Life After Heller - More lawyers, more guns, some nunchuks, and the 14th Amendment

In a peculiar but not unprecedented turn of events, an anti-gun control plaintiff lost his case, last month's Nordyke v. King(pdf), but nonetheless managed to elicit a groundbreaking pro-gun rights declaration from the Ninth Circuit Court of Appeals.

In deciding that it was OK for California’s Alameda County to bar the possession of guns on county property—a law that quashed a gun show that had long been held on county fairgrounds—the Ninth Circuit affirmed that the Second Amendment does control state and local actions as well as federal ones. That was a step farther than last year's decision in District of Columbia v. Heller(pdf), when Supreme Court declared authoritatively for the first time that the Second Amendment did indeed protect an individual right to bear arms. That decision concerned only federal actions.

It’s not unusual for an important gun rights principle to be embedded in a decision upholding a gun law. In fact, that outcome has a positive historical pedigree. The same thing happened in the groundbreaking 2001 Fifth Circuit case, U.S. v. Emerson, where the court declared that the individual right to possess weapons existed in principle (as distinct from some collective right connected with militia membership). But the opinion also said that the particular statute at issue, which barred individuals currently under restraining orders from owning weapons, did not violate the right.

What mattered for the future of gun rights was not whether the plaintiff won his challenge (he didn’t). What mattered was that Emerson created a split in judgment over what the Second Amendment meant among the federal judicial circuits. That laid the groundwork for the Supreme Court to take up the question in Heller. Similarly, what’s most important for the future of gun rights jurisprudence with Nordyke is not whether Alameda County will once again see gun shows on its property (it won’t) but that the decision creates a clear circuit split on whether or not the Second Amendment applies, through what’s called “incorporation” via the 14th Amendment, to state and local actions.

Thus, even though the particular gun show operators who fought Nordyke lost, they won a great victory for the gun rights cause and almost certainly laid the ground for a future Supreme Court case. This year has already seen another federal circuit case, the Second Circuit’s Maloney v. Cuomo(pdf), which involves a New York ban on nunchuk possession, declare that the Second Amendment does not apply to states or localities. This has been the standard position on Second Amendment incorporation in the federal courts. The plaintiff in Maloney intends to petition for certiorari from the Supreme Court. The Nordyke plaintiffs can’t, since the particular issue on which they lost, a government’s ability to ban or restrict guns on government property, is not an issue on which there is a circuit split the Supremes need to resolve.

Nordyke’s stroll through the court system was long and twisted and the plaintiffs used a variety of legal arguments to try to overthrow the county’s ban. The line of reasoning by Judge Diarmuid F. O’Scannlain in Nordyke has proved particularly interesting as it has attempted to follow the 14th Amendment’s call that “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law.”

Elements of the federal Bill of Rights might be said to apply to states and localities in at least two ways, and most of the Bill of Rights has already been thus applied. But until Nordyke, the Second Amendment had been glaringly left out. For non-lawyers, the way the 14th Amendment ended up being parsed in Nordyke, and most other cases, might seem peculiar, but here’s how it went.

O’Scannlain declared that the Second Amendment is not one of the “privileges or immunities of citizens of the United States,” precisely because the right is one of “those general civil rights independent of the Republic’s existence,” and not a peculiar possession of Americans as Americans. Peculiarly, it is too important to be imposed on the states via the 14th Amendment by the "privileges or immunities" clause.

Luckily, there is another way. Though you might think “due process” refers merely to the ways or procedures by which government deals with our rights, courts have come to believe in something called “substantive due process.” The Due Process Clause “guarantees more than fair process, and the ‘liberty’ it protects includes more than the absence of physical restraint,” as explained in 1997’s Washington v. Glucksberg.

Thus, as O’Scannlain wrote in Nordyke, if the Second Amendment right is “fundamental, meaning ‘necessary to an Anglo-American regime of ordered liberty’…then the Fourteenth Amendment incorporates it.” And using reasoning analogous to how trial by jury was incorporated on states and localities in the 1968 Duncan decision, he held that the Second Amendment also must be incorporated.

The decision in Nordyke, much like Heller, laid out in convincing detail that the right of self-defense through weapons protected in the Second Amendment is indeed “deeply rooted in this Nation’s history and tradition....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."

Still, since Heller’s outline of that right kept it rooted in self-defense in the home, O’Scannlain nonetheless decided that Alameda County could keep its ordinance banning weapons on county property since that restriction did not unduly restrict the core element of the gun possession right as Heller interpreted it.

