Another possible reason for the LAT story on NRA v. Chicago
posted by Kaimipono D. Wenger
Over at the conspiracy, Eugene Volokh points out an odd fact — while the L.A. Times gives rather extensive coverage to the recent NRA v. Chicago, it gave no coverage at the time to Nordyke v. King, which was a California case. Eugene offers a few possible rationales for this difference:
To be sure, there are possible explanations: Today’s story was by the Times’ Supreme Court reporter, and this case is more likely than the Ninth Circuit case to go to the Supreme Court, for reasons I described here. The underlying controversy in the Seventh Circuit (a handgun ban) is more likely to interest people than the underlying controversy in the Ninth Circuit (a ban on gun possession on county property). And it’s made higher profile by the controversy about Judge Sotomayor’s participation in the Second Circuit’s no-incorporation decision.
At the same time, the broad legal issue — whether state and local governments are bound by the federal right to bear arms — is the same. The Ninth Circuit decision was the one that created the circuit split, and it did tee things up for the Court to consider the Second Circuit’s incorporation case (again, discussed here) — perhaps not perfectly, but still in a way that strikes me as newsworthy. The Ninth Circuit decision is the one that suggests some gun laws may be unconstitutional, which seems to me a pretty newsworthy matter. And the Ninth Circuit case was more local than the Seventh Circuit case.
(In comments, VC readers seem to mostly be of the opinion that the story shows a concerted editorial campaign to promote gun control through skewed news reporting.)
I’d suggest another possible reason — there’s a man-bites-dog aspect of the story which Eugene doesn’t mention; and no, it’s not the cheesy “wow, Republican judges can rule against gun rights” factor. Rather, it’s the fact that incorporation was widely expected to have an easier road than this.
For instance, take a look at a few recent statements made by VC bloggers:
Add to all of this the fact that the Court repeatedly compares the incorporated First Amendment to the unincorporated Second Amendment as a guarantee of important individual rights. A court that believes the Second Amendment is comparable to the hallowed First Amendment is unlikely to leave protection of the right to the mercy of legislative majorities in states and cities.
Whichever specific route the lower courts now choose — the Citizenship Clause, the Privileges and Immunities Clause, the Due Process Clause — it seems the Supreme Court is providing a road map and is strongly suggesting that the ultimate destination is incorporation.
My questions: (1) The main issue in this case is to what extent the Second Amendment applies to the states via the Fourteenth Amendment. It’s at least conceivable that the Amendment might apply to the states differently than it does to the federal government; this is an unlikely result, but one the Court reached in the early 1970s as to the Jury Trial Clause, which has been read as requiring unanimous juries in federal prosecutions but not state prosecutions.
Randy Barnett, earlier this year:
Moreover, since the path breaking work by Michael Kent Curtis appeared in the 1980s, there has formed a remarkable scholarly consensus among those familiar with the historical record, and this consensus is entirely nonideological. Indeed, on February 4, 2009, the self-described “progressive” Constitutional Accountability Center filed a brief in the consolidated case of McDonald, et al., and National Rifle Association of America, Inc., et al., v. City of Chicago, et al., and Village of Oak Park, now pending in the Seventh Circuit, arguing that the individual right to bear arms recognized in District of Columbia v. Heller, is “incorporated” against state action via the Privileges or Immunities Clause of the 14th Amendment. CAC’s brief (available here) was filed on behalf of professors Richard Aynes, Jack Balkin, Michael Kent Curtis, and Michael A. Lawrence. Their brief speaks only to the incorporation issue and did not argue that the challenged gun regulations are unconstitutional.
These statements reflect the general opinion as I’ve observed it. I asked Alan Gura about incorporation at a talk recently; I talked with Mike O’Shea about it; everyone I’ve talked to who follows the issue assumed that incorporation, if not quite a slam dunk, was something that was quite likely to happen — and Maloney was viewed as the quirky outlier. It’s a genuine surprise to see a(nother) circuit court unanimously ruling against incorporation; and ultimately, surprises are often what make it into the news.
Add that to the factors that Eugene notes (i.e., Nordyke was about a more obscure issue; NRA v. Chicago was about a much bigger-impact law) and it doesn’t seem quite as surprising (or sinister, as VC commenters suggest) that the LAT’s Supreme Court reporter took a pass on Nordyke but wrote about NRA v. Chicago.
June 4, 2009 at 8:11 am
Tags: eugene volokh, media, news, Second Amendment
Posted in: Current Events, Second Amendment
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Responses (2)
Nairda2000 - June 5, 2009 at 1:14 pm
I’d disagree in part with your observation, because its only the last part of the road to incorporation of the 2A (i.e., the road through the SCOTUS itself) that most observers believed would be easy (this belief being based on the footnote in Heller where Scalia observed that the existing SCOTUS precedent holding against incorporation of the 2A did not engage in the 14A due process analysis required by later SCOTUS cases).
Given that there is binding SCOTUS precedent stating that the 2A is not incorporated (as both the second circuit and the seventh circuit have recently noted), if anything, it was the ninth circuit decision FOR incorporation, that was surprising.
Brett Bellmore - June 5, 2009 at 2:02 pm
It’s not so much that there’s binding SCOTUS prcedent that the 2nd amendment isn’t incorporated, so much as that there’s precedent the lower courts can so interpret if they want to. The problem is, they want to. Wouldn’t have all these circuit court precedents against the 2nd guaranteeing an individual right, otherwise, as none of the Supreme court rulings they nominally rely upon back them up on that score.
So, yeah, it might or might not be a slam dunk at the Supreme court level, but nobody expected it to be one lower down.
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