The Washington State Supreme Court delivered a haymaker to anti-gunners – and strong reinforcement to gun rights advocates – Thursday morning when it handed down an opinion in the case of State v. Sieyes that states bluntly, “We hold the Second Amendment applies to the states via the Fourteenth Amendment due process clause.”
The majority opinion, written by Justice Richard B. Sanders, was signed by five other justices including Chief Justice Barbara A. Madsen, with a (sort-of) concurring opinion from Justice Debra L. Stephens that takes issue with the incorporation premise, and a partly-concurring and partly-dissenting opinion from Justice James M. Johnson that argues the majority ruling isn’t strong enough.
Although the issue of incorporation is at the heart of McDonald v. Chicago, the Second Amendment Foundation's case now before the United States Supreme Court for which oral arguments are scheduled March 2, Sanders notes in his majority state-level opinion that even though the high court “did not expressly consider incorporation of the right to bear arms” in the June 2008 Heller ruling, “that need not stop the rest of us.” He maintains that lower courts “need not wait for the Supreme Court” on the question of incorporation. (Read more about the McDonald case here.)
UPDATE: Naturally, the Associated Press story that now appears in the Seattle Post-Intelligencer does not mention any of this. The story merely alludes to the court's rejection of the notion that Sieyes' arrest and conviction violated his constitutional rights.
“The Constitution is the rule of all courts—both state and federal judiciaries wield power to strike down unconstitutional government acts,” Sanders writes.
The Second Amendment right to bear arms applies to the states through the due process clause of the Fourteenth Amendment.-Washington State Supreme Court, State v. Sieyes
The case involves a then-17-year-old defendant, Christopher Sieyes, who was a passenger in a car pulled over by a Kitsap County sheriff’s deputy. The deputy found a loaded Bersa .380 ACP pistol under Sieyes’ seat and arrested him. In October 2007, the trial court found Sieyes guilty of second degree illegal firearms possession, and the teen appealed on several grounds, one of which is that state law prohibiting firearms possession by certain individuals is “an absolute prohibition on firearm possession by minors” and is therefore unconstitutional.
Thursday’s ruling went against Sieyes’ argument that the law violates his constitutional rights, under either the federal or state constitutions. Part of the case was remanded back to the Court of Appeals for further action.
In her concurring opinion supporting the court’s position that Sieyes’ rights were not violated, which was also signed by Justice Mary E. Fairhurst, Justice Stephens argued against the court’s eagerness to take a position on incorporation, since it has yet to be decided by the U.S. Supreme Court.
Having determined the Second Amendment protects individual rights against state interference...'-Justice Richard B. Sanders
“For me,” Stephens writes, “the discussion ends there, and I would refrain from engaging in an extended exploration of the unsettled question of federal incorporation of the Second Amendment. Restraint is particularly appropriate here because the very question is currently pending before the United States Supreme Court.
“I do not believe this is an instance where there is anything to be accomplished,” she adds, “particularly as our opinion is likely to be eclipsed before the ink it takes to print it is dry.”
Johnson, taking issue with the court majority for not applying strict scrutiny to its examination of Sieyes’ constitutional claim, writes, “the majority disregards our long-standing national tradition allowing younger citizens to bear arms and the level of protection that we customarily accord to fundamental rights. I therefore write separately to emphasize that strict scrutiny is the appropriate standard of review for Second Amendment challenges to statutes restricting these important constitutional rights.
Strict scrutiny is the appropriate standard of review for Second Amendment challenges to statutes restricting these important constitutional rights. - Justice James M. Johnson, Concur/Dissent in part
“This conclusion is inescapable,” he continues, “when one considers the fundamental nature of the right to keep and bear arms throughout our nation’s history and our legacy of extending that right to young people. Youth have been permitted and even on occasion requested to bear arms since our country’s nascent days and throughout the history of our state.
“What were these teenagers fighting for,” Johnson asks. “I remind the court that, among other things, they fought for the right to bear arms…”
Under existing statute, Sieyes should not have had that pistol under his car seat, but this case has opened a can of worms for gun prohibitionists, and the lid may be off permanently, depending how the U.S. Supreme Court rules in the McDonald case in late May or early June.
