The Victory for Gun Rights That Nobody Heard About

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.

Neily isn’t so certain, citing a Court that often disappoints when matters of liberty and constitutional rights are on the table.

“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.



  1. Linda says:

    Thanks, Jeff for reporting on the Nordyke decision. It’s a California decision, so I was on top of tracking it for my Second Amendment Alert email list during its process through decision. ‘Tis indeed a victory for the gun owners. Now there are two more lawsuits in California: one fighting two county sheriffs who are blocking concealed carries (Sykes v. McGinness) and one which is challenging the California handgun ban “scheme” (the exact caption of which I, unfortunately, don’t know and have been actively trying to find). Maybe you’ll have better luck through Lexis or Pacer than I have had. You can find out about both on the Second Amendment Foundation website, as they are sponsoring both. We’re moving forward and hopefully can do away with the unconstitutional agenda of those who want to change this country and take away our freedoms.

    Thanks again for your excellent article and for following every issue that appears to be coming at us daily.

  2. Anonymous says:

    Being the patriarch of a family of independent individuals who “cling to their guns and religion”, I applaud any court decision that gives added confidence that our second amendment rights will not be infringed upon.

    However, I don’t expect for a minute that the current administration won’t make every effort to impose restrictions on gun/ammunition ownership. My biggest fear is that this administation will over-reach, believing that the majority of the public will support whatever Obama wants to do.

    Even Gen. Colin Powell announced today that “the American people want to pay taxes and they want more government in their lives”. Incredible! What a blatant mis-reading of the public mood – or has he become intoxicated by drinking too much Kool Aide again?

    What was it that one of the participants in meetings with the Obama adminstration said; “President Obama is the most dangerous smooth-talker in our history”? Something like that, anyway, which doesn’t surprise any of us who’ve been paying attention.

    God save the Constitution.

    Old Bob

  3. Anonymous says:

    Suggestion for the daily dozen link Newsmax 5/6/09 "Study: The Most Liberal States Least Free" Conservatives already know less government always equals more economic & personl freedom. Not surprising – Obama's Illinois was one the the least personal freedom states. Palin's Alaska- one of the most freedom loving states in America. Gotta love that.

  4. Anonymous says:

    Jeff: You are super smart! As I am not a law student, I found this article a bit challenging! But I will tell you that the states are not waiting on the Supreme Court to ensure gun rights.

    My state representative, Leo Berman, has introduced a bill here in TX which would prevent possible gun control legislation from regulating TX-manufactured guns and ammo. I think this is based on “nullification”.
    Montana just passed this very same law yesterday! Of course, it will probably be challenged in the courts, but it is a great victory for the 2nd and 10th Amendment!

    Lisa in TX

  5. Mark S says:

    Thanks for the article Jeff. Maybe after “incorporation” we finally will get shall issue here in NJ. This “justifiable need” malarkey is absurd. I guess getting caught up in a shoot out between two rival gangs doesn’t qualify as a justifiable need. OTOH, if you are rich or politically connected, that’s all the justification you need. Deplorable.

  6. Rix says:

    Oh my. Fourteenth Amendment is a graveyard full of mind boggling conundrums that makes me feel good about passing on legal career. In any case, I’m surprised by this highly unexpected victory that may prove pointless if (when?!) the Constitution is dead and buried by the liberal gang.

    And of course, congrats on clearing the exam off your plate. If this country needs any more lawyers, let ‘em be people like you.

  7. I Beam says:

    gimme a break

    The 2nd amendment is all of 26 words long.

    …Be patient with me as I walk you down the cerebral onanist path.

  8. Gail B says:

    If this piece (no pun intended) is any indication of your performance on your exams, you aced them!

    I was a legal secretary at one time, but this is gonna require a cup of “premium leaded,” because instant ain’t gonna cut it. I sorta get it, but then I sorta don’t–yet (but I will). It’s comforting that you are back from exams like a giant on guard duty.

