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Nordyke case: Plaintiff’s lose, but Second Amendment wins…again
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The U.S. Ninth Circuit Court of Appeals on Monday handed down a long-awaited ruling in the epic case of Nordyke v. King, which started as a lawsuit by gun show operators Russell and Sallie Nordyke against California’s Alameda County, and became something considerably larger.
The court panel, with Judge Diarmuid F. O'Scannlain writing the opinion and Judge Ronald M. Gould offering a concurring opinion, rule that the Second Amendment is incorporated to the states; that is, the right to keep and bear arms that is affirmed by the Amendment now becomes a limit on state and local governments, same as it is a limit on the federal government.
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.
While some in the gun rights community – including my colleague, Ed Stone – contend that because the Nordyke’s lost, this ruling is not a victory. I disagree, and so do a lot of other people, including Prof. Joe Olson, who teaches law at Minnesota’s Hamline University, and Alan Gottlieb, founder of the Second Amendment Foundation and my co-author on a couple of books, including one now in production. David Codrea also writes about Nordyke here. Eugene Volokh's popular Second Amendment forum discusses the case here, here and here.
Ed writes, “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.”
Alameda County passed an ordinance ten years ago prohibiting the carrying of firearms on county property following a shooting at the county fair in 1998 and that included the fairgrounds where the Nordykes had conducted gun shows. The shooting had nothing at all to do with the Nordykes’ gun shows, but at the time Supervisor Mary King, according to court documents, acknowledged that she had been trying to “get rid of gun shows on county property” for about three years. King had used the excuse so many anti-gunners rely upon when trying to nullify the right to bear arms: It was because of a “rash of gun-related violence,” again not connected with the Nordyke gun show.
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.
While the Nordykes were primarily protecting their own commercial enterprise, they raised important constitutional issues. Their case has caused the Ninth Circuit to reverse itself, a rare event in the federal courts.
Ed’s not looking at the “big picture.” The Ninth Circuit reversed itself on its earlier holding that the Second Amendment only protected some “collective right” of the states to form militias in the case of Hickman v. Block. The court admitted that its position in Hickman was “squarely overruled” by the Supreme Court’s landmark ruling in June 2008 that the Second Amendment does, indeed, protect an individual civil right to keep and bear arms in the case of District of Columbia v. Dick Anthony Heller.
Yes, the Ninth Circuit ruling does allow counties to prohibit guns on county property, and that is not a good thing. However, by declaring that the Second Amendment is incorporated to the states, it opens the door to future challenges of unfair gun laws, including the ordinance in question.
This ruling sets the stage for a Supreme Court confrontation, because the U.S. Second Circuit Court of Appeals recently ruled in a New York case (Maloney v. Rice) that the Second Amendment is not incorporated to the states in a case involving a weapon other than a firearm.
The Nordyke ruling has some remarkable language from both Judges O'Scannlain and Gould, particularly the latter. His view of the Second Amendment is probably causing group headaches at every gun prohibitionist organization headquarters in the country.
And, as those gun control groups had feared from the Heller case, the Nordyke case could well lead to an expansion of the Second Amendment.
Gun rights activists must understand that they have lost gun rights through the process of erosion over the course of several years. They can only regain lost ground by the gradual process of restoring the ground that has been lost. Each victory, either legislatively or in the courts, is a stepping stone in that direction.
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