The 9th Circuit Court, which has jurisdiction in the western states, made a surprise ruling on Monday concerning the Second Amendment to the U.S. Constitution. The 3-judge panel ruled that the 2nd Amendment is incorporated against state and local governments.
This ruling is surprising due to the fact that it came from the single most liberal federal circuit court in the nation. This is the same circuit court that issued highly controversial decisions on the Pledge of Allegiance, for example.
Most gun rights activists and legal observers view this decision as a victory for the right to keep and bear arms. And this is correct...as far as it goes.
Here is an overview of the decision, as provided by David Hardy:
Court incorporates the 2A on a selective incorporation, due process, theory, holding that the right is a fundamental one, deeply rooted in Anglo-American history, and traditionally seen as a natural right rather than a politically-created one. Court declines privileges or immunities incorporation, as ruled out by Supreme Court case law.
Court holds, tho, that the regulation at issue (banning firearm possession, but only on county owned property) was a reasonable regulation, etc..
Two key observations are in order:
1. The ruling applies only to the states in the 9th circuit's jurisdiction. The Supreme Court of the United States would be required to issue a similar ruling in order for the entire country to benefit from incorporation.
2. While 'incorporation' essentially protects a Constitutionally-cited human right from infringement by state and local governments, the 9th circuit nonetheless ruled against the plaintiffs in the case--a group of gun show organizers.
But the fact that the plaintiffs lost works to their favor. Once again Hardy writes:
1) This means plaintiffs, the good guys, are the ones who can petition the Supreme Court for cert.. They may have won on incorporation, but they "lost" on the appeal overall, and thus are the ones who can appeal further. This is good for them. Defendants are not in control, cannot move for rehearing en banc, or decline to file for cert..
2) It may however make the case less cert-worthy, a little less appealing to the Supreme Court. Not quite so clean an issue, need to reach reasonable regulation which the Court may be unready to do.
Thus, the ruling is a mixed bag--a victory for gun rights, no doubt, but a victory in a battle that is part of an overall war, the outcome of which is uncertain.
If there is hope in the midst of this uncertainty, it is in this:
UPDATE: Yep, it's binding in the 9th Circuit. Can be cited in other Circuits, which they would take into account, but doesn't bind them. Note that "binding" is often more theory than fact, since there are ways to get around a binding decision (distinguish it -- facts in this case are somewhat different from facts in that case -- or sometimes outright ignore it, or call for en banc review by all the judges in the circuit and try to get them to overrule the prior decision). And a well-reasoned opinion from one circuit can carry weight in others; this one will surely be cited in the Chicago case. And a circuit split, where some circuits go one way and others go another, is a good basis for asking the Supreme Court to take it on and settle the issue. (From David Hardy).
Much more information on this ruling is provided by legal professor Eugene Volokh of the Volokh Conspiracy here, here, and here.
An audio is available of David Kopel's discussion of the ruling here. This audio explains the term 'selective incorporation.'
Here is the complete text of the ruling directly from the 9th circuit.
For more stimulating commentary, please visit my blog, updated daily, at The Liberty Sphere.
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