9th Circuit Incorporates Second Amendment!

In the Nordyke case, linked here.   More commentary to follow.  Nordyke was the case where county officials kicked a gun show off of county property.  Nordyke argues that violates Second Amendment rights.

UPDATE: An excerpt:

The County does little to refute this powerful evidence that the right to bear arms is deeply rooted in the history and tradition of the Republic, a right Americans considered fundamen- tal at the Founding and thereafter. The County instead argues that the states, in the exercise of their police power, are the instrumentalities of the right of self-defense at the heart of the Second Amendment. This argument merely rephrases the col- lective rights argument the Supreme Court rejected in Heller. Indeed, one need only consider other constitutional rights to see the poverty of this contention. State police power also covers, for instance, some of the conduct the First Amendment protects, but that does not deny individuals the right to assert First Amendment rights against the states.


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.

So they took the due process clause route, rather than the privileges and immunities clause route.  But the ruling is a great victory for our side regardless.

UPDATE: I should note this ruling only applies to those states in the 9th Circuit Court.  Those states are Montana, Idaho, Washington, Oregon, California, Nevada, and Arizona.  If you live in those states, congratulations, the Second Amendment now applies to your states and local governments (that means you, California).  The County of Alameda will be able to appeal, naturally, first to the entire 9th Circuit, en banc, and then to the Supreme Court of the United States.

UPDATE: Dave Hardy has more.  It looks like the ban on gun shows on county property is being upheld as reasonable under the Second Amendment, even though we won on incorporation.  This means that Alameda technically won the case, and the decision can only be appealed by the plantiffs.  This means the incorporation decision will likely stand in the 9th circuit.

22 thoughts on “9th Circuit Incorporates Second Amendment!”

  1. How can Alameda appeal? They won.

    Interesting result, but sort of a mixed bag. In order to grant cert on an appeal, SCOTUS would have to decide that it wanted to review the application of 2A in this particular case, or that it wanted to reverse on incorporation. Neither seems likely.

    I will volunteer a guess: Nordyke is denied cert, but another case based on Nordyke goes the distance. I further guess that the follow-on case will be a challenge to the California handgun roster (clearly barred by Heller).

  2. Actually, Alameda cannot appeal. They won on their issues, i.e. they can ban/regulate gun shows on county property. They have nothing to appeal, either to SCOTUS or to an en banc hearing. The ball is firmly in the Nordyke’s court and it’s unclear what their next step will be. This case may not be the best for cert to SCOTUS, so it may stand as-is. It keeps Alameda from dragging this out any further (unless Nordyke appeals) and we got incorporation (and a circuit split on the issue now, too.)

  3. OK, what circuits have declared that it didn’t apply to the states? Any? How long til we get to the sc(r)otu(m)s so they can find some more wiggle room?

    Haven’t read it yet, DLing now.

  4. The 2nd has said it is not incorporated (relying on Cruikshank and Presser) and I believe also such has been held at the district court level in the 7th (Chicago – I’ll have to go pull cases to make sure I’m not misremembering).

    But this isn’t the case to take up (IMO) on the split. There will be better ones and better facts. Plus, there are so many avenues of approach, i.e. CCW, loaded open carry, AW bans, and limited resources, that the next cases will have to be cherry-picked at the circuit level in case they do end up being the candidate(s) for cert on the split.

  5. Even though the County won on the bottom line (its ordinance was upheld), it apparently can still ask the Ninth Circuit to rehear the case en banc, in order to reconsider whether the Second Amendment is incorporated. What’s more, other judges can by themselves ask for a rehearing en banc. If a panel decision is seen by some judges as containing an important legal error (or even as resolving a question that’s so important that it needs to be reconsidered by more judges), the judges can vote for rehearing en banc in order to correct that error, never mind whether the bottom line was right. The judges, after all, would be laboring under the reasoning (and not just the bottom-line result) of this panel decision for years to come, since judges on one panel are supposed to be bound by the decisions of previous panels; they thus have an interest in making sure that the panel decision is right in its reasoning.

  6. Neat. I’ve never been called recalcitrant before. I’ll have to check that off the list.

  7. I’m really surprised to see this coming out of the 9th, but I’m not complaining.This makes up for the daily grind of fending off indian attacks on the west coast.

