In a per curiam opinion, the Second Circuit upheld a New York statute which completely prohibited the possession of certain specified weapons based upon the conclusion that the Second Amendment only applies to the federal government and not to the states. The Court also asserted that a statute banning weapons—that is, one that would otherwise raise serious Second Amendment questions—does not even implicate a fundamental right.
This is an activist decision because it nullifies an enumerated right—the right to bear arms—based upon an erroneous application of rejected precedent. The incorporation doctrine, by which most of the Bill of Rights has been made applicable to the states through Due Process Clause of the Fourteenth Amendment, has been employed by the courts since the end of the nineteenth century to ensure that fundamental rights deeply rooted in our nation’s history and tradition cannot be infringed upon by state governments. Engaging in precedential revisionism, the Second Circuit panel ignores nearly a hundred years worth of precedent on incorporation. Instead, the majority relies upon Presser v. Illinois, a case preceding the Due Process incorporation cases which did not even consider Due Process incorporation. Presser relied on a still older case—United States v. Cruikshank—which held that the Second Amendment was not made applicable to the states by the Privileges or Immunities Clause, again without considering Due Process incorporation. As the Supreme Court said in District of Columbia v. Heller: “With respect to Cruikshank's continuing validity on incorporation, a question not presented by this case, we note that Cruikshank also said that the First Amendment did not apply against the States and did not engage in the sort of Fourteenth Amendment inquiry required by our later cases.” In spite of the fact that Cruikshank and Presser failed to engage in the sort of inquiry required by the Supreme Court, the Second Circuit relied upon them in denying the application of the Second Amendment to the states.
Worse still in reaching the decision, the Court conclusorily stated that a statute completely banning possession of a weapon did not even implicate a fundamental right. The Court failed to provide any evidence or weigh any arguments in reaching this conclusion, which itself runs contrary to the original understanding of the right to bear arms and its application to the states through the Fourteenth Amendment.