Posted on 04/20/2009 12:15:27 PM PDT by Patriot2A
Second Amendment Incorporated by Ninth Circuit Panel, in
Nordyke v. King. For those who count such things, the unanimous panel consists of a Reagan appointee (Judge O'Scannlain, who wrote), a Carter appointee (Judge Alarcon), and a Clinton appointee (Judge Gould).
The panel avoids the late 19th-century cases United States v. Cruikshank (1876) and Presser v. Illinois (1886) by reading them as simply foreclosing the direct application of the Second Amendment to the states, or the application of the Second Amendment to the states via the Privileges or Immunities Clause. The panel instead follows the Supreme Court's "selective incorporation" cases under the Due Process Clause, and concludes that the right to bear arms "ranks as fundamental, meaning 'necessary to an Anglo-American regime of ordered liberty.'" And in footnote 16 it points out that
Because, as Heller itself points out, 128 S. Ct. at 2813 n.23, Cruikshank and Presser did not discuss selective incorporation through the Due Process Clause, there is no Supreme Court precedent directly on point that bars us from heeding Heller’s suggestions. Cf. Rodriguez de Quijas v. Shearson/Am. Express, Inc., 490 U.S. 477, 484 (1989) (“If a precedent of this Court has direct application in a case, yet appears to rest on reasons rejected in some other line of decisions, the Court of Appeals should follow the case which directly controls ....”). But see Maloney v. Cuomo, 554 F.3d 56, 58-59 (2d Cir. 2009) (concluding that Presser forecloses application of the Second Amendment to the states).
(I should note that many scholars view Due Process Clause incorporation as historically unfounded, but take the view that the Privileges or Immunities Clause was originally understood as incorporating nearly all of the Bill of Rights against the states; but that is not the view the Supreme Court has taken.)
This sort of "fundamentalness" reasoning in naturally mushy — as it has been throughout the Court's selective incorporation cases — but here's roughly how the panel goes through it: (1) It points to evidence that the right was seen as very important by the Framers, and concludes, "This brief survey of our history reveals a right indeed 'deeply rooted in this Nation’s history and tradition.' Moreover, whereas the Supreme Court has previously incorporated rights the colonists fought for, we have here both a right they fought for and the right that allowed them to fight."
(2) It points to continued support for the right from the Framing on, noting among other things that 44 state constitutions contain a right-to-bear-arms provision.
(3) It particularly points to the support of the right, including its self-defense component, around the time the Fourteenth Amendment was ratified.
Note that the better articulation of the test the panel actually applied was probably whether the right is "deeply rooted in this Nation's history and tradition" (citing Glucksberg), not whether it's "necessary to an Anglo-American regime of ordered liberty." Among other things, the Anglo- half of "Anglo-American" abandoned the right decades ago, and it's pretty clear that many of the rights that have indeed been incorporated (such as, for instance, the privilege against self-incrimination) aren't strictly necessary to our regime of ordered liberty. But that criticism would equally apply to many of the Court's selective incorporation cases, which probably also followed the "deeply rooted" test even if they didn't articulate their reasoning that way.
The panel's reasoning begins by pointing to the Framing Era sources
Thanks to Alice Marie Beard for the tip. Will blog more as soon as I can carefully read the opinion.
Related Posts (on one page):
1. Why the Gun Show Organizers Nonetheless Lost their Case, 2. Concurrence by Judge Gould (a Clinton Appointee) in the Second Amendment Incorporation Case: 3. Second Amendment Incorporated by Ninth Circuit Panel, in
...this is a bit hard to follow, but I’m guessing the Ninth Circuit, perhaps the nation’s most liberal, just handed down a unanimous decision which reaffirms that the Second Amendment is incorporated against the states through the Due Process Clause of the 14th Amendment?
A step in the right direction.
Not so. Read the concluding paragraph of the ruling.
The Ninth Circuit drives a wedge of "heightened scrutiny" between a fundamental right and "strict scrutiny". They didn't affirm non-infingement, they drew a map around it for governments at all levels.
Not really.
To set up the precedent that the inalienable rights protected by the Constitution must be "incorporated" by states to limit their power is a Very Bad Idea.
The 14th Amendment to the Constitution--which each judge has solemnly sworn to defend--already limits the power of the states, with or without "incorporation". It's disturbing that this fact is seemingly ignored.
Yes, it specifically incorporates the 2nd against the states (at least those under 9th Circuit jurisdiction).
HOWEVER, what the 2nd Amendment means remains under extreme debate, with the verdict also declaring fairgrounds a “sensitive area” where prohibition may be enacted.
>HOWEVER, what the 2nd Amendment means remains under extreme debate, with the verdict also declaring fairgrounds a “sensitive area” where prohibition may be enacted.
Why not pull out your state constitution and look up the “militia” section... chances are you ARE a member of the militia... therefore you need weapons to carry out your duties and responsibilities, right?
Yup. The decision is likely to be persuasive with other courts as it is against the uber-liberal Ninth’s assumed anti-gun inclination.
The 2nd Amendment does not name the militia as a group that you might become a member of and thus be ready to be able to be useful when you join. It names it as a group that must necessarily exist and that you therefore need to be ready to be able to defend yourself against it.
Yes, I am: “Once a Marine, Always a Marine”, (maybe I could not fully pass the PFT-Physical Fitness Test-but I can still bust a cap).
The oath I swore did NOT have an expiration date.
Judges or no judges, this is really very simple. The 2nd amendment is the most vitally important of the Constitution, for without it, the rest of the document is rendered meaningless. The founders drafted the 2nd amendment in order to make certain that the people could defend themselves from and eventually overthrow a tyrannical state. Should that ability be lost due the loss of the amendment itself, our rights will be forfeit to criminal politicians. The point—any court/legislative body which overturns the 2nd amendment must be overthrown and removed from power. See! Pretty simple, huh?
Your view is the proper view.
From the article:
“This brief survey of our history reveals a right indeed ‘deeply rooted in this Nation’s history and tradition.’”
Technically, that half-truth could be a misdirection.
The right is substantially more that “deeply rooted”.
The right was preexisting and thus predates our Nation’s history and culture.
Arguably, any view or interpretation of what state constitutions may or may not provide is not relevant.
I guess the judges read that the 14th Amendment was specifically aimed at the then prevalent Democrat state laws that blacks couldn't own firearms. The 14th Amendment was specifically designed to incorporate the Bill of Rights into all States Constitutions, even New York and California ... ^_^ .
So now we have the SC Heller decision calling out the protected arms to be self defense arms and militia arms in current usage by the police and military.
Looks like game over for protecting the individual right to own guns and now on to rolling back the crap laws ... With an enumerated right the test for infringement is much higher than a right that emanates from the Constitutional penumbra. So the slough begins with where bans may not be appropriate. They wiggled through Scalia's loophole where bans maybe authorized....
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