State v Sieyes - WA Supreme Court

[crashm1]

I'm kind of surprised no one else has posted this already. It appears the WA state Supreme Court has incorporated the 2nd amendment under the due process clause of the 14th. Volokh Conspiracy article here.
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."
All in all very cool and as IANAL I am not sure what to add other than Hooah!
but I'll try.
In the opinion both the 2nd and 7th circuit courts of appeal get dressed down for using Presser and Cruikshank as reasons to buck Maloney and McDonald up to SCOTUS. They also go into quite a bit of detail outlining the use of Duncan v Louisiana and how it is used to determine whether or not a right meets the due process test that Duncan lays out which I found helpful, it also makes it pretty clear that if SCOTUS uses Duncan McDonald will be a slam dunk.

[Bartholomew Roberts]

The Washington state court seems to be following the lead of the 9th Circuit in Nordyke and I thought their reasoning was spot on with regard to the 2nd and 7th. Both of those courts purposely ducked the issue of due process incorporation, instead relying on Presser and Cruikshank.

The 2nd Circuit didn't even give good reasons why they failed to consider due process incorporation. The 7th Circuit went the ultra-conservative route and simply decided that the Supreme Court had already decided in Cruikshank and Presser and they were therefore bound by that decision. In both cases, I think they avoided doing the due process incorporation analysis because it was patently obvious what the results of that analysis would be (incorporated). After all, even the Brady Campaign didn't want to argue against due process incorporation.

[green-grizzly]

Federal appeals courts are largely concerned with protecting federal power, and even with given an opening by the supreme court to rein in federal power they refuse to do so (for example, Lopez and Printz were largely ignored by the appeals courts). This is true for both the right and the left. Two of the judges on the 7th circuit panel are considered to be among the finest conservative jurists, and their opinion was a joke.

State supreme courts on the other hand have no interest in federal power, and many of the states have very few gun control laws that would be impacted by a strong second amendment. They are more susceptible public opinion, and the second amendment is very popular in many states.

I especially liked how Washington didn't foreclose the argument that a 17 year old has a right to bear arms just becuase the kid's counsel didn't do his homework. A federal court would have just assumed there was not an arguement and made a ruling.

Another good state case is Britt v. North Carolina, where a state supreme court held that convicted felons have a right to bear arms in some circumstances. Here is a link to the opinion: http://www.aoc.state.nc.us/www/publi...f/488-07-1.pdf

[RETG]

The Washington State Supreme Court has issued a precedent-setting opinion in the case of State v. Christopher William Sieyes which holds that the Second Amendment of the U.S. Constitution's Bill of Rights "applies to the states via the Fourteenth Amendment"

This outstanding opinion was authored by Justice Richard B. Sanders, a Supreme Court veteran who clearly understands the history of both the state and federal constitutional right to keep and bear arms. Perhaps what makes the Sanders opinion so remarkable is that it places the Washington Supreme Court ahead of the United States Supreme Court in recognition that the U.S. Constitution's recognition of the right to keep and bear arms applies to all citizens, and should also place limits on state and local governments, as it does on Congress.

Quoting Justice Sanders, "Lower courts need not wait for the Supreme Court the Constitution is the rule of all courts both state and federal judiciaries wield power to strike down unconstitutional government acts."

The Sanders opinion was issued February 18, 2010 and its significance quickly registered with gun rights organizations and activists across the map. For example, the National Shooting Sports Foundation hailed the ruling. NSSF Senior Vice President and General Counsel Lawrence G. Keane called it "a welcome development and victory for the rights of law-abiding firearms owners."

This state high court opinion, among other things, effectively "puts on notice" anti-gun groups in the Evergreen State that their continued efforts to impair the rights of legally-armed citizens will face not only growing legislative resistance, but intense legal scrutiny. Though not binding on other states, it clears a path for other state supreme courts to follow.

Despite its brevity at only 24 pages, Justice Sanders' opinion - which was co-signed by five of his colleagues, including Chief Justice Barbara A. Madsen - thoroughly and proactively debunks any suggestion that the authors of Article 1, Section 24 of the Washington State Constitution did not mean specifically what they wrote: "The right of the individual citizen to bear arms in defense of himself, or the state, shall not be impaired, but nothing in this section shall be construed as authorizing individuals or corporations to organize, maintain or employ an armed body of men."

Perhaps Justice Sanders put it best when he noted, "This right is necessary to an Anglo-American regime of ordered liberty and fundamental to the American scheme of justice."

