Life After Heller

More lawyers, more guns, some nunchuks, and the 14th Amendment

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.

While the New York Times would have you believe Heller has had few meaningful after-effects, gun rights scholar David Kopel sums up well how significant the decision has been already:

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.

Moving forward, a series of interesting and potentially game-changing new legal challenges have been launched in Heller's wake. A sampling of a few:

• With the help of the National Rifle Association (NRA), Heller plaintiff Dick Heller is challenging the way D.C. has redesigned its gun control laws post-Heller. As the NRA explained in a press release, "Under the current D.C. law, prospective gun owners are required to pass a written test graded at the sole discretion of the Metropolitan Police Department. They must also have vision better or equal to that required to get a driver's license (even for those who just want to possess a collector's item), submit employment history for the past five years and surrender all handguns for ballistics testing, among other restrictions." Heller and the NRA think those limitations on a recognized constitutional right should not stand.

• The Seventh Circuit Court of Appeals will be hearing in late May a set of legal challenges to various Chicago area gun restrictions that amount to a total restriction on handgun possession and use in the home. Both victorious Heller lawyer Alan Gura and the NRA are involved, with various earlier cases having been combined on appeal on the court's order.

• Tracey Hanson, one of the original six plaintiffs in what ended up as the Heller case, has reunited with Gura in March to sue D.C. over the fact that the city's narrow roster of approved guns barred her from registering her own handgun because of its color.

• The Second Amendment Foundation and other plaintiffs filed in late April a suit in California challenging that state's arbitrary list of "approved" guns—a list manufacturers have to pay a fee to appear on. As the press release announcing the suit stated, quoting attorney Alan Gura, "A handgun protected by the Second Amendment does not need to appear on any government-approved list and cannot be banned because a manufacturer does not pay a special annual fee."

• The Second Amendment Foundation also in late March sued Attorney General Eric Holder, as their press release announcing the suit summed up, "seeking an injunction against enforcement of a federal law that makes it impossible for American citizens who reside outside the United States to purchase firearms while they are in this country."

With the precedents of Heller and Nordyke, and with various unreasonable gun rights restrictions under skilled legal fire, the future of Second Amendment jurisprudence is brighter than it has been in living memory. Justice Souter's retirement doesn't change the gun rights balance of power at the Supreme Court—he was a Heller dissenter, and undoubtedly whoever replaces him would have been as well.

But because Heller very explicitly set limits on how far the Court's gun rights thinking would go (and indeed the Nordyke court relied on that limiting language to uphold Alameda's gun possession restrictions), some believed it was going to be a complete dud. It is possible that gun jurisprudence will stay stuck in a very narrow groove, with courts deciding across the board that if a law doesn't clearly and directly and entirely prevent someone from defending themselves in their home with a common weapon then the Second Amendment has been properly honored. But it seems far more probable that Heller will end up reshaping the landscape of American liberty.

Ninth Circuit Judge Ronald Gould nicely laid out the ambiguity facing the courts in his Nordyke concurrence: "The problem for our courts will be to define, in the context of particular regulation by the states and municipalities, what is reasonable and permissible and what is unreasonable and offensive to the Second Amendment." That's a vague mandate, and different courts will make different decisions under different circumstances. But after Heller and Nordyke, even if they lack a magic bullet to shoot down unnecessarily restrictive gun laws, courts have the proper core principles laid out. That's far more than the gun rights community could have said even a year ago.

Senior Editor Brian Doherty is author of This is Burning Man (BenBella), Radicals for Capitalism (PublicAffairs) and Gun Control on Trial (Cato Institute).