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Does the Second Amendment apply to the states?

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Last Friday, Maryland’s intermediate appellate court treated the Supreme Court’s Heller opinion as doing nothing to change the Maryland Court of Special Appeals’ 2005 ruling that the Second Amendment does not apply to the states. Williams v. Maryland, ___ Md. App. ___ (Oct. 30, 2009).

Williams acknowledged that a three-judge Ninth Circuit federal panel held that “the right to bear arms was a fundamental right warranting substantive due process protection through the Fourteenth Amendment,” but that the en banc Ninth Circuit ordered that the opinion not be cited for precedential value, and deferred an en banc ruling pending the Supreme Court’s disposition of three similar cases.

Williams also reads the Second and Seventh federal circuits as finding no application of the Second Amendment to the states post-Heller, District of Columbia v. Heller, 128 S. Ct. 2783 (2008), and concludes: “Until the Supreme Court rules definitively on incorporation of the Second Amendment, we must assume, without deciding, that it has not been incorporated.” In any event, Williams finds that even if the Second Amendment applied to the states, that would not disturb its affirmance of appellant’s conviction for possessing a handgun outside of his home. Jon Katz