5th Circuit Panel Hands Down Second Amendment Opinion

The case of U.S. v. Dorosan out of Gretna, Louisiana, which I've been following since I was in that city in 2008, came down yesterday. 

A three judge panel of the U.S. Fifth Circuit, in a truncated, unpublished 2-page opinion, affirmed the district court below, rejecting Dorosan's Second Amendment defense argument:

Dorosan raises one argument on appeal:  The regulation under which he was convicted violates his Second Amendment right to keep and bear arms, as recently recognized in District of Columbia v. Heller, 555 U.S. ----, 128 S. Ct. 2783, 2822 (2008).  Assuming Dorosan's Second Amendment right to keep and bear arms extends to carrying a handgun in his car, Dorosan's challenge nonetheless fails.

While the court ultimately ruled that the postal property on which the facts unfolded was one of the "sensitive places" mentioned as exceptional in the Heller opinion, it's interesting to focus in on the language at the end of the second sentence.  "Assuming Dorosan's Second Amendment right to keep and bear arms extends to carrying a handgun in his car..." Is the Fifth Circuit, with such words, operating on the presumption that the Second Amendment is incorporated against the state of Louisiana where Dorosan lives?  It seems to me that it is, if it is touching on that other controversy at all.

Even if the particular circumstances of this case (where the government restriction was based on the federal government's ownership of the property involved rather than its police powers as in Heller) resulted in no successful Second Amendment defense and the rule challenged was a federal postal regulation, a close reading arguably could push the Fifth Circuit onto the list of circuits that have found the Second Amendment to be incorporated against the states.  Admittedly, I'm not well versed in the precise mechanics of whether statements that may in fact be dicta play into incorporation debates.  At present, in the circuit split, only a panel of the Ninth Circuit had found for incorporation, and that circuit currently is reviewing the original decision en banc.

Since the U.S. Supreme Court recently granted cert. in the Seventh Circuit case (Easterbrook) that found against incorporation (joining the Second Circuit), the Fifth Circuit's brief note in Dorosan may be of some import in the high Court's decisionmaking, at least as far as providing a brief hint of how the Circuit stands on the issue.

ADDED:  I've been pondering the snippet of text a bit further.  If Louisiana doesn't have any law imposing on Dorosan's right to keep a firearm in his car on property other than federal postal property, then I suppose it's arguable that this is a throw-away line that doesn't necessarily mean anything.  In this view, Louisiana hasn't done anything yet as a state government to abridge the right, so there's no controversy as to the incorporation issue.  Dorosan can simply keep a weapon in his car outside the confines of the postal property at the heart of the case because it's not barred by federal or state law, even if the incorporation issue hasn't been decisively decided.

Or, conceivably, the court could merely be "assuming arguendo" for sake of argument.  But the court doesn't specify that it's doing that...and there's really not much else that the assumption helps with...other than possibly providing a clue as to the court's presumption about incorporation at a time when the panel likely knows the issue is hot.  That's why I still find the assumption significant. 

ADDED - 2:  I got in touch with one of the attorneys for Mr. Dorosan today, and she indicated that Mr. Dorosan "most assuredly ... will file for a writ" of certiorari with the U.S. Supreme Court.