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.
Following the Heller decision, Nordyke’s lawyers refiled, because the Second Amendment was now clearly an individual right. Nordyke’s lawyers asked the Ninth Circuit to reconsider, and with respect to incorporation of the Second Amendment against the states. As the Ninth Circuit opinion eloquently observes on p. 4490:
This brief survey of our history reveals a right indeed “deeply rooted in this Nation’s history and tradition.” Moreover, whereas the Supreme Court has previously incorporated rights the colonists fought for, we have here both a right they fought for and the right that allowed them to fight.
The Heller decision answered a very specific question: is there a right to have a handgun, or any loaded firearm, in your home? The Alameda County ordinance, as silly as it was, did not prevent that. Nor did it apply to public streets. It applied only to non-public facilities owned by the county. A government acting as landlord has substantially more discretion than the government acting as government.
Because Alameda County technically “won,” they can’t appeal to the Supreme Court. They can, at most, request what is called an en banc hearing of the Ninth Circuit (in which a larger panel of judges decides whether this decision is correct or not). It appears unlikely that such an en banc hearing will take place.
Since other circuits of the Court of Appeals have ruled that the Second Amendment does not apply to the states, we will have what is known as a “circuit split,” which means that some circuits have come to one conclusion while others have come to another. While the U.S. Supreme Court is not required to hear such an appeal, when an important question of law is involved, it usually does so.
The Heller decision alluded to the question of incorporation, and some informal remarks by members of the Heller majority suggest that they had thought about this question and agreed that incorporation against the states was inevitable. Best of all, it looks like such a Supreme Court hearing will take place sooner rather than later — and while the five judge majority that decided Heller still sits on the bench.
Not every state gun control law will necessarily be overturned by incorporation of the Second Amendment. It will, however, put the burden of proof on governments to show that a gun control law serves at least some legitimate governmental purpose. In some cases it may require the government to establish that there is no other way to accomplish a legitimate end. That’s a standard that few state and local gun control laws can meet.