The Ninth Circuit is the first federal court of appeals to hold that the Fourteenth Amendment's Due Process Clause incorporates the right to keep and bear arms, meaning that it is enforceable against state and local governments. This decision is in direct conflict with a recent decision by the Second Circuit holding that the Second Amendment is not enforceable against state and local governments.
As has been pointed out by David Codrea, however, our side lost. In other words, do not yet break out the champagne. The Court of Appeals held that the Second Amendment can be enforced against the county in which the plaintiffs live, but what right is it that can be enforced? A cursory examination of the opinion shows that it is a neutered right that most Americans will not recognize.
The Plaintiffs, Russell and Ann Nordyke, et alia, were suing to overturn a county ordinance that bans the carry of firearms on any county property. The list of property under consideration was stated by the court as follows:
" . . . open space venues, such as County-owned parks, recreational areas, historic sites, parking lots of public buildings . . . and the County fairgrounds . . ."
From that expansive list of places in which the government had banned firearms, the only place with which the unanimous Ninth Circuit could find fault was parking lots. "The only one of these that seems odd as a “sensitive place” is parking lots. The rest are gathering places where high numbers of people might congregate."
That sort of "gathering" language might look familiar to readers in Georgia, who have chaffed under the yoke of Georgia's oppressive "public gathering" law since 1870.
In short, the Ninth Circuit came to the conclusion that there is a right to possess weapons in the home, which is not a right to "bear" arms at all.
To summarize: 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.
As if that was not clear enough, the court pointed out (way down in the First Amendment discussion where many will miss it), "The County thought it dangerous for people to wander around its property armed. To ban or strictly to regulate gun possession on County land is the only straightforward response to such a danger."
Straightforward it is. Of course, the government owns the roads and even the sidewalk in front of your house. The logical conclusion to such reasoning is not hard to predict.
Restrictions (some might say "infringements") outside the home are not all the opinion countenances. The concurrence made a point of emphasizing that the Second Amendment does not foreclose regulation of the "type" of handguns and rifles that a citizen may own.
The Nordyke decision is not friendly to the right to keep and bear arms. Indeed, it would purport to erase the right to "bear" arms altogether, in favor of a tepid right to "keep" them, and then only if they are government-approved arms.
You may read the opinion for yourself here, but do not give up reading before the end.
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