While the New York Times would have you believe Heller has had few meaningful after-effects, gun rights scholar David Kopel sums up well how significant the decision has been already:

Moving forward, a series of interesting and potentially game-changing new legal challenges have been launched in Heller’s wake. A sampling of a few:

• With the help of the National Rifle Association (NRA), Heller plaintiff Dick Heller is challenging the way D.C. has redesigned its gun control laws post-Heller. As the NRA explained in a press release, “Under the current D.C. law, prospective gun owners are required to pass a written test graded at the sole discretion of the Metropolitan Police Department. They must also have vision better or equal to that required to get a driver’s license (even for those who just want to possess a collector’s item), submit employment history for the past five years and surrender all handguns for ballistics testing, among other restrictions.” Heller and the NRA think those limitations on a recognized constitutional right should not stand.

• The Seventh Circuit Court of Appeals will be hearing in late May a set of legal challenges(pdf) to various Chicago area gun restrictions that amount to a total restriction on handgun possession and use in the home. Both victorious Heller lawyer Alan Gura and the NRA are involved, with various earlier cases having been combined on appeal on the court’s order.

• Tracey Hanson, one of the original six plaintiffs in what ended up as the Heller case, has reunited with Gura in March to sue D.C. over the fact that the city's narrow roster of approved guns barred her from registering her own handgun because of its color.

• The Second Amendment Foundation and other plaintiffs filed in late April a suit in California challenging that state’s arbitrary list of “approved” guns—a list manufacturers have to pay a fee to appear on. As the press release announcing the suit stated, quoting attorney Alan Gura, “A handgun protected by the Second Amendment does not need to appear on any government-approved list and cannot be banned because a manufacturer does not pay a special annual fee.”

• The Second Amendment Foundation also in late March sued Attorney General Eric Holder, as their press release announcing the suit summed up, “seeking an injunction against enforcement of a federal law that makes it impossible for American citizens who reside outside the United States to purchase firearms while they are in this country.”

With the precedents of Heller and Nordyke, and with various unreasonable gun rights restrictions under skilled legal fire, the future of Second Amendment jurisprudence is brighter than it has been in living memory. Justice Souter’s retirement doesn’t change the gun rights balance of power at the Supreme Court—he was a Heller dissenter, and undoubtedly whoever replaces him would have been as well.

But because Heller very explicitly set limits on how far the Court's gun rights thinking would go (and indeed the Nordyke court relied on that limiting language to uphold Alameda’s gun possession restrictions), some believed it was going to be a complete dud. It is possible that gun jurisprudence will stay stuck in a very narrow groove, with courts deciding across the board that if a law doesn’t clearly and directly and entirely prevent someone from defending themselves in their home with a common weapon then the Second Amendment has been properly honored. But it seems far more probable that Heller will end up reshaping the landscape of American liberty.

Ninth Circuit Judge Ronald Gould nicely laid out the ambiguity facing the courts in his Nordyke concurrence: “The problem for our courts will be to define, in the context of particular regulation by the states and municipalities, what is reasonable and permissible and what is unreasonable and offensive to the Second Amendment.” That’s a vague mandate, and different courts will make different decisions under different circumstances. But after Heller and Nordyke, even if they lack a magic bullet to shoot down unnecessarily restrictive gun laws, courts have the proper core principles laid out. That’s far more than the gun rights community could have said even a year ago.

-- I'm also puzzled by your attitude toward the fact that Scalia, Thomas, Alito, and Roberts may have had to compromise to get Kennedy's vote. --

What I said I was impatient toward was radical miscasting of a case. That sort of jurisprudence undercuts the credibility of the law. If Miller can be bastardized "as a matter of compromise," then so can Heller, and so can the 2nd amendment.

If the majority wanted to revisit Miller, and modify it, they should have done so directly. Saying "Miller was convicted" (where that error is the essential foundation for the substantive statement that begins "We also recognize another important limitation ... [on the individual right]") makes that statement one of outcome-based expedience. It's as invalid as O'Connor's opinion in Casey.

I can't prevent you from accepting that sort of jurisprudence as a necessary expediency, and you can't prevent me from finding it cheap, tawdry, and demeaning of law as a logical art.

Time will tell if your prediction is correct, that the Courts will eventually strike down the 1934 NFA, using Heller as the basis. I've expressed why I hold the opposite point of view, and substantiated my prediction by pointing at the plain language in the Heller decision. I didn't cite, but I have recollection of post-Heller cases that took advantage of the unambiguous dicta, and in a way that affirms the government's power to infringe.

jim-x said: "Engineers think the glass is twice as big as it should be. "

Then there's the joke about a priest, a lawyer, and an engineer who faced execution by guillotine during the French Revolution.