  9. I Beam says:

    O’Scannlain got it wrong — the 2nd amendment was designed to thwart “internal invasion” from the heavy hand of govt.

  10. Anonymous says:

    thank to you, jeff,
    for keeping this site open & running with intelligence
    i hope you have done well in your examans

  11. Anonymous says:

    have you people heard of this
    ” obama bans access to his records the 1rst day in office”
    Excutive Order 13489

  12. Anonymous says:

    Linda said…

    Now there are two more lawsuits in California: one fighting two county sheriffs who are blocking concealed carries (Sykes v. McGinness) and one which is challenging the California handgun ban “scheme” (the exact caption of which I, unfortunately, don’t know and have been actively trying to find).If you are not active on CalGuns 2a forum, you may want to check it out…
    Here are links to the complaints on the two new cases… (you may need to cut and paste)




  13. whats_up says:

    Anonymous said…
    have you people heard of this
    ” obama bans access to his records the 1rst day in office”
    Excutive Order 13489

    Thats not what EO 13489 did, it simply restored EO 12667 that Reagan had signed in 1989 that Bush the younger revoked.

  14. tm says:

    In addition to this,
    Governor Brian Schweitzer (D), signs revolutionary new gun law in Montana
    This very interesting and if more states get onboard with this – it will send even a bigger signal to the feds.


    HELENA, Mont. (AP) – Gov. Brian Schweitzer has signed into law a bill that aims to exempt Montana-made guns from federal regulation.

    House Bill 246 was sponsored by Republican Rep. Joel Boniek of Livingston. It applies only to guns made and kept in Montana.

    Its supporters hope it triggers a court case to test the legal basis for federal rules governing gun sales.

    The measure is 1 of many introduced this year by state lawmakers across the nation that seek to assert state sovereignty.

    Along with the gun bill, Montana legislators are also considering a resolution that affirms the federal government only has those powers listed in the U.S. Constitution.
    House Resolution 3 follows an effort that failed earlier this session. It was heard Wednesday by the House Judiciary Committee.

    It has been a very interesting 30 days for the 2nd and 10th amendment.

  15. Anonymous says:


    My state rep, Leo Berman, is going to be on Glenn Beck TODAY AT 4 p.m. central.

    He’s going to talk about a gun rights bill he has introduced like the one Montana just passed.



    Lisa in TX

  16. Anonymous says:

    I believe the actual problem with enforcing citizen’s constitutional rights is found in the Law Schools of the country, peopled by liberals who will not teach because they do not believe that the Constitution is to be understood as the Founders did. Will no one look there? This is the same reason that our youth are, and have been brainwashed for years now in government schools peopled by a Leftist teachers union bent upon this task. This is why there are more and more courts, peopled with lawyers who have been taught that there are no absolutes, have been injected with PostModernist poison so that they are unable to think critically – that those courts rule against the plain meaning of the Constitution and the Bill of Rights. As long as that process is allowed to continue we will lose the America we so love forever.

  17. Anonymous says:

    To “Anonymous” at 4:03 PM, I say “Amen and again, Amen”.

    Old Bob

  18. Anonymous says:

    For Lisa in Texas (May 7, 2009 8:19 AM) “My state representative, Leo Berman, has introduced a bill here in TX which would prevent possible gun control legislation from regulating TX-manufactured guns and ammo.”
    Can you give me more info on this bill?

  19. Anonymous says:

    D’s Texas Girl:

    Leo’s bill is HB 1863. You can google info on it.

    The only depressing thing that I have just discovered is that Article VI of our U.S. Constitution states that ratified treaties “shall be the supreme law of the land”, effectively superseding any related local, state, or federal laws. The US Senate is considering ratification of an international treaty that was never signed under Clinton which would allow any foreign person or entity to have access to US gun ownership records! It is called the CIFTA Treaty (with Mexico and maybe Canada).

    Still, we need to fight hard with Leo for this TX bill. It is incredibly important!

    Lisa in TX

  20. Anonymous says:

    Life long Gun owners of america
    Wolrd long life second amendment

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