The Second Amendment at the 9th Circuit

Damon W. Root | September 24, 2009

Last April, in the case of Nordyke v. King, a 3-judge panel from the U.S. Court of Appeals for the 9th Circuit ruled that the Second Amendment protects the individual right to keep and bear arms against infringement by state and local governments. 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 away from the county fairgrounds. Today, an 11-judge panel from the 9th Circuit will rehear arguments in the case. Here's what the 9th Circuit wrote in April and should reaffirm now:

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.

For more on why the states should respect the Second Amendment see here and here.

Comments

John Tagliaferro|9.24.09 @ 9:43AM|#

They finally get one right, but there is always a chance that they will correct their 'error.'

|9.24.09 @ 10:07AM|#

It's hard to believe this beautiful piece was written by the 9th Circuit.

MNG|9.24.09 @ 10:36AM|#

Hmm, why do I suspect the usual states/local government rights people will be of a different mind on this issue?

Hmmmm.

|9.24.09 @ 10:50AM|#

That was a wonderful history lesson...

I'm sure there was more to the written commentary on the decision, but I don't like the idea that the courts are citing "tradition" as the reason they're upholding the second amendment.

Euler|9.24.09 @ 10:51AM|#

"Hmm, why do I suspect the usual states/local government rights people will be of a different mind on this issue?

Hmmmm."

It's silly how they will try to defend the right to bear arms as if it's a part of the Bill of Rights.

|9.24.09 @ 10:51AM|#

"why do I suspect the usual states/local government rights people will be of a different mind on this issue?"

Why indeed, other than the plain language of the militia clause and the 2nd, 10th, and 14th amendments. Feel free to get your pet cause written into a Constitutional amendment, and we'll respect that too.

|9.24.09 @ 10:52AM|#

Hmm, why do I suspect the usual states/local government rights people will be of a different mind on this issue?

Those of us who believe in an Olde Schoole federal system, with a national government of limited enumerated powers, have no problem at all with incorporation of the Bill of Rights in its entirety.

That's because both Olde Schoole federalism and an incorporated Bill of Rights both operate to limit the power of government in toto, and enhance human liberty.

But maybe you were thinking of someone else.

MNG|9.24.09 @ 11:02AM|#

"Why indeed, other than the plain language of the militia clause and the 2nd, 10th, and 14th amendments"

Well, there is still no necessary reason to suppose it should be incorporated to the states. "Plainly" the drafters of teh 2nd meant it to apply only to the federal government.

RC

Glad to know. Many conservatives frothed at the mouth as the evil wicked Warren court created and implemented the incorporation doctrine. For those of you who are all for it, please speak to your conservative buddies in getting them to feel the same way. Oh, and don't forget to thank your local "activist" judge (what conservatives called and still call the judges who came up with incorporation)

MNG|9.24.09 @ 11:03AM|#

States Righter: "We should not federalize so many things, except the things I think are really, really important rights!"

MNG|9.24.09 @ 11:07AM|#

Funny RC, I seem to remember many Olde School Federale rights folks going nuts about most of the results of incorporation of the BoR, loudly complaining about federalization of prison policy (incorporation of the eighth amendment), school policy (first amendment), law enforcement policy (4th, 5th, & 6th), etc...

|9.24.09 @ 11:24AM|#

"Well, there is still no necessary reason to suppose it should be incorporated to the states. "Plainly" the drafters of teh 2nd meant it to apply only to the federal government."

Do you feel the same way about the 1st amendment? If not, why is there a difference between it and the 2nd?

MNG|9.24.09 @ 11:43AM|#

WAF
Oh no, I don't feel the same way about either, they should all be incorporated. But I'm not for states rights, I'm happy to see the national standards applied to the states. I'm also a liberal, we've always been for incorporation, in fact WE MADE THAT HAPPEN, while right-leaning folks were bitching all the way about it.

|9.24.09 @ 11:58AM|#

Actually, by the language in which they were written you could see how the 2nd is incorporated while the 1st would not be.