As the priest mounted the platform, he said, "I am righteous and the Lord will save me." He took his position, the blade was released, and the blade stopped halfway down. The executioner explained that only one attempt at execution was allowed and the priest was set free.

Next the lawyer mounted the platform and said, "I am innocent and deserve to be exonerated." He took his position, the blade was released, and again the blade stopped halfway down. The executioner explained that only one attempt at execution was allowed and the lawyer was set free.

Finally, the engineer mounted the platform and said, "I see your problem right there. A screw in the frame has backed out and is interfering with the blade."

I've often wondered why a CCW shouldn't also allow someone to carry nunchuks, a blackjack, a knife, a taser, or some other weapon or “arm”, besides a firearm. I suppose the strict interpretation of “arms” would be a firearm, though Revolutionary War officers carried swords or sabers, in addition to pistols, so edged weapons would seem to be "arms".

All those things are arms, but the terms of the government *permission* (CHL/CCP/CCW, which I have) to bear arms, generally exclude all but concealed handguns. But every state's laws are different. Are those exclusions, or the very requirement for state permission to carry arms Constitutional. Probably not. Although it's possible that if *open* carry were not restricted, as was the case when most of the early anti concealed carry laws were written, then licensing of concealed carry might be Constitutional. But OTOH, it still would be an "infringement" on the right to *bear* arms.

cboldt: As of Heller, the substantive right is "you can keep a pistol at home, for self-defense." That's what the 2nd amendment has been reduced to, and yes, it pisses me off.
I don't think that is true at all. The Heller decision establishes the narrowest possible scope of the protected right, but doesn't come anywhere near the entire scope.

I didn't mean for the "pistols and only at home" to be taken literally as the full scope. But as it stands, SCOTUS has ruled that a city (or any other division, e.g. state) may require a license to posses a handgun in the home, and this requirement does not run afoul of the 2nd amendment.

Although it didn't need to, the Heller Court also intimated that all the federal firearms laws are constitutional, because finding otherwise would be troubling. SCOTUS very clear implication that the 1934 NFA and 1968 GCA are permissible in light of the 2nd amendment is powerful mojo, and IMHO, people who think a District or Circuit Court are going to find otherwise are delusional. There will continue to be complete harmony in the federal court system, upholding those laws -- and now with the added heft of rhetoric in the Heller decision.

Cboldt said: "But as it stands, SCOTUS has ruled that a city (or any other division, e.g. state) may require a license to posses a handgun in the home, and this requirement does not run afoul of the 2nd amendment."

Your copy of Heller must be different from mine. My copy contains the following:

"Respondent conceded at oral argument that he does not “have a problem with . . . licensing” and that the District’s law is permissible so long as it is “not enforced in anarbitrary and capricious manner.” Tr. of Oral Arg. 74–75. We therefore assume that petitioners’ issuance of a license will satisfy respondent’s prayer for relief and do not address the licensing requirement."

To me this sounds like an invitation to a later petitioner or respondent to challenge the licensing. Once again, we see that the Heller decision addresses Heller's issue as narrowly as will do the job. The full scope of the right has yet to be addressed.

The above sentence from Heller could have been written: "Nothing in this decision should be taken to cast doubt on the prohibition against keeping arms without a license." BECAUSE THE ISSUE WAS NOT ADDRESSED.

-- The above sentence from Heller could have been written: "Nothing in this decision should be taken to cast doubt on the prohibition against keeping arms without a license." BECAUSE THE ISSUE WAS NOT ADDRESSED. --

Well, as you state it, no doubt is to be cast on the prohibition. Ergo, the prohibition is presumptively constitutional.

I agree that the licensing issue isn't finally settled, but on account of an absence of challenge, it likewise isn't forbidden (to the government). Certainly some forms of licensing have been endorsed (1934 NFA and 1968 GCA), so even the licensing issue can be carved up in a variety of ways.

MacDonald v. City of Chicago (08-cv-3645, N.D.Ill), NRA v. Chicago (08-cv-3697), and NRA v. Oak Park (08-cv-3696) are as a legal formality turned against the plaintiffs seeking to invalidate laws, with the losses being assigned to the Seventh Circuit's doctrine that states are not bound by the 2nd amendment (not incorporated).

