In a peculiar but not unprecedented turn of events, an anti-gun control plaintiff lost his case, last month's Nordyke v. King, but nonetheless managed to elicit a groundbreaking pro-gun rights declaration from the Ninth Circuit Court of Appeals.
In deciding that it was OK for California’s Alameda County to bar the possession of guns on county property—a law that quashed a gun show that had long been held on county fairgrounds—the Ninth Circuit affirmed that the Second Amendment does control state and local actions as well as federal ones. That was a step farther than last year's decision in District of Columbia v. Heller, when Supreme Court declared authoritatively for the first time that the Second Amendment did indeed protect an individual right to bear arms. That decision concerned only federal actions.
It’s not unusual for an important gun rights principle to be embedded in a decision upholding a gun law. In fact, that outcome has a positive historical pedigree. The same thing happened in the groundbreaking 2001 Fifth Circuit case, U.S. v. Emerson, where the court declared that the individual right to possess weapons existed in principle (as distinct from some collective right connected with militia membership). But the opinion also said that the particular statute at issue, which barred individuals currently under restraining orders from owning weapons, did not violate the right.
What mattered for the future of gun rights was not whether the plaintiff won his challenge (he didn’t). What mattered was that Emerson created a split in judgment over what the Second Amendment meant among the federal judicial circuits. That laid the groundwork for the Supreme Court to take up the question in Heller. Similarly, what’s most important for the future of gun rights jurisprudence with Nordyke is not whether Alameda County will once again see gun shows on its property (it won’t) but that the decision creates a clear circuit split on whether or not the Second Amendment applies, through what’s called “incorporation” via the 14th Amendment, to state and local actions.
Thus, even though the particular gun show operators who fought Nordyke lost, they won a great victory for the gun rights cause and almost certainly laid the ground for a future Supreme Court case. This year has already seen another federal circuit case, the Second Circuit’s Maloney v. Cuomo, which involves a New York ban on nunchuk possession, declare that the Second Amendment does not apply to states or localities. This has been the standard position on Second Amendment incorporation in the federal courts. The plaintiff in Maloney intends to petition for certiorari from the Supreme Court. The Nordyke plaintiffs can’t, since the particular issue on which they lost, a government’s ability to ban or restrict guns on government property, is not an issue on which there is a circuit split the Supremes need to resolve.
Nordyke’s stroll through the court system was long and twisted and the plaintiffs used a variety of legal arguments to try to overthrow the county’s ban. The line of reasoning by Judge Diarmuid F. O’Scannlain in Nordyke has proved particularly interesting as it has attempted to follow the 14th Amendment’s call that “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law.”
Elements of the federal Bill of Rights might be said to apply to states and localities in at least two ways, and most of the Bill of Rights has already been thus applied. But until Nordyke, the Second Amendment had been glaringly left out. For non-lawyers, the way the 14th Amendment ended up being parsed in Nordyke, and most other cases, might seem peculiar, but here’s how it went.
O’Scannlain declared that the Second Amendment is not one of the “privileges or immunities of citizens of the United States,” precisely because the right is one of “those general civil rights independent of the Republic’s existence,” and not a peculiar possession of Americans as Americans. Peculiarly, it is too important to be imposed on the states via the 14th Amendment by the "privileges or immunities" clause.
Luckily, there is another way. Though you might think “due process” refers merely to the ways or procedures by which government deals with our rights, courts have come to believe in something called “substantive due process.” The Due Process Clause “guarantees more than fair process, and the ‘liberty’ it protects includes more than the absence of physical restraint,” as explained in 1997’s Washington v. Glucksberg.
Thus, as O’Scannlain wrote in Nordyke, if the Second Amendment right is “fundamental, meaning ‘necessary to an Anglo-American regime of ordered liberty’…then the Fourteenth Amendment incorporates it.” And using reasoning analogous to how trial by jury was incorporated on states and localities in the 1968 Duncan decision, he held that the Second Amendment also must be incorporated.
The decision in Nordyke, much like Heller, laid out in convincing detail that the right of self-defense through weapons protected in the Second Amendment is indeed “deeply rooted in this Nation’s history and tradition....The crucial 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."
Still, since Heller’s outline of that right kept it rooted in self-defense in the home, O’Scannlain nonetheless decided that Alameda County could keep its ordinance banning weapons on county property since that restriction did not unduly restrict the core element of the gun possession right as Heller interpreted it.
On the day that Heller was decided, the citizens of five Chicago suburbs, and of Chicago itself, were prohibited from owning guns. Residents of apartments provided by the San Francisco Housing Authority were prohibited from owning any gun. Within 24 hours of the Heller decision, gun rights organizations—including the National Rifle Association (NRA) and the Second Amendment Foundation (SAF)—filed lawsuits against the gun bans.
Today, the residents of San Francisco public housing can own guns in their homes. In four of the five Chicago suburbs (Morton Grove, Evanston, Wilmette, and Winnetka), the handgun bans have been repealed.