Question about the 9th's decision. If the 11 member court upholds the 3 member court, will I be able to buy a handgun in New York as soon as the decision hits the airwaves? And if I do that, how long until the local cops tackle me to the ground at the grocery store?

MNG|9.24.09 @ 12:13PM|#

"Actually, by the language in which they were written you could see how the 2nd is incorporated while the 1st would not be."

Please explain.

|9.24.09 @ 12:49PM|#

"Actually, by the language in which they were written you could see how the 2nd is incorporated while the 1st would not be."

Please explain.

The 1A says "Congress shall pass no law infringing". The 2A says "shall not be infringed".

|9.24.09 @ 12:58PM|#

The Second Amendment was written to keep the federal government from infringing the right of the people to bear arms (provide militia service). Since the laws that governed the well-regulated militia in 1789 were state laws, incorporating the Second Amendment against the states would turn history on its head.

Ryan M|9.24.09 @ 1:11PM|#

@R C Dean: I've always read that in a similar way. I'm sure there's plenty of "confusion" about it though, just like there is about the militia clause, even though it seems as plain as day to me.

As Ted Nugent said, "the second amendment is my concealed weapon permit".

|9.24.09 @ 1:16PM|#

How does incorporation of the tenth amendment work? Do the people still lose?

|9.24.09 @ 1:50PM|#

Leif, you are putting to much stock in that clause. Dispite the reason given, there were more reasons than just militias to own guns back in the late 1700s. Hunting with your gun was a way to get food. They probably felt that falls under natural rights.

Dispite the reason written, it still says the right to bear arms shall not be infringed. It doesn't say the right of the militias to bear arms will not be infringed.

I'm waiting for SCOTUS to define infringed.

Even if you want to hook the 2nd to militias, the 2nd says they are necessary, so until we have a constitutional convention and amend the 2nd to remove the passage that says they are a necessity, we all have a right because militas are necessary. I mean if your arguing the letter of Constitution, then militias ARE necessary until we change the letter of the Constitution. Right?

|9.24.09 @ 1:54PM|#

"""Actually, by the language in which they were written you could see how the 2nd is incorporated while the 1st would not be"""

Instead of nitpicking the Bill of Rights. Can't we just say if the Bill of Rights as a whole is or isn't incorporated? They were passed as a whole.

|9.24.09 @ 1:59PM|#

"""Dispite the reason written, it still says the right to bear arms shall not be infringed. It doesn't say the right of the militias to bear arms will not be infringed."""

I want to clairfy that it says "the right of the people to keep and bear arms, shall not be infringed."

Third grade English question. In the above sentence, who's right shall not be infringed?

It's really that simple, one can argue why all day, but the right to keep and bear arms belongs to the people. It's written in plain English.

|9.24.09 @ 2:41PM|#

The Second Amendment was written to keep the federal government from infringing the right of the people to bear arms (provide militia service).

That parenthetical is a huge leap, one that is not supported by contemporaneous sources, you know.

Since the laws that governed the well-regulated militia in 1789 were state laws, incorporating the Second Amendment against the states would turn history on its head.

This makes the fundamental error that the 2A is about the right of states to have militias, not the right of the people to keep and bear arms.

Even taking your rather ahistorical and atextual approach at face value, I don't see incorporation, protecting the right of the people to keep and hear arms, as infringing on any state power to regulate its militia. Unless, of course, you think regulating the militia involves disarming anyone not in the militia.

|9.24.09 @ 3:09PM|#

Read this and tell me "well-regulated" meant to Madison and the signatory Founders what frady cats think it means in 2009.

http://www.constitution.org/cons/wellregu.htm

Hopefully, whomever is arguing this to the 9th Circuit has this little nugget of info in their argumentative arsenal.

And can anyone answer my 11:58am?

|9.24.09 @ 3:46PM|#

Question about the 9th's decision. If the 11 member court upholds the 3 member court, will I be able to buy a handgun in New York as soon as the decision hits the airwaves?

No. New York isn't in the 9th Circuit's jurisdiction.

