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Old May 26, 2009, 04:47 PM   #32
gc70
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Join Date: May 24, 2005
Location: North Carolina
Posts: 2,902
I don't view the decision in Maloney quite so negatively.

Quote:
yet in the Maloney v. Cuomo decision, she doesn't even discuss the fact that Presser predated the doctrine of selective incorporation via due process or discuss how that might affect the Plaintiff's case.
Maloney only argued that Presser and Bach should be reviewed in light of the DC. Circuit decision in Parker. In a post-Heller letter, he acknowledged that "Heller is not directly applicable as against state restrictions on the possession of arms in the home" (Presser) but stated "that the Court will soon hold that the Second Amendment is among those Bill of Rights provisions that have been “incorporated” against the states." It was not much of an argument for the court to work with - certainly not the carefully crafted type of Due Process approach that was persuasive in Nordyke.

Quote:
Relying on the Supreme Court’s 1886 decision in Presser v. Illinois, it explained that it was “settled law . . . that the Second Amendment applies only to limitations the federal government seeks to impose” on the individual’s right to bear arms. The Supreme Court’s recent decision in District of Columbia v. Heller, the court continued, “does not invalidate this longstanding principle.” And while acknowledging the possibility that “Heller might be read to question the continuing validity of this principle,” the panel deemed itself bound to follow Presser because it “directly controls, leaving to the Supreme Court the prerogative of overruling its own decisions.”
The Nordyke court reached the same conclusion:

Quote:
There are three doctrinal ways the Second Amendment might apply to the states: (1) direct application, (2) incorporation by the Privileges or Immunities Clause of the Fourteenth Amendment, or (3) incorporation by the Due Process Clause of the same Amendment.

Supreme Court precedent forecloses the first option. The Bill of Rights directly applies only to the federal government. (pages 9-10 citing Barron, Cruikshank, and Presser)
I believe that circuit courts should not wander off on their own to reconsider Supreme Court decisions. Presser (as objectionable as it may be) is still "settled law" until the Supreme Court says otherwise. Maloney ran face first into Presser while Nordyke found a way around it.
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