Ninth Circuit Incorporates 2nd Amendment into 14th Amendment Rights

[Virtus]

From the 9th "Lefty-court" no less. Only a 3-judge panel, but I will take good news any day.

More info can be found here: http://volokh.com/archives/archive_2009_04_19-2009_04_25.shtml#1240249775



Updated: Link is swamped, Ace's blog did a summary - Ninth Circuit Incorporates 2nd Amdendment into 14th Amendment Rights

 

[jeremy]

tag... huh... what?

 

[Disposable Heart]

Congressional powers of enforcement maybe? I could not load the link...

 

[jeremy]

Here it is out of the link.

[Eugene Volokh, April 20, 2009 at 1:49pm] Trackbacks
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 panel opinion, which Judges Gould and Alarcon fully joined, also says something similar:

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.
​

Related Posts (on one page):

1. Why the Gun Show Organizers Nonetheless Lost their Case,
2. Concurrence by Judge Gould (a Clinton Appointee) in the Second Amendment Incorporation Case:
3. Second Amendment Incorporated by Ninth Circuit Panel, in

1 Comments

 

[jeremy]

I am an idiot and double posted!

 

[Disposable Heart]

I see. I was worried they took the Black Panther route and said gun control was racist (given the nature of the 14th amend) because it supposedly targeted blacks and didn't allow them the same rights to bear arms as whites

 

[CarmelHP]

I see. I was worried they took the Black Panther route and said gun control was racist (given the nature of the 14th amend) because it supposedly targeted blacks and didn't allow them the same rights to bear arms as whites

14th Amendment incorporation refers to the application of the Bill of Rights to the States through the due process clause of the 14th Amendment.

What would become the Fourteenth Amendment was debated in the House on May 8 through 10. Stevens remarked that its provisions "are all asserted, in some form or another, in our DECLARATION or organic law. But the Constitution limits only the action of Congress, and is not a limitation on the States. This Amendment supplies that defect, and allows Congress to correct the unjust legislation of the States."[102] Representative Thayer stated that the proposed amendment "simply brings into the Constitution what is found in the bill of rights of every State," and that "it is but incorporating in the Constitution of the United States the principle of the civil rights bill which has lately become a law."[103]
Bingham averred that the amendment would protect "the privileges and immunities of all the citizens of the Republic and the inborn rights of every person within its jurisdiction."[104] He added that it would furnish a remedy against state injustices, such as infliction of cruel and unusual punishment.[105] By stating that Eighth Amendment violations would be prohibited, Bingham implied that the Fourteenth Amendment would prohibit deprivations of any rights recognized in the Bill of Rights.[106]

 

[HICKMAN]

this may not be a good thing, might cost us the right to carry.

Translation: You may have a Second Amendment right to defend your home but you have no Second Amendment right to concealed carry, especially in densely populated “sensitive places.” In fact, one of the Democratic judges wrote a separate opinion today specifically to emphasize that “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 legal question going forward is how broadly courts will interpret the “sensitive places” exception; given the number of lefty judges we’re in store for from The One, I’m guessing darned broadly. All of which means that we’re trending towards a narrow understanding of the Second Amendment that limits gun rights to handguns inside the home (and conceivably a limit on how many you can own?). That’s better than nothing, but not much better.

Hot Air Blog Archive Ninth Circuit: Second Amendment also protects gun owners from state law

 

[CarmelHP]

this may not be a good thing, might cost us the right to carry.

How's that?

 

[kludge]

Cliffs Notes (as far as my mind can grasp it so far):

2nd Amendment applies to the states, but we can still make limits and we can tell you what you can't buy and where you can't carry it; we're just interpreting Heller, before anyone else gets a chance to say something else before we do, so nothing has changed, you're still peons in our eyes.

 

[IUGradStudent]

Cliffs Notes (as far as my mind can grasp it so far):

2nd Amendment applies to the states, but we can still make limits and we can tell you what you can't buy and where you can't carry it; we're just interpreting Heller, before anyone else gets a chance to say something else before we do, so nothing has changed, you're still peons in our eyes.

This is about right. They agreed that the 2nd amendment applies to the states, also, but they give wide latitude on what restrictions the state can place on the 2A rights. Time to take a carry case to SCOTUS....

 

[CarmelHP]

This is about right. They agreed that the 2nd amendment applies to the states, also, but they give wide latitude on what restrictions the state can place on the 2A rights. Time to take a carry case to SCOTUS....

Whoa! There's little supporting jurisprudence on carry. It has a checkered past in U.S. history. The widespread adoption of shall-issue carry by states is a recent phenomena, within the last 20 years. You'd have a hard time getting SCOTUS to see it as a right on that basis. (however, I suppose, is "evolving standards of decency" can be used to support a right to sodomy, why can't it support a right to carry, which actually has a track record of being an emerging standard among the states)

 

[finity]

this may not be a good thing, might cost us the right to carry.

Hot Air Blog Archive Ninth Circuit: Second Amendment also protects gun owners from state law

Cliffs Notes (as far as my mind can grasp it so far):

2nd Amendment applies to the states, but we can still make limits and we can tell you what you can't buy and where you can't carry it; we're just interpreting Heller, before anyone else gets a chance to say something else before we do, so nothing has changed, you're still peons in our eyes.

This is about right. They agreed that the 2nd amendment applies to the states, also, but they give wide latitude on what restrictions the state can place on the 2A rights. Time to take a carry case to SCOTUS....

The SCOTUS majority in Heller made similar remarks. Almost nobody of any intellect is denying that the Heller decision was a win for gun rights.

This is a big step forward for gun-owners. If we could get the potentially more agreeable courts to follow suit it would make a bunch of cases brought by the NRA against cities & states moot. Thats what those cases are trying to accomplish - incorporation.

I just don't see how you can take an obviously good decision & turn it into more "the sky is falling" hand-wringing rhetoric.