by Jason Stotts
In a landmark ruling yesterday, the Supreme Court of the State of Washington has officially incorporated the Second Amendment in their state! This is amazing and sets a precedent for the upcoming SCOTUS case McDonald v. City of Chicago.
Here are some of the highlights of the opinion, the full text of which can be found on the Washington Supreme Court Website. Note, I’ve bolded key passages in the text.
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ANALYSIS
I. The United States Constitution Safeguards an Individual Right To Bear Arms and Applies to the States via the Fourteenth Amendment Due Process Clause.
The Second Amendment provides: “A well regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.” U.S. Const. amend. II. The United States Supreme Court had not clarified whether the Second Amendment’s right to keep and bear arms was an individual entitlement until Heller, the Court’s “first in-depth examination of the Second Amendment.” Heller, 128 S. Ct. at 2821. Heller unquestionably recognized an individual right to bear arms and, in the process, rejected a collective right conditioned on militia service. “There seems to us no doubt, on the basis of both text and history, that the Second Amendment conferred an individual right to keep and bear arms. Of course the right was not unlimited, just as the First Amendment’s right of free speech was not.” Id. at 2799. We must answer whether the Second Amendment applies to the states — an issue Heller explicitly sidestepped. Id. at 2813 n.23.
Incorporation is “[t]he process of applying the provisions of the Bill of Rights to the states by interpreting the 14th Amendment’s Due Process Clause as encompassing those provisions.” Black’s Law Dictionary 834 (9th ed. 2009). The Fourteenth Amendment bars “any state [from] depriv[ing] any person of life, liberty, or property, without due process of law.” U.S. Const. amend. XIV, § 1. Under the original constitutional architecture the federal Bill of Rights protected only enumerated rights from federal interference. Barron v. Mayor of Baltimore, 32 U.S. (7 Pet.) 243, 247-51, 8 L. Ed. 672 (1833) (Marshall, C.J.). Today, however, the Supreme Court has applied nearly the entire Bill of Rights to the states through the due process clause. Duncan v. Louisiana, 391 U.S. 145, 149, 88 S. Ct. 1444, 20 L. Ed. 2d 491 (1968). Since 1897 the Supreme Court has progressively concluded most liberties protected by the Bill of Rights are incorporated. See, e.g., Chi., Burlington & Quincy R.R. v. Chicago, 166 U.S. 226, 17 S. Ct. 581, 41 L. Ed. 979 (1897) (holding due process clause prevents states from taking property without just compensation); Gitlow v. New York, 268 U.S. 652, 45 S. Ct. 625, 69 L. Ed. 1138 (1925) (incorporating First Amendment protection of free speech); Cantwell v. Connecticut, 310 U.S. 296, 60 S. Ct. 900, 84 L. Ed. 1213 (1940) (incorporating First Amendment protection of free exercise of religion).4 At this writing incorporation of the Bill of Rights to the states through the Fourteenth Amendment is “virtually” complete. Pac. Mut. Life Ins. Co. v. Haslip, 499 U.S. 1, 34, 111 S. Ct. 1032, 113 L. Ed. 2d 1 (1991) (Scalia, J., concurring). [pp. 5-6]
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Although the Heller Court did not expressly consider incorporation of the right to bear arms, “that need not stop the rest of us.” Sanford Levinson, Comment, The Embarrassing Second Amendment, 99 Yale L.J. 637, 653-54 (1989). Lower courts need not wait for the Supreme Court to apply Duncan; the Constitution is the rule of all courts — both state and federal judiciaries wield power to strike down unconstitutional government acts.
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Gun ownership is an inexorable birthright of American tradition. “Americans who participated in the Revolution of 1776 and adopted the Bill of Rights held the individual right to have and use arms against tyranny to be fundamental.”8 Stephen P. Halbrook, That Every Man Be Armed: The Evolution of a Constitutional Right 55 (1984). Moreover gun ownership was a universal legal duty of American colonists. Joyce Lee Malcolm, The Right of the People to Keep and Bear Arms: The Common Law Tradition, 10 Hastings Const. L. Q. 285, 290-95 (1983).
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Heller analyzed the Second Amendment from preratification to the end of the 19th Century, concluding the right to bear arms is an individual right. The Court began by noting the 1689 Declaration of Rights included the right to bear arms. Heller, 128 S. Ct. at 2798. The Court added Blackstone, “‘the preeminent authority on English law for the founding generation,’” id. at 2798 (quoting Alden v. Maine, 527 U.S. 706, 715, 119 S. Ct. 2240, 144 L. Ed. 2d 636 (1999)), considered the right to bear arms “a public allowance, under due restrictions, of the natural right of resistance and self-preservation,” William Blackstone, 1 Commentaries 144 (2d ed. 1766). The right to bear arms therefore flows from the “absolute rights” of “personal security, personal liberty, and private property.” Id. at 140-41. The Federalist No. 46 describes “the advantage of being armed, which the Americans possess over the people of almost every other nation” from the viewpoint of a fundamental right to self- defense. The Federalist No. 46, at 296 (James Madison) (Clinton Rossiter ed., 2003). “By the time of the founding, the right to have arms had become fundamental for English subjects.” Heller, 128 S. Ct. at 2798. Heller severed the right to bear arms from service in a militia, foreclosing the only plausible argument against finding the right to be individual. 128 S. Ct. 2783. [pp. 8-9]
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Accordingly we regard the history, lineage, and pedigree of the Second Amendment right to bear arms necessary to an Anglo-American regime of ordered liberty and fundamental to the American scheme of justice. It is deeply rooted in this Nation’s history and tradition.
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We have noted the individual right to bear arms under article I, section 24 may be broader than the Second Amendment but had not yet determined our provision’s distant reaches when the Court decided Heller. See City of Seattle v. Montana, 129 Wn.2d 583, 594, 919 P.2d 1218 (1996) (plurality); State v. Rupe, 101 Wn.2d 664, 706, 683 P.2d 571 (1984).16 Supreme Court application of the United States Constitution establishes a floor below which state courts cannot go to protect individual rights. But states of course can raise the ceiling to afford greater protections under their own constitutions. Washington retains the “‘sovereign right to adopt in its own Constitution individual liberties more expansive than those conferred by the Federal Constitution.’” State v. Gunwall, 106 Wn.2d 54, 59, 720 P.2d 808 (1986)
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For the purposes of this case, it is enough that the state constitutional right to bear arms is clearly an individual one. [p. 20]
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CONCLUSION
The Second Amendment right to bear arms applies to the states through the due process clause of the Fourteenth Amendment. [p. 23]