WA Supreme Court Incorporates Second Amendment

Mike Reitz at EFF gives a good writeup of the Supreme Court of Washington's decision in State v. Sieyes, which -- in essence -- says that our federal Constitution (through the due process clause of the Fourteenth Amendment) guarantees an individual right to keep and bear arms, but not necessarily for minors.

The court did not actually rule that minors do not have such rights, but basically asserted that they weren't convinced they did. Civil libertarian Justice Richard Sanders wrote for the majority, saying, "we keep our powder dry on this issue for another day."

The current doctrine of selective incorporation -- which I've many times discussed -- was a travesty designed to prevent the plain language, and explicitly stated intent of the authors of, the Fourteenth Amendment from taking effect. Indeed, the sponsor of the Fourteenth Amendment in the Senate said at the amendment's introduction that "[t]he great object of the first section of this amendment is, therefore, to restrain the power of the States and compel them at all times to respect these great fundamental guarantees," which include "the freedom of speech and of the press; the right of the people peaceably to assemble and petition the Government for a redress of grievances, a right appertaining to each and all the people; the right to keep and to bear arms; the right to be exempted from the quartering of soldiers in a house without the consent of the owner," and so on.

Applying the Second Amendment to the States was part of the stated purpose of the Fourteenth Amendment. And the language is clear.

Sanders didn't write about this century-old travesty, but instead applied existing federal standards for incorporation, and demonstrated quite clearly and convincingly that the Second Amendment meets those standards.

New Chief Justice Barbara Madsen agreed with the decision in "result only," while Justice Debra Stephens wrote a concurring opinion claiming that she too agreed with the result -- that minors are not found to have gun rights -- but asserted that the decision to incorporate the Second Amendment was not warranted by the case, particularly in light of this summer's pending decision in the federal Court, because "I do not believe this is an instance where there is anything to be accomplished" by doing so. This could betray biases on both sides: perhaps Sanders wishes to contribute to the discussion the federal Court will be having, and Stephens does not.

Conservative Justice James Johnson dissented with the decision, for though he agreed with the incorporation part of the decision, he -- perhaps giving weight to Stephens' complaint of lack of restraint -- disagreed with the part of the decision regarding minors.

The main point here is what level of scrutiny to apply to our right to keep and bear arms. Johnson argued for strict scrutiny, the notion that in order to override someone's Constitutional rights, there must be in order to serve a compelling state interest, the law must be narrowly tailored to serve that interest, and it must use the least restrictive means to serve that interest. Under strict scrutiny, surely the case would have been found in favor of gun rights for minors; however, the question I have is whether minors should get strict scrutiny applied to them. Johnson is right, however, that the Washington Court does apply strict scrutiny to minors, so it seems in violation of precedent to not do so here.

Sanders responded that the Supreme Court itself refused to define a level of scrutiny for Second Amendment matters. It's curious, though, that Sanders punts on scrutiny because of an explicit lack of federal Court guidance, but forges ahead with incorporation despite the same lack of guidance, especially in light of the coming decision later this year. This makes me think even more that Sanders wants to, if he can, contribute to the federal Court's decision to incorporate.