Ninth Circuit Incorporates Second Amendment Against The States!

Ninth Circuit Incorporates Second Amendment Against The States!

This is major news. The Ninth Circuit Court of Appeals has ruled that the 14th Amendment's due process clause incorporates the Second Amendment against the states! The decision is Nordyke v. King (9th Cir. 2009). I am work right now, so I won't have time to analyze this until later, but this just about guarantees a Supreme Court hearing on this in the near future--before the Obamination has a chance to appoint a replacement justice.

This doesn't mean that every state or local gun control law will go down in defeat. (This particular county ordinance survives as "reasonable regulation.") But it does mean that state laws adopted with explicitly racial purposes, such as California's discretionary concealed weapon permit law, are in serious danger.

UPDATE: A day late for Patriot's Day (the anniversary of the Battle of Lexington), but still a good decision. Let me emphasize: the decision did not directly address the question of what standard of review should be used. In the case before them, Alameda County prohibited a gun show on country property. The decision essentially said that the Heller case had found a fundamental right, but that involved possession of a gun in your home for self-defense. The Heller case did not find a fundamental right to have a gun, anywhere, anytime, or on county property. As Professor Volokh points out, this is similar to

Webster v. Reproductive Health Servs. (1989), which upheld a state law banning "the use of public employees and facilities [including any public institution, public facility, public equipment, or any physical asset owned, leased, or controlled by this state or any agency or political subdivisions thereof] for the performance or assistance of nontherapeutic abortions."

Government as landlord has considerably more authority than it does on public streets or on private property. That landlord authority is not unlimited, but even abortion, which the Supreme Court has (in my view, incorrectly) defined as a constitutional right does not prohibit the government as landlord from regulating or restricting exercise of that right in their facilities.

Remember: the Heller decision upheld the right to have a handgun in your own home for self-defense. Imposing that same view onto the states will create a pile of trouble for California's Assault Weapons Control Act, to the extent that it prohibits possession and transfer of firearms to law-abiding adults. It also opens up the door to challenging California's abusive concealed weapon permit process, which as I mention above, has a racist history, and an elitist and corrupt present.

An interesting aspect to the decision is that apparently because Alameda County "won" they can't appeal to the Supreme Court. (According to Professor Volokh, they can request an en banc rehearing by the Ninth Circuit, but that's not very likely to happen.) Only the "loser" on this can appeal to the Supreme Court--and we have some reason to do so. In addition, other circuits are considering this same question at the moment--and having the notoriously liberal Ninth Circuit decide for incorporation may help with the other circuits. The worst that happens is we get a circuit split, and another chance for the Supreme Court to make a ruling while the five justices that formed the majority in Heller are still on the bench. The best that happens is that other circuits decide this decision was correct, and follow along.