Ninth Circuit Rules 2nd Amendment Incorporated to States

Second Amendment Foundation ^ | April 20, 2009 | NA

[neverdem]

BELLEVUE, Wash.--(BUSINESS WIRE)--The Second Amendment Foundation today applauded the U.S. Ninth Circuit Court of Appeals in San Francisco for ruling that the Second Amendment is incorporated against the states and local governments.

The majority opinion was written by Judge Diarmuid F. O'Scannlain, with a concurring opinion from Judge Ronald M. Gould, who wrote, “The right to bear arms is a bulwark against external invasion…That we have a lawfully armed populace adds a measure of security for all of us and makes it less likely that a band of terrorists could make headway in an attack on any community before more professional forces arrived.”

Although the court found against the plaintiffs in the case of Nordyke v. King – Russell and Sallie Nordyke, operators of a gun show in Alameda County, CA – the court acknowledged that its earlier position that the Second Amendment protected only a collective right of states has been overruled by the Supreme Court’s 2008 historic ruling in District of Columbia v. Dick Anthony Heller. That was the case in which the high court ruled that the Second Amendment protects an individual civil right to keep and bear arms.

“This is a great victory for advancement of the fundamental individual right of American citizens to own firearms,” said SAF founder Alan Gottlieb. “The Ninth Circuit panel has acknowledged that the Heller ruling abrogated its earlier position on the Second Amendment, and it further clarified that the Second Amendment is incorporated to the states through the Fourteenth Amendment through the due process clause.”

SAF attorney Alan Gura, who successfully argued the Heller case before the Supreme Court in March 2008, filed an amicus brief in the Nordyke case. The Nordykes sued when Alameda County banned gun shows at the county fairgrounds by making it illegal to bring or...

[callisto]

The *NINTH* Circuit?

[DoughtyOne]

I don’t see it as all that dated. With the pot boiling down in Mexico, the names may change, but we’re not out of the woods by any means. In ten years Russia may be replaced by China. It will still be the same Marxist subversives, Cuba Nicaragua or some other South American entity, pulling the strings in the long run.

Our border is such a mess, this thing is primed to blow at some point. All it needs is the right catalyst.

The cartels will be more than happy to play along. And with a milk toast like Carter or Obama, hell, they’d surrender before two weeks were up.

[VRWCmember]

“The Ninth Circuit ... further clarified that the Second Amendment is incorporated to the states through the Fourteenth Amendment through the due process clause.”

While I'm glad the panel acknowledged this, the Second Amendment doesn't need the fourteenth to incorporate it to the states. Unlike the First Amendment, the Second Amendment does not contain the words "Congress shall make no law" anywhere in it. The second amendment says "... the right of the people to keep and bear arms SHALL NOT BE INFRINGED. It doesn't say "... shall not be infringed by Congress" or "... shall not be infringed except at the discretion of the states" or anything else that would apply that it restricts the federal government but not states.

[OriginalIntent]

The second amendment was written to protect us from governmental powers. The courts for example, such as -this very same ninth circuit- when they do things like illegally rewriting law according to their judical activist whims.

When they illegally rewrite laws which force their personal wishlist upon the population, such as forcing sodomite marriage and abortion into the law based upon their reckless whims (overturning four hundred years of history, all without any consent from the citizens)

[kpp_kpp]

stretching here...

from a ‘state’ view point the federal government is an ‘external’

... very terrorizing at the moment too.

:-)

[driftdiver]

Doesn’t this mean that the 2nd amendment is a federal issue and state laws cannot circumvent federal law. That means individual states have no say in gun laws. The only power the feds have over guns is the interstate commerce clause.

More so if the federal govt decides to implement “common sense” laws then the states can do nothing.

But then I’m not a lawyer.

[Oldeconomybuyer]

There are a lot of reasons for the word “lawfully”.

Agree with your lawyer reference, but "laws" can be changed so I would prefer if the 9th Circuit wrote "constitutionally armed" in their opinion. Again, just paranoid.

