Nordyke v. King: The Second Amendment Does Apply to the States

Damon W. Root | April 21, 2009

The U.S. Court of Appeals for the Ninth Circuit issued its eagerly anticipated decision in Nordyke v. King yesterday, holding that the 2nd Amendment protects the individual right to keep and bear arms against violation by state and local governments. (Last year's D.C. v. Heller settled that the 2nd Amendment protects an individual right against federal abuse.) The case dealt with a 1999 Alameda County, California ordinance banning the possession of firearms on county-owned property, a law enacted primarily to keep gun shows off of the county fairgrounds. The Ninth Circuit actually upheld the ordinance, though Judge Diarmuid O'Scannlain made the court's position on the 2nd Amendment very clear:

We therefore conclude that the right to keep and bear arms is "deeply rooted in this 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 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 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.

That's all exactly correct, of course, but note that the court incorporated the 2nd Amendment via the Due Process Clause of the 14th Amendment, which is how most of the Bill of Rights have been applied to the states, rather than through the Privileges or Immunities Clause of the 14th Amendment. As I noted in an article on the Nordyke case last year, historian Michael Kent Curtis and several other distinguished legal scholars filed a very impressive friend of the court brief on behalf of the Nordykes, arguing that the 14th Amendment "and specifically its privileges or immunities clause were designed to forbid states from abridging fundamental rights of citizens, including those rights in the Bill of Rights." The Ninth Circuit has unfortunately rejected that view, citing the controversial Slaughter-House Cases as precedent. But in a very interesting footnote, Judge O'Scannlain does note that, "the substantive due process doctrine...appears to arrive at a result similar to that urged by the dissenters from the Supreme Court's opinion in Slaughter-House." So we'll have to wait for another day to see the 14th Amendment restored to its original meaning. Meanwhile, we're closer than ever to seeing—and enjoying—a fully restored 2nd Amendment. That's something worth celebrating.

For the full story of D.C. v. Heller, don't miss Brian Doherty's "How the Second Amendment Was Restored."

Comments

|4.21.09 @ 11:01AM|#

OK, so far, so good.

Now, what do our conservative friends have to say about The Evil 9th Circuit?

Kevin

[1st on the 2nd? :) ]

|4.21.09 @ 11:09AM|#

Baby steps....

DADIODADDY|4.21.09 @ 11:11AM|#

where's the guns?

|4.21.09 @ 11:13AM|#

Wait, but they upheld the ordinance. WTF? does some legal beagle understand how this is a good thing?

Naga Sadow|4.21.09 @ 11:16AM|#

Domo,

Be still my dog of war. I understand your pain. We've all lost liberties we love. But we do it my way! We do it my way. Fear is our ally. The right to bear arms will be ours. Then you shall have your revenge.

Warty|4.21.09 @ 11:17AM|#

"The 2nd amendment prevents the states from infringing on gun rights. But your infringement isn't really an infringment, so everything's groovy, baby."

Am I reading it correctly?

|4.21.09 @ 11:17AM|#

9th Circuit is still evil... it's just not completely and utterly retarded and able to deny the inevitable. They did rule against the Nordykes, which is ridiculous, but Gun Owners have been confirmed that the People's Republic of California can't deny our 2nd Amendment rights. Hopefully many of the utterly arbitrary and ineffective California laws can begin to be overturned while the Nordykes can still appeal to SCOTUS.

|4.21.09 @ 11:25AM|#

You're god damn right I will...

*shuffles off, cursing to self

|4.21.09 @ 11:29AM|#

OK, so far, so good.

Now, what do our conservative friends have to say about The Evil 9th Circuit?

Kevin

A stopped clock, and all that.

cuernimus|4.21.09 @ 11:34AM|#

@Warty
I read it more as "The government is free to ban guns in as arbitrary a manner as it desires, despite personally believing that gun ownership is the true test of one's freedom and despite finding no Constitutional standing for this statute."

|4.21.09 @ 12:05PM|#

I'm also unclear on how upholding the ordinance jives with what the court said. I blame Warty.

|4.21.09 @ 12:08PM|#

Okay, the glass is 1/10 full.

