“I cannot, and will not, consent that the majority of any republican State may, in any way, rightfully restrict the humblest citizen of the United States in the free exercise of any one of his natural rights,” which are “those rights common to all men, and to protect which, not to confer, all good governments are instituted.”

John A. Bingham (Judge, Congressman, and the principal author of the 14th amendment)

As quoted in the Appellants brief in McDonald v. City of Chicago(my emphasis added).

All too often one hears men say ‘the constitution gives us the right” or even “the government gives us the right”.

This is simply false. Governments cannot confer rights on someone. Rights are those things that are common to all men. Those things that we have, and which cannot be taken away from us but by force, fraud, or willing consent.

Governments exist, for the sole purpose of protecting and furthering those rights; and no other.

Today, the Supreme Court announced that it had accepted a case from Chicago that should resolve that issue once and for all:

The Supreme Court on Wednesday said it would decide whether an individual’s right to own guns for self-defense — as articulated by the high court in 2008 when it struck down the District of Columbia’s ban on handguns — also covers states and other cities with gun-control laws.

The question of whether the Second Amendment only applies to the federal government and federal enclaves like the District is one that was not addressed in the decision in Heller v. District of Columbia.

The case that the court accepted Wednesday concerns the city of Chicago’s law, which bans most handguns

Lyle Denniston at SCOTUSBlog provides further details on the issue now before the Court:

The Court had three cases from which to choose on the Second Amendment issue — two cases involving a Chicago gun ban, and one case on a New York ban on a martial-arts weapon. It chose one of the Chicago cases — McDonald v. Chicago (08-1521) — a case brought to it by Alan Gura, the Alexandria, VA. lawyer who won the 2008 decision for the first time recognizing a constitutional right to have a gun for personal use, at least in self-defense in the home (District of Columbia v. Heller). A second appeal on the Chicago dispute had been filed by the National Rifle Association (NRA v. Chicago, 08-1497). Presumably, the Court will hold onto that case until it decides McDonald; the same is likely for the New York case, Maloney v. Rice (08-1592) — a case in which Justice Sonia Sotomayor had participated when she was a judge on the Second Circuit Court.

Given that the makeup of the Court has not appreciably changed since Heller, it seems likely that the Court will rule that the Second Amendment does apply to the states, but that’s something we can’t really be sure of until the decision is actually issued.

Two Hundred Twenty Two years ago in Philadelphia, the Constitution Convention in Philadelphia completed it’s work.

At the close of the Constitutional Convention in Philadelphia on September 18, 1787, a Mrs. Powel anxiously awaited the results, and as Benjamin Franklin emerged from the long task now finished, asked him directly: “Well Doctor, what have we got, a republic or a monarchy?” “A republic if you can keep it” responded Franklin.

222 years later, Mrs. Powell’s question, and Franklin’s response, remain undecided.

Do yourself a favor — read The Constitution, and then ask whether we’re still following it the way the Founders intended, and whether we’re going to be able to keep the Republic that Franklin was talking about.

I’ve been in an incredibly foul mood the last couple of days, and until this morning I did not understand why.

We’re planning on moving to where we actually want to be. We’re constantly being asked why we want to move to the middle of nowhere. I tell everyone, “because I feel hemmed in and trapped.” Almost no one understands what I mean. Until this morning I could not explain the feeling of being a rat in a cage. Now I can.

This morning I woke up on my “don’t remove the tag” mattress, walked through my building code compliant house, used the federally compliant toilet, dressed the kids and drove them to their “state certified” charter school where they’ll eat a state approved lunch.

I got back in my state registered, emissions compliant, insured (by state requirement) car and drove the legal speed limit back to the house. I then walked through my Scottsdale code compliant yard (no weeds in our “desert” landscaping”)into the house, drank pasteurized (USDA required) juice, and ate cereal processed in an inspected facility with milk from an USDA compliant dairy. I then took my FDA approved prescription pills (from a licensed pharmacy of course) and played with the state-licensed dogs.

I took a call on my federally taxed cell phone (instead of the federally taxed land line), stopped by our FDIC insured bank (which received TARP money that it didn’t want and is not allowed to pay back), and drove along city streets (paid for by sales and property taxes) to the closest Costco (which has a business license of course and pays mandated worker’s comp). I bought beef franks made from inspected beef in an inspected facility, buns made in an OSHA compliant factory, and a gallon of Frank’s in an approved plastic bottle.

