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April 20, 2009

Ninth Circuit Incorporates 2nd Amdendment into 14th Amendment Rights

Short background: the Bill of Rights speaks of limitations of the federal government over citizens. It does not, by its own operation at least, restrict how the states may limit freedoms.

However, the 14th Amendment states the privileges and immunities of citizenship shall not be abridged by the states. Most (but not all) rights in the Bill of Rights have been "incorporated" by the 14th Amendment over time, case by case. Only a small few rights haven't been incorporated -- stuff like whether or not a jury must (as it does in federal courts) consist of 12 persons.

And, notably -- the 2nd Amendment was never incorporated as a right of each and every citizen, which could be vindicated in a suit against the state government as well.

Gabriel alerts me to break out the flaming skull, as he says the Ninth Circuit just did so.

I'm now reading it myself to confirm this.

Yup: At page 4476 (the opinion is short, about 20 pages; the page reference regards were it will appear in an entire volume of collected opinions) they get around to addressing the incorporation issue squarely.

I'm not done yet, but Gabe isn't reading anything into it here. The question is whether the 14th amendment incorporates the 2nd, and the answer appears to be yes.

Gabe's Summary: I'm still gettin' to the good parts, but Gabe offers--

The opinion follows the Heller Court's historical framework for determining that the right to keep and bear arms is a fundamental one, meaning “necessary to an Anglo-American regime of ordered liberty.” There is an extensive discussion of the history of firearms ownership and usage. The Ninth Circuit emphasizes that the right to keep and bear arms was not merely important in itself, but important to the maintenance of all other rights.

Because it is fundamental right it must, under Supreme Court precedent, be incorporated by the Fourteenth Amendment guarantee which prevents any State from depriving any person of life, liberty, or property, without due process of law.

Now, as big a victory as this is, note that the gun ordinance being challenged was in fact upheld. I suppose this will be the style of analysis then: Yes, you superficially have 2nd Amendment right, but we are going to read that as being an extremely limited one.

Even so, if that is the game, this is important. Even if it's being interpreted to provide as little actual rights as possible, it still imposes some restrictions on state and local government, and still grants some genuine rights to citizens.

More from Gabe:

Is this an important decision?

The Ninth Circuit is now the only circuit to apply the Second Amendment against state and local governments. This sets up a circuit split. There is no doubt that the Supreme Court will be called to answer the incorporation question first raised in Heller. The only question, to my mind, is whether the Ninth Circuit will take another swing at it en banc. My guess is "yes."

Is this unusual?

Uh, yeah. It's the Ninth Circuit. The Left-ist circuit. The most overturned circuit in the nation. Such a pro-gun opinion would not have been my expectation.

Who were the judges?

The unanimous panel was Judge O'Scannlain (Reagan appointee), Judge
Alarcon (Carter appointee), and Judge Gould (Clinton appointee).

An "en banc" rehearing is a second hearing with all of the judges on the circuit, not just a three-judge panel. The full en banc court could overrule the three-judge panel. Which they very well might do; the Ninth Circuit isn't called the "Ninth Circus" for nothing. It's a very liberal court.

Still, that would lead to an appeal to the Supreme Court, which I imagine would have to be heard.

Still More: At Volokh.

The right was not incorporated by the privileges and immunities clause (as I implied), but instead by the due process clause (both in the 14th Amendment). From what I gather this decision was made simply to void as little precedent as possible; a previous case had already stated the 2nd Amendment was not incorporated via the privileges and immunities clause.

The Due Process route is one of "selective" incorporation. The court must find the right is "fundamental" to incorporate it. They so found here.

From the concurrence to the opinion...

Concurrence by Judge Gould (a Clinton Appointee) in the Second Amendment Incorporation Case: It seems worth quoting, especially because Gould was one of the two Democrat-appointed judges on the panel (paragraph breaks added): I concur in Judge O’Scannlain’s opinion but write to elaborate my view of the policies underlying the selective incorporation decision.

First, as Judge O’Scannlain has aptly explained, the rights secured by the Second Amendment are “deeply rooted in this Nation’s history and tradition,” and “necessary to the Anglo-American regime of ordered liberty.” The salient policies underlying the protection of the right to bear arms are of inestimable importance. The right to bear arms is a bulwark against external invasion. We should not be overconfident that oceans on our east and west coasts alone can preserve security. We recently saw in the case of the terrorist attack on Mumbai that terrorists may enter a country covertly by ocean routes, landing in small craft and then assembling to wreak havoc. That we have a lawfully armed populace adds a measure of security for all of us and makes it less likely that a band of terrorists could make headway in an attack on any community before more professional forces arrived.

Second, the right to bear arms is a protection against the possibility that even our own government could degenerate into tyranny, and though this may seem unlikely, this possibility should be guarded against with individual diligence.

Third, while the Second Amendment thus stands as a protection against both external threat and internal tyranny, the recognition of the individual’s right in the Second Amendment, and its incorporation by the Due Process Clause against the states, is not inconsistent with the reasonable regulation of weaponry. All weapons are not “arms” within the meaning of the Second Amendment, so, for example, no individual could sensibly argue that the Second Amendment gives them a right to have nuclear weapons or chemical weapons in their home for self-defense. Also, important governmental interests will justify reasonable regulation of rifles and handguns, and 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.

The actual opinion says as much:

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.

Both quotes taken from Volokh.

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posted by Ace at 12:36 PM

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