Second Amendment incorporation and the Supreme Court monopolyonoverruling prior cases

[Rosenthal, Lawrence]

For anyone interested in a very different take on the applicability of the Second Amendment to state and local laws (and Heller itself), I have just posted such a paper:  http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1245402
 
Larry Rosenthal
Chapman University School of Law

________________________________

From: conlawprof-bounces at lists.ucla.edu on behalf of Nelson Lund
Sent: Sat 8/23/2008 3:24 PM
To: Sanford Levinson
Cc: conlawprof at lists.ucla.edu
Subject: Re: Second Amendment incorporation and the Supreme Court monopolyonoverruling prior cases


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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