On April 20, 2009 the U.S. Court of Appeals for the Ninth Circuit issued its ruling in the case of Nordyke v King. As is typical in federal rulings regarding the Second Amendment, the news and editorials afterward claimed victories from the perspective of both the left and right side of the political spectrum.
In some respects, there indeed were victories and losses for Second Amendment supporters. So what did the court actually say?
In this review, we’ll revisit the primary questions the court asked during its deliberations and provide their conclusions. Commentary will be provided as appropriate. But first, some background.
Russell and Sallie Nordyke promoted gun shows throughout California. In the summer of 1999, the County Board of Supervisors passed an ordinance in Alameda County that made it “a misdemeanor to bring onto or possess a firearm or ammunition on County property.”
This ordinance made it impossible for any further gun shows to be held on the fairgrounds in Alameda County. A lawsuit was filed by the Nordykes. They lost and the appeal was filed. That brought this case before the Ninth Circuit Court.
The question the court was tasked with answering was specific:
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We must decide whether the Second Amendment prohibits a local government from regulating gun possession on its property.
In reaching its conclusions, the Court looked at a variety of issues that it considered elements of this overriding question. Below are the individual elements that were considered in the Court’s final decision.
1) Does the Second Amendment apply to individuals?
This question was interesting for the Ninth Circuit because they had ruled in a previous case that the Second Amendment referred to a “collective right” rather than an “individual right”. In this instance, the court had to change its perspective due to the U.S. Supreme Court ruling in DC v Heller.
The Ninth ruled as follows.
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There seems to us no doubt, on the basis of both text and history, that the Second Amendment conferred an individual right to keep and bear arms.
2) Does the Second Amendment apply to other than federal regulation of arms?
This questions deals specifically with the issue of whether or not state and local government entities are restricted from regulating arms by the Second Amendment. On this question the court was concise.
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The Bill of Rights directly applies only to the federal government.
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The Second Amendment is a limitation only upon the power of Congress and the National government, and not upon that of the State.
3) Does the Fourteenth Amendment protect the right to bear arms under the Privileges and Immunities Clause?
This question was at the heart of the Nordyke case because their claim was that the Fourteenth Amendment incorporates the original Bill of Rights and, therefore, makes the Second Amendment apply to the States.
For clarification, the Privileges and Immunities Clause states, “no State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States,”
The Court answered this question in the negative. No, they said, it does not apply.
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This language protects only those rights that derive from United States citizenship, but not those general civil rights independent of the Republic’s existence.
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It has always been widely understood that the Second Amendment, like the First and Fourth Amendments, codified a pre-existing right. It necessarily follows that the Privileges or Immunities Clause did not protect the right to keep and bear arms because it was not a right of citizens of the United States.
While this may seem like twisted logic, the conclusion is based upon a very direct relationship. We all believe that the right to self-defense and the arms necessary to do so are God-given rights and they are not bestowed by our government. Therefore, they are not specific to citizenship. Believe it or not, this can actually be construed to be a win for us, though it didn’t help Nordyke specifically. However, that leads to the next question.
4) Does the Fourteenth Amendment protect the right to bear arms under the Due Process Clause?
For clarification, the Due Process Clause states, “nor shall any State deprive any person of life, liberty, or property, without due process of law.”
The Court answered this question in the positive. Yes, they said, it does apply.
Just as the logic used in the question above looked for a direct relationship, so too did the argument in this question. The bottom line with the Court was the relationship they found between the right to bear arms and the right to liberty.
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This brief survey of our history reveals a right indeed “deeply rooted in this Nation’s history and tradition.” Moreover, whereas the Supreme Court has previously incorporated rights the colonists fought for, we have here both a right they fought for and the right that allowed them to fight.
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We also note that the target of the right to keep and bear arms shifted in the period leading up to the Civil War. While the generation of 1789 envisioned the right as a component of local resistance to centralized tyranny, whether British or federal, the generation of 1868 envisioned the right as safeguard to protect individuals from oppressive or indifferent local governments. But though the source of the threat may have migrated, the antidote remained the same: the individual right to keep and bear arms, a recourse for “when the sanctions of society and laws are found insufficient to restrain the violence of oppressions.”
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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.
Despite this finding the Court felt it had another question to answer.
5) Though we conclude that the Due Process Clause of the Fourteenth Amendment applies the protections of the Second Amendment to state and local governments, the question remains whether such application invalidates the specific Ordinance the Nordykes challenge.
In this question the Court said no, the Ordinance was not invalidated.
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Heller tells us that the Second Amendment’s guarantee revolves around armed self-defense. If laws make such self-defense impossible in the most crucial place – the home – by rendering firearms useless, then they violate the Constitution.
But the Ordinance before us is not of that ilk. It does not directly impede the efficacy of self-defense or limit self-defense in the home. Rather, it regulates gun possession in public places that are County property.
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The County also points to the famous passage in Heller in which the Court assured that nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.
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To summarize: 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. The Ordinance falls on the lawful side of the division, familiar from other areas of substantive due process doctrine, between unconstitutional interference with individual rights and permissible government nonfacilitation of their exercise. Finally, prohibiting firearm possession on municipal property fits within the exception from the Second Amendment for “sensitive places” that Heller recognized. These considerations compel us to conclude that the Second Amendment does not invalidate the specific Ordinance before us.
The short version on all of that language brings us back to the modern-day philosophy that “reasonable restrictions” apply. In the end, this court stepped aside from the big decisions, as did the U.S. Supreme Court in Heller.
What that really means where the rubber meets the road is that we’ll be seeing more Second Amendment cases in the courts in the not-so-distant future.
In his concurring opinion, Judge Gould wrote a number of comments. Of those, we chose to include the following because of the implications:
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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 interest 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.
That, quite frankly, is a quote consistent with the Ninth Circuit Court we have come to know and love.
Here is the bottom line:
The Second Amendment applies, not just to the federal government but also to the states and their political subdivisions. The Second Amendment is very specific in what it says – “shall not be infringed.”
Until we get jurists with principal and the intestinal fortitude to follow it through, we’ll be looking at more time in court.
So much for winning…