Nordyke v. King has been winding its way up to the 9th Circuit Court in California since 2003. The plantiff charged that his 1st and 2nd Amendment rights were being violated by enforcement of a 1999 Alameda County ordinance prohibiting the carry of arms on County property.
In the shadow of Heller, this was one to watch.
Unfortunately, the 9th Circuit ruled that the ordinance was just and would stand.
But that’s not the big news. This is:
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. (Nordyke v. King, p. 29 [pdf])
The Court acknowledges that, since Heller nullified the “collective rights” interpretation, case law based on that interpretation is invalid and must be reevaluated. They take their interpretation not through Privileges and Immunities of the 14th Amendment (which runs into the quandary established by the Slaughterhouse Cases), but its Due Process Clause. There were some odd but interesting precedents used, and the 9th Circuit has gone so far as to retroactively invalidate prior decisions made on the basis of the “collective rights” argument. Here are a few key quotes:
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. See Heller, 128 S. Ct. at 2799 (p. 8)
Thus, if the suspension of trial by jury, taxation without representation, and other offenses constituted the most offensive instances of British tyranny, the ability to call up arms-bearing citizens was considered the essential means of colonial resistance. Indeed, the attempt by British soldiers to destroy a cache of American ammunition at Concord, Massachusetts, sparked the battles at Lexington and Concord, which began the Revolutionary War. For the colonists, the importance of the right to bear arms “was not merely speculative theory. It was the lived experience of the[ ] age.” (p. 22, quoting Akhil Reed Amar in The Bill of Rights)
The County does little to refute this powerful evidence that the right to bear arms is deeply rooted in the history and tradition of the Republic, a right Americans considered fundamental at the Founding and thereafter. The County instead argues that the states, in the exercise of their police power, are the instrumentalities of the right of self-defense at the heart of the Second Amendment. This argument merely rephrases the collective rights argument the Supreme Court rejected in Heller. Indeed, one need only consider other constitutional rights to see the poverty of this contention. (p. 27)
The County also points to the famous passage in Heller in which the Court assured that, “nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.” —Heller, 128 S. Ct. at 2816-17 (emphasis added). The County argues that its Ordinance merely forbids the carrying of firearms in sensitive places, which includes the Alameda County fairgrounds and other County property. (pp. 32-33)
Though it no doubt comes as a disappointment for the Nordykes, this a win on a much larger scale. Heller left the question of incorporation wide open, and to be honest, I hadn’t expected a ruling on the issue this quickly.
For those of you who don’t read the Constitution, this means that the individual right to keep and bear arms (which was confirmed with finality by the Heller case) cannot be abrogated by State or local governments. Essentially, the Due Process clause provides similar protection to the 2nd Amendment that the 1st, 4th and 6th have long enjoyed.
Is this an open-and-shut matter? No, but it’s close. As it stands now, the 5th Circuit has pretty much accepted incorporation, and there are several cases on the matter pending in the 7th Circuit regarding Chicago’s laws. While the 7th may try to buck the trend, it’s unlikely, since those cases could find themselves subsequently before the Supreme Court.
(*) Hickman v. Block, 1996, in which the same court ruled that the refusal on the part of Los Angeles County to issue a carry license to the plantiff did not violate his 2nd Amendment rights. Their conclusion at the time was that Hickman’s greivance had nothing to do with the “militia” clause of the 2nd Amendment, which they interpreted as pertaining to state-organized military units:
For this reason, among others, we leave military matters to the elected branches of government. (…) Because Hickman has not sued to defend the state’s right to keep an armed militia, he has failed to show “injury” as required by constitutional standing doctrine. Accordingly we have no jurisdiction to hear his appeal.
A few other cases cited:
Duncan v. Louisiana (1968), the Supreme Court found that 14th Amendment required States to honor 6th Amendment rights to jury trial, provided that punishment could entail a fine of more than $500 or six months’ imprisonment.
In Washington v. Glucksberg (1997), the Court upheld the constitutionality of a Washington State ban on assisted suicide, finding:
In light of that history, this Court’s decisions lead to the conclusion that respondents’ asserted “right” to assistance in committing suicide is not a fundamental liberty interest protected by the Due Process Clause. The Court’s established method of substantive due process analysis has two primary features: First, the Court has regularly observed that the Clause specially protects those fundamental rights and liberties which are, objectively, deeply rooted in this Nation’s history and tradition.
Under this aegis, the 9th Circuit here asks whether the right to keep and bear arms is “deeply rooted in this Nation’s history and tradition.” The Court spends the subsequent ten pages proving that it is.
O’Scannlain also finds,
Fundamental rights usually receive strict scrutiny as a matter of substantive due process doctrine. See, e.g., Glucksberg, 521 U.S. at 721. But where the Due Process Clause incorporates one of the rights enumerated in the Bill of Rights, the standard of review becomes that appropriate to the specific right. For example, First Amendment rights, whether against the states or the federal government, trigger the same standards of review. We find no reason to treat the Second Amendment differently. (p. 30, footnote)
Regarding 1st Amendment protections, the Circuit Court takes another interesting direction, quoting from Texas v. Johnson (1989). This was a famous case in its day, testing the Constitutional veracity of ordinances which banned flag burning as “desecration” and attached criminal penalties. People really got their feathers ruffled over this one.
The Court found that “speech” is not limited to actual vocal utterances, but that it applies to any “expressive” conduct. Johnson’s actions were found to be protected, given that, “the expressive, overtly political nature of the conduct was both intentional and overwhelmingly apparent.”
It remains to be seen if James Maloney can get his case from the 2nd Circuit revived in light of this decision.
One last thing. The Violence Policy Center filed amicus curiae briefs in support of Alameda County the last two times this case was heard (2008 brief [pdf]). At this point, they’re silent on the matter. I guess they don’t like having their losses publicized.
In 2003, their arguments focused on the whole “collective rights” deal, using the same logic and arguments they used in the Heller case. In 2008, they conceded (to some extent) the individual rights interpretation, though they maintained that the 2nd Amendment is explicitly not incorporated via Heller. This is incorrect; the issue was simply left open, as it was outside the parameters of the case at hand.
Their other point is that, “[the 2nd Amendment] does not recognize a right to profit commercially by selling guns on County-owned property.” They do have a point there, and that’s in part why the Court could not rule for the Nordykes.
I’m already hearing people whine about how the 9th Circuit “didn’t go far enough,” as if they were expected to make sweeping changes to the legal system with one case. That isn’t how it works. As with Heller, the court is given a specific issue on which to make a decision. They have done so here. That they addressed the issue of incorporation is a huge boon. Sure, there are issues remaining to be decided, but their time will come through other cases.