Guns in Unincorporated Territory

But are lower courts free to apply the Second Amendment to the states through this sort of analysis, as the U.S. Court of Appeals for the 9th Circuit did in April, or must they wait for the Supreme Court, as both the 2nd Circuit and the 7th Circuit have decided? Although the historical record makes it clear that the right to arms is one of the "privileges or immunities" protected by the 14th Amendment, Presser rejected that argument, citing an 1872 decision in which the Court took an unreasonably narrow view of the clause.

Presser also seemed to reject an incorporation argument based on the 14th Amendment's guarantee of due process, the rationale the Court used when it started applying the Bill of Rights to the states in the early 20th century. The Presser Court called the appellant's due process argument "so clearly untenable as to require no discussion." But in Miller, decided just eight years later, the Court was less firm on this point, declining to address the incorporation issue because "it was not set up in the trial court."

The bottom line is that an intellectually honest judge could have gone either way on the question of whether Supreme Court precedents foreclose incorporation of the Second Amendment. Sotomayor, a left-leaning Greenwich Village resident chosen by a president who never met a gun control he didn't like, probably is not a big fan of the Second Amendment. But this particular case does not prove it.