[FormerLib]

Boy is Obama going to be pissed!

This just gets better the more I think about it.

[AuntB]

The ninth has got a couple rulings right lately. Wow!

[frog in a pot]

“Sorry, I’m suspicious.”

Ditto!

As I mentioned on an earlier post re this decision:

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.

(Hey, Mom, is that you ? ;^) )

[Para-Ord.45]

The test will come soon. Obama and his goon squad will require serial numbers on every single bullett sold.

You can keep your gun, bulletts will be unaquirable.

[Fast Moving Angel]

Whaaa ... ?? They got something right for a change?

[Fast Moving Angel]

Then there will probably be a thriving underground market for home loads.

[benjibrowder]

They secretly own guns and they fear a dangerous situation should California completely collapse?

[bgill]

The 2nd states, “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”

Here's the other shoe dropping: The Ninth specifically addresses a “lawfully armed populace” as opposed to what the 2nd states, “a well regulated Militia”. In other words, not that I'm a lawyer, is sounds like they're allowing local law enforcement personnel and those citizens who have registered and have their paperwork in order to be armed. However, that doesn't mean they can't make registering next to impossible. Though I don't see how they can infringe on and interpret laws concerning the rights of the States.

[FrogMom]

Son! Get yer hoppy arse out of that pot!

[Carry_Okie]

Once a right is incorporated under the Constitution against the States under the 14th, the Feds acquire the power to define the extent of that right, the degree to which they may infringe. So, for example, background checks, back door registration, and regulation of the manufacture and sale of ammunition are all on the table.

This may be a reaction to Alaska's assertion that Federal law does not apply to arms and ammo manufactured in-state.

[omega4179]

Even a broken clock finds a nut once in a while.

[Spirochete]

Even a broken clock finds a nut once in a while.

it must be an Onion story, or maybe a misprint. SAF must have meant to print 'Fifth' circuit instead of 'Ninth'.

[An Old Man]

Quoting from NORDYKE v. KING Cal 9th US Courts

GOULD, Circuit Judge, concurring:

I concur in Judge O’Scannlain’s opinion but write to elaborate my view of the policies underlying the selective incorporation decision.

First, as Judge O’Scannlain has aptly explained, the rights secured by the Second Amendment are “deeply rooted in this Nation’s history and tradition,” and “necessary to the Anglo-American regime of ordered liberty.” The salient policies underlying the protection of the right to bear arms are of inestimable importance. The right to bear arms is a bulwark against external invasion. We should not be overconfident that oceans on our east and west coasts alone can preserve security. We recently saw in the case of the terrorist attack on Mumbai that terrorists may enter a country covertly by ocean routes, landing in small craft and then assembling to wreak havoc. That we have a lawfully armed populace adds a measure of security for all of us and makes it less likely that a band of terrorists could make headway in an attack on any community before more professional forces arrived.

Second, the right to bear arms is a protection against the possibility that even our own government could degenerate into tyranny, and though this may seem unlikely, this possibility should be guarded against with individual diligence.

Third, while the Second Amendment thus stands as a protection against both external threat and internal tyranny, the recognition of the individual’s right in the Second Amendment, and its incorporation by the Due Process Clause against the states, is not inconsistent with the reasonable regulation of weaponry. All weapons are not “arms” within the meaning of the Second Amendment, so, for example, no individual could sensibly argue that the Second Amendment gives them a right to have nuclear weapons or chemical weapons in their home for self-defense. Also, important governmental interests will justify reasonable regulation of rifles and handguns, and the problem for our courts will be to define, in the context of particular regulation by the states and municipalities, what is reasonable and permissible and what is unreasonable and offensive to the Second Amendment.

---

I tend to agree with Judge Gould on both his first and second reasons for concurring with judge O'Scannlains opinion. After all, who can argue that having an armed population of citizens is not a good defense against both foreign and domestic enemies. It is his third reason that bothers me.

Being of the independent type, I have to question how any possible important governmental interests could ever trump "Shall Not be Infringed".