Comment on Bach v. Pataki
Just below, I discuss Bach v. Pataki, the recent 2d Circuit case. Robert J. Cottrol, Harold Paul Green Research Professor of Law at George Washington University, just emailed an interesting comment:
I got a chance to glance at Beck v. Pataki (only the second amendment section). I may be over optimistic but I think it represents a bit of progress. You have the district court saying that the second amendment is a collective right. You have the second circuit essentially pulling back from that and saying that it is an open question that they do not have to resolve and instead saying that their consideration of the matter is essentially precluded by the incorporation issue. Furthermore the second circuit (which is not a particularly friendly circuit) says that Presser may indeed be problematic precedent but that they are nonetheless bound by it (taking pains to distinquish Engbloom, their third amendment case, noting that the Supremes had not spoken on the third amendment and incorporation). It seems this is a far cry from the district court's claim that the second amendment protects only militias. It is also a far cry from the majority decision in Silveira and what a number of the lower federal courts were doing in the 70s and 80s. I regard this and the DC case (ignoring the second amendment and coming up with a trumped up standing standard) as small (don't break out the champagne just yet) steps forward.
I'd quite agree. In the 1980s, the 2d Circuit easily waved the Second Amendment away. For example, in U.S. v Toner, 728 F.2d 115 (2nd Cir. 1984), an equal protection question was raised with regard to the Gun Control Act's ban on possession by illegal aliens, and the Circuit disposed of the "fundamental right" criterion (if a fundamental right is involved, a court must use a higher level of scrutiny in determining whether equal protection has been violated) with a sentence: "....the right to possess a gun is clearly not a fundamental right, cf. United States v. Miller, 307 U.S. 174, 59 S.Ct. 816, 83 L.Ed. 1206 (1939) (in the absence of evidence showing that firearm has "Some reasonable relationship to the preservation or efficiency of a well regulated militia," Second Amendment does not guarantee right to keep and bear such a weapon)..."
Today, the Circuit has to spend a lot of time hedging, and it declines the obvious opportunity simply to adopt the district court ruling. This suggests it sees the Second Amendment question as up in the air rather than settled.