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.
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