Second Amendment incorporation and the Supreme Court monopoly onoverruling prior cases

[Nelson Lund]

A draft of the paper on Cruikshank and Presser is now posted at:

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1239422

A draft of a somewhat related paper on Heller's treatment of precedent 
is posted at:

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1235537

Nelson Lund
George Mason


Sanford Levinson wrote:

>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
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