Last June, the Supreme Court ruled in District of Columbia v. Heller that the Second Amendment protects an individual"™s right to keep and bear arms, at least in the home for self-defense. Here"™s our own Bob Levy, who masterminded theHeller litigation,talking about that decision:
While the Court"™s ruling was a watershed in constitutional interpretation, it technicallyapplied only to D.C., striking down the District"™s draconian gun ban but not having a direct effect in the rest of the country.
Well, today the Ninth Circuit (the federal appellate court covering most Western states) ruled that the Second Amendment restricts the power of state and localgovernments to interfere with individual right to have guns for personal use. That is, theFourteenth Amendment "śincorporates"ť the Second Amendment against the states, asthe Supreme Court has found it to dofor most of the Bill of Rights. I rarely get a chance to say this, but the Ninth Circuit gets it exactly right.
Here"™s the key part of Judge Diarmuid O"™Scannlain"™s opinion:
[blockquote] We therefore conclude that the right to keep and bear arms is "śdeeply rooted in this Nation"™s history and tradition."ť 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 "śtrue palladium of liberty."ť 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. [/blockquote]
In short, residents of Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, and Washington now join D.C. residents in having their Second Amendment rights protected. And courts covering other parts of the country "” most immediately the Seventh Circuit, based in Chicago "” will have their chance to make the same interpretation in due course.
Just as interesting "” and potentially equally significant "” is the footnote Judge O"™Scannlain drops at the end of the above text in response to arguments that the right to keep and bear arms, regardless of its provenance as a fundamental natural right,is now controversial:
[blockquote] But we do not measure the protection the Constitution affords a right by the values of our own times. If contemporary desuetude sufficed to read rights out of the Constitution, then there would be little benefit to a written statement of them. Some may disagree with the decision of the Founders to enshrine a given right in the Constitution. If so, then the people can amend the document. But such amendments are not for the courts to ordain.
[/blockquote]
Quite right.
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"The danger to America is not Barack Obama but a citizenry capable of entrusting a man like him with the Presidency........... Blaming the prince of the fools should not blind anyone to the vast confederacy of fools that made him their prince. The Republic can survive a Barack Obama, who is, after all, merely a fool. It is less likely to survive a multitude of fools such as those who made him their president."
Love it. So beautiful. I particularly like the clear and self-evident argument you cite Judge O'Scannlain making. Contemporary desuetude does not suffice to read rights out of the constitution; there would be little purpose to writing this stuff down if that were the case. No, the lawful course is to amend these rights if they no longer make sense. This truly heartens me in my current gloomy view forwards for the remainder of the Obama administration.
It is also interesting because I think the ninth circuit court of appeals is a liberal court in San Francisco. I would like to know what the margin of the decision was.
I have high hopes that people will wake up before 2012 and start turning back this assault on the Constitution. However, This mess running the show now can do a lot of damage and destroy a lot of freedom before then, I hope people can see whats is coming. I fear that we are going to skip right over socialism to something much worse.
Not being an appellate lawyer, I'm not sure where the case goes from here. This ruling was by a three judge panel. The three judges were appointed by Carter (!), Reagan, and Clinton. I'm curious as to whether an en banc hearing before all of the justices in the Ninth would be next, or whether it may be appealed directly to the SCOTUS.
Ninth Circuit court ruling - 2nd amendment