However, if the recent performances of both former Seattle Mayor Greg Nickels and his successor, Mike McGinn are any indication, anti-gunners will likely pursue their childish demand that the law be changed. Nickels was advised by Attorney General Rob McKenna that his desire to ban guns in the city was illegal. He did it, anyway and left McGinn and the city holding that bag. The other day, King County Superior Court Judge Catherine Shaffer ripped a hole in the bag, causing McGinn to infamously rant that he wants the legislature to change the law, something Nickels had lobbied for when he was in office.
The Sanders opinion sends a strong signal that Seattle will fare poorly if it appeals Shaffer’s ruling, because it squarely defines the state Supreme Court’s position on gun rights.
If commentator Ken Schram’s blistering criticism of McGinn on KOMO Wednesday evening upset the mayor’s stomach and gave group indigestion to the minions over at Washington CeaseFire, Thursday’s state Supreme Court ruling should guarantee them ulcers.
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Comments
Anyone in NC. who has visited a mental health center is deemed by the state to be unfit for a CCW. permit until they Prove They are not Crazy!
So much for Due Process, and the burden of Proof being on the state.
This is bizarre. I mean, I applaud the decision these judges reached, but Stephens has a point. Two years ago, when there was no Supreme Court case pending, I would have said Sanders was 100% right -- the state doesn't have to wait for the feds to get of the dime. But the feds are off the dime now, with a decision due within the year, so the whole exercise smacks of the futility of "you can't fire me, I quit." Then again, this guy gets back out onto the street regardless of what the Supremes do six months from now, so maybe they are simply getting cheap justice for this particular fellow.
Incorporation part of majority ruling statement of law or dicta?
My understanding is that the following apply:
(1) The opinion of an appellate court deals only with the items of fact, procedure, or law that were raised as objections by the losing side at trial.
(2) Dicta are statements of law that do not deal with the case at hand.
(3) Concurring and dissenting opinions have no force of law.
(4) Numbers (2) and (3) are of use only to legal scholars.
If my understanding is correct, is the incorporation conclusion of any weight.
Incorporation part of majority ruling statement of law or dicta?
My understanding is that the following apply:
(1) The opinion of an appellate court deals only with the items of fact, procedure, or law that were raised as objections by the losing side at trial.
(2) Dicta are statements of law that do not deal with the case at hand.
(3) Concurring and dissenting opinions have no force of law.
(4) Numbers (2) and (3) are of use only to legal scholars.
If my understanding is correct, is the incorporation conclusion of any weight.
They never studied up on the Pipe and Bugle Corp;s of boys, killed with General Washington, like many who didn't make it home at 12 years old. If you were big enough to shoot, you were shootin'.
It applies incorporation only to this State, weak paragraph in Conclusion, this Court hasen't jurisdiction over States, except for #1, the Gneneral.
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.23
CONCLUSION
The Second Amendment right to bear arms applies to the states through the due
Incorporation part of majority ruling statement of law or dicta?
My understanding is that the following apply:
(1) The opinion of an appellate court deals only with the items of fact, procedure, or law that were raised as objections by the losing side at trial.
(2) Dicta are statements of law that do not deal with the case at hand.
(3) Concurring and dissenting opinions have no force of law.
(4) Numbers (2) and (3) are of use only to legal scholars.
If my understanding is correct, is the incorporation conclusion of any weight.
I've taken the time to read the details of the original Constitution of the USA concerning "The Right to Bear Arms"
My conclusion is that this was added to insure a self defence program against any form of agression foreign or domestic , regulated by Congress via the designation of a leader of the Militias of each State .
Now as far as civil resposabilities are concerned : Every person should have an "Arm Bearer's Insurance" & a licence
Is the Wa. State Supreme Court recognition of 14th Amendment incorporation relevant within the state in light of our Article 1 Section 24?
Otherwise, This could be seen as a shot across the bow to other states such as Kalifornia and New Yawk or Joisey.
(Geographical misspellings intentional for flavor)
Playing Devil's advocate here...
Incorporation of the 2nd Amendment to the states will not preclude states from keeping or passing gun laws. All it would do is make the RIGHT to own firearms legal. No state could prevent one from owning firearms. HOWEVER, they can still force one to jump through as many hoops as they want in order to be able to.
Mr. Heller is a classic example. Although he now owns a revolver, it still took a couple months and a lot of hassle. There isn't enough space here to list the rules and procedures one must follow and go through to own a gun in D.C. today.
In short, nothing will really change. Some Hawaiians will be happy though.
