I Imagine This Post May Be Unpopular.

I just took the time to read the Bach v. Pataki decision. (A day late and a dollar short.) Several bloggers have commented on it. Yosemite Sam of The Ten Ring wrote:

Now via Alphecca we have a decision from the 2nd U.S. Circuit Court of Appeals that pretty much takes a crap on the Bill of Rights. The case is Bach vs. Pataki in which a Virginia man argued that his Virginia carry license should be valid in New York State, just like a driver's or marriage license.

But this "Court" decided that New York has a compelling reason to crap on the Constitution and said that the state's restriction of permits to New York residents was valid. They justify their decision using the totally bogus 2nd Amendment collective rights argument that even Lawrence Tribe says is utter bullshit.

The referenced piece by Jeff contains:

Once again we see judges who should be figuratively tarred-and-feathered for their astounding lack of knowledge concerning current thinking on constitutional law. Even such liberals as Lawrence Tribe have come around to believe that the Second Amendment refers to a personal right, just as all the other amendments do. Here we have (in my opinion) incompetent judges attempting to twist the original meaning of the Bill of Rights to suit their activist positions.

Most bloggers, though, were more circumspect. David Hardy wrote:

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.

Countertop Chronicles is pessimistically enthusiastic:

Boy, I'd love to see the Supreme Court knock this one out of the park. Unfortunatly, its probably a very good delaying tactic on part of the GFW's on the 2nd, because if the Supreme's were to take the issue up, they likely would limit their review to the error of relying upon Presser. Once reversed, they would simply send it back down to the Second Circuit and avoid any discussing of the underlying Second Amendment concerns that are really at issue.

And, finally, Crime & Federalism was more encouraged:

This is almost a model test case on the incorporation question. Some have speculated that the reason four Justices haven't voted to grant cert. in other Second Amendment cases resulted from the lack of a good "test plaintiff." Well, Bach is the perfect plaintiff.

You know what a decade of reading legal decisions has done to me? It's made me appreciate it when judges actually follow the law. A while back I wrote "Game Over, Man, Game Over" when I was disillusioned at 9th Circuit Judge Alex Kozinski bowing to the precedent of that circuit's Hickman v. Block when it so obviously went against what he believes. I said then:

Mike Spenis said "the future of our freedom ultimately rests with the court's willingness to periodically reexamine the law," but the evidence is plain that the courts will not do that. They will use obviously flawed precedent so long as it "comports especially well with our notions of good social policy." And even if it doesn't, the courts will often bow, as Kozinski does here, to precedent they abhor. We depend upon the honor and intellectual honesty of the judges who make up the Justice system, yet it seems that those who are truly honest and honorable are outnumbered by those who are "willing to bury language that is incontrovertibly there." The honest and honorable ones abide, under the rule of law, by precedent that is otherwise insupportable. The middling honest ones, the ones Justice Brandeis labled as "men of zeal, well-meaning but without understanding" "build magnificent legal edifices on elliptical constitutional phrases - or even the white spaces between lines of constitutional text." And those decisions stand, without review, periodic or otherwise, to serve as the next step down the road to Hell.

I stand by those words still, but I do so because if the honest and honorable judges did not abide by precedent, we would not have even the semblance of rule of law.

This is what caught my attention in the Bach ruling:

Although the sweep of the Second Amendment has become the focus of a national legal dialogue, we see no need to enter into that debate. Instead, we hold that the Second Amendment’s “right to keep and bear arms” imposes a limitation on only federal, not state, legislative efforts. We thus join five of our sister circuits.

Our holding is compelled by the Supreme Court’s opinion in Presser v. Illinois, 116 U.S. 252 (1886). In 1879, Herman Presser led four hundred armed members of a society called the Lehr und Wehr Verein through the streets of Chicago. Illinois’s Military Code required that any “parade with arms” be licensed by the Governor. Presser lacked a license, and was charged and convicted under the Code. Presser argued to the Supreme Court that Illinois had exercised a power “forbidden to the States by the Constitution of the United States.” He relied on both the Second and Fourteenth Amendments.

The Supreme Court rejected Presser’s argument. Justice Woods explained, “[A] conclusive answer to the contention that [the Second Amendment] prohibits the legislation in question lies in the fact that the amendment is a limitation only upon the power of Congress and the National government, and not upon that of the States.” The Court quoted Chief Justice Waite’s opinion in United States v. Cruikshank, 92 U.S. 542 (1875). “[T]he right of the people to keep and bear arms ‘is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence. The Second Amendment declares that is shall not be infringed, but this, as has been seen, means no more than that it shall not be infringed by Congress.’” Presser, 116 U.S. at 265 (quoting Cruikshank, 92 U.S. at 553). The Court affirmed Presser’s conviction.

Presser stands for the proposition that the right of the people to keep and bear arms, whatever else its nature, is a right only against the federal government, not against the States. The courts are uniform in this interpretation. Just as Presser had no federal constitutional right “to keep and bear arms” with which to challenge Illinois’s license requirement, Bach has none to assert against New York’s regulatory scheme. Under Presser, the right to keep and bear arms is not a limitation on the power of States.

Like it or not, that's sound legal reasoning, and here's why:

We must follow Presser. Where, as here, a Supreme Court precedent “has direct application in a case, yet appears to rest on reasons rejected in some other line of decisions, the Court of Appeals should follow the case which directly controls, leaving to th[e Supreme] Court the prerogative of overruling its own decisions.” Rodriquez de Quijas v. Shearson/Am. Express Inc., 490 U.S. 477, 484 (1989); see also id. at 486 (Stevens, J., dissenting). The Court has cautioned, in the context of constitutional interpretation, that “courts should [not] conclude [that] more recent [Supreme Court] cases have, by implication, overruled an earlier precedent.” Agostini v. Felton, 521 U.S. 203, 207 (1997); see also id. at 258 (Ginsburg, J., dissenting). Even if a Supreme Court precedent was “‘unsound when decided’” and even if it over time becomes so “‘inconsistent with later decisions’” as to stand upon “‘increasingly wobbly, moth-eaten foundations,’” it remains the Supreme Court’s “prerogative alone to overrule one of its precedents.” State Oil Co. v. Khan, 522 U.S. 3, 9, 20 (1997) (quoting Khan v. State Oil Co., 93 F.3d 1358, 1363 (7th Cir. 1996) (Posner, J.)). Thus, “regardless of whether appellant[] agree[s] with the Presser analysis, it is the law of the land and we are bound by it. The[] assertion that Presser is illogical is a policy matter for the Supreme Court to address.” We cannot overrule the Supreme Court.

Quite right. To do otherwise means that the system of rule of law falls apart. Both Cruikshank and Presser, while bad decisions, are clear on what they meant - and they stated in no uncertain terms that the Second Amendment didn't protect against STATE infringements on the right to arms. Inferior courts do not have the legal power to overturn those decisions. Individual Appeals Court judges do not have the power to overturn en banc Circuit decisions, either.

The metaphorical crap was taken on the Bill of Rights by the justices in the Cruikshank and Presser courts. The judges sitting on the 2nd Circuit bench are not the clean-up crew, nor should their decision be grounds for tarring and feathering. They're doing their job, as far as I can see. It's up to the Supreme Court to fix this one, and while I hope they'll do the right thing, or at least what Countertop thinks likely, I would not be surprised if they deny cert. on this case as they did on both Emerson and Silveira. It is, after all, easier to dodge uncomfortably bad decisions than correct them.

They've been doing that since 1939.