Yippie yippie, yeay, yeay, if I'm in LA,
I have the right to arm myself today.

Warty|4.21.09 @ 12:13PM|#

I'm flattered that you think about me so much, Epi. But I'm going to shoot you the next time I catch you peeping through my bathroom window.

The Appalachianist|4.21.09 @ 12:32PM|#

OK. We just might be a step closer to keeping the Government(s) out of our Gun Safes. But then, the folks we have there now know "power" and not the constitution. So, it won't change until we get Libertarians in Office.

Was the South alone in infringing on it's Citizens Rights? Obviously, the court was reffering to slavery. Meanwhile slavery was still legal in some Northern States until after the war. The 13th Amendmant, as well as th 14th didn't come about until years later. What about the Morrill Tarrif? Beware of taxes.
Not to ramble about bygones, but, the typical comic book history makes us repeat hitory. And, the Gun Culture's best hope is Libertarianism.

|4.21.09 @ 12:37PM|#

But I'm going to shoot you the next time I catch you peeping through my bathroom window.

You look way too much like a chick when naked, you know that? I can't help myself, Buffalo Bill.

Kent|4.21.09 @ 12:44PM|#

Damon,

I have only skimmed the opinion, but it appears that the majority of the opinion that concerns whether the Second Amendment is an individual right is dicta rather than being necessary to the decision.

The court ultimately says that "the Ordinance does not meaningfully impede the ability of individuals to defend themselves in their homes with usable firearms, the core of the right as Heller analyzed it." paragraph [15]. O'Scannlain compared the prohibition of guns on the County fairgrounds to the prohibition of guns in such places as schools and government buildings.

|4.21.09 @ 12:47PM|#

You look way too much like a chick when naked, you know that? I can't help myself, Buffalo Bill.

Wow. just Wow.

|4.21.09 @ 12:48PM|#

Now, what do our conservative friends have to say about The Evil 9th Circuit?

They're still evil. What they did here was say, "Sure, the Second Amendment applies, but we wipe our ass with it anyway, and hold that banning guns from country property does not infringe your right to keep and bear arms. We're not sure what the state could do that would actually violate this right, but this ain't it."

|4.21.09 @ 12:50PM|#

I have only skimmed the opinion, but it appears that the majority of the opinion that concerns whether the Second Amendment is an individual right is dicta rather than being necessary to the decision.

Interesting question, since they could have upheld the ordinance whether or not they incorporated the Second Amendment. I think this is right, though, as what they have done here is exactly what Justice Marshall did in Marbury v. Madison; he ruled that the SCOTUS had (final) jurisdiction over Constitutional issues, and then pulled his punch to protect the ruling by finding for the government.

hmm|4.21.09 @ 12:56PM|#

Now, what do our conservative friends have to say about The Evil 9th Circuit?

The 5% of cases the 9th gets right dosn't mitigate the damage caused by the 95% of decisions that tend to rape the Constitution coming out of the 9th.

Comiefornia is clearly worried about the impending zombie invasion.

|4.21.09 @ 12:57PM|#

domo, I had no idea you were so sensitive.

High Every Body|4.21.09 @ 1:04PM|#

Now, what do our conservative friends have to say about The Evil 9th Circuit?

Bravo! Keep going in the Right direction.

Next item.
Too bad joe is not here to tell us how this ruling is an affirmation of central city planning, but MNG will be along soon with 30 posts of crap to fill the gap.

Last item.
I swear someone made mention of this ruling at least twice this morning in comments.

Gilbert Martin|4.21.09 @ 1:15PM|#

"Interesting question, since they could have upheld the ordinance whether or not they incorporated the Second Amendment. I think this is right, though, as what they have done here is exactly what Justice Marshall did in Marbury v. Madison; he ruled that the SCOTUS had (final) jurisdiction over Constitutional issues, and then pulled his punch to protect the ruling by finding for the government."

