Based on current Federal law, however, we cannot say that the Second Amendment applies to the States, either through the Fourteenth Amendment's guarantee of substantive due process or otherwise.
In Heller, the Supreme Court acknowledged that in United States v. Cruikshank, 92 U.S. 542 (1875) (Cruikshank), it held that "the Second Amendment does not by its own force apply to anyone other than the Federal Government." Heller, supra at 2812. In Cruikshank, supra at 553, the Supreme Court explained that the Second Amendment "means no more than that [the right to bear arms] shall not be infringed by Congress. This is one of the amendments that has no other effect than to restrict the powers of the national government . . . ." In Heller, when considering whether any of its precedents challenged the conclusion it had reached about the meaning of the Second Amendment, the Court stated that its decisions in Presser v. Illinois, 116 U.S. 252, 265 (1886), and Miller v. Texas, 153 U.S. 535, 538 (1894), had "reaffirmed" after Cruikshank "that the Second Amendment applies only to the Federal Government." Heller, supra at 2813 n.23. Heller did not overrule these decisions.
[Note 4]
We recognize that each of the cited cases limiting the application of the Second Amendment to the Federal government preceded the Supreme Court's selective incorporation of some provisions of the Bill of Rights under the due process clause of the Fourteenth Amendment, and that each was decided without reference to or consideration of the requirements of substantive due process.
