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Ninth Circuit Rules 2nd Amendment Incorporated to States
Second Amendment Foundation ^ | April 20, 2009 | NA

Posted on 04/20/2009 3:47:32 PM PDT by 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...

(Excerpt) Read more at finance.yahoo.com ...


TOPICS: Constitution/Conservatism; Crime/Corruption; Front Page News; Politics/Elections; US: California
KEYWORDS: 2ndamendment; 9thcircuit; banglist; california; heller; ninthcircuit; nordyke; nordykevking; secondamendment
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To: Spirochete

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!


51 posted on 04/20/2009 7:06:48 PM PDT by 2harddrive (...House a TOTAL Loss.....)
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To: neverdem
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.

52 posted on 04/20/2009 7:26:29 PM PDT by Talisker (When you find a turtle on top of a fence post, you can be damn sure it didn't get there on it's own.)
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To: Bloody Sam Roberts
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.

53 posted on 04/20/2009 9:35:31 PM PDT by El Gato ("The Second Amendment is the RESET button of the United States Constitution." -- Doug McKay)
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To: DoughtyOne
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.

54 posted on 04/20/2009 9:39:10 PM PDT by El Gato ("The Second Amendment is the RESET button of the United States Constitution." -- Doug McKay)
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To: neverdem
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.

55 posted on 04/20/2009 9:48:10 PM PDT by El Gato ("The Second Amendment is the RESET button of the United States Constitution." -- Doug McKay)
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To: Bloody Sam Roberts

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


56 posted on 04/20/2009 9:51:39 PM PDT by Protect the Bill of Rights (Americans Bow to No One; Obama Bows to Saudi KINGS and Lies about it.)
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To: benjibrowder

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


57 posted on 04/20/2009 9:53:11 PM PDT by HANG THE EXPENSE (Life is tough.It's even tougher when you're stupid.)
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To: DustyMoment
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

58 posted on 04/20/2009 9:58:29 PM PDT by El Gato ("The Second Amendment is the RESET button of the United States Constitution." -- Doug McKay)
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To: neverdem
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.

59 posted on 04/20/2009 11:00:54 PM PDT by Sandy
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To: Carry_Okie

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


60 posted on 04/20/2009 11:14:23 PM PDT by DoughtyOne (Pres__ent Obama's own grandmother says he was born in Kenya. She was there.)
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To: El Gato

Thanks for your take on it El Gato. Sounds like the 14th needs to be gutted.


61 posted on 04/20/2009 11:15:48 PM PDT by DoughtyOne (Pres__ent Obama's own grandmother says he was born in Kenya. She was there.)
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To: DoughtyOne
Just speculation on my part, but whenever you have the power to enforce a right, you have the power to violate it.

Kelo v. New London, although upholding the ability of a local government to maintain an abomination, also allowed many states to institute private property protections more stringent than the 5th Amendment. The existence of discretion in this trade-off between federalism and "equal protection" has made a joke of the SCOTUS.

62 posted on 04/21/2009 3:51:28 AM PDT by Carry_Okie (It's time to waterboard that teleprompter and find out what it knows.)
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To: Carry_Okie

Thank you for the additional comment Carry_Okie.

That sounded reasonable.


63 posted on 04/21/2009 8:54:39 AM PDT by DoughtyOne (Pres__ent Obama's own grandmother says he was born in Kenya. She was there.)
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To: El Gato
Here is the full text of the article that was linked to the FR posting -

Ninth Circuit Rules 2nd Amendment Incorporated to States Monday April 20, 2009, 5:46 pm EDT

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 possess firearms or ammunition on county property.

“The Heller ruling in 2008 was the first critical step toward full restoration of the individual citizen’s right to keep and bear arms to its rightful position as a cornerstone of the Bill of Rights,” Gottlieb observed. “This victory in the Ninth Circuit not only reinforces the Heller ruling, it expands upon it.”

The Second Amendment Foundation (www.saf.org) is the nation’s oldest and largest tax-exempt education, research, publishing and legal action group focusing on the Constitutional right and heritage to privately own and possess firearms. Founded in 1974, The Foundation has grown to more than 600,000 members and supporters and conducts many programs designed to better inform the public about the consequences of gun control.