All of this before 10:15 am.

This is not restricted to me of course. This is normal daily life for the vast majority of Americans. Almost everything we do is touched by one agency or another.

In preparation for moving I’ve been researching what I want to do with the land. We want to build our own house and outbuildings and drink our own water and make our own electricity.

In order for this to work we have to:

* Buy land with the proper zoning.
* Wait for the required escrow to be completed.
* Apply for building permits and well permits.
* Possibly apply for a zoning variance in order to raise a wind turbine.
* Build code-compliant buildings.
* Wire the electricity according to code.
* Pay sales tax on all materials used.

My biggest dream is to grow an orchard, plant some vegetables and grains, and raise our own milk and meat. In order for this to happen we have to

* Buy only trees that can be delivered to the correct state (as decided by each state’s government).
* Use only approved pesticides (like we could buy anything else).
* Buy a tractor (with applicable state tax).

If we find ourselves with an excess of food and would like to sell it we have to

* Apply for a license.
* Obtain a tax i.d. number.
* Collect sales tax.
* Label the goods according to code.
* Submit to random inspections of the dairy operation.
* Submit to random inspections of the meat process.
* In order to sell prepared foods (like jams) submit to inspections of the “commercial” kitchen (which cannot be used to prepare the family’s food).
* Pay sales tax on all goods and materials used.

In order to set up the business properly, we have to

* Apply for a business license.
* Obtain a tax i.d. number.
* Obtain permission from the state to use the name.
* Collect sales tax.

God forbid we deal with the local fauna. We plan on moving in an area thick with moose and wolves, but in order to hunt we have to obtain

* A hunting license.
* A controlled-hunt tag for the moose (if we’re lucky enough to get one).
* Forget about the wolves, they’re “protected”.

Should we need to protect our livestock from the moose or wolves we are allowed to dispose of the threat, but we must

* Inform game and fish.
* Turn the carcass over to the state.

If we use firearms to dispose of the threat, we must

* Use a “legal” firearm (as determined by the NFA and ATF).
* If we choose to use a suppressor (because of dogs, horses, and our own hearing) we must pay the stamp.

This doesn’t even account for all of the hoops the realtor and the vendors have to go through.

All of this instead of

* Pay for property. Make contract with owner.
* Build.
* Dig well.
* Wire.
* Buy tractor.
* Plant.
* Sell food.
* Sell services.
* Protect livestock.

No wonder I feel trapped. I can’t do a single thing with my own property that doesn’t involve one government agency or another (or several). I feel like a rat being funneled through a maze, and I am cognizant of the danger that someone will block off the exit. It’s my claustrophobia writ large.

This is just wrong. I’m a grown woman. Why does the government have to meddle in all of my affairs? Why do I have to jump through hoops just to accomplish the most simple things in life?

It’s all about power and control. Always has been always will be.

I’m sure in the beginning the encroachment began with simple things. After all, isn’t the government supposed to protect our rights? Isn’t having a dedicated police force, justice system, military, etc. worth a little in taxes?

Then a little more encroachment. Who can disagree with a little tax to pay for state roads? That’s entirely reasonable, right?

Then enforcement of standards. Who can disagree with licensing teachers? Making sure underage kids can’t marry?

Then the panics set in. Contaminated meat? The government should “do something” so it won’t happen again! E coli? Pasteurize EVERYTHING!

Of course, the NIMBY’S added their own input. Nuclear power plant? Not in my backyard! Enforce zoning so I won’t have to worry about it! Require my neighbor to clean up their yard so my house values don’t go down!

Then the lobbyists. Require farm inspections and multiple hoops so small farmers give up and “our big backers don’t have competition”. Give into the “green” lobby so they don’t pull their campaign contributions.

Of course there’s always the pure tax whores. “It’s just a little reasonable fee. On everything. You want to pay your share, right?”

Of course all of this gets codified into law, and the ultimate persuasive tactic is put into play.

“You don’t want to be a criminal, do you? You don’t want to go to prison, do you?”

This is exactly how we went from a system in which the government’s job of protecting our rights to a system where government determines WHO is ALLOWED to trample on our rights.

Well I have a message for all you busybodies, bureaucrats, rent-seekers, and whored-out legislators.

LEAVE US THE HELL ALONE.

Get out of my contracts.

Get off of my land.

Leave my property alone.

Stay the hell out of my bedroom.

