Thoughts, essays, and writings on Liberty. Written by the heirs of Patrick Henry.

April 21, 2009

Two Steps Forward, One Step Back On Gun Rights

by Doug Mataconis

One of the many issues left unresolved by last year’s decision in District of Columbia v. Heller was the question of whether or not the Court’s holding, and the Second Amendment in general, would apply to the states. Back in 1886, in the case Presser v. Illinois, the Supreme Court specifically held that the Second Amendment only limited the national government, and no subsequent case has applied the doctrine of incorporation to the Second Amendment.

Until now that is.

Yesterday, a panel of the Ninth Circuit Court of Appeals ruled that the Second Amendment does in fact apply to the states:

The Constitution’s protection of an individual right to have guns for personal use restricts the powers of state and local government as much as it does those of the federal government, the Ninth Circuit Court ruled Monday. The opinion by the three-judge panel can be found here. This is the first ruling by a federal appeals court to extend the Second Amendment to the state and local level. Several cases on the same issue are now awaiting a ruling by the Seventh Circuit Court.

Ruling on an issue that is certain to reach the Supreme Court, the Circuit Court concluded “that the right to keep and bear arms” as a personal right has become a part of the Constitution as it applies to the states through the Fourteenth Amendment’s due process clause.

That right, it said, “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.”

But, following the lead of the Supreme Court’s decision last June in District of Columbia v. Heller, finding a personal right in the Second Amendment for the first time, the Circuit Court concluded that the right as interpreted by the Justices is limited to “armed self-defense” in the home.

Based on this, the Court upheld the law at issue in the case; a county ordinance that prohibited gun owners from bringing guns on county property or, more specifically as Chris Byrne notes, the county passed an ordinance prohibiting the Plaintiff’s in this case from holding a gun show at a county convention center.

Given the holding in Heller, this result is as unsurprising as the Ninth Circuit’s decision on incorporation. Consider this excerpt from Justice Scalia’s majority opinion:

Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose. See, e.g., Sheldon, in 5 Blume 346; Rawle 123; Pomeroy 152–153; Abbott333. For example, the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues. See, e.g., State v. Chandler, 5 La. Ann., at 489–490; Nunn v. State, 1 Ga., at 251; see generally 2 Kent *340, n. 2; The American Students’ Blackstone 84, n. 11 (G. Chase ed. 1884). Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment , 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.26

We also recognize another important limitation on the right to keep and carry arms. Miller said, as we have explained, that the sorts of weapons protected were those “in common use at the time.” 307 U. S., at 179. We think that limitation is fairly supported by the historical tradition of prohibiting the carrying of “dangerous and unusual weapons.” See 4 Blackstone 148–149 (1769); 3 B. Wilson, Works of the Honourable James Wilson 79 (1804); J. Dunlap, The New-York Justice 8 (1815); C. Humphreys, A Compendium of the Common Law in Force in Kentucky 482 (1822); 1 W. Russell, A Treatise on Crimes and Indictable Misdemeanors 271–272 (1831); H. Stephen, Summary of the Criminal Law 48 (1840); E. Lewis, An Abridgment of the Criminal Law of the United States 64 (1847); F. Wharton, A Treatise on the Criminal Law of the United States 726 (1852). See also State v. Langford, 10 N. C. 381, 383–384 (1824); O’Neill v. State, 16Ala. 65, 67 (1849); English v. State, 35Tex. 473, 476 (1871); State v. Lanier, 71 N. C. 288, 289 (1874).

While this is dicta that was not essential to the ruling in Heller, it was a clear signal from the Court to the Circuit and District Court’s that it’s decision was not intended to be, and should not be interpreted as, a blanket declaration that restrictions on gun ownership of all kinds were per se unconstitutional. In fact, Scalia was careful to say in his opinion that the basis for the Court’s ruling in Heller was based primarily on what it saw as a fundamental right of self defense in the home.

Given that, the present makeup of the Court, and the likelihood that we’ll see at least one new Justice before this case is argued in Washington if it is appealed, it seems likely to me that the Supreme Court would agree with the Ninth Circuit on the incorporation issue, but that it would also agree that Alameda County’s restriction on guns on public property was a reasonable regulation under the Second Amendment.

That said, though, this is an important decision for gun rights because it means that restrictive gun laws across the country — in places like New York, Chicago, and San Francisco — are now potentially subject to being struck down for the same reasons that the Court struck down the laws at issue in Heller.

On the whole, that’s a big victory.

C/P: Below The Beltway

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  • thetruth

    the restrictions on concealed weapons assume there is still liberty to carry weapons openly. However this is no longer the case, so it stands to reason the concealed now needs more protection under the law, or we need a serious culture change so we can go back to wearing sidearms openly without some housewife having a fucking fit.

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