[KyJim]

I'm a bit confused here. If the state court decided the state constitution granted the protection sought, then why even look at the 2A and incorporation through the 14th Amendment?

Off the top of my head, I seem to recall that the federal courts of appeals have no authority to incorporate a right through the 14th, only the U.S. Supreme Court has that authority. I believe that was the basis for part of the Court of Appeals' reasoning in McDonald. I'm sure somebody can correct me if I'm wrong.

At any rate, it sounds like a good result, even if the route might be a bit bumpy.

[Al Norris]

KyJim, it can be confusing at times.

The 9th Circuit did the necessary footwork and incorporated the 2nd via the 14th, as the Supreme Court "hinted" they should in the Nordyke case.

Back in 2000, in the case US v. Emerson, the 5th Circuit ruled that the 2nd was incorporated via the 14th (The Supreme Court denied cert at that time). It was a weak ruling, but at least it was the standard in the 5th Circuit.

So what the 7th and 2nd Circuits did was to simply pass the buck. They both refused to do the necessary analysis required by the Court in Heller. Both Circuit relied upon a case that the Supreme Court in Heller said they should not rely upon (the now famous footnote 23).

As far as other State Supreme Court decisions, there are at least two: In re Brickey, 70 P. 609 (ID 1902) and State v. Rosenthal, 55 A. 610 (VT 1903). Both of which recognized not only their own State constitutions but the federal 2nd amendment as authority (but did not expressly incorporate, as WA did here).

[KyJim]

Thanks Al.

[Navy Davey]

Half of the 2nd Amendment seems to be getting ignored on so many forums and courts. It reads KEEP AND bear arms. The courts and most forums and citizens are concerned about KEEP. What about BEAR arms? Are we accepting that many are not allowed to bear arms whilst out and about?
How is it that some are allowed this privilege/right and other equally qualified citizens are denied the same right? I say this because I am one of those not allowed the right to carry arms while out and about. Am I less equal?
Seems the most restrictive places are those where political power is most strong-DC, NY, LA. Not allowed to carry. No bearing of arms.
Bodes ill for the future when more and more infringements will be taken.
Anybody else out there care about the bearing of arms as well as keeping?

[crashm1]

The bearing cases are on their way Navy Davey. There are a couple of cases on hold in California until McDonald is decided that deal with bearing. Then there is Palmer v D.C. which is another to bear case. From what I've read the plan to litigate was modeled after the civil rights cases of the 60's with an eye towards one case building on another.

[Navy Davey]

not baring arms either! Bearing arms while out and about.
What I meant was that our courts seem to have sidestepped or ignored or refused to address the issue of bearing arms, the other half of the 2nd Amendment. SCOTUS did and the Washington Supreme Court did also.
Also they do not address the fact that some citizens can CCW and others cannot, legally speaking of course. It does concern me for sure as I am one of those sitting out the issue. If it is a right then all should have the right.
Thanks for your comments though, there is always hope.

And 1911's forever!!!

[kilimanjaro]

Do not hold your breath and pout waiting for the annunciation of the right of each and every citizen to carry openly, concealed, purchase machine guns, or whatever restriction it is you want to disappear overnight during some court-ordered emancipation of the republic. The 20,000 firearms laws in this country took a century to build, and it's going to take decades to eliminate just a few of them, state by state, law by law.

This is a good decision and is a harbinger of the upcoming SCOTUS decision. You can bet they are looking at it right now.

So are the anti groups. They are well-funded and committed. Join the NRA, RKBA, any such group that is effective, and contibute to the fight. And vote into office, from PTA and School Boards on up, people who believe the same.

[maestro pistolero]

The 20,000 firearms laws in this country took a century to build, and it's going to take decades to eliminate just a few of them, state by state, law by law.

True. That's why we need strong, clear guidance as to what type of laws pass muster, and which won't. Strong guidance can speed the process somewhat by removing ambiguity from a constitutional standpoint.

We may get a few more hints from McDonald, as we did in Heller, but the ruling will again be fairly narrow. But the language they use in dicta will be closely watched for guidance by the lower courts, as it is from the Heller dicta.

The first bear case at SCOTUS will likely be most illuminating. My guess is that they will decide that some form of carry (bear) has to be allowed. And not just through some insurmountable maze of hoops, but an affordable, do-able process through which any non-prohibited person will be allowed some form of carry.

Most likely, many jurisdictions will choose concealed carry as the method of compliance, as that is seen as more civilized these days. Safety training courses, or at least competency testing, most likely will be considered constitutional if it's not otherwise prohibitive, intrusive, or unattainable for not-disqualified citizens.

My two cents.