  8. The majority of liberties denied and that we self deny is because of local law and state law. Rarely does federal law impinge that much on our lives. That is why the Tea Parties are important it shoes that people are reacting to a percieved impact on their lives of the stimulas bill and excessive spending by the federal government.

    This is important though not enough to sent to SCOTUS it sets up as a basis of law that the 2 nd is incorporated and many District ct decisions have already implied that in NY etc. based on Heller and due process of rights taken away to to safe storage violations and restraining orders.

    The liberties that have more impact are like the Dickson case with the police being unable to come up with the money and made defending excessive hasseling of OC too expensive for a police department.

    That will have more impact on liberties. Georgia decision that OC is not disorderly conduct and Wisconsin also agreeing is more helpful to the individual since DO is the arguement used against individuals who exercise their rights.

    So important battles are the local ones where Greg had the sheriff back down on his permit revokation. Ms. Haim insisting that OC at recreation for kids is legal and socially OK despite disapproval from the local sheriff.

    The battle won will have a greater impact on the society that legal gun carry is OK and to stop gun control as a method to control crime. It it has worked, CNN 29% support gun control is a low point considering the impetus of Coumbine 10 years ago to push guncontrol among private and public schools and zero tolerance policies.

    As less public support gun control it will be easier to get better laws in the states to support legal carry and access to more areas.

  9. According to this decision, the colonists wouldn’t have been allowed to possess firearms at Lexington Green.

  10. I don’t agree with #13 – According to this decision, the colonists wouldn’t have been allowed to have a swap meet at Lexington Green. I don’t like Alameda County not allowing gun shows on its property, but it seems “reasonable.”

  11. Or at least that Lexington would have been able to ban gun shows on the green.

    This decision is, in Churchill’s words, the “end of the beginning” for incorporation, just s Heller was for individual rights.

  12. The RIGHT to keep and bear arms is neither a “privilege” nor an “immunity”. Privileges are granted by the people, generally through their constitutions or legislatures; immunities are granted by courts or judges. Being given by government, they can be taken away by government, without due process, by simple fiat or constitutional amendment. Rights, on the other hand, are natural, innate, inherent, and unalienable, endowed not by government, but, according to Thomas Jefferson’s Declaration of Independence, BY GOD alone! What government does not give, it cannot take away, at least not unless I forfeit my rights by criminal acts against the God-given rights of others, and then only by due process of law. The Bill of Rights merely recognizes those rights God has given us and which it is the duty of government to secure, while also prohibiting the central government from infringing or taking them away. “Privileges and immunities” are a house of cards upon which a fool would rely for the security of his liberty. I petition courts and legislatures for privileges and immunities; but I “appeal to arms and to the God of hosts” for my rights and liberties (Patrick Henry).

  13. Arnie,

    I’d suggest you take it up with the drafters of the 14th amendment, but they are all thoroughly dead. The drafter of that particular clause was Congressman John Bingham, from Ohio, who died in 1900. The Second Amendment would be an immunity from government interference, whereas the bill of rights has a number of positive liberties, such as the right to a jury trial, which could properly be called a privilege, but it is a privilege of citizenship of the United States.

    Of course, the Slaughterhouse Cases of 1873 pretty much destroyed the P&I clause, so legally, it’s pretty much dead letter.

  14. Thanks for the clarification, Sebastian. I sincerely did not know the terms privilege, right and immunity were considered interchangeable in the law. I realized there were some overlapping effects, as you pointed out, but I had always thought that individually they represented distinct levels of socio-legal dispensation. But I checked some lexicons and you are right – they are synonyms. I stand corrected and retract my previous post. Thanks again. Oh, by the way, “thoroughly” dead? I liked that. – Arnie

  15. As a follow up to: “I further guess that the follow-on case will be a challenge to the California handgun roster (clearly barred by Heller).”

    I note that Alan Gura filed exactly that, on April 30. From the complaint you can see that he had specially chosen plaintiffs all lined up. It cites 42 U.S.C. Section 1983 (ouch).

    It’s a slam dunk, Cali should punt.

  16. Along with a suit challenging CA’s “May Issue” and the sheriffs who won’t

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