The McDonald case *was* being fought on 14A grounds, until the Court inexplicably gave 1/3 of McDonald's oral argument time to the NRA, so they could push an alternate theory and give the court an excuse not to rule on the 14A.
This move by the Washington court should force SCOTUS to deal with the 14A, either in McDonald or later, if Sieyes is appealed.
"Mickey"
The McDonald case is STILL being fought on 14th Amendment grounds. The NRA is pushing incorporation under the due process clause, while the primary focus of SAF attorney Alan Gura's strategy is incorporation under the 14th Amendment's privileges and immunities clause. It is STILL SAF's case.
Either one would work for a victory, but a P&I ruling would open a rather wide door for all kinds of equal rights litigation that has nothing to do with firearms, but that civil libertarians and even liberals want to push.
Ideally, SCOTUS will incorporate under both premises.
Dave, I'm afraid that the NRA's argument will give the SCOTUS a plausible out on making a 14A ruling. They can now rule in favor of McDonald while ignoring the 14A. At least I believe that is the goal of the NRA in this matter, and the SCOTUS would not have let a non-litigant into the oral arguments if they didn't support that goal.
I forgot to say something. I think this week's WA Supreme Court opinion which delves into the 14A might help force SCOTUS to act on the 14A issue.
Justice Holmes, joined the Grand Old party, Lincoln's first volunteer's from Harvard! Gitlow dissent, with Brandies!
If I am right then I think that the criterion sanctioned by the full Court in Schenck v. United States, 249 U.S. 47, 52 , 39 S. Ct. 247, 249 (63 L. Ed. 470), applies:
'The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive [268 U.S. 652, 673] evils that [the State] has a right to prevent.'
It is true that in my opinion this criterion was departed from in Abrams v. United States, 250 U.S. 616 , 40 S. Ct. 17, but the convictions that I expressed in that case are too deep for it to be possible for me as yet to believe that it and Schaefer v. United States, 251 U.S. 466 , 40 S. Ct. 259, have settled the law.
The truth is, the "states" don't have the rights, in the Bill of Right's there the Peoples.
The prohibition is general. No clause in the Constitution could by any rule of construction be conceived to give to congress a power to disarm the people. Such a flagitious attempt could only be made under some general pretence by a state legislature. But if in any blind pursuit of inordinate power, either should attempt it, this amendment (Second Amendment) may be appealed to as a restraint on both. -- William Rawle, A View of the Constitution of the United States of America 125-26 (2d ed. 1829)
Are we at last brought to such humiliating and debasing degradation, that we cannot be trusted with arms for our defense? Where is the difference between having our arms in possession and under our direction, and having them under the management of Congress? If our defense be the real object of having those arms, in whose hands can they be trusted with more propriety, or equal safety to us, as in our own hands? -- Patrick Henry, 3 J. Elliot, Debates in the Several State Conventions 45, 2d ed. Philadelphia, 1836
As civil rulers, not having their duty to the people before them, may attempt to tyrannize, and as the military forces which must be occasionally raised to defend our country, might pervert their power to the injury of their fellow citizens, the people are confirmed by the article in their right to keep and bear their private arms. -- Tench Coxe in `Remarks on the First Part of the Amendments to the Federal Constitution' under the Pseudonym "A Pennsylvanian" in the Philadelphia Federal Gazette, June 18, 1789 at 2 col. 1.
An ordinance which makes the peaceful enjoyment of freedoms which the Constitution guarantees contingent upon the uncontrolled will of an official--as by requiring a permit, or license, which may be granted, or withheld in the discretion of such official--is an unConstitutional censorship, or prior restraint upon the enjoyment of these freedoms. And, our decisions have made clear that a person faced with such an unConstitutional licensing law may ignore it, and engage with impunity in the exercise of the right...for which the law requires a license. -- Shuttlesworth v. City of Birmingham (1969) 394 U.S. 147
Walker v Birmingham:
By like reason, where a permit has been arbitrarily denied one need not pursue the long and expensive route to this (Supreme) Court to obtain a remedy. For if a person must pursue his judicial remedy before he may speak, parade, or assemble, the occasion when protest is desired, or needed, will have become history, and any later speech, parade, or assembly will be futile, or pointless. – Justice Douglas opinion 388 U.S. 307 (1967)
Many people are under the impression that if the SCOTUS rules the 2nd Amendment is incorporated to the states it will mean one can own and carry any firearms they want, anywhere, anytime, and that no licenses or permits will be required. But that isn't so.