Most of all, KEEP YOUR NOSES OUT OF MY BUSINESS.

And everyone else’s for that matter.

Mel

I haven’t mentioned my wife here very much, because she generally doesn’t write about libertarian issues; but I have to say, for this (and so many other reasons. For one thing, she’d rather buy guns, boats, motorcycles, and airplanes than shoes or jewelery), I am the luckiest man in the world. I happen to think this piece is the best thing she’s ever written.

His case is an important one; the state of Arizona charged him with murder for defending himself with too powerful a weapon; while hiking in the backwoods, Mr Fish was charged by a group of aggressive dogs (who were, quite reasonably, unleashed) . Fish had a 10mm Kimber Pistol with hollow point ammunition. He fired a warning shot into the ground to scare them off as they closed to within a few feet of him. At this point, he was attacked by the dog owner who screamed that he was going to kill Mr Fish and charged swinging his fists. Mr Fish fired three rounds at the last moment before the man got within punching distance and mortally wounded his attacker. he then spent agonizing minutes trying to get medical help for the man.

The police investigating the case thought it a clear case of self defense. The lawyers working for the state of Arizona disagreed, claiming that the size and type of rounds he was carrying indicated that Mr Fisher had set out on his hike with murder on his mind.

Through this argument, and by convincing the judge to keep exculpatory evidence out of the trial, the attorneys were able to successfully convict Mr Fish of murder, although within 24 hours at least one horrified juror contacted the defense attorney claiming that the excluded evidence would have resulted in a different verdict.

This case is important in that people have a right to defend themselves. Certainly, the courts have long held that police have not obligation to defend us. The act of walking outside the patrol area of the police does not mean that we have agreed to allow people to murder or assault us.

Luckily, the appelate court agreed that Mr Fish had been convicted unfairly, and thanks to recent changes in Arizona law clarifying the rules governing self defense, there is little chance that his retrial will result in a conviction.

Harold Fish lost three years of his life to prison. He is nearly $500,000 in debt at a time of his life where he has little prospect of paying it off (Donate here to his defense fund). All because a stranger attacked him, he defended himself, and a prosecutor didn’t like the size of his gun.

In a just world, the prosecutor would have to make Mr Fish whoole for all the money and time he lost on this frivolous prosecution. Unfortunately, we do not live in a just world.

At least Mr. Fish gets to have dinner with his wife again…

Hat Tip: Massad Ayoub of Backwoods Home Magazine.

THIS BOOK IS BASED on a single idea: You should be allowed to do whatever you want with your own person and property, as long as you don’t physically harm the person or property of a nonconsenting other.

Thus begins a book that everyone interested in politics should read; Ain’t Nobody’s Business If You Do: The Absurdity of Consensual Crimes in a Free Country by Peter McWilliams.  Published in 1998, it is a damning survey of how the United States had become a state composed of “clergymen with billy-clubs”.  It analyzes the consequences of punishing so-called victimless crimes from numerous viewpoints, demonstrating that regardless of what you think is the most important organizing principle or purpose of society the investigation, prosecution and punishment of these non-crimes is harmful to society.

This remarkable book is now posted online, and if one can bear to wade through the awful website design, one will find lots of thought-provoking worthwhile commentary, analysis, theory and history.

His final chapter, on how to change the system, while consisting mainly of pie-in-the-sky, ineffective suggestions of working within the system, starts of with an extremely good bit of advice that I urge all our readers to try:

The single most effective form of change is one-on-one interaction with the people you come into contact with day-by-day. The next time someone condemns a consensual activity in your presence, you can ask the simple question, “Well, isn’t that their own business?” Asking this, of course, may be like hitting a beehive with a baseball bat, and it may seem—after the commotion (and emotion) has died down—that attitudes have not changed. If, however, a beehive is hit often enough, the bees move somewhere else. Of course, you don’t have to hit the same hive every time. If all the people who agree that the laws against consensual crimes should be repealed post haste would go around whacking (or at least firmly tapping) every beehive that presented itself, the bees would buzz less often.

I highly recommend this book.  Even though I have some pretty fundamental disagreements with some of his proposals, I think that this book is a fine addition to the bookshelf of any advocate of freedom and civilization.

Hat Tip: J.D. Tuccille of Disloyal Opposition.

In a prickly exchange over gun control, Sen. Tom Coburn tried hard to get Sonia Sotomayor to explain what she actually thinks about the right to bear arms. “As a citizen of this country do you believe … I have a right to personal self-defense?” he asked her.

