Incorporation of 2nd Amendment

[Tim Nunan]

<!--StartFragment -->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.

9th circuit court of appeals

Apr 20, 2009

<!--StartFragment -->http://www.ca9.uscourts.gov/datastore/opinions/2009/04/20/0715763.pdf

This is quite long ergo I didn't paste and copy.

[E4 No More]

So what's the Cliff Notes version?

[Currently]

The Ninth Circuit Court has a long history of having their decisions reversed by the Supreme Court.

More money and more effort to be spent in asserting ones rights in Kalifornication.

The lawyers always win.

[midtennchip]

Cliffnotes, as requested:

Originally, the Ninth Circuit (west coast states) ruled against a gunshow promoter saying that, among other arguments, the 2nd Amendment was a collective right and the plaintiff had no standing to sue to uphold its right. Heller clearly overruled that, so they are back in court to argue again. Since the law at issue is a local ordinance, the court had to decide whether the 2nd Amendment was "incorporated" to apply to state and local laws (rather than just to federal laws). The court ruled that the 2nd Amendment is incorported through "selective incorporation" of the Due Process Clause. I will not bore you with the differences between direct application, incorporation through the Privileges and Immunities Clause, and incorporation through the Due Process Clause. But, the opinion is already drawing some critizism on both sides of the argument.

While this is helpful to us pro-gun folks, keep in mind that it is limited. The promoter actually lost this case today. The promoter was trying to conduct gun shows in a county-owned building and the county board passed an ordinance making it illegal to bring onto or possess a firearm on county property. As it stands today, that law still prevents the gun shows.

[Guest Seminole]

While this is helpful to us pro-gun folks, keep in mind that it is limited.

Yep. It is indeed limited. First of all, this was the ruling of a 3-judge panel of the 9th Circuit Court--not even the entire Court. Secondly, incorporation was not the issue at hand. The panel only asserted incorporation on the way to the actual decision, as it were. And, at any rate, the 9th Circuit's decisions only directly affect the states and territories under its jurisdiction: Washington, Montana, Idaho, Oregon, California, Nevada, Arizona, Alaska, Hawaii, Guam and the Northern Mariana Islands. In other words, the 2nd Ammendment isn't really incorporated until SCOTUS decides it is incorporated.

That said, this is a promising development, especially to our bretheren (and sisteren ) living in California. I think it may have some implications for that state's asinine "assault weapons" ban eventually). And though it's not binding outside the 9th, I would think some enterprising pro-gun-rights attorneys elsewhere would find it a good decision to cite.

While, as someone else already pointed out, the 9th Circuit is the most frequently reversed of all the Circuit Courts, it is usually reversed for being completely beyond the left fringe of reality--not for reasoning like this. I certainly find it surprising that a 3-judge panel from the 9th Circuit, consisting of a Carter, a Reagan, and a Clinton appointee would rule in this way.

[BryanP]

The Ninth Circuit Court has a long history of having their decisions reversed by the Supreme Court.

They have a large number repealed, simply because they hear so many cases, but their percentages are not out of line with any other circuit.

[G27]

And considering they have handed down some of the whackiest rulings ever, the idea that THEY would say this is telling:

To reach this argument on the merits, we must first decide whether Heller abrogated Hickman. It did. Hickman rested on our conclusion that the Second Amendment protects only a collective right; Heller squarely overruled such conclusion.

DC vs Heller will continue to ripple for years...

[wjh2657]

After reading the whole ruling (40+ pages) three times I think we are a little early getting excited about this. It does make the argument that the Second Amendment (Federal) rights fall under Due Process (States) and must be considered in a state (Good). However it still leaves the door open for a state to regulate handguns and rifles. In short Assault weapons and Carry Permits could still be regulated (denied) in any state. If they leave you the right to have a revolver, low capacity pistol or a pump shotgun in the home, they comply with the spirit of Heller vs DC.

It is a piece of the whole fabric of the movement to assure the Right to Bear Arms, but it is a very small piece.

Your state must have it's own version of the Second Amendment in it's state constitution to insure your RTKBA. The Second Amendment only limits the U.S. Congress from messing with our RTKBA and is not completely binding to limit the states' ability to restrict our rights.

[E4 No More]

Cliffnotes, as requested:

Originally, the Ninth Circuit (west coast states) ruled against a gunshow promoter saying that, among other arguments, the 2nd Amendment was a collective right and the plaintiff had no standing to sue to uphold its right. Heller clearly overruled that, so they are back in court to argue again. Since the law at issue is a local ordinance, the court had to decide whether the 2nd Amendment was "incorporated" to apply to state and local laws (rather than just to federal laws). The court ruled that the 2nd Amendment is incorported through "selective incorporation" of the Due Process Clause. I will not bore you with the differences between direct application, incorporation through the Privileges and Immunities Clause, and incorporation through the Due Process Clause. But, the opinion is already drawing some critizism on both sides of the argument.

While this is helpful to us pro-gun folks, keep in mind that it is limited. The promoter actually lost this case today. The promoter was trying to conduct gun shows in a county-owned building and the county board passed an ordinance making it illegal to bring onto or possess a firearm on county property. As it stands today, that law still prevents the gun shows.

Gracias!