Nordyke v. King; 2nd Amendment Doesn't Apply to States

| by Reason Foundation

By Damon W. Root

The U.S. Court of Appeals for the Ninth Circuit issued its eagerly anticipated decision in Nordyke v. King yesterday, holding that the 2nd Amendment protects the individual right to keep and bear arms against violation by state and local governments. (Last year's D.C. v. Heller settled that the 2nd Amendment protects an individual right against federal abuse.) The case dealt with a 1999 Alameda County, California ordinance banning the possession of firearms on county-owned property, a law enacted primarily to keep gun shows off of the county fairgrounds. The Ninth Circuit actually upheld the ordinance, though Judge Diarmuid O'Scannlain made the court's position on the 2nd Amendment very clear:

"We therefore conclude that the right to keep and bear arms is "deeply rooted in this Nation's history and tradition." 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 "true palladium of liberty." 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."

That's all exactly correct, of course, but note that the court incorporated the 2nd Amendment via the Due Process Clause of the 14th Amendment, which is how most of the Bill of Rights have been applied to the states, rather than through the Privileges or Immunities Clause of the 14th Amendment. As I noted in an article on the Nordyke case last year, historian Michael Kent Curtis and several other distinguished legal scholars filed a very impressive friend of the court brief on behalf of the Nordykes, arguing that the 14th Amendment "and specifically its privileges or immunities clause were designed to forbid states from abridging fundamental rights of citizens, including those rights in the Bill of Rights." The Ninth Circuit has unfortunately rejected that view, citing the controversial Slaughter-House Cases as precedent. But in a very interesting footnote, Judge O'Scannlain does note that, "the substantive due process doctrine...appears to arrive at a result similar to that urged by the dissenters from the Supreme Court's opinion in Slaughter-House." So we'll have to wait for another day to see the 14th Amendment restored to its original meaning. Meanwhile, we're closer than ever to seeing—and enjoying—a fully restored 2nd Amendment. That's something worth celebrating.

For the full story of D.C. v. Heller, don't miss Brian Doherty's "How the Second Amendment Was Restored."