.  Anyone can subscribe to the list and read messages that are
posted; people can read the Web archives; and list members can (rightly
or wrongly) forward the messages to others.
>  
>