Sotomayor said she couldn’t think of a Supreme Court case that had addressed the issue in that language. “Is there a constitutional right to self-defense?” she asked. “ I can’t think of one. I could be wrong.”

The Oklahoma Republican said he didn’t want to know if there was a legal precedent that would answer his question — he wanted to know Sotomayor’s personal opinion.

She paused. “That is sort of an abstract question,” she said. “I don’t –”

“Well that’s what the American people want to hear,” Coburn said. Americans don’t want legalese from “bright legal minds,” he said. “They want to know if they can defend themselves in their homes.”

Sotomayor paused and then apologized. “I know it’s difficult to deal with someone who is a judge,” she said. “Let me try to address what you’re saying in the context that I can, OK?”

She went on to explain a hypothetical case – and the way she’d interpret it under New York law (the state whose law she knows best). The state allows someone to defend themselves if they fear an imminent threat. Let’s say, she told the senator, that Coburn threatened her and then she went home, got a gun and shot him.

“You’d have a lot of explaining to do!” Coburn said.

Here’s the video of the exchange:

One wonders if someone needs to give Sotomayor a copy of the majority opinion in D.C. v. Heller:

Between 1789 and 1820, nine States adopted Second Amendment analogues. Four of them—Kentucky, Ohio, Indiana, and Missouri—referred to the right of the people to “bear arms in defence of themselves and the State.” See n. 8, supra. Another three States—Mississippi, Connecticut, and Alabama—used the even more individualistic phrasing that each citizen has the “right to bear arms in defence of himself and the State.” See ibid. Finally, two States—Tennessee and Maine—used the “common defence” language of Massachusetts. See Tenn. Const., Art. XI, §26 (1796), in 6 Thorpe 3414, 3424; Me. Const., Art. I, §16 (1819), in 3 id., at 1646, 1648. That of the nine state constitutional protections for the right to bear arms enacted immediately after 1789 at least seven unequivocally protected an individual citizen’s right to self-defense is strong evidence that that is how the founding generation conceived of the right. And with one possible exception that we discuss in Part II–D–2, 19th-century courts and commentators interpreted these state constitutional provisions to protect an individual right to use arms for self-defense. See n. 9, supra; Simpson v. State, 5Yer. 356, 360 (Tenn. 1833).

(…)

It was plainly the understanding in the post-Civil War Congress that the Second Amendment protected an individual right to use arms for self-defense.

(…)

As the quotations earlier in this opinion demonstrate, the inherent right of self-defense has been central to the Second Amendment right.

Apparently, Sotomayor hasn’t read Heller at all.

Ladies and gentlemen, I give you Rahm Emanuel, Chief of Staff to the Obama White House!

Critical text (h/t David Rittgers, Cato@Liberty):

“if you’re on that no-fly list, your access to the right to bear arms is cancelled, because you’re not part of the American family; you don’t deserve that right. There is no right for you if you’re on that terrorist list.”

I’m sure all those who have faced false positives on that list feel great about Rahm’s statement.

Let us examine, though, the effects of von Brunn’s attack.  He murdered a security guard, Stephen T. Johns (who, it should be noted, had courteously opened the door let in the man who would murder him).  Within hours, the security guards who shot von Brunn down were rightly being lionized, and by extension, the entire apparatus of security-guards-cum-metal-detectors that have come to characterize the modern U.S.   People started agitating for further limitations on weapons ownership, freedom of speech and against organizations that agitate for freeing people from government oversight.  There was a massive outpouring of sympathy for Jews.  Two days after von Brunn’s attack, about the time doctors were concluding that he would survive his wounds, the Holocaust museum was open for business. No doubt within a week they will have hired Stephen Johns’ replacement.

In other words, from von Brunn’s perspective he lost: he suffered life threatening wounds, incited in people a hatred of his movement, shot an easily replaced, ‘expendable’ guard and shut a museum down for one day while giving it lots of free publicity.

Much as we libertarians abhor murderous savages like von Brunn, we should take note of the effects of his attack.  His attack is one of many that all demonstrate an important rule of resistance against the state.  Like John Brown’s attack on Harper’s Ferry,  the assassination of McKinley, and countless other acts of symbolic violence, von Brunn’s attack discredited his movement and increased sympathy for his opponents.

