April 20, 2009
Ninth Circuit: Second Amendment Incorporated, Gun Restriction Upheld
A three-judge panel of the Ninth Circuit today ruled that the Fourteenth Amendment Due Process Clause incorporates the Second Amendment individual right to bear arms against state and local governments. At the same time, the panel upheld a county ordinance making it a misdemeanor to bring onto or to possess a firearm or ammunition on county property against a Second Amendment challenge.
The panel's ruling in Nordyke v. King makes the Ninth Circuit the first circuit to apply the Second Amendment to a state or local government after the Supreme Court left the issue open last term in D.C. v. Heller. Second Amendment incorporation is also now before the Seventh Circuit; the issue is almost certainly headed for the Supreme Court.
The plaintiff-appellants in the case were long-time gun show hosts at the county's public fairgrounds. They argued that the county ordinance prohibited them from hosting future gun shows at the site.
In ruling that the Fourteenth Amendment Due Process Clause incorporates the Second Amendment, the panel "canvass[ed] the attitudes and historical practices of the Founding era and the post-Civil War period" to determine whether the right to keep and bear arms is "necessary to an Anglo-American regime of ordered liberty" and whether it is "deeply rooted in this Nation's history and tradition." The panel concluded that it was.
Notably, the panel specifically rejected the claim that the Fourteenth Amendment Privileges or Immunities Clause did the work of incorporation. (The P or I Clause is in play at the Seventh Circuit, as well. It's gained some attention in an amicus filing at the Seventh Circuit and in recent scholarly work arguing that the P or I Clause, not the Due Process Clause, ought to be doing the incorporating.) Instead, the panel re-read an earlier case from the Ninth Circuit, Fresno Rifle v. Van de Kamp, as foreclosing the P or I argument--perhaps a bad omen for advocates of the P or I argument in the Seventh Circuit.
Having ruled that the Due Process Clause incorporates the Second Amendment, the panel then upheld the county's gun ordinance, with surprisingly little analysis. The panel avoided determining the level of scrutiny by holding that the ordinance did not infringe upon the core purpose of the right as articulated by Heller:
Heller tells us that the Second Amendment's guarantee revolves around armed self-defense. If laws make such self-defense impossible in the most crucial place--the home--by rendering firearms useless, then they violate the Constitution.
But the Ordinance before us is not of that ilk. It does not directly impede the efficacy of self-defense or limit self-defense in the home. Rather, it regulates gun possession in public places that are County property.
And the county has great latitude in doing that based on the principles in Harris v. McRae (!) (holding that government need not fund abortions, even though women have a substantive due process right to abortions):
If we apply these principles here, we conclude that although the Second Amendment, applied through the Due Process Clause, protects a right to keep and bear arms for individual self-defense, it does not contain an entitlement to bring guns onto government property.
The panel also rejected the plaintiff-appellants' First Amendment and Equal Protection challenges to the ordinance.
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