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Published on April 20, 2009 By IanTyger In US Domestic

Today’s big news is from the Ninth Circuit – Nordyke v King has been decided on appeal. (It’s readable – I recommend reading it).

The amazing news is that the decision agrees that the 2nd amendment applies to the States, not just the Federal Government (it is incorporated).

Some choice quotes:

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.

 

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. See Amar, supra, at 257-66. 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 oppression.” 1 Blackstone, supra, at *144.

All that leads up to the money paragraph:

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.

It’s worth noting that the Court’s reasoning is not just that we have the right to self-defense (though we do). It is also worth noting that the 2nd Amendment does not grant a right, but rather recognizes a right pre-existing. The right granted to us is that to resist tyranny, of both an oppressive federal government as well as an oppressive state or local government. No mention of hunting at all.

It is also worth noting that the plaintiffs nominally lost their suit. The suit was over a law passed by the County that made it a misdemeanor to have firearms or ammunition on County-owned land; this included a County fairground that a gun show had been held on. The effect of this law (and apparently the desired effect from the statements of some County Councilors) was to stop this gun show. The organizers sued, and that brought us to this point.

I’m not as upset about that part of the decision as some others. If this were a private venue, there would be no question in my mind that the owners could ban firearms and ammunition from the premises. At the same time – I’d be worried about this setting a precedent that the local government can restrict firearms anywhere they want outside of the private property of others…

Next step – the Chicago and environs cases in the Seventh Circuit.

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Comments
on Apr 20, 2009

I didn't know the 9th Circuit Court of Appeals had it in them!  Thanks for bringing this to our attention.  Reading the entire ruling, not only do I commend the court for their decision, but to me this case should be used as a primer of Constitutional law in general.

In a day when court decisions seem to prove little more than the judges' indifference to the US Constitution, this decision uses the US Constitution as it's basis.  It also reaffirms what rights are and what the US Constitution is; again, something we don't see very often in modern jurisprudence.

It's great to see what happens when the US Constitution is upheld by those sworn to uphold it!

 

 

on Apr 21, 2009

That was an interesting read.  The Second Amendment was never about gun shows, near as I can tell, so I'm not surprised the Nordykes lost the appeal.  But if you'd not told me ahead of time that the Second Amendment analysis came from the 9th Circuit, I would never have guessed so.

on Apr 21, 2009

There is still hope.

on Apr 22, 2009

No mention of hunting at all.

FINALLY! I hate that damn strawman, guns are not for hunting or "sport", they are for self defense and defense against criminals and the tyranny of the government.

on May 04, 2009

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