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.