Month: October 2009

Eugene Volokh has the story here, and notes:

The reasoning, I’m afraid, is pretty sketchy; it may well be, for instance, that the Second Amendment rule applicable to the government acting as proprietor should be less protective than the rule applicable to the government acting as sovereign, controlling behavior on private property. That’s certainly so in large measure for the First Amendment, the Fourth Amendment, and substantive due process. But it doesn’t follow that there’s no protection offered by the Second Amendment there; that, I think, should take more argument. Nor is it clear that the “sensitive places” exception from Heller should cover parking lots as well as buildings — Heller itself, of course, was quite opaque about the scope of this exception, but I wish that courts applying it went into somewhat more analysis about what makes a place “sensitive” enough to justify gun bans.

Another case of the courts just citing Heller without doing any serious analysis. This opinion is considered “unpublished” which means it does not have precedential value.

UPDATE: Just to make it clear what I think Prof. Volokh is speaking about here, the government may exercise power as a proprietor, and eject someone carrying a firearm from its premises, but when it brings criminal charges unrelated to the exercise of its property rights, it exercises its power as a sovereign, to punish the deed of carrying a gun in a government building.

Clayton has a very good article up over at Pajama’s Media, and it discusses a topic we spoke about a bit yesterday, namely whether the Court will choose to incorporate the Second Amendment through the traditional due process clause, or the privileges or immunities clause:

This could be a momentous decision. I can understand why the Supreme Court might look at the mess it will create if it admits that all of these previous selective incorporation decisions were wrongly made — because so much of our current society is based on these decisions. Perhaps they will decide to incorporate the Second Amendment through privileges or immunities and pretend that the results are pretty much the same either way. The results, however, will provoke a firestorm of suits seeking clarification, of that I can assure you.

I would imagine the Court can overturn Cruikshank without overturning its due process based decisions, and make a reasonable argument that incorporation can be reached through both mechanisms. But Clayton is right about the potential mess the Court could make if it choose the privileges or immunities path. Clayton speaks about one complication in regards to corporations, but there’s another complication as well. Is the right to be indicted by a grand jury amoung the privileges and immunities of citizens of the United States? It would certainly appear so, but the Supreme Court has never incorporated the right to be indicted by a grand jury, a positive right rather than a recognition of a natural right, against the states. Pennsylvania is one state that does not use grand juries to bring criminal charges, except in rare circumstances, though the other states in the Third Circuit, New Jersey and Delaware, both do.

It’s the complications that overturning Cruikshank presents that makes me skeptical the Court will want to go there, but I’m holding out hope.