I wonder how many people who cite Marbury vs Madison as "proof" that the SCOTUS is the "ultimate" authority on the Constitution know that Marshall should have recused himself from that case because he was personally involved in causing the original greivance that the lawsuit was about in the first place?

Warty|4.21.09 @ 1:17PM|#

I look more like Wild Bill Hickok, and that droopy eye of yours looks like the hood on a cunt to me, Epi. When you talk, your mouth looks like a cunt moving.

Gilbert Martin|4.21.09 @ 1:20PM|#

"So we'll have to wait for another day to see the 14th Amendment restored to its original meaning."

Well if we're actually going be Constitutional about it, we'll have to start by getting the required number of states to legally ratify it.

Because that never actually happened the first time around.

|4.21.09 @ 1:24PM|#

Warty, would that be the Wild Bill with the advanced syphilis right before Jack McCall shot him in Deadwood? Because that's what it sounds like.

|4.21.09 @ 1:27PM|#

KAHOK-SHUCKERS!

Warty|4.21.09 @ 1:29PM|#

Are you getting your history from movies again, you illiterate pig-man? Wild Bill didn't have him no syphilis.

High Every Body|4.21.09 @ 1:33PM|#

Because that never actually happened the first time around.

Can you expand on that notion?

Gilbert Martin|4.21.09 @ 1:48PM|#

"Can you expand on that notion?"

There are numerous web sites on this topic.

Try this one:

http://www.constitution.org/14ll/no14th.htm

In a nutshell, most of the southern states and a few other ones intially voted against it and in response Congress passed a law stating that those states would not be allowed representation in Congress until they did pass it.

Of course Congress never had Constitutional authority to enact any such law. It was purely illegal blackmail.

|4.21.09 @ 2:13PM|#

The text of the second amendment admits of no exceptions. The language of the amendment does not say that the right to keep and bear arms is subject to reasonable regulation. Nor can one imply that such a restriction applies. To do so reveals one's intellectual frailties. Of course, some are content to be intellectually less than in support of the communist cause.

The amendment itself does not limit its application to the federal government. If the framers had chosen to limit the application of the bill of rights to the feds, they would have so said. What is absolute trash is the argument that Barron controls. Barron was an 1833 case-drecided some 57 years after the declaration of independence and 46 years after the Philadelphia convention. Remember, the constitution does not give the judiciary the right to vitiate individual liberty-even if the individual is challenging a state statute or practice.

To argue that, because there was a fair amount of concern about the general government pushing around the states, the framers intended that the liberty of the individual must take a back seat to federalism is both inaccurate and a product of collectivist propaganda.

|4.21.09 @ 2:17PM|#

"It was purely illegal blackmail."

And the victims paid, as they always do, because they had something to hide.

High Every Body|4.21.09 @ 2:20PM|#

Gilbert Martin,

So, are you trying to tell us that they had no choice but to join the Union in 1787, or are you conveniently leaving out several other avenues?

Gilbert Martin|4.21.09 @ 2:28PM|#

"So, are you trying to tell us that they had no choice but to join the Union in 1787, or are you conveniently leaving out several other avenues?"

What are you talking about?

This happened in 1867 after the Civil War.

High Every Body|4.21.09 @ 2:34PM|#

GM,

You said the FIRST time around. That would be 1787. Pretty important FIRST event to know about if you are going to be slinging US History around.

High Every Body|4.21.09 @ 2:35PM|#

Wait, my bad. You were not talking about Constitutional Ratification, you were talking about Amendment 14. Which was ratified and those States did have a choice.

Clupa Mio or whatever.

High Every Body|4.21.09 @ 2:36PM|#

Cue Naga to comment on my 2:34pm post ;)

Gilbert Martin|4.21.09 @ 2:39PM|#

"you were talking about Amendment 14. Which was ratified and those States did have a choice."

Those states made their choice. And then that choice was rejected and they were arm-twisted into making the opposite choice.