The right to keep and bear does not mean one can own any firearms they want or carry them anywhere they want, anytime they want. It simply means the states will not be able to deny ones right to possess and carry - if done so in accordance with their state laws.
"Shall not be infringed" refers only to the right itself. Meaning state laws will still apply and states will still be able to enact new laws governing firearms ownership and carry. What they won't be allowed to say is "You can't own or carry a firearm in this state, period." One will be able to posses or carry them if they follow state law. Thus, the right itself would not being infringed upon.
This is how it currently is in Washington D.C.. Mr. Heller is now able
(cont.)
...to own firearms since the SCOTUS deemed the 2nd Amendment applied to individuals. And since Wash. D.C is a federal enclave the 2nd Amendment already applied there. What didn't apply before the SCOTUS ruling was an individuals right to keep and bear arms.
Walker v Birmingham:
By like reason, where a permit has been arbitrarily denied one need not pursue the long and expensive route to this (Supreme) Court to obtain a remedy. For if a person must pursue his judicial remedy before he may speak, parade, or assemble, the occasion when protest is desired, or needed, will have become history, and any later speech, parade, or assembly will be futile, or pointless. – Justice Douglas opinion 388 U.S. 307 (1967)
Remember, it's the RIGHT itself that can't be infringed upon.
That means if a state wants one to have 40 hours of training, their weapon and ammo tested by the police, a 30 day waiting period and a license that must be renewed annually they can do so. That is how it is today in Wash. D.C. Even with incorporation the states will still be able do almost ANYTHING they want as long as one has the RIGHT to keep and bear arms.
One will have the RIGHT...but under their rules. If one meets the requirements they will be allowed to keep and bear. In that way the RIGHT itself is not infringed upon.
Another possibility is that, although the SCOTUS may rule in our favor, the scope of their ruling may be much narrower than many think.
Fifty state incorporation is the best we can hope for but it isn't a sure thing.
Anon, I must dissent.
With the Fourteenth amendment's "incorporation clause" that "IS" the Amedment that took away "States Rights" in 1868, by William H Seward, declaration, the Grand Old Party's Secretary of State, under your current explinations, I guess slavery could also be controlled with the correct state regulation, if you just follow the state requirements and waiting period of 30 days?
The Fourteenth Amendment's the Act that Removed States Right's, and requuired the state, for the first time to also enforce the whole Constitution, and Bill of Right's of the US.
Of course that Democrat Party, has been confused on these subject matters for generations, still wait'n for full incorporation 142 years later.
"Man Proposes and God disposes." There are but few important events in the affairs of men brought about by their own choice."
Unconditional Surrender, U.S. Grant(R)
The Union Army, enforcing the "Incorporation Clause" in 1865, three years before it even existed.
I know only two tunes: one of them is "Yankee Doodle," and the other isn't.
Ulysses S. Grant
For all of you who disagree..too bad..the only opinion that counts is the SC. We love our bibles, our guns and our constitution, our Jack Daniels, our Tea Party and our Sarah Palin and there's nothing you can do about us ignorant fools that don't believe in climate change or entitlement programs.
This case wont pass the federal district court. There is nothing wrong with the ruling against anti-gun laws, but there is NO WAY in WA state that the federal district court would allow a state supreme court to make a federal ruling on how the federal constitution applies. It just doesnt happen.
Imagine a state court ruling that the 13th Amendment was cancelled out by the 4th Amendment therefore it didnt apply, or that the 19th Amendment did not apply to the states due to the language of the 14th.
This was another example of a silly call by the state supreme court, an attempt to 'buck' the federal court. Just from insult alone the Fed Dist Court will remand this case once presented (and it is being presented).
Liberty Bell,
As I'm sure you're aware, Washington D.C. is a federal enclave and as such the 2nd Amendment applies there. In the Heller case the SCOTUS simply affirmed that the 2nd Amendment applies to individuals, like Mr. Heller.
Since he now has the RIGHT to own firearms the RIGHT itself is not being infringed upon.
Although Mr. Heller is now able to keep a handgun in his home, as is his right, he must still abide by all applicable local laws. To wit, he had to give his revolver to the police whereby they test fired it and kept both a sample casing and bullet. They ballistically fingerprinted everything. He then had to wait 30 days before he could pick up his revolver. There are more laws as well. Look up current Wash. D. C. gun laws. Remember, this is post Heller v. District of Columbia.
