Posted on 04/21/2009 5:10:29 AM PDT by Delacon
Last June, the Supreme Court ruled in District of Columbia v. Heller that the Second Amendment protects an individual’s right to keep and bear arms, at least in the home for self-defense. Here’s our own Bob Levy, who masterminded the Heller litigation, talking about that decision:
While the Court’s ruling was a watershed in constitutional interpretation, it technically applied only to D.C., striking down the District’s draconian gun ban but not having a direct effect in the rest of the country.
Well, today the Ninth Circuit (the federal appellate court covering most Western states) ruled that the Second Amendment restricts the power of state and local governments to interfere with individual right to have guns for personal use. That is, the Fourteenth Amendment “incorporates” the Second Amendment against the states, as the Supreme Court has found it to do for most of the Bill of Rights. I rarely get a chance to say this, but the Ninth Circuit gets it exactly right.
Here’s the key part of Judge Diarmuid O’Scannlain’s opinion:
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.
In short, residents of Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, and Washington now join D.C. residents in having their Second Amendment rights protected. And courts covering other parts of the country — most immediately the Seventh Circuit, based in Chicago — will have their chance to make the same interpretation in due course.
Just as interesting — and potentially equally significant — is the footnote Judge O’Scannlain drops at the end of the above text in response to arguments that the right to keep and bear arms, regardless of its provenance as a fundamental natural right, is now controversial:
But 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.
Quite right.
ping
But 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.
Even a broken watch is right twice a day.
Oh but they got it soooo right.
But to get it so definitively correct is what is unusual for the courts at any level, let alone the 9th Circuit, which is not noted for its originalist sentiments.
And not one mention on ANY of the news channels.
And the converse should be equally true...it is not to the courts to write in and create new rights by fiat.
The 14th amendment has done more harm than good to republican government. You can't have "states' rights" and incorporation. It's one or the other.
The Bill of Rights was not intended to put any limits on the states. They had/have their own constitutions, and many have their own Bill of Rights. The 10 amendments to the US Constitution were only supposed to apply to the national gubmint.
I don't think incorporation via "due process" is an originalist sentiment.
There is some latitude on that end due to the 9th Amendment, "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."
If a court "creates" new rights, it can be said to simply be recognizing a non-enumerated right as stated in the Constitution.
That's because they're such strong supporters of gun rights that they assume that everyone else has already heard this news.
/bitter sarc
Not to burst anyone’s bubble, but this (like the “individual right” conferred by the 5th circuit in Emerson) is what lawyers call “dicta.”
When rulings say stuff that is not necessary to the result, that’s dicta, and it has no precedential force.
Precedent is based on WHAT courts do (affirm or deny, etc.) and WHY they do it (the parts of the opinion that explain the action). Not the other stuff they SAY.
Incorporation would have been necessary for a reversal, but not for this result. Therefore, the matter is still wide open.
That said, O’Scannlain is a true conservative (large Catholic family with kids who are lawyers and supporters of the Federalist Society). He would be a solid SCOTUS candidate, except that now he’s 72.
That sounds like a potential slippery slope to severe abuse. So if the courts decides that Americans have the right to being handed $1 Million at age 18 and it was a previously non-enumerated right that does seem like an abuse and overreach of power...at least in my eyes.
But the subject that first came to mind was gay marriage. The progressive argument is that Americans have a right to marry any person the want and argue that by denying that one is restricting the rights of others. The problem is, firstly, that is not the definition of marriage. What liberals want to do is change the definition of marriage. Secondly, heterosexuals do not have the right to marry anyone they want either. They can not marry someone of the opposite sex, they can not marry their children, they can not marry multiple individuals, they can not marry an animal. If the basis for marriage is changes to being able to marry any mate one wants then all these alternatives must also be allowed because the basis of marriage will then depend only upon marrying anyone one wishes. This is a "right" that has been voted down myriads of times now but in several states has been created as a right by judicial fiat.
NOTE: The 2nd Amendment is SELF-incorporated to all government entities at every level. It is MORE ABSOLUTE than the 1st Amendment, or any of the others, because the wording forbids not only CONGRESS, but ANYONE from infringing on it. The 1st says “Congress shall make no law...”. The 2nd say “shall NOT be infringed!” Period! End of debate!
bttt
“The 14th amendment has done more harm than good to republican government. You can’t have “states’ rights” and incorporation. It’s one or the other”.
I am no legal scholar but I disagree. While I am no fan of the 14th amendment, there are rights that are guaranteed us through the constitution that states can not abridge. These rights are/should be incorporated. The 2nd amendment is now thankfully one of them.
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. And courts covering other parts of the country — most immediately the Seventh Circuit, based in Chicago — will have their chance to make the same interpretation in due course.
Mayor Daley's head will explode.
'Da Mare' in 'Chucky Mode'
Wow... this is “anti-deconstructionist”.
Leftists’ worldview and view of the rule of law is centered in deconstructionism - ie, that the written word has no inherent meaning except as interpreted by contemporary readers.