Please show me where, in this document, the main purpose of the Second Amendment is covered??

64 posted on 04/21/2009 6:03:56 PM PDT by DustyMoment (FloriDUH - proud inventors of pregnant/hanging chads and judicide!!)
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To: Clinging Bitterly

Please see my response in #64.


65 posted on 04/21/2009 6:04:43 PM PDT by DustyMoment (FloriDUH - proud inventors of pregnant/hanging chads and judicide!!)
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To: DustyMoment
Did you read the decision?

See pages 18, 22, 27, and 42.

66 posted on 04/21/2009 8:42:29 PM PDT by Clinging Bitterly (I hope he fails.)
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To: I got the rope

http://www.freerepublic.com/focus/f-bloggers/2234655/posts

Related thread


67 posted on 04/21/2009 8:44:01 PM PDT by Danae (Amerikan Unity My Ass)
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To: Clinging Bitterly
Did you read the decision?

What part of "here is what was in the article that was linked to the story" did you miss? I read the article linked to the story. That's what we do here - we read articles linked to FR and post our comments. So I read the article and posted my comment.

68 posted on 04/21/2009 9:35:26 PM PDT by DustyMoment (FloriDUH - proud inventors of pregnant/hanging chads and judicide!!)
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To: DustyMoment
"First, it is astonishing that the Ninth Circus . . . . . er, Cicuit made this ruling. Second, while I disagree with the foundation of the ruling justice's opinion (that the right to bear arms was a bulwark against external invasion), they still made the right decision. In point of fact, the Second Amendment was written to balance the power of the people against the power of a strong central government. It still remains (IMO) possible that we may exercise our Second Amendment rights in exactly the manner that the Founding Fathers envisioned."

That is what you said. It doesn't actually reference the "article" from SAF but paraphrases a portion of the actual decision, from which it appears you made the assumption that defense against government tyranny was not addressed therein, when in fact it was.

One would think you'd be pleased to learn it was an aspect of the decision, but rather you argue about the content of an article you did not even mention in your original post.

If you have a problem with what SAF published in reference to this issue you should take it up with them.

69 posted on 04/21/2009 10:44:45 PM PDT by Clinging Bitterly (I hope he fails.)
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To: Clinging Bitterly

The linked article I referred to was at the bottom of the posted article and was from Yahoo Finance. I have no issues with SAF, FR, or even Yahoo Finance, but I do have issues with you because I have repeatedly posted that what I read made no mention of the reference to the original justification for the Second Amendment.

You have repeatedly insisted that I didn’t read the decision so I must be ignorant. I even posted verbatim the article from Yahoo Finance and asked you to show me where, in that article, it made any reference to the Founder’s original intent. Rather than respond to my request, you, again, pointed out that I didn’t read the full decision and directed me to particular pages in the original decision which were not in the Yahoo Finance article.

So, you read the material at SAF, I read the article that was linked to the FR posting at Yahoo Finance. I am thrilled that the SCOTUS still acknowledges that the Founder’s original justification and intent was to provide the citizens a counterbalance against a strong central government. It’s comforting to know that, occasionally, the SCOTUS still provides passing acknowledgement of the Founder’s original intentions with the BOR, even though they don’t do it often enough.


70 posted on 04/22/2009 4:52:11 PM PDT by DustyMoment (FloriDUH - proud inventors of pregnant/hanging chads and judicide!!)
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To: DustyMoment
So it was Yahoo Finance, the byline up top said SAF. No matter, I read the article and it or one of the others posted linked to the actual decision which I also read.

The LSM certainly isn't going to bring up that aspect of the 2nd. regardless of it's importance. But it is a well documented matter of fact - and without that purpose being in the minds of the founders I doubt the amendment would be there - so the 9th. Circus was right to incorporate that into the decision.

I think of it as a much needed warning to the political class for a time to come when all bets are off, that they become subject to violent overthrow. Whether it's heeded as such by enough or any of them remains to be seen.

71 posted on 04/22/2009 5:46:45 PM PDT by Clinging Bitterly (I hope he fails.)
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To: Spirochete

I’m pleased and shock.


