Yes, California, There Is an Individual Right to Keep and Bear Arms

Cato at Liberty ^ | April 20, 2009 | Ilya Shapiro

[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.

[bvw]

Yes and that peculiar wording of the 1st “Congress shall ...” is another evidence that full incorporation of the BoR occurred at ratification. Why? Because that wording exempted the State legislatures from its effect probably to allow State to have a official religion, but not the Federal government.

[bvw]

The second can be read as a strong suggestion that the States shall provide arms and training under arms to individuals.

[ExSoldier]

I'd rather we'd have erred on the side of weak central gubmint....We are one big megastate and nothing but Armageddon will undo it.

It's been made pretty clear throughout history that the weak central states get gobbled up by the stronger and if that had remained the case, we'd ALL be speaking Spanish or worse, French by now. The concept of federalism as practiced since 1790 was cited during both WWI & WWII by our enemies as a compelling reason to avoid invasion of our home soil. Words to the effect of facing fifty armies...

There have been eras when the concept worked well and the people prospered and didn't live in fear of the government. Of course none of those were under Democratic administrations or a Democrat Congress but this illustrates the point.

We completely agree on your final point: At this moment only Armageddon will undo the evil that has been wrought. The Four Horsemen of the Apocalypse began their journey in May of 1948 and the sound of their thundering hoofbeats grows ever more intense and closer.

[marktwain]

“The 10 amendments to the US Constitution were only supposed to apply to the national gubmint.”

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Some of the 10 amendments were, some were not. The first Amendment applied only to the Federal Government. The Second Amendment was widely believed to apply to the States. There are a number antebellum State cases that affirm this.

[marktwain]

“This will be appealed to the SCOTUS, so it's not really time to pop the corks.”

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I don't see how, since the County won the case, even though the 9th incorporated the 2nd Amendment.

[MamaTexan]

It is plainly apparent that the RKBA was to be protected by both the Federal gov't AND the state gov'ts.

Exactly! Each was to protect the RKBA within their spheres of respective authority.

In the latter, the local or municipal authorities form distinct and independent portions of the supremacy, no more subject, within their respective spheres, to the general authority, than the general authority is subject to them, within its own sphere. In this relation, then, the proposed government cannot be deemed a national one; since its jurisdiction extends to certain enumerated objects only, and leaves to the several States a residuary and inviolable sovereignty over all other objects.
James Madison Federalist #39

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Sorry, no can do. I got Rawles book via interlibrary loan years ago, and read and returned same. I know there's a copy of it on-line somewhere, but I am away from my home computer, so don't have the link available.

Sorry to hear that. I was looking forward to the discussion.

[Double Tap]

That is not correct. Article VI of the Constitution was there long before the 14th and it clearly states that no state law could stand against what the constitution said. The Bill of Rights is part of the Constitution. The 2nd Amendment has always applied to the states, though few have recognized it.

[Wonder Warthog]

"Each was to protect the RKBA within their spheres of respective authority."

AND when either over-reached. This is also borne out by the clause in the Constitution that says that the FedGov shall "assure that the states have a republican form of government". AFAIK, that clause has never been used, but given a worse "Huey Long", the feds have the authority to come in and completely supplant the state government if it ever becomes "non-republican".

"Sorry to hear that. I was looking forward to the discussion."

Well, if you're willing to bear with me, I won't be at work forever.

[Delacon]

Hey you two, I am really learning a lot from the both of you. Don’t stop now.

[MamaTexan]

The states already ceded their right to break from the union even before the constitution was written.

ROFL!

Nice try, but the Articles ceased to exist in 1789. There's also something called the Rule of Exclusion that's been in operation for a very long time.

• § 207. XIII. Another rule of interpretation deserves consideration in regard to the constitution. There are certain maxims, which have found their way, not only into judicial discussions, but into the business of common life, as founded in common sense, and common convenience. Thus, it is often said, that in an instrument a specification of particulars is an exclusion of generals; or the expression of one thing is the exclusion of another. Lord Bacon's remark, "that, as exception strengthens the force of a law in cases not excepted, so enumeration weakens it in cases not enumerated," has been perpetually referred to, as a fine illustration.
Justice Joseph Story on Rules of Constitutional Interpretation

Without the Constitution specifically stating the Union is permanent, indissoluble, perpetual or some other descriptive, it cannot BE so. It's part of what makes it a document for limited government.

[MamaTexan]

i would argue as well that the Fourteenth Amendment is unconstitutional based upon its ratification process. Telling states that they cannot change their ratification ballots while forcing others to do just that pretty much violates the spirit of the amendment itself.