That’s where the “Living Constitution” concept comes from.
Until the 14th amendment, this was not true. As soon as you accept incorporation, federalism/states rights goes out the window. Hell, without incorporation, the Feds would have no way to create rights--like, for example, a right to abortion. They'd have no say in, for example, religion in schools, etc. Like I said, it's done more harm than good. We'd be better off fighting for our rights at the state level.
“Until the 14th amendment, this was not true. As soon as you accept incorporation, federalism/states rights goes out the window”.
Then why did the framers feel the 10th amendment was necessary? Specific powers of the federal government were granted to it over the states. Why else would the framers feel the need to grant “all the other powers” to the states and the people?
It is subject to abuse, but IMHO it is necessary in order to protect our rights. The main opposition to the Bill of Rights was that it could be construed to be all of our rights, thus th 9th Amendment.
Every time the question of concealed carry is brought up the arguement has been put forth that ‘it stands to reason that allowing large numbers of people to carry guns will result in more gun crime.’ That arguement has been routinely defeated by subsequent data. In fact, allowing concealed carry usually results in a reduction of violent crime.
On page 4504 the court says “It is not difficult to see how 4,000 shoppers trading in modern firearms pose more danger than a crowd of history buffs in traditional garb playing with blank ammunition.”
Is this not a simple paraphrasing of the gun-banner’s lament from my first paragraph? The court has gone to great lengths to substantiate every step it has taken through the vast swamp of prior decisions. Yet it hangs the Nordykes out to dry on nothing better than opinion! This especially after admitting that “The parties agree that
nothing violent or illegal happened at those events.” (Page 4471.)
IANAL but it sure looks to my untrained eye as if the Nordykes have a basis for an appeal.
The 14th Amendment, in a nutshell is unconstitutional...not as it is written, but as it's interpreted. If a State has an unconstitutional action, which is one that is disagreed with by the People of that State, it is up to the People to remedy it, NOT the federal government.
The Constitution was never intended to have any operation on the People who ordained and established it. For your perusal, here is View of the Constitution of the United States .
But a contract of this nature actually existed in a visible form, between the citizens of each state, respectively, in their several constitutions; it might therefore he deemed somewhat extraordinary, that in the establishment of a federal republic, it should have been thought necessary to extend it's operation to the persons of individuals, as well as to the states, composing the confederacy. It was apprehended by many, that this innovation would be construed to change the nature of the union, from a confederacy, to a consolidation of the states; that as the tenor of the instrument imported it to be the act of the people, the construction might be made accordingly: an interpretation that would tend to the annihilation of the states, and their authority. That this was the more to be apprehended, since all questions between the states, and the United States, would undergo the final decision of the latter.
This was used, I believe in the Heller case as evidence. It's the first legal paper written on the Constitution after Ratification.
No federal judicial court has the ability to sit in judgment of a State.
Actually, the ORIGINAL intent was that it did indeed put limits on the states (see William Rawles, "A View of the Constitution", written by an eminent jurist of the period). The "not applicable to the states" was invented by Southern jurists to avoid Federal interference with slavery.
“Every time the question of concealed carry is brought up the arguement has been put forth that ‘it stands to reason that allowing large numbers of people to carry guns will result in more gun crime.’ That arguement has been routinely defeated by subsequent data. In fact, allowing concealed carry usually results in a reduction of violent crime”.
Did you ever read the article “Kennesaw Revisited” By Jeff Knox (October 7, 2008). I think you might enjoy it.
http://www.firearmscoalition.org/index.php?option=com_content&task=view&id=285&Itemid=37
An interesting work, but do you really consider 1830 "of the period?"
Which is why Texas vs. White, the cobbled-up Supreme Court decision the opinion in which was written and handed down by a Chief Justice who spent most of the Civil War as an active combatant in Lincoln's cabinet, was totally unconstitutional -- among other things, Chief Justice Chase found that the Confederate secession conventions were all, all illegal, that the People of the States had no power to withdraw from having the Union enforced on them.
Not so in the case of the Second. The language is not the narrow "Congress shall make no law" that would support your reading, but rather the very broad and illimitable "shall not be infringed" (i.e. by anybody).
Otherwise, a local sheriff could deprive you of every one of the freedoms enumerated in the BoR and several not so enumerated (just to violate the 9th and 10th), and under your reading (and the Supreme Court's, in its 1877 Cruikshank opinion, which very significantly was a Klan case involving the Force Acts), he would be absolutely unimpaired in his ability to do so.
Hence the rise of political bossism after the Civil War (or more to the point, after Cruikshank). This in spite of the ratification of 14A.
Repealing the Second Amendment would not remove the right to keep and bear arms. It would only remove the prohibition of the government to try to infringe upon it.
Bang
My God
That judge pretty much just told the federal government to go bugger off and not come back.