Incorporation WILL NOT mean one can own Class 3 weapons, including suppressors, without the appropriate BATFE 'paperwork', tax and background check, etc; carry concealed firearms without a license; not have to abide by any other state or local firearms laws.
We will simply have the RIGHT to do these things and that right can't be infringed upon. Although there will be a light at the end of the tunnel, it may still take a while to get there. Right now, the tunnel is a dead end for some people.
Just to make it clear...
In California for example, one has the right to keep and bear arms. Therefore, that right is not being infringed upon no matter the state laws regarding fireams.
For example, one can legally carry a weapon openly there, although it must be unloaded. Again, that is not an infringement of ones 2nd Amendment right since they can carry (bare) arms, albeit unloaded.
State incorporation of the 2nd Amendment will only affect those places where one has no right to keep and bare in any way whatsoever.
"Anonymous":
"Bear" arms...to carry
"Bare" arms...no shirt sleeves.
A lot of interesting points raised here, alas in large part by anonymous visitors.
Dave, thanks for pointing that out. BTW, there is a "bear" in there as well. I really do know the difference.
BFREE, you are wrong, the SC does not have the only opinion that counts. So do we, the people, especially when assembled in a jury. It is not only our right but our duty to consider the constitutionality of any law pertinent to any issue upon which we may be impaneled.
Anon, feces from the rectum of male cattle, a right that cannot be exercised is infringed. Period.
Apparently, Anon doesn't have a clue as to what he is talking about. Is he an NRA hack? Is he using lawyerese? Is s/he a gov't operative? Since we don't know who s/he is, what his/her background is, whether even a she or he, what party affiliation, or anything else for that matter, how can we agree with anything s/he says? For instance, s/he says if allowed to carry a sword, for instance, because we can carry that sword, all other implements for our own protection may be denied? What part of "...shall not be infringed," doesn't s/he understand? What part of "...the sword, and every other implement of the everyday soldier is the birthright of the American citizen," doesn't Anon understand? this willy nilly bs is just that. States must abide by the constitution, it was thusly written in 1829,by William Rawle, and in particular in his comments in regards the Second Amendment.
Really?
RCW 1.16.150
Finding -- Declaration -- 2007 c 61: "The legislature recognizes that on June 19, 1865, Union soldiers landed at Galveston, Texas with news that the Civil War had ended and the slaves were now free; that this was two and a half years after President Lincoln signed the Emancipation Proclamation on January 1, 1863;
Major General Gordon Granger, enforcing the Fourteenth Amendment's Incorporation Clause, against State's Right'sthree years before there was such a thing as the 14 Amendment.
I suppose when the Great Apache Chochise, was getting ready to surrender, he sent a messanger tho the Great Star Chief, and ran from Gen. Crook's Dept of Arizona to Granger's Dept. of New Mexico?
The Terror of the Union Army, from Jefferson's Revolution.
"The true theory of our Constitution, is surley the wisest and best, that the states are independant as to everthing within themselves, & united as to everthing else...."
Jefferson to Granger, 1800
And Justice Johnson, who I'm sure read Justice Marshall, at Vally Forge with George.
"...This conclusion is inescapable when one considers the fundamental nature of the right to keep and bear arms throughout our nation’s history and our legacy of extending that right to young people. Youth have been permitted and even on occasion requested to bear arms since our country’s nascent days and throughout the history of our state. The Journals of the Continental Congress, for example, identified “healthy, sound and able bodied men . . . not under sixteen years of age” as the preferred category of men from which the officers of the Continental army were to recruit their soldiers.2 Even younger soldiers volunteered and managed to enlist..."
Courts, especially those in the most liberal areas, fear a 'Privileges or Immunities' with serious teeth so they choose to try to steer SCOTUS into a due process incorporation. In a nutshell, they are making a last ditch effort, accepting their serious loss on gun control, in hopes they keep the selective incorporation doctrine itself alive and thus avoid acceptance of the fact that Natural rights are not something governments gets to legislate away.
P or I is what we have to have in order to see this country return to a path of Liberty. It's past time the 14th Amendment actually mean what it says and McDonald is the vehicle to do it.
Thanks Otis and Thanks Alan. Hopefully I can say thanks to SCOTUS soon also.
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