Wednesday, April 22, 2009

The Second Amendment -- coming to a state near you

Last summer, when the U.S. Supreme Court recognized what everybody else already knew -- that the Second Amendment protects individual rights -- the battle over the right to bear arms was far from settled. In particular, courts still had to determine if the amendment protected individuals against restrictive state laws, as well as against the federal government. Now, the influential 9th Circuit Court of Appeals has chimed in with a resounding "yes," saying the Second Amendment has the same status as the First and Fourth Amendments in protecting Americans' rights.

What's at issue here is a concept called "incorporation," which is bound to cure insomnia in most people, but means everything in the world of constitutional law. Basically, when the Bill of Rights was originally written, it applied only to the federal government. After the Civil War, the Fourteenth Amendment extended the Bill of Rights' reach to the states, though legal scholars still get into angry tussles over just which clause in the amendment does the heavy lifting (I did mention insomnia, right?): the due process clause or privileges and immunities.

The Supreme Court has also been selective in incorporating the Bill of Rights for reasons that make absolutely no sense whatsoever. Really.

That said, incorporation has been the big question hanging over last summer's decision in D.C. v. Heller, recognizing that the Second Amendment protects individual rights, not some sort of vague communal right.

In a decision released today, in the case of Nordyke v. King (PDF), the 9th Circcuit Court of Appeals takes a big step toward resolving remaining questions about the scope of Second Amendment protections. Writing for the court, Judge Diarmuid O'Scannlain first notes that Heller abrogated the appeals court's earlier holding that the Second Amendment protected only a collective right. He then notes:

[I]f the suspension of trial by jury, taxation without representation, and other offenses constituted the most offensive instances of British tyranny, the ability to call up armsbearing citizens was considered the essential means of colonial resistance. Indeed, the attempt by British soldiers to destroy a cache of American ammunition at Concord, Massachusetts, sparked the battles at Lexington and Concord, which began the Revolutionary War. For the colonists, the importance of the right to bear arms “was not merely speculative theory. It was the lived experience of the[ ] age.” ...

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.

Ultimately, and importantly, O'Scannlain writes:

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.

So, at least for the large region of the country covered by the 9th Circuit -- the entire West Coast, plus Idaho, Montana, Nevada and Arizona -- incorporation of the Second Amendment is a settled issue (unless the Supreme Court says otherwise).

But how extensive are those protections? That's a valid question to ask, given the outcome of Nordyke. While the court incorporated the Second Amendment, it ruled that the plaintiff wasn't protected by that amendment from a local law that essentially bars the presence of guns at gun shows held on public property. While that doesn't strike at the very core of the right to bear arms -- the ability to own weapons for self-defense -- it's not a fringe consideration either.

The court's rationale isn't especially convincing. Constitutional scholar Eugene Volokh, a professor of law at UCLA, says, "I'm inclined to say that the panel's general analysis on this guns-on-public-property is considerably more cursory and less clear than it ought to be." In short, the court suggests that "open, public spaces" are "sensitive places" like schools or a government buildings, and so restrictions can be placed on the exercise of certain rights, such as the possession of firearms. That's a sweeping statement that could limit weapons possession to private homes and businesses.

It's good to have the Second Amendment incorporated so that it protects us against state and local governments. But we have yet to discover how much protection it will provide.



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