District Court in the two NRA cases - Dec, 2008.

http://www.chicagoguncase.com/ Summary of legal action, up to "Seventh Circuit has now scheduled argument for Tuesday, May 26, 2009"

I can picture the Seventh Circuit pulling a Nordyke, finding incorporation, and ordering a licensing regime similar to whatever DC is doing. That sets up absence of conflict between the Circuits, and keeps the heat off SCOTUS to grant a writ of certiorari on the substantive aspect of the licensing scheme.

Don't get my sentiments wrong. I'm happy to see the draconian measures of DC, Chicago, and others being tempered. Bear in mind that my original contention on this thread was that SCOTUS, in Heller, had endorsed finding bans on private ownership of select-fire weapons (M-16s) to be constitutional. Past that, I find the ground gained in Heller to be significant in that it is a step away from total ban. But the precise ground actually taken in Heller is "handgun in the home but only with a license having terms set by the city."

Cboldt said: But the precise ground actually taken in Heller is "handgun in the home but only with a license having terms set by the city."

Heller's lawyers, and they are the same lawyers handling the Chicago cases, purposely declined to challenge the licensing. They purposely asked the court to find that there is an individual, FUNDAMENTAL, right to keep and bear a handgun for self-defense and other purposes in the home.

The pro-gun side purposely wanted to keep other issues off the table, no doubt to avoid the kind of reasoning which states, "If the government can ban machineguns, then they can ban any gun, and thus they can ban Heller from having his gun in his home".

Instead, the Court was forced to address the meaning of the Second Amendment with sufficient depth to SETTLE the one question before the Court.

Canada has already spent BILLIONS on their gun registry, with nothing to show for it. Gun licensing and gun owner licensing is a losing proposition and will fall dramatically just as soon as the courts dictate that the cost of licensing must be borne by the state.

Utah is experiencing financial stress because they set the fee for renewal of a CCW at $10 and it doesn't cover the cost. People like me, living in the People's Republik of Kalifornia, jump through Utah's hoops so that we can carry in the thirty-five or so states which recognize Utah's permit. As a result, Utah's burden of out-of-state permits numbers in the range of a hundred thousand or more.

Similarly, Florida has an immense backlog of renewals to process for similar reasons.

If Kalifornia had to start paying the costs of their registration and enforcement system, the whole thing would probably collapse in today's economic environment.

Once it has been decided that a law-abiding person can carry a loaded, concealed gun in public with a state-funded "license" and that the gun can be a military-pattern, center-fire, magazine-fed rifle using normal-capacity magazines, THEN it will be time to challenge NFA 34. This needs to be practically the LAST issue addressed, not the first.

It is very important that the public be able to say at each step, "What's the big deal?" The Supreme Court had to deal with "What's the big deal about having a handgun in one's home?" The anti-gunners lost big time and don't even know it.

Next it will be, "What's the big deal about people in Chicago having the same rights as people in DC?" Then it will be, "What's the big deal about presumption of skill at arms when it comes to owning or carrying a handgun?" (States which require training see no advantage in the statistics of shootings or accidents.)

We got into the mess we did through incremental loss of rights. We will have to expect to get out of the mess in the same incremental way.

How do you expect the government, when the time comes, to justify denying people the right to possess and carry machineguns when virtually every politician of any note is protected by guards carrying exactly those arms?

Cboldt said: In the Nordyke case, after finding that the 2nd amendment did constrain the local government, the Ninth Circuit said, "the Ordinance [prohibiting gun shows on the county fairgrounds] does not meaningfully impede the ability of individuals to defend themselves in their homes with usable firearms, the core of the right as Heller analyzed it."

This issue, too, I think will fall when the "What's the big deal" catches up.

The Heller Court purposely avoided assigning "strict scrutiny" or any other standard on the right to keep and bear arms. The ban on having a handgun in one's home wouldn't pass ANY level of scrutiny, so the Court left any further discussion for a later case.

"Strict scrutiny" would seem to mandate that gun shows be allowed, since it is unthinkable that the county could outlaw, say, a show dedicated to rare bibles.

But Alameda County, which effectively outlawed gun shows by prohibiting guns on "county property", will eventually suffer the effects of "What's the big deal".

The courts will have to find that bearing a handgun while traveling from one's home to one's place of business will be protected behavior. Eventually, Alameda County will witness the comings and goings of many armed citizens despite any necessity to travel into or through some county property. (Much of the road running past my place is county property.)

In the one instance in which the county can continue to prohibit arms, inside county buildings such as those at the fairgrounds, it won't take long for the taxpayers to say "What's the big deal about having gun shows, especially since that is the one time when the county can make some money off the gun owners". A starving government has little in the way of resources to hassle pro-gunners.

Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.