High Every Body|4.21.09 @ 2:43PM|#

Those states made their choice. And then that choice was rejected and they were arm-twisted into making the opposite choice.

Tennessee did not seem to have any problem with it.

Are you equating "arm twisting" to having a few federal troops stomping about?

Gilbert Martin|4.21.09 @ 2:48PM|#

I am equating Congress passing a law stating those states would not be allowed representation in Congress unless they voted to ratify the 14th - as I stated previously.

Mabye you should read what other people actually post first before you pop off about it.

High Every Body|4.21.09 @ 3:04PM|#

I am equating Congress passing a law stating those states would not be allowed representation in Congress unless they voted to ratify the 14th - as I stated previously.

And they did not want to be in the Congress anyway, so what is your problem?

Paul|4.21.09 @ 3:08PM|#

So, can I keep my guns or not?

jkp|4.21.09 @ 4:12PM|#

The Incorporation part of the opinion is most definitely *NOT* dicta - it was necessary for the court to reach its conclusion. The issue was raised whether or not the second amendment applied to the states. The court answered: yes.

It then appears to have just argued that the second amendment doesn't bar a county from barring firearms from COUNTY PROPERTY in California.

Note that in some states - such as Pennsylvania - this case would have been a slam-dunk for the Nordykes. Reason? Pennsylvania legislature has pre-empted all county/municipal laws with regard to firearms regulations. In California, per the case, no such preemption existed.

Kent|4.21.09 @ 4:28PM|#

jkp,

Could the Ninth Circuit not have just said that, regardless of whether the Second Amendment applies to states or not, the Second Amendment does not prevent a county's barring firearms on its property? Then the discussion of application of the Second Amendment to the states would not be necessary. What am I missing?

|4.21.09 @ 4:33PM|#

The Ninth Circuit is bound to follow Supreme Court precedent, including the Slaughter House Cases. They could not have reached that result through the Privileges and Immunities clause.

I agree that the Privileges and Immunities clause would be a much cleaner and better route to apply the Bill of Rights to the states, but only the Supreme Court has authority to overrule the Slaughterhouse Cases.

jkp|4.21.09 @ 4:37PM|#

Kent,

Basically, if the 2nd amendment isn't incorporated to the states via the 14th, then we don't even reach the point when we can talk about whether or not it bars county ordinances of the sort discussed here. They had to consider the incorporation issue first before they could decide how the 2nd amendment would apply.

jkp|4.21.09 @ 4:38PM|#

Kent:

Think of it this way. They **DID** apply the second amendment in this case. The just said the second didn't bar the county's ordinance. But in the process of doing so, they set a precedent that the second MUST be considered on the local level.

Kent|4.21.09 @ 5:06PM|#

Thanks, jkp. I guess I'll have to stick with patent law and give up on becoming a federal judge. Actually, one of my professors said I could forget becoming a federal judge when I told him that if I were a Supreme that I would vote to allow adults to grow their own pot and consume any drug they wanted.

|4.22.09 @ 4:11PM|#

A helpful case but still one of the 1000 slices designed to eliminate the life of the 2nd Amendment.

Finn|4.28.09 @ 4:23PM|#

In "Nordyke" (p. 4501) Judge OScannlain (after reviewing "Heller") said: "These considerations compel us to conclude that the Second Amendment does not invalidate the specific Ordinance before us. Therefore, the district court did not abuse its discretion in denying the Nordykes leave to amend their complaint to add a Second Amendment claim that would have been futile." Thus the Second Amendment wasn't incorporated. The Court was just showing how they could have ruled, had the Nordykes actually filed a Second Amendment claim. And they already had an individual right, the case had nothing to do with acquiring the right. The Court said the right is "fundamental" and that it's "inherited."

|11.18.09 @ 11:59AM|#

I need help clarifying something. Now that the Ninth Circuit has come to the decision that the 2nd Amendment protects the individual right to keep and bear arms against violation by state and local governments are the guns safe or is there another court that the 2nd amendment has to go through?