72 posted on 04/22/2009 5:48:21 PM PDT by bmwcyle (American voters can fix this world if they would just wake up.)
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To: Clinging Bitterly
The LSM certainly isn't going to bring up that aspect of the 2nd. regardless of it's importance. But it is a well documented matter of fact - and without that purpose being in the minds of the founders I doubt the amendment would be there - so the 9th. Circus was right to incorporate that into the decision.

We're starting to reach areas of agreement. Following the concerns of the states after the collapse of the Articles of Confederation, the Founders were wary of recreating the problems they had seen in Europe with the monarchys and kaisers and whatnot. When you analyze the Bill of Rights, they were developed in a specific order that begins with basic fundemental rights and go on to create an increasing set of priorities all the way to the 10th Amendment.

We are fortunate that in a delicate time in America's history, God saw fit to send us some of the most intelligent, thoughtful and wise men that I think this planet has ever seen. These attributes are strongly reflected in the Amendments they added to the Constitution and represent not only their wisdom, but the strong dedication they had to preserve and protect the rights of individuals against the central government.

Unfortunately, in our 200+ years, we let those principles of freedom and liberty slip away from us by greedy, power hungry political elites who care more about their own personal power than the very principles that made this nation great. At this point, it remains questionable if we will be able to reverse the damage Obama and his administration are doing to this country in the foreseeable future. It may take lots of Americans exercising their Second Amendment rights to restore this nation to the path the Founders envisioned. All in all, there is nothing fundementally wrong with the Constitution, it just needs a bit of tweaking to prevent the level of abuses we are seeing from the current crop of self-serving political elites.
73 posted on 04/22/2009 9:24:45 PM PDT by DustyMoment (FloriDUH - proud inventors of pregnant/hanging chads and judicide!!)
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To: Leo Farnsworth

Diarmuid was a founding Board member of Young Americans for Freedom back in 1960. Gottlieb was on the YAF Board aa few years later. Frank Donatelli, the new head of GOPAC was on the Board at the same time. I knew them all back in those days (Congressman Rohrbacker too!


74 posted on 04/22/2009 9:36:39 PM PDT by Lucius Cornelius Sulla ("men of intemperate minds cannot be free. Their passions forge their fetters." -- Edmund Burke)
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To: DustyMoment
All in all, there is nothing fundementally wrong with the Constitution, it just needs a bit of tweaking...

Not too much. Perhaps a(nother) declaration that it means what it says.

75 posted on 04/23/2009 8:21:30 AM PDT by Clinging Bitterly (I hope he fails.)
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To: Clinging Bitterly
Not too much.

No, not too much. Here's what I'm thinking - term limits; 1 term in the Senate, 2 in the House. Congressional payraises approved by . . . . . . . . . the TAXPAYERS who pay them. Repeal the 17th Amendment. All laws passed by Congress MUST have a link to their Constitutional authority and there must be a maximum limit to the number of active Federal laws on the books. Also, Congress CANNOT offload its legislative functions to agencies staffed by unelected bureaucrats. In addition, ALL tax increases and federal budgets MUST have the approval of the people who actually pay taxes (those who do not pay taxes don't get a vote, nor do they get federal handouts such as "tax credits", and "tax breaks"; retired persons/seniors are exempted). Congressional sessions shall be limited to no more than 6 months every two years, then they have to go home and live with the mess they made. If the President needs them back in session, he can call them into special session.

Other "tweaks" I would include are that ALL presidential candidates must prove to their respective political parties their eligibility to serve as president AND a copy of their certified birth certificate must be available online for ANYONE to view. In addition, the SCOTUS MUST be limited to ruling on cases in accordance with the Constitution, per their charter. Foreign law, judicial activism and legislating from the bench must be prohibted. Cases for which there is no Constitutional foundation must either be denied OR referred to the Congress to determine if a new law is required (see above restriction on the number of active laws). Federal judges may be appointed for a maximum of 10 years. SC justices ONLY can be reappointed for an additional 10 year term. The right of Initiative and Referendum AND the right of the people to recall ANY Congresscritter or President must be added to the Bill of Rights. Can you think of anything else?

76 posted on 04/24/2009 8:06:52 PM PDT by DustyMoment (FloriDUH - proud inventors of pregnant/hanging chads and judicide!!)
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