Obama Citizenship

States? Rights Update: Louisiana Sovereignty Bill Introduced; Nordyke v. King: States and the Second Amendment

By Phil

Louisiana

From TheOhioRepublic:

Louisiana’s Sen. A. G. Crowe introduced SC 2 Apr. 27. It was favorably reported out of committee [5/6/09]  and is awaiting a floor vote.

On the 2nd Amendment front, a California case that percolated up to the 9th Circuit Court of Appeals, Nordyke v. King (via the California and Federal Firearms laws wiki), has further adjudicated how the right to keep and bear arms applies to the State and local levels in America. The following is a brief sampling of commentary from across the blogosphere…

From AmericasRight (Jeff provides more history at the link):

If last year’s seminal Heller v. District of Columbia hit the news cycles and the American political landscape like a .375 H&H, last month’s Nordyke v. King was a .22 rimfire. Yet, hardly reported at all by the mainstream press and given scant attention even on the Internet, the April 20, 2009 ruling by the Ninth Circuit Court of Appealswas nonetheless incredibly important to the struggle for gun rights, and was one of the first downhill consequences of Heller.

In deciding Nordyke, the notoriously liberal appellate court affirmed the incorporation of Second Amendment against state and local governments under the Fourteenth Amendment. In other words, while Heller affirmed that the Second Amendment is an individual right to keep and bear arms rather than a right reserved to government-regulated militias, Nordyke took the baton and affirmed that such a right applies not only to the federal government, but to state and local governments as well.

The Ninth Circuit panel took an interesting path to its decision, choosing to apply selective incorporation under the Due Process Clause rather than the total incorporation route pursuant to the Fourteenth’s Privileges or Immunities Clause. At the end of the day, this could be an important and good thing. I’ll try to explain why. Bear with me.

Because of some ambiguity in its creation and some so-called befuddlement among its creators, the original meaning of the Fourteenth Amendment has always been viewed as a little nebulous. Particularly contentious has been the Privileges or Immunities Clause, perennially subject to debate over whether the clause was designed to require states to ensure their laws applied equally to all citizens, or whether it was to mandate specific substantive content to state law. The former essentially means that whatever the content of a state law may be, it should apply equally to all citizens. The latter is what we’re concerned about here.

From OpposingViews.com (excerpted):

…Judge Diarmuid O’Scannlain made the court’s position on the 2nd Amendment very clear:

“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.”

That’s all exactly correct, of course, but note that the court incorporated the 2nd Amendment via the Due Process Clause of the 14th Amendment, which is how most of the Bill of Rights have been applied to the states, rather than through the Privileges or Immunities Clause of the 14th Amendment. As I noted in an article on the Nordyke case last year, historian Michael Kent Curtis and several other distinguished legal scholars filed a very impressive friend of the court brief on behalf of the Nordykes, arguing that the 14th Amendment “and specifically its privileges or immunities clause were designed to forbid states from abridging fundamental rights of citizens, including those rights in the Bill of Rights.” The Ninth Circuit has unfortunately rejected that view, citing the controversial Slaughter-House Cases as precedent. But in a very interesting footnote, Judge O’Scannlain does note that, “the substantive due process doctrine…appears to arrive at a result similar to that urged by the dissenters from the Supreme Court’s opinion in Slaughter-House.” So we’ll have to wait for another day to see the 14th Amendment restored to its original meaning. Meanwhile, we’re closer than ever to seeing?and enjoying?a fully restored 2nd Amendment. That’s something worth celebrating.

For the full story of D.C. v. Heller, don’t miss Brian Doherty’s “How the Second Amendment Was Restored.”

BureauCrash.com provides a few more quotes (excerpted):

The Heller case affirmed that the Second Amendment is an individual right rather than pertaining only to state-regulated militias. Monday?s ruling, though imperfect, affirms that the Second Amendment applies not only to the federal government, but also to local and state government.

Judge Diarmuid F. O?Scannlain, wrote some very promising verbiage into the opinion?

?The right to bear arms is a bulwark against external invasion. We should not be overconfident that oceans on our east and west coasts alone can preserve security. We recently saw in the case of the terrorist attack on Mumbai that terrorists may enter a country covertly by ocean routes, landing in small craft and then assembling to wreak havoc. That we have a lawfully armed populace adds a measure of security for all of us and makes it less likely that a band of terrorists could make headway in an attack on any community before more professional forces arrived.?

So the Second Amendment was not about duck hunting, after all. Even more refreshing is this Judge?s recognition that the real reason the Founding Fathers wanted an armed populace was so that it could fight off their own leaders when appropriate.

Consider this snippet, also from Judge O?Scannlain?s Opinion.

?Second, the right to bear arms is a protection against the possibility that even our own government could degenerate into tyranny, and though this may seem unlikely, this possibility should be guarded against with individual diligence.?

Lawyer blog ArmsAndTheLaw.com opines their opinion of the decision and what could happen, going forward:

On a quick read:

Court incorporates the 2A on a selective incorporation, due process, theory, holding that the right is a fundamental one, deeply rooted in Anglo-American history, and traditionally seen as a natural right rather than a politically-created one. Court declines privileges or immunities incorporation, as ruled out by Supreme Court case law.

Court holds, tho, that the regulation at issue (banning firearm possession, but only on county owned property) was a reasonable regulation, etc..

My read on strategic posture:

1) This means plaintiffs, the good guys, are the ones who can petition the Supreme Court for cert.. They may have won on incorporation, but they “lost” on the appeal overall, and thus are the ones who can appeal further. This is good for them. Defendants are not in control, cannot move for rehearing en banc, or decline to file for cert..

2) It may however make the case less cert-worthy, a little less appealing to the Supreme Court. Not quite so clean an issue, need to reach reasonable regulation which the Court may be unready to do.

UPDATE: Yep, it’s binding in the 9th Circuit. Can be cited in other Circuits, which they would take into account, but doesn’t bind them. Note that “binding” is often more theory than fact, since there are ways to get around a binding decision (distinguish it — facts in this case are somewhat different from facts in that case — or sometimes outright ignore it, or call for en banc review by all the judges in the circuit and try to get them to overrule the prior decision). And a well-reasoned opinion from one circuit can carry weight in others; this one will surely be cited in the Chicago case. And a circuit split, where some circuits go one way and others go another, is a good basis for asking the Supreme Court to take it on and settle the issue.

ANOTHER UPDATE: This shows you how, esp. in the 2A arena, guessing a judge as liberal or conservative, or Demo or Repub appointee, does little good. Two of the judges are Demo appointees. The concurrence, which is even stronger than the majority, and argues that an armed citizen can be an important resource against terrorism, is written by a Clinton appointee.

A current listing of State-based initiatives can be found here.

-Phil

Full post as published by The Right Side of Life on May 07, 2009 (boomark / email).