Ninth Circuit Court rules Second Amendment is incorporated to the states

Written by Daniel White

Monday, 20 April 2009 07:18

Ever since the Heller decision, the gun grabbers have been grasping at the fact that it might apply only to the Federal government's powers. That dream is extinguished as the Ninth Circuit Court court of appeals ruled today that Second Amendment is incorporated to the states.

The case in question is Nordyke v. King, a California case that has been in the courts since . The case was brought by Russell and Sallie Nordyke, who promote gun shows in the area, after Alameda County California banned firearms on county property allegedly as an attempt by the author of the ordinance, Supervisor Mary King, to put an end to gun shows. King was quoted in the suit as having "declared she had 'been trying to get rid of gun shows on Country property' for 'about three years,' but she had gotten the run around from spineless people hiding behind the constitution, and been attacked by aggressive gun toting mobs on right wing talk radio.'"

The initial question before the court was whether the Second Amendment prohibits a local government from regulating gun possession on its property. The Ninth District allowed the ban, based on an earlier decision that "individuals lack standing to raise a Second Amendment challenge to a law regulating firearms because the right to keep and bear arms was a collective one."

After Heller, Nordykes filed an appeal and the Ninth District agreed to again hear the issue. While Nordykes lost this appeal as well, the ruling did have a silver lining as setting precedent for incorporation.

We must decide whether the Second Amendment applies to the states through the Fourteenth, a question that Heller explicitly left open.

The Fourteenth Amendment bars any State [from] depriv[ing] any person of life, liberty, or property, without due process of law. U.S. Const. amend. XIV, § 1. Under the doctrine known as substantive due process, this Clause guarantees more than fair process, and the liberty it protects includes more than the absence of physical restraint.

We therefore conclude that the right to keep and bear arms is deeply rooted in this Nations 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.

The Ninth District ruled that the County banning gun shows was not a violation of Second Amendment rights. That decision will likely be appealed. More importantly, though, for the first time a court has ruled that the Second Amendment as identified in the Heller case as an irrevocable individual right is incorporated against states and local governments. No longer can the gun grabbers claim that the Second Amendment is only a restriction on Federal power and that State and local governments are free to infringe upon gun rights as much as they choose. This is a big win for gun rights activists.