You won’t find me saying nice things about the Ninth Circuit Court of Appeals very often, so savor the moment.
On April 20, Alameda County, California, “won” a gun control case that has many gun owners dancing in the aisles.
King Pyrrhus of Epirus in 280 BC and 279 BC won such costly victories over the Romans. He remarked, “One more such victory and I am lost.” And the gun control movement just had such a Pyrrhic victory in Nordyke v. King.
Alameda County, like other California counties, tried to prohibit gun shows at the county fairgrounds. The Ninth Circuit struck down a previous effort by Santa Clara County on First Amendment grounds, because it restricted lawful, commercial speech (the offering of guns for sales), and there was no compelling governmental interest advanced by it.
The first time that the current lawsuit reached the Ninth Circuit, the judges were sympathetic to Nordyke’s claim that Alameda County was violating the Second Amendment, but the U.S. Supreme Court had not yet issued a clear ruling about whether the Second Amendment protected an individual right or a collective right.
Last year, the U.S. Supreme Court ruled in D.C. v. Heller (citing some of my work) that the Second Amendment protected an individual right to possess handguns in one’s home for self-defense. Because Heller involved federal jurisdiction — not a state law — it left open the question of whether the Second Amendment applied to the states or not. The Bill of Rights, until the Fourteenth Amendment, limited only the federal government. States were free to give preference to particular churches, limit freedom of speech, and perform warrantless searches — and many did. Over the course of the 20th century, the Supreme Court “incorporated” various provisions of the Bill of Rights against the states, piece by piece. This process is known as “selective incorporation”: certain rights are incorporated through the due process clause of the Fourteenth Amendment.
There’s no persuasive theory behind this. The Court has sometimes talked about how certain rights are “fundamental to ordered liberty,” but it hasn’t ever explained this with anything deeper than arm waving. Even academics who like the result recognize that it is nonsense: the Court was cherry-picking the rights it liked and ignoring those (like the Second Amendment) that it didn’t like.