Tuesday, April 21, 2009

Victory in Loss? The 14th Applies to the 2nd

The U.S. Ninth Circuit Court has often handed down controversial decisions. Many believe that the Court leans too far to the left, but a recent decision may represent one of the clearest victories for supporters of the Second Amendment since Heller – and in some ways it may be even bigger than the Heller decision. I first came across the case, Nordyke v. King, in a write-up on the Volokh Conspiracy blog. The blog provided a link to the full decision which I’ve had a chance to at least skim through. There are several key nuggets of wisdom in this decision that will frame legal precedent regarding the right to keep and bear arms going forward.

The issue at hand was whether Alameda County’s regulations around prohibiting firearms on County property violated the First and Second Amendments. Initially the Second Amendment claims had been dismissed under the “collective right” interpretation of the Second Amendment. Because of the recent Heller decision, the Court immediately vacated all rulings based on that interpretation and was therefore forced to consider whether or not the Second Amendment was protected by the Fourteenth Amendment. While the Court ultimately upheld the County’s clearly anti-gun prohibitions, supporters of the Second Amendment have won some clear victories in this decision.

One clear victory was the refutation of the County’s interpretation of the Second Amendment. The decision details the individual rights interpretation of the Second Amendment at length as well as its history:

“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 fundamental 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 collective 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.”

This portion of the decision is vitally important because it represents an attempt to “re-collectivise” the Second Amendment at the State level. The Court wisely saw right through this tactic.

The County also attempted to cite the “controversy” around the Second Amendment as grounds for limitations. The Court also disagreed with that interpretation as well:

“The County and its amici point out that, however universal its earlier support, the right to keep and bear arms has now become controversial. See generally Sanford Levinson, The Embarrassing Second Amendment, 99 Yale L.J. 637 (1989). But we do not measure the protection the Constitution affords a right by the values of our own times. If contemporary desuetude sufficed to read rights out of the Constitution, then there would be little benefit to a written statement of them. Some may disagree with the decision of the Founders to enshrine a given right in the Constitution. If so, then the people can amend the document. But such amendments are not for the courts to ordain.”

Once again, another tactic used by Second Amendment opponents to restrict our rights has been defeated in Court. This begins to rein in some of the legal trickery that’s been used so successfully for the past few decades and consigns entire schools of legal thought (or more appropriately, mental gymnastics) to the scrap heap of history. These are key victories for the long-term security of our Second Amendment rights. However, the Court didn’t stop there, perhaps the most important victory is the ruling that the 14th Amendment applies to the 2nd Amendment:

“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.”

The point above is vitally important – it means that even if a State does not have an 2nd Amendment analog in its own Constitution, that an individual is still guaranteed the right to keep and bear arms under the 14th Amendment. This ruling therefore puts many city and state bans on classes of firearms in immediate jeopardy as the Second Amendment now applies directly to their own laws. While I am extremely disappointed that the Alameda County ordinance was upheld, supporters of the Second Amendment have achieved a very clear victory that will be vitally important to the long-term preservation of our Civil Rights.

Until next time!!!


Troy said...

Very good news in there... I do find it rather odd how they simultaneously offered some potentially rather significant support for the Second Amendment and still upheld the County's ordinance. :-\

Fingolfen said...

Part of it has to do with what legal question they were answering. The Heller case wasn't about "bearing arms" in sensitive areas, it was about "keeping and bearing arms" in the home. Therefore the Heller decision effectively heard no arguments about the prohibition of weapons on public property, therefore they could not rule on it, and therefore the decision states that the ruling does not invalidate these sorts of strictures.

The legal question that needs to be asked is "does the right of self-defense (cited in Heller) stop at the door to the home?" The legal definition of "sensitive areas" also needs to be challenged in Court. Prevailing wisdom permits "gun free zones" under the assumption that they reduce the potential for violence. The "gun free zone" itself needs to be challenged, especially in regards to public areas. This particular case was unable to hone in specifically on that particular issue - so we need to find another case to challenge that body of law.