Ninth Circuit Defines Second Amendment Rights

In a decision filed yesterday by the United States Court of Appeals for the Ninth Circuit, the Second Amendment right to bear arms has been greatly expanded, although I suspect that most people, after reading this paragraph, will wonder why I say that.   The decision is interesting in two respects. First, it is written by the Ninth Circuit, which has not traditionally been noted for its conservatism, and, second, it is the first United States Appeals Court opinion to hold that Second Amendment right to bear arms applies to the states as well as the federal government.

I would guess that many of you by now are saying, “of course it applies to the states, it’s in the Constitution”. But, until this decision no federal appellate court had ever made that pronouncement. Here’s the distinction. The Supreme Court’s recent decision in Heller found unconstitutional a District of Columbia law banning hand guns. Because it was the District of Columbia, it was a federal law and thus the ban violated the Second Amendment.

But what about Alameda County, California? Can a  county ordinance ban hand guns? In the case of Nordyke v. King, the Ninth Circuit said, “no”. Although, just as in the Heller decision, the court said the state could limit where a citizen could bear arms, the Nordyke court held that under the Second Amendment, a state or local government  couldn’t ban them altogether.  The Court’s holding is worth your read.

We therefore conclude that the right to keep and bear arms is ‘deeply rooted in the Nation’s history and tradition.’  Colonial revolutionaries, the Founders, and a host of commentators and lawmakers living during the first one hundred years of the Republic all insisted on the fundamental nature of the right.  It has long been regarded as the ‘true palladium of liberty.’  Colonists relied on it to assert and to win their independence, and the victorious Union sought to prevent a recalcitrant South from abridging it less than a century later.  The critical role this deeply rooted right has played in our birth and history compels us to recognize that it is indeed fundamental, that it is necessary to the Anglo-American conception of ordered liberty that we have inherited.  We are therefore persuaded that the Due Process Clause of the Fourteenth Amendment incorporates the Second Amendment and applies it against the states and local governments. (emphasis supplied)

If you are interested in reading a fascinating discussion of the origins of our Second Amendment, and why our Fourteenth Amendment “incorporates” the Second Amendment, you may want to read pages 19 through 27 of the opinion. But the final paragraph of this part of the opinion is worth repeating.

We also note that the target of the right to keep and bear arms shifted in the period leading up to the Civil War.  While the generation of 1789 envisioned the right as a component of local resistance to centralized tyranny, whether British or federal, the generation of 1868 envisioned the right as safeguard to protect individuals from oppressive or indifferent local governments.

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The Sound Off Sister was an Assistant United States Attorney for the Southern District of Florida, and special trial attorney for the Department of Justice, Criminal Division; a partner in the Florida law firm of Shutts & Bowen, and an adjunct professor at the University of Miami, School of Law. The Sound Off Sister offers frequent commentary concerning legislation making its way through Congress, including the health reform legislation passed in early 2010.


  1. Wayne SW on April 21, 2009 at 12:36 pm

    SoS.  Great post.  Not much "good" news lately from the current Bench and our Legislative leaders.  These days we have to take the small doses of good when they arrive.  I am an avid news junkie and have not seen this written up anywhere.   Thank you.

  2. PatRiot on April 21, 2009 at 12:38 pm

    Beware of Greeks bearing gifts. 

    That being said, perhaps it is an indication that the tea parties are waking up the court system. 

    Perhaps the fact that states are passing bills claiming sovereignty from the US  has them worried about their cushy lives.

  3. Dimsdale on April 21, 2009 at 12:58 pm

    Great news, and from a most unexpected source.  The only thing that worries me is that this might be another opportunity for the "most overturned Court of Appeals" (unless I am thinking of the wrong one) to get overturned, but considering the findings in Heller, it seems unlikely.

    Even arch liberal Harvard law professor Laurence Tribe has come out in defense of the Second Amendment and the commonsense stipulations therein, but the whacked out lefties, all the way up to our president, ever in search of the elusive risk free society (under their tender ministrations, of course) are constantly trying to keep guns out of the hands of law abiding citizens and in the hands of criminals.

  4. Wyndeward on April 21, 2009 at 3:51 pm

    Has anyone checked the courthouse basement for pods?

    To be fair (a phrase I dislike and seldom use), given the application of the first amendment by the Federal Courts, I'd think they'd have a hard time "splitting the fly" to explain why the First Amendment was applicable to the states and the Second wasn't.  I mean, if the ACLU was consistent, gun ownership wouldn't simply be encouraged, it be nearly mandatory.

  5. Wyndeward on April 21, 2009 at 4:22 pm

    And, come to think of it, mayhap the phrase ought to be "beware gifts bearing Greeks…"

  6. Dimsdale on April 22, 2009 at 3:08 am

    LOLOL!!  You want consistency from the ACLU?!?!  Ask those poor slobs that got kicked out of their homes in the Kelo decision.  Where were they then?  (I asked, and they never gave me an answer).  They'll fight to kill a fetus, but they  won't fight to keep a person in their legal homes in a government landgrab?

    The ACLU is a pox on the face of the country.

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