Ninth Circuit Incorporates 2nd Amendment through Due Process Clause

Last week, in Nordyke v King, the Ninth Circuit held that second amendment protection of the right to keep and bear arms is incorporated against the states.  It held, however, that a county ordinance that prohibited guns on county property could prohibit otherwise lawful gun shows.

It is unclear whether this decision will be appealed to the Supreme Court, but if it is, it may open the door for the Court to determine just where guns may be prohibited.

The court relied on old Supreme Court decisions to reject direct application of the 2nd Amendment against the states (citing Barron v Baltimore) and incorporation through the privilege and immunities clause of the 14th Amendment (citing The Slaughter-House Cases and US v Cruikshank). 

But, the court held that the 2nd Amendment was incorporated through the due process clause of the 14th Amendment. The court relied on a review of history, and found "powerful evidence that the right to bear arms is deeply rooted in the history and tradition of the Republic" so that it is a fundamental right.

"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."

But the court rejected the argument that gun shows must be allowed on county property, concluding "the Ordinance does not meaningfully impede the ability of individuals to defend themselves in their homes with usable firearms, the core of the right as Heller analyzed it. The Ordinance falls on the lawful side of the division, familiar from other areas of substantive due process doctrine, between unconstitutional interference with individual rights and permissible government nonfacilitation of their exercise. Finally, prohibiting firearm possession on municipal property fits within the exception from the Second Amendment for “sensitive places” that Heller recognized. These considerations compel us to conclude that the Second Amendment does not invalidate the specific Ordinance before us."

In a concurring opinion, Judge Gould went further to say that the right to bear arms may apply to deter or stop terrorism, or even unlawful government action:

"The salient policies underlying the protection of the right to bear arms are of inestimable importance. The right to bear arms is a bulwark against external invasion. We should not be overconfident that oceans on our east and west coasts alone can preserve security. We recently saw in the case of the terrorist attack on Mumbai that terrorists may enter a country covertly by ocean routes, landing in small craft and then assembling to wreak havoc. That we have a lawfully armed populace adds a measure of security for all of us and makes it less likely that a band of terrorists could make headway in an attack on any community before more professional forces arrived. Second, the right to bear arms is a protection against the possibility that even our own government could degenerate into tyranny, and though this may seem unlikely, this possibility should be guarded against with individual diligence."

Let's hope people can discern the difference between lawful government reaction to, say, an angry crowd, and tyranny. An interesting case, but it may have little impact in Oregon, where the state constitution strongly protects the right already.

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