Some of you will recall that I wrote a piece in this space last year in the wake of the Heller case, where the Supreme Court held that the Second Amendment protected an individual right to keep and bear arms (as opposed to the right being limited to the need for a militia or the like) and in the process struck down a law passed by Washington D.C. However, as many of you know the Bill of Rights initially worked only to restrict the federal government. For instance, “Congress shall pass no law” really meant the U.S. Congress only. Following the War of Northern Aggression, the Thirteenth, Fourteenth, and Fifteenth Amendments were ratified by the States. Jurisprudence interpreting the Fourteenth Amendment (which specifically limits the powers of the several States) gradually incorporated most of the Bill of Rights as being applicable to the States. So Texas can’t establish a religion, conduct unreasonable searches and seizures, or engage in cruel and unusual punishment. Only recently have the States been governed by mollycoddling nannies, so the courts have previously not had an opportunity to speak to the issue of whether the Second Amendment is applicable to the States. (ADDENDUM: In doing some additional research, it appears that the 9th Circuit has previously looked at the issue, and in typical nanny-state style deemed the Second Amendment to be a collective right, and not an individual right. The Heller case destroyed that line of thinking.)
Well, the Ninth Circuit Court of Appeals, which covers California, Alaska, Hawaii, Washington, Montana, Oregon, Nevada, Idaho, and Arizona (this is from memory, so I may have missed a state or two) has spoken, and I am surprisingly pleased by its holding.
The case, styled Nordyke, et al. v. King, et al. pits gun show vendors against the County Board of Supervisors for Alameda County. the County passed an ordinance making it illegal to bring onto or to possess a firearm or ammunition on County property. Historically, a gun show was held annually at the public fairgrounds in Alameda, which was effectively made illegal by the statute. The ordinance was passed under the auspices of being responsive to a shooting that took place at the County Fair and various school shootings, such as Columbine. In fact, one member of the Board (King) had been seeking for a way to specifically ban gun shows for some time, and even sent a memorandum to the City Council to figure out how to do it. In refreshing honesty, King had stated she’d “been trying to get rid of gun shows on County property [for] about three years,” but had “gotten the run around from spineless people hiding behind the constitution.”
In 1996, the 9th Circuit held that the Second Amendment protected only a collective right, not an individual right, which precluded an individual from bringing a suit to challenge the constitutionality of a gun law. The 9th Circuit opened its opinion by affirming that Heller abrogated the court’s previous assertion that an individual couldn’t challenge a gun law.
In the 9th Circuit’s discussion of the law it would apply to the Ordinance at issue, the court cited Heller and other sources to state, “The Second Amendment protects a right that predates the Constitution; therefore, the Constitution did not grant it.”
In order to determine whether a right is protected by the Fourteenth Amendment (under a doctrine called Substantive Due Process) courts historically engaged, generally, in the following analysis: whether the right is implicit in the concept of ordered liberty; and whether the would-be right is one without which a fair and enlightened system of justice would be impossible. Obviously, that’s a bit esoteric and philosophical, so it has been replaced by a historical survey of whether the right asserted is part of the “actual systems bearing virtually every characteristic of the common-law system that has been developing contemporaneously in England and this country. Therefore, incorporation turns on whether given this kind of system a particular procedure is fundamental–whether, that is, a procedure is necessary to an Anglo-American regime of ordered liberty.” The 9th Circuit wrote that “this culturally specific inquiry compels us to determine whether the right is deeply rooted in this Nation’s history and tradition.” The court then engaged in a lengthy recitation of the history described in the Heller opinion, copiously tracking the history of gun rights in England and colonial America. Of course, this analysis inevitably leads to the conclusion that the right to keep and bear arms predates the Constitution.
The way in which the 9th Circuit quotes the Heller opinion is a testament to the Anglo tradition of jurists writing opinions rather than merely rendering decisions. The force of Scalia’s writing in Heller has lead the most liberal appellate court writing, “We therefore conclude that the right to keep and bear arms is deeply rooted in this Nation’s history and tradition.” Further, the right “has long been regarded as the true palladium of liberty.” The court concluded that 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.” The Second Amendment was thus determined to be incorporated by the Fourteenth.
In the end, the Ordinance was held to be reasonable since it only applied to government property. This is probably the right decision. However, the big issue in the case was whether the Second Amendment protects an individual right, which it was held to do.
Equally encouraging was this passage from the concurring opinion, “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.” Well stated.