Friday, February 19, 2010

It appears the WA state Supreme Court has incorporated the 2nd amendment under the due process clause of the 14th. Volokh Conspiracy  link.
A couple excerpts
"Like Presser and Cruikshank we question
the relevance of United States v. Miller to the instant matter, albeit for different reasons. Miller concerned the constitutionality of a federal regulation barring interstate transport of, for example, an unregistered sawed-off shotgun. The Court upheld the federal regulation stating, “[i]n the absence of any evidence tending to show that possession or use of a ‘shotgun having a barrel of less than eighteen inches in length’ at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument.” Id. at 178. Miller’s holding stands for the proposition—and little more—that certain types of weapons are
not linked to militia service."
"Sieyes’s objection may be that he was 17 years old at the time of his arrest, and his right to bear arms should be equal to that of an 18-year-old’s, but his arguments fail to challenge the statutory age limit set by this statute. In sum appellant offers no convincing authority supporting his argument that Washington’s limit on childhood firearm possession violates the United States or Washington Constitutions. Accordingly we keep our powder dry on this issue for another day."
 "The Second Amendment right to bear arms applies to the states through the due process clause of the Fourteenth Amendment."
I am surprised by a couple things, the biggest of which is that they correctly read Miller because that is the case that is used by the anti civil rights crowd to cite the 2nd as reserving the RKBA to the state militias. It also appears that if Sieyes had actually supported his argument by using Gunwall they might have reversed his conviction. The last thing I find surprising is they came very close to deciding on a standard of review for use in 2A cases and that it looked like they were going for strict scrutiny, in fact that is what judge Jim Johnson suggested in his dissent. That makes perfect sense as we are talking about a fundamental right after all but it stands to lay waste to an awful lot of firearms law that is based on prior restraint at this point, background checks being the most obvious one.  
 This is sure to give the VPC and Brady Campaign fits because if the US Supreme Court uses the same reasoning for McDonald (which most folk suspect they will) incorporation is a slam dunk and sure to create several more challenges to asinine state laws such as California and New Jersey's "Assault Weapon Ban"s and their may issue carry permit rules. 

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