Category Archives: District of Columbia v. Heller

Two Steps Forward, One Step Back On Gun Rights

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

The Constitution really DOES mean what is says

This morning, the 9th circuit court of appeals confirmed that the 2nd amendment is indeed incorporated against the states under the selective incorporation doctrine, in the case Nordyke Vs. King.

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.

I am a cynically romantic optimistic pessimist. I am neither liberal, nor conservative. I am a (somewhat disgruntled) muscular minarchist… something like a constructive anarchist.

Basically what that means, is that I believe, all things being equal, responsible adults should be able to do whatever the hell they want to do, so long as nobody’s getting hurt, who isn’t paying extra

Another Ridiculous Gun Regulation Challenged In Washington, D.C.

Last year’s Supreme Court case hasn’t stopped the District of Columbia from passing arbitrary gun laws clearly designed to restrict it’s citizens’ Second Amendment rights:

A D.C. woman filed suit in U.S. District Court yesterday, claiming that the city would not let her register a pistol because of its color.

Tracey A. Hanson argued that her application to register a .45-caliber semiautomatic was denied because the gun is not on the California Safe Handgun Roster, which is the standard in the city.

Hanson tried to register a two-tone, stainless steel/black pistol, according to the suit. But the list has that model in olive drab green, dark earth or black, not in two-tone, stainless/black, the suit asserts. Hanson said rejection for that reason “seemed so arbitrary.”

(…)

Peter Nickles, the city’s attorney general, said he had not seen the lawsuit and could not discuss its details.

But he said he is confident that the D.C. regulations are “completely appropriate” under the Second Amendment.

Of course he does.

Hanson’s lawsuit joins one filed by Dick Heller, the main Plaintiff in the original lawsuit, back in July which challenges new gun laws passed by the city as too restrictive.

Gunblogger conference call with Missouri Governor Matt Blunt

Earlier today, I participated in a conference call with Missouri governor Matt Blunt, on the subject of gun rights, John McCain, and Barack Obama.

You may recall that recently, the Obama campaign worked directly with democratic party elected officials in the state of Missouri; engaging prosecutors and county sheriffs, to intimidate local media outlets, and prevent them from taking advertising criticizing Barack Obama.

Governor Blunt delivered a scathing rebuke of this blatant ethical misconduct (and violation of at least federal election regulations, if not federal law):

Gov. Blunt Statement on Obama Campaign’s
Abusive Use of Missouri Law Enforcement

JEFFERSON CITY – Gov. Matt Blunt today issued the following statement on news reports that have exposed plans by U.S. Senator Barack Obama to use Missouri law enforcement to threaten and intimidate his critics.

“St. Louis County Circuit Attorney Bob McCulloch, St. Louis City Circuit Attorney Jennifer Joyce, Jefferson County Sheriff Glenn Boyer, and Obama and the leader of his Missouri campaign Senator Claire McCaskill have attached the stench of police state tactics to the Obama-Biden campaign.

“What Senator Obama and his helpers are doing is scandalous beyond words, the party that claims to be the party of Thomas Jefferson is abusing the justice system and offices of public trust to silence political criticism with threats of prosecution and criminal punishment.

“This abuse of the law for intimidation insults the most sacred principles and ideals of Jefferson. I can think of nothing more offensive to Jefferson’s thinking than using the power of the state to deprive Americans of their civil rights. The only conceivable purpose of Messrs. McCulloch, Obama and the others is to frighten people away from expressing themselves, to chill free and open debate, to suppress support and donations to conservative organizations targeted by this anti-civil rights, to strangle criticism of Mr. Obama, to suppress ads about his support of higher taxes, and to choke out criticism on television, radio, the Internet, blogs, e-mail and daily conversation about the election.

“Barack Obama needs to grow up. Leftist blogs and others in the press constantly say false things about me and my family. Usually, we ignore false and scurrilous accusations because the purveyors have no credibility. When necessary, we refute them. Enlisting Missouri law enforcement to intimidate people and kill free debate is reminiscent of the Sedition Acts – not a free society.”

Governor Blunt, who has decided not to seek re-election; has been campaigning in Missouri, and across the country, for gun rights, and for John McCain.

On the call with me were the organizers, Bryan Pick and John Henke from QandO.net, Jonathan Blank of the Cato Institute, Nicky Fellenzer from The Liberty Zone, Dave Kopel of the Independence Institute and DaveKopel.com, David Codrea of The War On Guns, JR of A Keyboard and a .45, Sebastian of Snowflakes in Hell, Cam Edwards of NRA News and the Cam and Company radio show, Bitter of The Bitchgirls, Dustin of Dustins Gun Blog, John Donovan of The Donovan, and Caleb of Call me Ahab.

It has been agreed that we can release the full audio of our conference call with the governor. I’ve put it up here:

Sorry, I cant get the embeddable streaming widget to work. Here’s a link to the full file, and an embedded player that works, at archive.org.

Gunblogger conference call with Missouri Governor Matt Blunt

I have edited nothing from Governor Blunts comments; only the introductions and some chat between my fellow bloggers at the beginning and end of the call.

If time permits, I will post a transcript later.

I am a cynically romantic optimistic pessimist. I am neither liberal, nor conservative. I am a (somewhat disgruntled) muscular minarchist… something like a constructive anarchist.

Basically what that means, is that I believe, all things being equal, responsible adults should be able to do whatever the hell they want to do, so long as nobody’s getting hurt, who isn’t paying extra

Heller v. District Of Columbia, Round Two

Just over a month after the United States Supreme Court struck down the District of Columbia’s handgun ban, the man who brought that case is suing the District again over it’s response to the Supreme Court’s ruling:

The man who successfully challenged the D.C. handgun ban before the U.S. Supreme Court filed a second federal lawsuit yesterday, alleging that the District’s new gun-registration system is burdensome and continues to unlawfully outlaw most semiautomatic pistols.

Dick A. Heller, a 66-year-old security guard who lives on Capitol Hill, and two other plaintiffs allege in the lawsuit that the D.C. government violated the letter and the spirit of the landmark Supreme Court decision, issued June 26, that struck down the District’s decades-old handgun ban.

The 5 to 4 ruling concluded that the Second Amendment grants individuals the right to possess guns for self-defense but said governments may impose reasonable restrictions. The lawsuit filed yesterday in U.S District Court says the District’s restrictions go too far.

The suit urges U.S. District Judge Richard M. Urbina to toss most of the District’s new requirements, which include ballistics tests of registered handguns. It also asks him to eliminate restrictions on semiautomatic handguns and to order D.C. police to approve the handgun applications of the three plaintiffs.

To call the District’s “response” to the Supreme Court ruling cynical would be putting it nicely, so it’s nice to see Heller and the others moving quickly to bring this issue before the Courts. Something tells me, though, that Dick Heller may have another date with the Supremes in two or three years.

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