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 Appeals was 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.
Unfortunately, Congressman John Bingham, the principal architect of the Fourteenth Amendment, was apparently all hat and no cattle, as even the latter interpretation–the clause being intended to mandate substantive content–has been subject to debate. The first view is that the Privileges or Immunities Clause draws upon the concept of natural law and the idea that we have certain natural rights never yielded to government; the second interpretation is that all of the rights and liberties and freedoms included in our Constitution, especially the first eight amendments, should be binding on the states.
Indeed, in 1947, Justice Hugo black in deciding Adamson v. California looked to “historical events that culminated in the Fourteenth Amendment, and the expressions of those who sponsored and favored, as well as those who opposed its submission and passage” to support his decision that the Fourteenth Amendment was “intended . . . to make the Bill of Rights applicable to the states.” He came to the conclusion that Bingham and the other framers of the Privileges or Immunities Clause indeed intended to make the first eight amendments, nearly all of the Bill of Rights, binding on the states.
Over the years and due to many decisions, such as 1873’s Slaughter-House Cases, which have essentially stripped much of the significant meaning from the clause, two primary schools of thought on the incorporation argument have emerged: Total incorporationists follow the Privileges or Immunities path and believe that all of the rights preserved by the first eight amendments are fundamental, and all should be incorporated, while selective incorporationists look to the Fourteenth Amendment’s Due Process Clause and believe only some of the provisions enumerated by the Bill of Rights are fundamental, and only those provisions should be applied to the states. The Ninth Circuit went the latter route, finding the right to keep and bear arms to be “fundamental.”
“[T]he right to bear arms is a protection against the possibility that even our own government could degenerate into tyranny,” wrote Judge Diarmuid F. O’Scannlain–a Reagan appointee–in his opinion, “and though this may seem unlikely, this possibility should be guarded against with individual diligence.”
I’m certainly no expert, but because the incorporation issue is sure to arise in other circuits in the wake of Heller, and because there is already a difference of opinions between the Ninth and Second Circuits, it’s likely that the U.S. Supreme Court will take up the matter. Clark Neily, senior attorney for the Washington, D.C.-based Institute for Justice and co-counsel for Dick Heller in last year’s seminal Second Amendment case, says that barring a significant shake-up in the ideological balance of the U.S. Supreme Court, he not only “fully expects” the question of whether to incorporate the Second Amendment to reach the Court, but also that the question of incorporation “will be answered in the affirmative.”
“Although no one ever got rich trying to predict when the Supreme Court would or wouldn’t choose to address particular issues, if I had to guess, I would predict that the Court will accept one of the three or four incorporation cases currently making their way up through the lower courts and resolve the issue once and for all,” Neily says. “I think incorporating the right to keep and bear arms against state and local governments is a ‘natural extension’ of Heller.”
If and when that happens, for some reason, it seems to me that the Ninth Circuit taking the selective incorporation route and subsequently deeming the right to keep and bear arms to be “fundamental” would be more promising than merely holding that the Second Amendment should be incorporated as one of the first eight amendments. But that’s just me — I could be wrong.
Regardless, the language used by O’Scannlain in his opinion is very encouraging, especially considering the current global political climate. Another excerpt:
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 what would incorporation mean for gun rights? If the Second Amendment were incorporated, the adoption of state gun laws such as a Gun-Free School Zone Act or Chicago-style gun ban would without a doubt be scrutinized as to whether they infringe upon an individual’s right to keep and bear arms, as the Heller decision had already determined that the Second Amendment protected an individual right and, because of incorporation, the Second Amendment of the U.S. Constitution would be binding on the states.
“I have said many times before that I do not think the win in Heller or the subsequent incorporation of the right to keep and bear arms–assuming it occurs–will have much practical effect on gun ownership in America, simply because most gun laws will, under any plausible application of Heller and its progeny, be held constitutional,” Neily said, cautioning that just because the laws are held constitutional does not mean that all of those laws will actually be constitutional.
“In my opinion, the courts have an increasingly poor track record of protecting liberty across the board, and I see no reason to believe they will do better with gun control than they have done with Fourth Amendment search-and-seizure law, private property, or free expression.” he continued. “However, there are frankly not that many gun laws I am aware of at either the state or the federal level that I would reasonably expect to be shut down.”
Neily did mention that total bans on handguns like seen in Chicago would certainly struggle to pass constitutional muster, even in a lackluster Court, as would “so-called ‘discretionary’ permitting systems for concealed carry as they have in New York, California, Massachusetts, and a handful of other states.” Beyond that, however, Neily doubts the right to keep and bear arms will be awash in court intervention.
Asked about what incorporation would mean down the road for proposed legislation such as H.R. 45, the anti-gun Brady Campaign’s most recent attempt at abridging the right to keep and bear arms through national licensing procedures, Neily said that he doubts we’ll ever know, “because not only does that bill in particular appear to be a dead letter, but I would bet a decent sum of money that we will not see any sort of national licensing system for guns in this country — at least not in our lifetimes.”
I, for one, hope that he’s right. In the meantime, gun owners and Americans everywhere who appreciate freedom and our founders should be happy, if only for a moment, as a major step for gun rights–even one without groundbreaking practical application–was taken last month in the most unlikely of places.