Yep. Tossing the duly elected Representatives out on their keisters is not exactly a representative government, is it?

[dcwusmc]

The Tenth doesn’t GRANT ANYTHING, just as none of the BoR GRANTS anything. It RESERVES all authority NOT GRANTED TO FEDGOV to the States and the People, who are the ultimate source of all the authority granted to ANY level of government in this country.

[MamaTexan]

Well, if you're willing to bear with me, I won't be at work forever.

Well, I can find a right to bear arms, but not one to bear with you.

Just kidding! I await your post. :-)

[Pistolshot]

Depends on the other party. There is always the possibility of appeal. The county may have won this round, but what the 9th does is clear the way for other municipalities in other states to deny gun shows on their properties.

It's a double edged sword. The 9th is saying one thing in denying a legitimate business from conducting that business on possibly the only venue large enough, and still saying 'sure, the 2nd is incorporated'

Now, if the show operator appeals to the SCOTUS for relief, one of few things happen. The SCOTUS agrees to hear arguments, defers it, or overturns the 9th Circuit.

It's possible under the overturn to keep the incorporation, but generally, the 9th has lost out almost everytime a case has made it to the SCOTUS.

I'll wait and see what the next step in the process is before I get too excited.

[djsherin]

Ping.

[Delacon]

“Without the Constitution specifically stating the Union is permanent, indissoluble, perpetual or some other descriptive, it cannot BE so. It's part of what makes it a document for limited government”.

Well MamaT you can rolf all you want but I got that from reading legal opinions on the subject. Jeeze when I started this hip hooray to a pro 2nd amendment individual rights article I hoped against hope that it wouldnt break down into a federalism v states rights argument. This is deja vue all over again for me because I've posted pro-gun articles before and it always seems to happen. But I'll bite. As I said up the thread, I am no legal scholar but when a union goes from perpetual union to a more perfect union, more perfect union doesn't negate perpetual union. One can have both. Or more importantly one can perfect a perpetual union but a perfect union doesn't need to be perpetuated. The framers indended tp perfect a perpetual union. Sorry for the alliteration.

[Huck]

The Bill of Rights is a charter adopted by the States at ratification

Incorrect. They weren't adopted until the First Congress.

[Delacon]

I need to add a “more perfect union” than what? Answer: The perpetual union they had originally devised.

[zeugma]

Oh but they got it soooo right.

They got the incorporation part right. 

The case at issue though was decided quite incorrectly. After expounding multiple times how "fundamental" and "historic" this right was, they found that the county, run by a bunch of girly men afraid of firearms could eliminate gun shows on county property.

let's see them say the same thing about the first amendment.

[MamaTexan]

but I got that from reading legal opinions on the subject.

I've shown legal writings, not just told someone they were wrong and expected them to take my word for it.

I've already mentioned I was more than willing to wait until the discussion became more convenient for you.

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Jeeze when I started this hip hooray to a pro 2nd amendment individual rights article I hoped against hope that it wouldnt break down into a federalism v states rights argument. This is deja vue all over again for me because I've posted pro-gun articles before and it always seems to happen. But I'll bite.

Look, I think the finding of the Court is wonderful, even if it is rather misguided. You're the one who jumped in with the 'Notice the word perpetual? That means forever.' post.

Don't rant at me just because I replied.

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As I said up the thread, I am no legal scholar but when a union goes from perpetual union to a more perfect union, more perfect union doesn't negate perpetual union. One can have both. Or more importantly one can perfect a perpetual union but a perfect union doesn't need to be perpetuated.

That's like saying your obligated to every detail of every contract you ever signed even if that contract was terminated.

I'm no legal scholar either, but I know the Law doesn't work that way.

The Articles ended, and the word 'perpetual' no longer applies.

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The framers indended to perfect a perpetual union

No, they attempted to create a 'more perfect' Union to ensure the happiness of the People. They had no intention of creating a suicide pact.

I've posted information from an acknowledged legal document written by George Tucker, a man of such renown that is considered to be America's Blackstone. He was appointed to a federal judicial position by Madison himself.

Their obligation, therefore, to preserve the present constitution, is not greater than their former obligations were, to adhere to the articles of confederation; each state possessing the same right of withdrawing itself from the confederacy without the consent of the rest, as any number of them do, or ever did, possess.

Of the Several Forms of Government, St. George Tucker, View of the Constitution of the United States, Section XIII

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It was not my intention to ruin your thread, and if you have no desire to discuss the subject of States rights, that's fine.

I will not, however, simply 'take you word' for any assertions you might make. "You're wrong because I say so" is a pitiful substitute for a rational debate.