Alec|9.24.09 @ 4:06PM|#

Hopefully the Heller dicta won't screw things up. Very poorly worded, unfortunately.

|9.24.09 @ 4:49PM|#

Trickyvic (1:50 pm), No matter how useful it was to carry arms in general in 1789, that's not what the Second Amendment was written about. In the wholly militia context of the Second Amendment, "bear arms" meant "provide militia service." A well-regulated militia included that body of the people "capable of bearing arms," rather than including that body of the people capable of "carrying" arms." Almost anyone, of any age and condition, could carry arms of some sort, but well-regulated militiamen, under state militia law, had to be qualified physically and by age to be considered capable of bearing arms, that is, to be considered capable of militia service.

|9.24.09 @ 5:34PM|#

One can make an argument that the reasoning clause is WHY the PEOPLE have the RIGHT. Say what ever you want but it clearly say "the right of the people".

But playing along, if you want to call it a militia right, go ahead, it still affords me the right to bear arms because it declares the militia as necessary. Therefore, as I posted before. I will always have a right to bear arms until the 2nd is changed. Because the militia, whether you like it or not, is still necessary according the U.S. Constitution.

"" In the wholly militia context of the Second Amendment,""

That's where your going wrong. The second amendment is two parts. A reasoning clause for the right, and the right it's self.

The reasoning clause:
A well regulated militia, being necessary to the security of a free state.

The right:
the right of the people to keep and bear arms, shall not be infringed.

You can try to redefine "people" all you want. But check out where else the word people is used in the Bill of Rights.

|9.24.09 @ 5:43PM|#

""No. New York isn't in the 9th Circuit's jurisdiction."""

RC, I've never really understood this because it implies that the Constitution need not be applied equally among the state. That just doesn't sound right.

Suppose SCOTUS declines to hear it. Does that mean people on the west coast have greater constitutional rights as those on the east?

|9.24.09 @ 5:43PM|#

among the states.

That needed to be plural.

Ryan M|9.24.09 @ 6:00PM|#

@TrickyVic: if some circuit courts uphold the right and others don't, that situation is called a circuit split and SCOTUS almost always hears those cases. If the right isn't challenged in other jurisdictions, then the situation doesn't arise and SCOTUS might not hear the case. Luckily for us, it's already happened (there was a chicago case), so SCOTUS is expected to hear the case in the near future (maybe october, if memory serves).

|9.24.09 @ 6:18PM|#

RC Dean (2:41, "This makes the fundamental error that the 2A is about the right of states to have militias, not the right of the people to keep and bear arms."

The right of the people to keep and bear arms is the right of the people as a political community. The political communities that had well-regulated militias in 1789 were the individual state communiies.

|9.24.09 @ 8:12PM|#

Thanks Ryan.

Leif, are you trying to say that people = collective, and not applied to individuals?

|9.24.09 @ 8:33PM|#

Nic (3:09):

The term "well-regulated militia" in the America of 1789 was most often applied to a militia that was regulated by law, meaning much the same as "regulated" does today. States regulated their militia under militia law.

For instanc, the Pennsylvania militia act of 1780 (the one that was in effect in 1789) was titled "An Act for the Regulation of the Militia of the Commonwealth of Pennsylvania." It was 29 pages long and full of militia rules and regulations.

Michael Ejercito|9.24.09 @ 8:52PM|#

Funny RC, I seem to remember many Olde School Federale rights folks going nuts about most of the results of incorporation of the BoR, loudly complaining about federalization of prison policy (incorporation of the eighth amendment), school policy (first amendment), law enforcement policy (4th, 5th, & 6th), etc...

On the Eight Amendment, the issue was that the definition of "cruel and unusual punishment" was being dumbed down.

|9.25.09 @ 12:00AM|#

Trickyvic (8:12 pm): "Leif, are you trying to say that people = collective, and not applied to individuals?"