Hardly a month goes by without some fellow libertarian radical posting a comment to the effect that the second amendment is what protects the other rights supposedly enshrined in the U.S. Constitution, or writing cliched statements containing the phrase “ballot box, soap box, ammo box”.  In the 2008 primary season, Ron Paul supporters reveled in their symbolic victory after they chased Rudy Giuliani off the weather-deck of a ferry.

While such chest-thumping is very satisfying, and satisfies a psychological need to feel powerful, it  is usually a losing strategy;  any action that swings sympathy towards our opponents will make us weaker.  The psychology of crowds is fairly well understood.  Crowds hate the weak.  Paradoxically, crowds also envy the powerful. They want security and to live free of fear and uncertainty.  They don’t care about philosophy, and their conception of justice and morality is a crude, instinctual one that is the product of human evolution.

Turning the mob in a pro-freedom direction requires a combination of the following:

• Inciting in people a hatred and contempt of the political classes and the bureaucrat and police who do their bidding.
• Making people aware of how badly the political classes are ripping them off.
• Developing institutions that perform social functions that do not use coercion to acquire resources.
• Encouraging people to rely on themselves and those institutions.

Most violent/semi-violent protests incite in people a fear of the protestors.  The people then turn to the government to protect them from the scary protestors.  When the protests or political actions or symbolic acts of vandalism don’t accomplish any meaningful change, the net result is a stronger, more powerful government that has been given permission to suppress the movement that the symbolic act was meant to promote.

Successful protest movements like the black civil rights movement succeeded precisely because the symbolic acts encouraged people to identify with the protesters.  When the police set german shepherds on black people walking in orderly columns, the people seeing the images and video saw the police as the dangerous mob and the protesters as being the civilized, non-threatening party to the conflict.

It is very important that we who advocate for freedom keep this in mind; disorderly or scary behavior turns people against us.  Freedom is civilized. Commerce is peaceful. Free markets are bountiful.  Let us  allow the government an uncontested claim on the mantle of civilization-threatening barbarity it has worked so hard to earn.

Bailey said he thought it was the end of his life and the lives of the 10 people inside his apartment for a birthday party after two masked men with guns burst in through a patio door.

“They just came in and separated the men from the women and said, ‘Give me your wallets and cell phones,’” said George Williams of the College Park Police Department.

Bailey said the gunmen started counting bullets. “The other guy asked how many (bullets) he had. He said he had enough,” said Bailey.

That’s when one student grabbed a gun out of a backpack and shot at the invader who was watching the men. The gunman ran out of the apartment.The student then ran to the room where the second gunman, identified by police as 23-year-old Calvin Lavant, was holding the women.

“Apparently the guy was getting ready to rape his girlfriend. So he told the girls to get down and he started shooting. The guy jumped out of the window,” said Bailey.

A neighbor heard the shots and heard someone running nearby. “And I heard someone say, ‘Someone help me. Call the police. Somebody call the police,’” said a neighbor.

The neighbor said she believes it was Lavant, who was found dead near his apartment, only one building away.

Bailey said he is just thankful one student risked his life to keep others alive.“I think all of us are really cognizant of the fact that we could have all been killed,” said Bailey.

One female student was shot several times during the crossfire. She is expected to make a full recovery.

An immediate question is why there are only two news stories (at this moment)  covering the issue so far.  If the thugs had been successful in their plans, the story would be headlined all over the national news.  Why aren’t they covering the hero who stopped a potential travesty?

Also, I still want to know why Sarah Brady and most Democrats keep trying to pass laws which would have made it impossible for these kids in Georgia to defend themselves.

Cost of a bullet: $0.41

Cost of a trial and incarceration: in the millions

Message sent to community when citizens are armed and ready to defend themselves: PRICELESS!

Here’s the news story from WRAL:

This is the unedited surveillance video:

As bad as this situation was, it could have ended much worse. It’s very fortunate that the armed robbers encountered the man on the porch first and the others inside could see what was happening thanks to the surveillance video (had this individual not been on the porch, the robbers could have gained entry as police officers serving a lawful warrant). Also, the fact that one of the patrons was armed and able to return fire was the difference in being cleaned out by the robbers (and possibly murdered) and forcing the robbers to abandon their criminal pursuit. It’s just too damn bad that neither robber was killed.

Of course if the police didn’t routinely use paramilitary tactics to raid poker games or those suspected of drug possession in the first place, then individuals would know without question that the intruders are indeed criminals attempting to do harm and could respond appropriately without fear of killing a police officer.

