ment were found not to grant an individual right.58 On the other hand, Justice David Souter, joined in a dissenting opinion by Justices John Paul Stevens, Ruth Bader Ginsburg, and Stephen Breyer, “hinted” that the amendment might protect a collective right.59

At the very least, the degree of debate over the proper reading of the Supreme Court’s decision in Miller suggests that the issue remains unsettled. Thus, it does not appear that the Supreme Court will feel bound by stare decisis to support a collective rights interpretation of the Second Amendment, if and when that issue comes before the Court again.

The Incorporation Question

A separate but important question in the interpretation of the Second Amendment is its reach. The provisions of the Bill of Rights were originally intended to limit the powers of the federal government. Beginning in the early 20th century, however, the Supreme Court began to apply some, but not all, of the Bill of Rights limitations to the states, in a process known as incorporation.60 If the Second Amendment is found to protect an individual right to keep and bear arms, the question arises as to whether that protection extends only to federal restrictions on the right or whether it will reach state law restrictions as well.

Opponents of incorporation point to the Supreme Court’s decisions in United States v. Cruikshank61 (1875) and Presser v. Illinois62 (1886) for the proposition that the Second Amendment has not been incorporated to apply to the states. Concededly, the Presser Court did say that the Second Amendment “is a limitation only upon the power of Congress and the National government, and not upon that of the States.”63 Yet it would be unfair to consider these decisions relevant today, as the doctrine of incorporation has been completely transformed since those decisions were rendered.64 Until 1897, the Supreme Court had consistently refused to apply

58  

Id. (citing Antonin Scalia, A Matter of Interpretation: Federal Courts and the Law 136-37 n.13 (1997)).

59  

Id. (citing United States v. Morrison, 120 S. Ct. 1740, 1765 n.11 (2000) (Souter, J., dissenting)).

60  

See, e.g., Twining v. New Jersey, 211 U.S. 78, 99 (1908) (It “is possible that some of the personal rights safeguarded by the first eight Amendments against National action may also be safeguarded against state action, because a denial of them would be a denial of due process of law…. If this is so, it is not because those rights are enumerated in the first eight Amendments, but because they are of such a nature that they are included in the conception of due process of law”).

61  

92 U.S. 542 (1875).

62  

116 U.S. 252 (1886).

63  

Id. at 265.

64  

See Don B. Kates, Jr., Handgun Prohibition and the Original Meaning of the Second Amendment, 82 Mich. L. Rev. 204, 252-57 (1983).



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