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...

[frog in a pot]

Don’t worry, Mom, you taught us well.
A lot of us realize the water is getting hotter every day. Armed with that knowledge, we will not hang around long enough to get boiled.

[An Old Man]

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.

Bull

[Carry_Okie]

Wishful thinking is never positive.

[ALPAPilot]

Nice quote from the Federalist. I hadn’t seen that one before, but with your permission I’ll keep it for further use.

[Radix]

These “Judges” have no business giving Americans the OK to Rights that are inherent.

They should have refused comment and ignored the case.

[Clinging Bitterly]

...the Second Amendment was written to balance the power of the people against the power of a strong central government.

That is also covered in the opinion.

[ml/nj]

with your permission

You hardly need my permission to quote from The Federalist. Just remember that Hamilton was writing before the Second Amendment was proposed.

ML/NJ

[Mad_Tom_Rackham]

WOW!

[redgolum]

Good flick in a cheesy sort of way.

It is one my list of “Movies to watch when the wife is out”.

[I got the rope]

Good one.

[2harddrive]

NOTE: The 2nd Amendment is SELF-incorporated to all government entities at every level. It is MORE ABSOLUTE than the 1st Amendment, or any of the others, because the wording forbids not only CONGRESS, but ANYONE from infringing on it. The 1st says “Congress shall make no law...”. The 2nd say “shall NOT be infringed!” Period! End of debate!

[Talisker]

Of course they had to "find" it in the 14th Amendment - they were never looking anywhere else. That's why the ruling commented that: "We therefore conclude that the right to keep and bear arms is “deeply rooted in this Nation’s history and tradition.”

Notice they didn't note that the right to keep and bear arms is mandated by the 2nd Amendment, but rather that is was merely a traditional concept? That's because they are ruling under administrative law, which is presumed to be applied to all the natural persons in order to make them corporate employees of the federal government. That's how "rights" gets turned into "privileges," and why the 14th Amendment becomes relevent - it addresses federally-created corporate persons and employees.

Don't like it? Tough - the status change is a judicially recognized presumption. And therefore, because it is not proven fact, it need not be disproven. And so there are no judicially recognized methods to dismiss this presumption, let alone disprove it.

Oh, and they've also ruled that they don't have to inform you of this presumption, either, and if you even step foot in court you've accepted their presumption by showing up (and of course they throw you in jail if you don't).

BTW, this is also the little gotcha that defeats people who claim their rights against unfair taxation.

Kafka was a piker.

[El Gato]

Yeah...terrorists. That's the ticket. That's why the framers put in that amendment....to guard against...terrorists. Right.

They did, primarily homegrown "terrorists" occupying the national capital and the government centered there. But they were also thinking of the foreign sort of "terrorist", and even pirates.

[El Gato]

I am also curious to know how the 14th Amendment ‘aware’ Freepers view the inclusion of comments referring to that Amendment in the case for the majority on this decision.

The purpose of the "priveleges and immunities" clause of the 14th amendment was to "incorporate" the first 9 amendments against the states. At the time, local governments in the South were disarming newly freed Blacks. This was a major motivation for that part of the 14th amendment.

[El Gato]

I am also curious to know how the 14th Amendment ‘aware’ Freepers view the inclusion of comments referring to that Amendment in the case for the majority on this decision.

The logical gymnastics the Court had to go through are a result of some really bad decisions regarding the 14th amendment's privileges and immunities clause, which basically say, with no historical support, that the P&I guaranteed are those due strictly to being a citizen of the US, rather than "immunities" against infringements of preexisting rights.

[Protect the Bill of Rights]

James Madison was a visionary. He knew we would never have to worry about a tyrannical government. Just those damned terrorists.

[HANG THE EXPENSE]

I can certainly see their concern if that place comes unraveled.

[El Gato]

while I disagree with the foundation of the ruling justice's opinion (that the right to bear arms was a bulwark against external invasion),

You should have read the whole paragraph, not just the "external" threat part.

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

The second amendment was indeed intended to assure and armed citizenry, which could be used to repeal external threats, but which could also be used to contain an out of control government. That last part clearly echos that liberals' liberal:

Certainly one of the chief guarantees of freedom under any government, no matter how popular and respected, is the right of the citizens to bear arms. . . . [T]he right of the citizens to bear arms is just one guarantee against arbitrary government and one more safeguard against a tyranny which now appears remote in America, but which historically has proved to be always possible.

-Senator Hubert H. Humphrey, "Know Your Lawmakers", _Guns_, Feb. 1960

[Sandy]

It's a great conservative decision from beginning to end. The court followed all precedents, even the stupid ones. That's the court's job, as it has no business overruling the Supreme Court on anything. So, the court incorporated the 2nd via the usual route while explaining that route both clearly and concisely. I found it very helpful. In addition, the court seemed to take great effort to avoid defining the actual contours of rkba, leaving that task for the Supreme Court (a very wise move, imo).

My favorite quote:

[W]hereas 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.

Amen.

[DoughtyOne]

So there is down side to this after all. Who would have thunk it...