Hat Tip: The Agitator

[S]ome law enforcement officials are preparing to face more open-carry situations, and some are clear the memo won’t change their approach.

Milwaukee Police Chief Ed Flynn said he’ll continue to tell officers they can’t assume people are carrying guns legally in a city that has seen nearly 200 homicides in the past two years.

“My message to my troops is if you see anybody carrying a gun on the streets of Milwaukee, we’ll put them on the ground, take the gun away and then decide whether you have a right to carry it,” Flynn said. “Maybe I’ll end up with a protest of cowboys. In the meantime, I’ve got serious offenders with access to handguns. It’s irresponsible to send a message to them that if they just carry it openly no one can bother them.”

So, in Flynn’s world, the mere fact that you’re doing something that you’re authorized to do under the law is reason enough for the police to forcibly detain you on suspicion that you might be a criminal.

Can anyone say police state ?

Glenn Reynolds wonders if Flynn would appreciate his own logic being applied to him:

[I]f you see Police Chief Ed Flynn, put him on the ground, take his wallet away, and then decide whether he’s accepted any bribes that day. If, after doing that, you think the money’s his, give his wallet back. Who cares what the law says? It’s the Milwaukee Way!

Apparently.

H/T: Radley Balko

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

This means that the 2nd amendment has a lawful status equivalent to that of the first, fourth, fifth, and other amendments which explicitly protect our fundamental rights.

Of course, that is only lawfully binding within the 9th circuit; but it is expected that other circuits will take judicial notice of the 9ths ruling.

If you aren’t familiar with the Nordyke Vs. King; this is the case where a gunshow operator was denied access to use country fairgrounds for their gunshows, because a county ordnance prevented the possession of firearms on county property by anyone other than law enforcement.

The facts of the case as presented to the court are as follows (emphasis in bold and red are mine):

Russell and Sallie Nordyke operate a business that promotes gun shows throughout California. A typical gun show involves the display and sale of thousands of firearms, generally ranging from pistols to rifles. Since 1991, they have publicized numerous shows across the state, including at the public fairgrounds in Alameda County.

Before the County passed the law at issue in this appeal, the Alameda gun shows
routinely drew about 4,000 people. The parties agree that nothing violent or illegal happened at those events.

In the summer of 1999, the County Board of Supervisors, a legislative body, passed Ordinance No. 0-2000-22 (“the Ordinance”), codified at Alameda County General Ordinance Code (“Alameda Code”) section 9.12.120.

The Ordinance makes it a misdemeanor to bring onto or to possess a firearm
or ammunition on County property. Alameda Code § 9.12.120(b).

It does not mention gun shows.

According to the County, the Board passed the Ordinance in response to a shooting that occurred the previous summer at the fairgrounds during the annual County Fair.

The Ordinance begins with findings that “gunshot fatalities are of epidemic
proportions in Alameda County.”

At a press conference, the author of the Ordinance, Supervisor Mary King, cited a “rash of gun-related violence” in the same year as the fairground shooting. She was referring to a series of school shootings that attracted national attention in the late
1990s, the most notorious of which occurred at Columbine High School in Littleton, Colorado.

But the Nordykes insist that something more sinister was afoot. They point to some of King’s other statements as evidence that she actually intended to drive the gun shows out of Alameda County.

Shortly before proposing the Ordinance, King sent a memorandum to the County Counsel asking him to research “the most appropriate way” she might “prohibit the gun shows” on County property.

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. County officials then exchanged several letters with the
Nordykes.

The General Manager of the fairgrounds asked the Nordykes to submit a written plan to explain how their next gun show would comply with the Ordinance.

As the County Counsel had told the General Manager, the Ordinance did not
expressly prohibit gun shows or the sale of firearms.

An aside from the the blog author: This is in fact a false statement. California statute in conjunction with federal law (i.e. the sum total of requirements imposed by both sets of statutes combined; not each set individually), requires that firearms transfers occur face to face, through an FFL; that the FFL conduct a background check and in person identity verification of the person they are delivering the weapon to at the time of sale, AND at the time of delivery if those times are separate; and that the sale be conducted at the FFLs place of business, an organized gun show, or a licensed auction.

Effectively, the only way they could conduct a gun show, would be to have pictures of guns available, at which time prospective gun purchasers could arrange to meet the FFL later at their place of business to purchase a firearm. It would not even be lawful to explicitly arrange for a sale at the show and then complete the transaction later.