I say that the the people's right to keep and bear arms of the Second Amendment is the right of the community to provide militia service. I wouln't say that individual militiamen had an individual right to serve in the militia, although at least one distinguished member of the Founding generation evidently did take that position. Here are the words of Albert Gallatin in Congressional debate in 1799:

"Let them only succeed in establishing the opinion, that to be a militia-man is a mere duty, and not a RIGHT; that it is a heavy duty, from which they might easily be relieved, in the first place by volunteer corps, in the next be regular troops. Let gentlemen succeed in this, and they will, in a short time, introduce a standing army as a substitute for the militia." (Emphasis added)

By the way, the word "people" is a collective noun. That means it may be used to stand for a collection of persons, although it doesn't have to be used collectively.

|9.25.09 @ 4:21AM|#

Leif--
Check the 6th Amendment: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated..."

Using your logic, is this the right of the collective, or the individual? How can this apply to the collective, and not individuals?

Either "the people" means you, me, and every other person that's not a felon or a wife beater, or it means the community. Which is it?

|9.25.09 @ 4:22AM|#

Sorry, don't know how I hit 6 instead of 4.

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|9.25.09 @ 1:56PM|#

Mickey (4:22 a.m.), "Either 'the people' means you, me, and every other person that's not a felon or a wife beater, or it means the community. Which is it?"

A wrong assumption. The collective word "people" can be used either collectively or noncollectively. The Founders and the Framers knew that and used it both ways. Its use noncollectively in one place in a document did not preclude its being used collectively in another. Look at the first words of the Declaration of Independence. "People" is used collectively and then referred back to both collectively and noncollectively several times ALL IN ONE SENTENCE:

"When in the Course of human events it becomes necessary for ONE PEOPLE to dissolve the political bands which have connected THEM with ANOTHER and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature's God entitle THEM, a decent respect to the opinions of mankind requires that THEY should declare the causes which impel THEM to the separation." (Emphasis added)

|9.25.09 @ 3:41PM|#

Leif--
I don't see in that example how "people" and its various pronouns are used in different contexts in that example. The article before the word people is important. "One people" has a different meaning than "the people."

Another question for you--the 10th Amendment reads "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." Why is a distinction drawn between the people and the States in this Amendment, when, by your assumption, they could be interchangeable as a collective beneath the federal government?

Ryan M|9.25.09 @ 5:48PM|#

@Leif: it's really a moot point whether or not the right is for a militia or for individuals (although I'm strongly in the camp of believing it is an individual right, and I think this document explains why: http://www.constitution.org/2ll/schol/2amd_grammar.htm). From 1792 until 1903, the Militia Act of 1792 was in effect. That act required all free men of certain ages to own their own private rifle or musket plus a quantity of ammunition. That means private citizens were required to be armed. This law was passed by the second congress. The intent was so that when the state called up a militia, the people would have their own arms to bring to it. Underlying this is the inescapable concept that individuals can arm themselves.

|9.26.09 @ 4:26PM|#

Mikey (9/25, 3:41 p.m.) -

The phrase "a people" is necessarily a collective use of the collective noun "people." The phrase "the people" can be used either collectively or noncollectively". If a writer wants to be understood when using a collective noun in a noncollective way, he makes sure the rest of his words show the noncollective intention, as is the case in the Fourth Amendment, for instance, but not in the Second.

As for the 10th Amendment matter, the distinction between the people and the states relates to the delegation of powers. In our system all power originates with the people collectively. Power is delegated to state and federal government in accordance with collective decisions of the people. The phrase "the people" in the 10th Amendment is not a reference to the people as individual persons but is, rather, a reference to the body of enfranchised citizens collectively that has a right to delegate powers to governments.

|9.26.09 @ 6:07PM|#

Ryan (9/25, 5:48 pm) -

The federal Militia Act of May 8, 1792, required no one to arm himself who wasn't enrolled in the militia. The act applied only to those "free able-bodied white citizens" who were at least 18 years of age and under 45. And even so, the individual states, by the act's terms, were allowed to exempt as many persons from militia duty as they chose. As a result, the militia became generally ineffective, often being made up of comparatively small bodies of volunteers.

Claiming the Militia Act of 1792, supposedly designed to make militia service more uniform throughout the states, as the basis for a right today of all citizens to carry arms in general is certainly not very realistic.