For the foregoing reasons, we AFFIRM the district court’s grant of summary judgment to the County on the Nordykes’First Amendment and equal protection claims and, although we conclude that the Second Amendment is indeed incorporated against the states, we AFFIRM the district court’s refusal to grant the Nordykes leave to amend their complaint to add a Second Amendment claim in this case.
In other words, you have those rights but we're not going to recognize them in this case?
The case involves a challenge to a ban on gun shows on county property.
Regardless of the way this went down for the Nordykes, and you can bet they will appeal, this is a very significant ruling. You can read the opinion here.
I got this from attorney David T Hardy, who offers insights from his Of Arms and the Law blog.
It's huge because the Second Amendment has not been held before to be incorporated --and thus binding-- on the states. For instance, it has been determined that states may not violate your First Amendment rights because of the due process clause in the Fourteenth Amendment. But we have had "selective incorporation", which means such a ruling has not been applied to the Second Amendment.
This is big--especially coming from the Ninth Circuit, notorious for its hostility to gun rights. Look for an appeal. And then look to see if the Supreme Court agrees to hear it.
More on Nordyke vs King
Also see : Time for incorporation of the Second Amendment
UPDATE: I put this out in a hurry as I'd just received the news and did not have time for much more than a basic post. Civil Liberties Examiner J.D. Tuccille has written an excellent column I encourage you to read.
Check out other Gun Rights Examiners:
- Atlanta: Mainstream media misleads on the gun permit issue
- Austin: Columbine: Still struggling to accept the lessons (page 3)
- Boston: Oath taker or oath keeper?
- Charlotte: Patriots’ Day and the Oath Keepers: ‘…against all enemies…'
- Cleveland: Ten years after Columbine, we still haven't learned real lessons
- DC: NATO fiddles while pirates burn our ships
- Denver:Understanding the lessons from the Columbine High School shooting
- Los Angeles: The lesson of Columbine examined
- Milwaukee: Another Wisconsinite arrested for open carry
- Minneapolis: A Cowboy's Easter
- Seattle: The real lesson of Columbine
- St. Louis: Ten years after Columbine, gun control groups still try to exploit it
- Wisconsin: Lawless or ignorant cops
Comments
You say: "It's huge because the Second Amendment has not been held to be incorporated --and thus binding-- on the states."
Yet, the lawyer you link to says: "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."
So I think you have misunderstood what is written. The 2nd Amendment *has* been incorporated in the 9th district.
David,
On the surface, the 9th's opinion looks like a win, however it appears to me that the opinion is stated in such a manner as to make a little bit of sugar allow gun control easier to swallow. The opinion 1) gives a lot of lip service to Heller, 2) refused to consider incorporation under the rights and privileges clause using the argument that the 2nd Amendment forbids only the federal government from infringing upon fundamental rights, and then 3) decided rather to limited incorporation under the due process clause.
The use of the phrases "due process" and "reasonable regulations" will generally allow any ordinance or any other statute to circumvent our rights. No difference here. SOS, just different faces.
I may be reading and comprehending the court's opinion with a jaundiced eye, but it appears to me that the only right that was considered in the decision was the right to keep and bear arms for self defense in one's own home.
The court threw a lot of dust into the air but in the end affirmed the county's ban on gun shows.
Jeremy, the 2nd Amendment is now held to be incorporated in the 9th Circuit, but unless and until the Supreme Court rules similarly, other circuits are free to continue to treat it as unincorporated.
W.W. Woodward, I agree that incorporating a Heller-style interpretation of the 2nd Amendment would be a dubious "win," at best, but there's some good stuff in the decision.
This is the part I REALLY like (from page 42 of the decision):
"I concur in Judge O’Scannlain’s opinion but write to elaborate
my view of the policies underlying the selective incorporation
decision. First, as Judge O’Scannlain has aptly
explained, the rights secured by the Second Amendment are
“deeply rooted in this Nation’s history and tradition,” and
“necessary to the Anglo-American regime of ordered liberty.”
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.1 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."
There's a posting over at Volokh that you should read, David.
The gist is that the incorporation is a win, but Nordyke lost on other issues. Basically, all appeals, etc. are in the hands of the plaintiffs, and not the defendant-government.
The "most overturned court in the nation" has incorporated the Second Amendment?
I don't know if I should celebrate, or be scared $#!tless.
Haven't read the opinion yet, but I would be interested to see if (and if, how/where) they reference Miller (1939). I read a really good law review a number of years ago that argued a careful reading of Miller suggested incorporation and have since been unable to locate it. IIRC, it had a female author.
(wow, what are the chances of two different jakes posting one after the other?)
I'm waiting for the day when they have to make a ruling on "shall not be infringed". There is no part of it that is unclear, just ignored.
Oooh. Yay.
Another bunch of black-robed philosopher-kings has pronounced that the 2nd Amendment is an "individual" right that is binding against the states.
... BUT like the federal government, the states can go ahead & ban guns if they want to, as long as there's a good enough reason.
I am SO excited about this latest development.
[YAAWN]
Nordyke lost but the 2nd Amendment won big. Nordyke could appeal but they're not likely to given that the ruling is favorable to the 2nd Amendment. The defendant obviously can't appeal since they won the case.
While other circuit courts can make their own decisions, the 9th is pretty liberal. It's very likely that if the 9th is going to incorporate it then it's very likely that the others will too.
Jeremy, it was a true statement but I see now where it was unclear. That's why I used words like "big" and "huge." I added the word "before" because I can see how it could be read the way you did. One of the drawbacks of trying to post breaking news while trying to get out the door in a hurry...
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