The county counsel knew, or should have known, that this was the case.

The Nordykes insisted then and maintain now that they cannot hold a gun show without guns; perhaps because they thought it futile, they never submitted a plan.

During the same period, representatives of the Scottish Caledonian Games (“the Scottish Games”) inquired about the effect of the new law on the activities they traditionally held on the fairgrounds. Those activities include reenactments, using period firearms loaded with blank ammunition, of historic battles.

After the inquiries, the County amended the Ordinance to add several exceptions. Importantly, the Ordinance no longer applies to [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.

This exception allows members of the Scottish Games to reenact historic battles if they secure their weapons, but it is unclear whether the County
created the exception just for them.

By the time the County had written this exception into the Ordinance, the Nordykes and several patrons of and exhibitors at the gun shows (collectively, “the Nordykes”) had already sued the County and its Supervisors under 42 U.S.C. § 1983 for various constitutional violations. The amendment did not mollify them, and their lawsuit has wended through various procedural twists and turns for nearly a decade.

I just want to highlight again one particular passage:

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.”

Disgusting.

Unfortunately the result here is mixed. The circuit has ruled that the 2nd is incorporated against the states; but that it did not overturn the statute in question… I’m not really sure I agree with or follow their reasoning on this one.

The ruling provides that the second amendment is explicitly incorporated against the states, in plain language:

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.

There could not be a better, and more unambiguous, declaration of right than this.

What is puzzling to me is how they decided that the county ordnance did not then violate the second amendment.

Yes, they make clear that laws which make exercising fundamental rights more difficult do not automatically infringe upon them (from a legal standpoint); but it seems to me this is a clear cut case of a local government, promulgating a complete ban on the possession of firearms on land controlled by that local government.

Such a ban should be clearly unconstitutional under this analysis.

It would be like saying free speech did not apply on county property, which IS clearly prohibited. Yes, there can be reasonable restrictions, but total prohibition should be right out.

Given the relative weakness of argument supporting the ordnance, and complete lack of precedential support, I can only conclude they were desperately hunting for a reason not to invalidate ALL gun control legislation in one stroke.

Now, the real question, is whether either party is going to continue appealing, and file a petition for certiorari before the supreme court.

Both parties have grounds, and standing to file; and both parties have both incentive and disincentive to do so.

If they do, and the court decides to take it, it would be the second most significant second amendment case ever, after Heller (Heller clearly supersedes Miller, and is therefore more significant)

By the by, if you read the whole ruling (and I recommend you do) there is some extensive discussion of Cruikshank, Presser, and Slaughterhouse. I believe that Heller provided an explicit foundation for all three to be overturned (at least partially).

Actually I believe that proper jurisprudence suggests they should be overturned as having had no facial validity in their initial rulings, being clearly against the principals engendered in the constitution; but Heller gives a precedential foundation for this).

Although I’m generally not a big fan of Hugo Black; I think he had the right concept on the 14th amendment. In fact, I believe it should have been clear without the fourteenth amendment, and merely through the supremacy clause that ALL elements of the constitution as directly related to the people and the protection of our rights (as opposed to the structural components of the constitution) applied to the states.

Also contained therein, is an analysis of the right to keep and bear arms as a fundamental individual right, and commonlaw right from before the founding of this nation through the passage of the 14th amendment and beyond; including a discussion of the racist nature of gun control.

The footnotes and citations too contain a wealth of information, this lovely nugget being my favorite:

we do not measure the protection the Constitution affords a right by the values of our own times. If contemporary desuetude sufficed to read rights out of the Constitution, then there would be little benefit to a written statement of them. Some may disagree with the decision of the Founders to enshrine a given right in the Constitution. If so, then the people can amend the document. But such amendments are not for the courts to ordain.

In all, the incorporation portion of the ruling and opinion are so well researched, and reasoned, in such depth; that I cannot see how a credible argument could successfully be made against it, given an honest arbiter.

Conversely, the section (only a few paragraphs of a 40 page ruling) arguing that the ordinance did not violate the second amendment was so poorly argued that I can’t see how a successful argument COULD NOT be made against it, given an honest arbiter.

So I say, Alameda County, PLEASE appeal this to the supreme court on incorporation grounds; and to the Nordykes, please appeal the decision to uphold the law.

Thanks ever so much.