Incorporation of Second Amendment within sight

April 21, 4:15 AMSt. Louis Gun Rights ExaminerKurt Hofmann

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As my colleague, David Codrea, has already reported, the 9th Circuit Court of Appeals has ruled that state and local governments are bound by the Second Amendment.  Since the advent of the Fourteenth Amendment, most provisions of the Bill of Rights have gained power over not only the federal government, as originally intended, but over state and local governments, as well.  The Second Amendment was one of the few exceptions--and that has never made sense (and was clearly not intended by the drafters of the Fourteenth Amendment).

In Nordyke v. King, however we may very well be seeing the beginning of the end of that very unsatisfactory set of circumstances, wherein state and local governments need not so much as pay lip service to the Second Amendment.  In the 9th Circuit, in fact, that end has indeed arrived.  Granted, the 9th is but one circuit court, and unless and until the Supreme Court rules similarly, the other federal circuit courts are free to ignore the Nordyke ruling.  Still, this development is very significant, because the 9th is the largest, and thus one of the most important, federal circuit courts.  It is also considered the most "liberal," and thus perhaps the most resistant to protecting the right to keep and bear arms.

That perception, actually, was borne out to some degree by the decision, which despite ruling that the Second Amendment applied to state and local governments, also ruled that such governments could ban gun shows on public property.  The judges of the 9th Circuit, apparently, attach a different meaning to shall not be infringed than one might expect, based on the . . . actual meaning of those words.  In that, the decision resembles some of the more regrettable aspects of the Heller decision.

Still, there are some very encouraging aspects to the decision.  Peruse, for example, the concurring opinion, written by Judge Gould (a Clinton appointee, no less):

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.  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.

Characterizing the right to keep and bear arms as a fundamental right, no mention of "sporting purposes," explicit mention of the value of an armed citizenry for defense against invasion and terrorism, and best of all, of the need for the people's ability to have the means to resist a tyrannical government--precisely the kinds of things the Brady Campaign, Violence Policy Center, and especially the Coalition to Stop Gun Violence (CSGV), with their advocacy of a government monopoly on force, don't want to hear.

This could be big, folks.