Victory Or Defeat? 2nd And 14th Amendment Court Findings

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed. 2nd Amendment to the Constitution

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed. 2nd Amendment to the Constitution

At least for today there is a victory of sorts with the 9th Circuit Court saying that the 2nd Amendment to the Constitution is an individual right and directly related to the Foundations of this country.  That is a very important decision.  The 9th Circuit Court said its earlier opinion was overturned by the Supreme Court in D.C. vs. Heller.  Since that decision the 9th Circuit Court has decreed that both the 2nd Amendment and the 14th Amendment declare the citizen’s right to own and bear arms.   The California Constitution can also be found here:

U.S. Constitution: Second Amendment

Second Amendment – Bearing Arms

Amendment Text | Annotations

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

U.S. Constitution: Fourteenth Amendment

Fourteenth Amendment – Rights Guaranteed Privileges and Immunities of Citizenship, Due Process and Equal Protection

Amendment Text | Annotations

Section. 1. All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

As you can see both these Amendments to the Constitution ensure the rights of the individual. As such, the 2nd Amendment has now been defined as an individual right, not a general one.  It is something that all gun activists have maintained but getting the courts to see things that way has been difficult.  Now that has been assured.  That isn’t to say there won’t be more legal challenges, but as of today it is on record as being a personal right guaranteed by the Constitution.


Ninth Circuit Rules 2nd Amendment Incorporated to States

BELLEVUE, Wash., April 20, 2009 /PRNewswire-USNewswire via COMTEX/ — The Second Amendment Foundation today applauded the U.S. Ninth Circuit Court of Appeals in San Francisco for ruling that the Second Amendment is incorporated against the states and local governments.

The majority opinion was written by Judge Diarmuid F. O’Scannlain, with a concurring opinion from Judge Ronald M. Gould, who wrote, “The right to bear arms is a bulwark against external invasion…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.

The first critical step was the D.C. v Heller ruling where the Supreme Court ruled that Heller had a right to keep a gun, (*arms*), in his home both loaded and unlocked which D.C. had previously said was illegal.  That the 2nd Amendment was an individual right and not open to bans. This excerpt is taken from the BACKGROUND section of the link provided.

The D.C. Circuit Court, dividing 2-1, ruled last March 9 that Dick Heller has a Second Amendment right — an individual, personal right — to have that gun, and to keep it at home, loaded and unlocked. “Once it is determined that handguns are ‘Arms’ referred to in the Second Amendment, it is not open to the District to ban them,” the Circuit Court ruled — the first time that any federal appeals court has relied upon the Second Amendment and an “individual right” theory to strike down any law that seeks to control guns. “We conclude,” the Circuit Court majority said, “that the Second Amendment protects an individual right to keep and bear arms.

With this ruling from the Supreme Court, (supreme law), as background the 9th Circuit Court made its ruling.  You can read the Circuit Courts ruling HERE: The court was considering the rights of an individual versus the rights of the State laws.  I cannot tell you just how important this issue is and what it could mean to many other laws made which violate our Constitution.

The problem began when a shooting occurred in the county.  Mary King, the Ordinance Supervisor decided she was going to get rid of these gun shows and wanted to do so legally.  She said that fatal gun shootings in Alameda County (though she cannot point to a single problem with gun shows), were at epidemic proportions.  This due to some shootings in 1990!  Here is her statement which you have to read to believe! (From the link above)

King declared she had “been trying to get rid of gun shows on Country property” for “about three years,” but she had “gotten the run around from spineless people hiding behind the constitution, and been attacked by aggressive gun toting mobs on right wing talk radio.” At her press conference, King also said that the County should not “provide a place for people to display guns for worship as deities for the collectors who treat them as icons of patriotism.” Without expressing any opinion about King’s remarks, the Board of Supervisors adopted the Ordinance.

I think this woman needs a serious mental checkup.  She is one of those who don’t want to be bothered with facts or common sense.  She is a religious nut-wing if you ask me.  Talk about a rabid anti-gun goon who will have her way regardless of facts or findings which point out that people are safer when they are armed.  The only problem is she had good ground to stand on.  This is truly sad.

The county was asked by the Scottish Caledonian Games how the new law would affect their reenactments of battles the Scot’s had always had there.  All following quotes are taken from the brief that is noted above.  Not wanting to lose money, the county made the following exceptions:

[t]he possession of a firearm by an authorized participant in a motion picture, television, video, dance, or theatrical production or event, when the participant lawfully uses the firearm as part of that production or event, provided that when such firearm is not in the actual possession of the authorized participant, it is secured to prevent unauthorized use.

The Nordykes and other members of the suit, which for convenience purposes has been simply call the Nordykes, sued on the grounds that the ordinance violated both the 1st and 2nd Amendments as well as the 14th Amendment. The 1st Amendment challenge was denied. The courts said:

Construing the First Amendment challenge as a facial one, we rejected their argument that the statute burdened the expressive conduct of gun possession. Nordyke III, 319 F.3d at 1190. Our opinion noted that its rejection of the facial attack did not “foreclose a future as applied challenge to the Ordinance.” Id. at 1190 n.3.

The case has multiple challenges.  Including a challenge which came after the D.C. vs. Heller case was concluded and the Supreme Court decision was handed down.  When the district court reviewed the Hickman case they concluded that the Supreme Court decision over-ruled the Hickman findings to such a degree that there was no reconciliation.  With that decision the Nordykes were allowed to proceed with their new briefs.

The district courts new dilemma was this:

[3] The second obstacle facing the Nordykes is incorporation. That is, we must decide whether the Second Amendment applies to the states through the Fourteenth, a question that Heller explicitly left open. See 128 S. Ct. at 2813 n.23. Finally, even if the Fourteenth Amendment does incorporate the Second against the states, we must determine whether it actually invalidates the Ordinance.