I’m speechless
James Madison, the last surviving Framer, was still alive in 1830. Numerous other Framers passed away in the ten years prior - John Lansing in 1829, William Few in 1828, Rufus King in 1827, Luther Martin in 1826, Charles Cotesworth Pinckney in 1825...
I would think that when you can go call on and talk to the people who were directly involved in, and indeed, the architects of, the event in question you can consider that "of the period."
Personally Huck, I think we should take everything we can.
This is absolutely huge, considering it’s the Ninth Circus. It could lead to a huge fall of oppressive firearms laws around the nation, especially IL, NY, NJ and CA.
Also personally, I’d love to walk into the Jacob Javits Center, and come out with a rifle and shotgun; doing so because NY’s and NYC’s socialist firearms laws having pretty much been done away with.
Which is an imbecilic finding considering that the current US Constitution was formed AFTER States began seceding from a document called the Articles of Confederation and Perpetual Union.
If they could do it then, they can certainly do so in a compact where any such permanency is never even hinted at.
Nope. Rawles wrote his View in 1829. Tucker's was the first to be approved and printed by Congress in 1803 [See link in post #27].
Joseph Story wrote his in 1833, and says the exact same thing as Tucker.
§ 312 But a contract of this nature actually existed in a visible form between the citizens of each state in their several constitutions. It might, therefore, be deemed somewhat extraordinary, that in the establishment of a federal republic, it should have been thought necessary to extend its operation to the persons of individuals, as well as to the states composing the confederacy
I am familiar with Rawles work, and cannot recall any such statement. I would appreciate your providing the Book/Chapter/Section to support you assertion.
As I browse thru the “Threads” on this issue, your post on no mention on any of the news channels, rings so true, however, I have found 3 “Threads” on this issue in 2 days, and combined, only 160 replies. You would think that the replies would have passed 500 or more by now.
How did you make that determination?
The Nordyke decision takes into account a "heightened" level of scrutiny and decided, based on that level, that the county had the power to deny use of its buildings to gun shows.
Without the determination of what the proper level of scrutiny is, it would not be possible to decide the limits of the county's power.
An appeal of Nordyke, by the Nordykes, should result in the Supreme Court finding that such a fundamental right as described in Nordyke is deserving of the highest level of scrutiny, called "strict scrutiny".
Does anybody think the county could outlaw book shows and require some showing by various groups that their books do not offend?
How, then, can you claim that the determination of incorporation and the level of scrutiny required is simply "dicta". What would the decision look like if you omitted what you claim is dicta?
Thanks!
Bookmark for later.
I have been persuaded by a fellow (smarter?) lawyer that I may be wrong about the dicta issue. It’s like to be raised by the opponents later, and has some moderating effect, but I’ll yield on the question.
OK, that made me LOL right here at work. Yep, that's the reason, all righty.
It all starts to make sense when you posit that most of the decisions the Ninth Circus pumps out are only to piss somebody off. They'll be having a collective attack of the vapors in San Francisco reading that one.
Seeing as the 9th is the most overturned Circuit in history, it wouldn't surprise me for the SCOTUS to overturn the ruling on the merit of the case. Can a local governemnt prohibit some forms of exhibition or sales on government property.
Now, it's just my humble opinion, but if the SCOTUS overturns the ruling on the merit of the case, and agrees or states the 'incorporation' portion is correct, then we can sit in awe of the judicial process that finally 'got it right'.
Only since the USSC began reading words that don't appear in the text of the Amendment. Words like "Abortion." Look at the original intent of that Amendment: It was the second in a natural progression involving the eradication of slavery. The 13th Amendment banned slavery. The 14th Amendment made former slaves US citizens as a necessary precursor to the 15th Amendment which was to give the former slaves the right to vote.
Later on liberal courts began tacking on "interpretations" so as to give their judicial activism teeth and in some cases that was a good thing. The reality is that the Bill of Rights was originally designed to only apply to the Federal government. That's why the Feds could ban discrimination but the states were free to institute same at the state and local levels for another 100 years, preventing blacks from voting and allowing them to be lawfully (albeit immorally) denied local access to firearms to fend off the incursions of the KKK. When incorporation came along in the 1960s that was the final link to force even local government to adhere to the Bill of Rights. The immoral thing done at that time was to deny the 2nd Amendment inclusion for the satisfaction of the power elites.
You can't have "states' rights" and incorporation. It's one or the other.
When you put it like this, what you're saying is to deny the concept of Federalism. Look at it this way: Used in the way you just did it calls for a clear return to the Articles of Confederation, the first framework for our government which was clearly insufficient as the time spent under it demonstrates. The Whiskey Rebellion and Shays rebellion are symptoms. The Articles prevented raising taxes to cover the cost of any sort of government. The Articles forbade raising of a standing army for self defense from global aggression. The Articles were weak.
Federalism repudiates all that and stands for the separation of powers with the Federal law as the controlling authority. But this presupposes that the current federal government really has the security, strength and prosperity of the nation as the foremost concern. Where that is absent tyranny soon appears and the importance of the 2nd Amendment becomes even more clear.
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