NINTH CIRCUIT RULES ON 2ND AMENDMENT
Written Opinion of the court: http://www.ca9.uscourts.gov/datastore/opinions/2009/04/20/0715763.pdf
 

Court: 2nd Amendment trumps local gun limits
Described as 'protection against government degenerating into tyranny'
 


Posted: April 22, 2009  By Bob Unruh   WorldNetDaily

The 9th U.S. Circuit Court of Appeals in California has ruled that the 2nd Amendment right to keep and bear arms is "deeply rooted in this nation's history and tradition" and long has been regarded as the "true palladium of liberty," so it therefore must be applied against state and local government weapon restrictions as well as federal gun limits.

The ruling came in a decade-old dispute over a private operation's request to hold a gun show at a county fairground, even though the county prohibited gun possession at its facilities.

The new ruling from the usually liberal 9th Circuit said Alameda County in California was allowed to ban guns at its facilities, but in general the 2nd Amendment provision for Americans to keep and bear arms applies not to just federal gun limits but local rules as well. "This could be big, folks," wrote Kurt Hofmann at the St. Louis Gun Rights Examiner.

"In Nordyke v. King … we may very well be seeing the beginning of the end of that very unsatisfactory set of circumstances, wherein state and local governments need not so much as pay lip service to the 2nd Amendment," he continued. "In the 9th Circuit, in fact, that end has indeed arrived.

"This development is very significant, because the 9th is the largest, and thus one of the most important, federal circuit courts. It is also considered the most 'liberal,' and thus perhaps the most resistant to protecting the right to keep and bear arms," he continued.

Hofmann cited a concurring opinion by Judge Ronald M. Gould, who wrote that nothing less than the security of the nation – a defense against both external and internal threats – rests on the provision.

"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," Gould wrote. "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 court opinion this week said, "We therefore conclude that the right to keep and bear arms is 'deeply rooted in this nation's history and tradition.'

"Colonial revolutionaries, the Founders, and a host of commentators and lawmakers living during the first one hundred years of the Republic all insisted on the fundamental nature of the right. It has long been regarded as the 'true palladium of liberty.' Colonists relied on it to assert and to win their independence, and the victorious Union sought to prevent a recalcitrant South from abridging it less than a century later," the court continued.

"The crucial role this deeply rooted right has played in our birth and history compels us to recognize that it is indeed fundamental, that it is necessary to the Anglo-American conception of ordered liberty that we have inherited. We are therefore persuaded that the Due Process Clause of the Fourteenth Amendment incorporates the Second Amendment and applies it against the states and local governments," the opinion said.

The court previously had ruled exactly the opposite way, but it said the U.S. Supreme Court's Heller decision, which confirmed that the 2nd Amendment right is personal as well as collective, prompted the reversal.

At Poligazette, a commentator noted it is a major victory for the pro-gun position.

And another Gun Rights Examiner writer, David Codrea, said, "This is big – especially coming from the 9th Circuit, notorious for its hostility to gun rights. Look for an appeal. And then look to see if the Supreme Court agrees to hear it."

Technically the county cannot appeal, since its policy to restrict guns on county property was upheld. But the plaintiffs, Russell and Sallie Nordyke, could appeal on behalf of their gun show operation.

The 2nd Amendment 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."

"This necessary 'right of the people' existed before the Second Amendment as 'one of the fundamental rights of Englishmen,'" the ruling said. "Heller identified several reasons why the militia was considered 'necessary to the security of a free state.' First, 'it is useful in repelling invasions and suppressing insurrections. Second, it renders large standing armies unnecessary . . . . Third, when the able-bodied men of a nation are trained in arms and organized, they are better able to resist tyranny."

The decision appears to run counter to the general direction sought by the administration of President Obama three months into his tenure.

He's already advocated for a treaty that would require a federal license for hunters to reload their ammunition, has expressed a desire to ban "assault" weapons, has seen a plan to require handgun owners to submit to mental health evaluations and sparked a rush on ammunition purchases with his history of anti-gun positions.

 

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NEWS RELEASE
Second Amendment Foundation, 12500 NE Tenth Place • Bellevue, WA 98005
(425) 454-7012 • FAX (425) 451-3959 • www.saf.org

NINTH CIRCUIT RULES 2ND AMENDMENT INCORPORATED TO STATES

For Immediate Release: Contact: Alan Gottlieb (425) 454-7012

BELLEVUE, WA – 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 invasionÂ…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.”


Yes, California, There Is an Individual Right to Keep and Bear Arms

Last June, the Supreme Court ruled in District of Columbia v. Heller that the Second Amendment protects an individual’s right to keep and bear arms, at least in the home for self-defense.  Here’s our own Bob Levy, who masterminded the Heller litigation, talking about that decision:

While the Court’s ruling was a watershed in constitutional interpretation, it technically applied only to D.C., striking down the District’s draconian gun ban but not having a direct effect in the rest of the country.

Well, today the Ninth Circuit (the federal appellate court covering most Western states) ruled that the Second Amendment restricts the power of state and local governments to interfere with individual right to have guns for personal use.  That is, the Fourteenth Amendment “incorporates” the Second Amendment against the states, as the Supreme Court has found it to do for most of the Bill of Rights.  I rarely get a chance to say this, but the Ninth Circuit gets it exactly right.

Here’s the key part of Judge Diarmuid O’Scannlain’s opinion:

We therefore conclude that the right to keep and bear arms is “deeply rooted in this Nation’s history and tradition.”  Colonial revolutionaries, the Founders, and a host of commentators and lawmakers living during the first one hundred years of the Republic all insisted on the fundamental nature of the right. It has long been regarded as the “true palladium of liberty.” Colonists relied on it to assert and to win their independence, and the victorious Union sought to prevent a recalcitrant South from abridging it less than a century later.  The crucial role this deeply rooted right has played in our birth and history compels us to recognize that it is indeed fundamental, that it is necessary to the Anglo-American conception of ordered liberty that we have inherited.  We are therefore persuaded that the Due Process Clause of the Fourteenth Amendment incorporates the Second Amendment and applies it against the states and local governments.

In short, residents of Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, and Washington now join D.C. residents in having their Second Amendment rights protected.  And courts covering other parts of the country — most immediately the Seventh Circuit, based in Chicago — will have their chance to make the same interpretation in due course.

Just as interesting — and potentially equally significant — is the footnote Judge O’Scannlain drops at the end of the above text in response to arguments that the right to keep and bear arms, regardless of its provenance as a fundamental natural right, is now controversial:

But we do not measure the protection the Constitution affords a right by the values of our own times. If contemporary desuetude sufficed to read rights out of the Constitution, then there would be little benefit to a written statement of them.   Some may disagree with the decision of the Founders to enshrine a given right in the Constitution.  If so, then the people can amend the document.  But such amendments are not for the courts to ordain.

Quite right.

http://www.cato-at-liberty.org/2009/04/20/yes-california-there-is-an-individual-right-to-keep-and-bear-arms/  Filed under: Law and Civil Liberties; Political Philosophy
Tags: Constitution, constitutional amendments, guns, incorporation, second amendment