The Nordykes drew on Justice Black’s view of the 14th Amendment which says:

7Justice Black’s complete view was that “the Fourteenth Amendment, as a whole, makes the Bill of Rights applicable to the States. This would certainly include the language of the Privileges [or] Immunities Clause, as well as the Due Process Clause.” Duncan, 391 U.S. at 166 n.1;

The district court had to decide if the Privilege and Immunities Clause applied to this case. If these Amendments were found to apply, then the Nordykes had a case. The court had to ask if:

Is a right so fundamental that the Due Process Clause guarantees it?

Did you ever notice how something simple can be made complex by the courts? The courts findings are as follows:

We are persuaded that the same inquiry, though slightly rephrased, also applies to individual rights unconnected to criminal or trial procedures. Just as Duncan defined “fundamental rights” as those “necessary to an Anglo-American regime of ordered liberty,” so the Supreme Court has determined, outside the context of incorporation, that only those institutions and rights “deeply rooted in this Nation’s history and tradition” can be fundamental rights protected by substantive due process. Moore v. City of E. Cleveland, 431 U.S. 494, 503 (1977) (plurality opinion); id. at 503 n.10 (noting the similarity between this general substantive due process inquiry and the incorporation test stated in Duncan); see also Glucksberg, 521 U.S. at 721 (“Our Nation’s history, legal traditions, and practices . . . provide the crucial guideposts for responsible decisionmaking [in the area of substantive due process]” (internal quotation marks and citation omitted)). The latter line of cases informs our analysis here, because incorporation is logically a part of substantive due process. Indeed, the nonincorporation cases amount to a model for straightforward
application of Duncan outside the context of criminal procedure.

You have to read through about 2 more pages before you get to this gem:

.11 Thus the right to keep and bear arms shares ancestry with a right already deemed fundamental.

And another page or so down you get this:(Taken from English/British history)

For readers of Blackstone, therefore, the right to bear arms closely followed from the absolute rights to personal security, personal liberty, and personal property.12 It was a right crucial to safeguarding all other rights.

Also quoted was Supreme Court Justice James Wilson:

Evidence from the post-Revolutionary years strengthens this impression. Supreme Court Justice James Wilson, one of the framers of the Pennsylvania Constitution and the Federal Constitution, referred, in one of his lectures on the common law (delivered serially from 1790 to 1791), to the right of self defense as “the great natural law of self preservation, which . . . cannot be repealed, or superseded, or suspended by any
human institution. . . .

I guess a history lesson is essential in figuring out what the Constitution means. However, if you were to take the words of it at face value, I think it would have been simple to understand that the founders intended the population to remain armed and ready in case of tyranny or oppression. But that is just my opinion! At this point it should be noted I’m only halfway through the decision of the court…

The court goes on to examine the Civil War and notes that a fundamental shift in ideology has occurred.

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 oppression.”

The court rejected the county’s claim that their police held the office of protecting the public by its very nature. The court stated that this was a very weak argument and was not supported by precedence.

This argument merely rephrases the collective rights argument the Supreme Court rejected in Heller. Indeed, one need only consider other constitutional rights to see the poverty of this contention. State police power also covers, for instance, some of the conduct the First Amendment protects, but that does not deny individuals the right to assert First Amendment rights against the states

Then FINALLY, a decision! Yea!:

[12] 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.17 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

But then the courts had another dilemma. Did the 2nd and 14th Amendments negate the Ordinance that the county had imposed? Also, how did this apply to the 1st Amendment? As with all anti-gun lobbyists, the logic and numbers behind the premise are wrong. However, the court had to deal with it.

[17] The Nordykes argue that the County adopted the Ordinance in order to silence members of the so-called “gun culture” from expressing their political and social views about firearms and the Second Amendment. However, the language of the statute suggests that gun violence, not gun culture, motivated its passage. Section 9.12.120(a) recites several statistics about gunshot deaths and injuries in Alameda County and then concludes that “[p]rohibiting the possession of fire-arms on County property will promote the public health and safety by contributing to the reduction of gunshot fatalities and injuries in the County.” Id.

Nevertheless, the Nordykes point to alternative evidence of the statute’s purpose: the comments of Supervisor King and the section 9.12.120(f)(4) exception for authorized firearm use at certain artistic events.

The court was referring to statements that King had made during her search for legal grounds with which to ban gun enthusiasts from using county lands for meetings. The end result of this was that the court found that the Nordykes did not meet the necessary standards to have the 1st Amendment apply and that the county ordinance did not violate either the 2nd Amendment nor the 14th Amendment and that the application of the 1st Amendment did not apply either…

So, there is a victory of sorts here.  Not a true and total victory, but one that does set precedence.  It will be interesting to see what future cases have to say about this.


~ by justmytruth on April 21, 2009.

5 Responses to “Victory Or Defeat? 2nd And 14th Amendment Court Findings”

  1. This is a great victory to wich to protect the 2nd amend against a tyranny government such as obama and his slobs. and other tyranny govrernment that could come to pass. Citizens need to protect the constition and the bill of rights State soveriethgy to tell fed govrnment to stop use of abuse power of offoce.

  2. The problem is that the government isn’t listening to us. We have applied approximately 8 times for redress of grievances and they simply ignore us. The courts have said that while we may apply we do not have the right to an answer. Since the feds aren’t listening, we need to work on the State levels of government to try to fix things.

  3. Very informative. Outstanding job thanks for posting!

  4. I’m glad you liked it. Come back soon.

  5. Love this blog I’ll be back when I have more time.

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