FLASH: 9th Circuit Court of Appeals Rules State and Local Governments Subject to Second Amendment

In a bit of a Pyrrhic victory, the 9th Circuit today found that the Second Amendment applies to State and Local districts, joining the 5th Circuit which previously ruled similarly in the Emerson case.

At the same time, the Court found that the city's ban of firearms on public property did not violate the Second Amendment. While gun owners might scratch their heads over this "logic", the important part of the decision is that the Court held that the Second Amendment is incorporated against state and local governments via the 14th Amendment. (The Chicago cases, at the trial level, have ruled otherwise.)

Thus this decision from California in the Nordyke case sets the stage for the Supreme Court of the United States to take up the issue of incorporation in the near future, should the Chicago appellate court rule consistent with the trial court. (Readers should note that the Nordyke case has been pending since at least 2003 and should not read too much into the portion of the decision upholding the ban. This case has a contentious history behind it.)

Excerpts of the 9th Circuit ruling follow:

To summarize, our task is to determine whether the right to keep and bear arms ranks as fundamental, meaning "necessary to an Anglo-American regime of ordered liberty." Duncan, 391 U.S. at 149 n.14 (emphasis added). If it does, then the Fourteenth Amendment incorporates it. This culturally specific inquiry compels us to determine whether the right is "deeply rooted in this Nation's history and tradition."

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This brief survey of our history reveals a right indeed "deeply rooted in this Nation's history and tradition." Moreover, whereas 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.

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We also note that the target of the right to keep and bear arms shifted in the period leading up to the Civil War. While the generation of 1789 envisioned the right as a component of local resistance to centralized tyranny, whether British or federal, the generation of 1868 envisioned the right as safeguard to protect individuals from oppressive or indifferent local governments. See Amar, supra, at 257-66. But though the source of the threat may have migrated, the antidote remained the same: the individual right to keep and bear arms, a recourse for "when the sanctions of society and laws are found insufficient to restrain the violence of oppression." 1 Blackstone, supra, at *144.

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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.17 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.

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