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Life for Gun Owners After DC v. Heller

By Brian Doherty

In a peculiar but not unprecedented turn of events, an anti-gun control
plaintiff lost his case, last month's Nordyke
v. King
, but nonetheless managed to elicit a groundbreaking
pro-gun rights declaration from the Ninth Circuit Court of Appeals.

In deciding that it was OK for California’s Alameda County to bar the
possession of guns on county property—a law that quashed a gun show that had
long been held on county fairgrounds—the Ninth Circuit affirmed that the Second
Amendment does control state and local actions as well as federal ones. That was
a step farther than last year's decision in District
of Columbia v. Heller
, when Supreme Court declared authoritatively for
the first time that the Second Amendment did indeed protect an individual right
to bear arms. That decision concerned only federal actions.

It’s not unusual for an important gun rights principle to be embedded in a
decision upholding a gun law. In fact, that outcome has a positive historical
pedigree. The same thing happened in the groundbreaking 2001 Fifth Circuit case,
U.S. v.
, where the court declared that the individual right to possess
weapons existed in principle (as distinct from some collective right connected
with militia membership). But the opinion also said that the particular statute
at issue, which barred individuals currently under restraining orders from
owning weapons, did not violate the right.

What mattered for the future of gun rights was not whether the plaintiff won
his challenge (he didn’t). What mattered was that Emerson created a
split in judgment over what the Second Amendment meant among the federal
judicial circuits. That laid the groundwork for the Supreme Court to take up the
question in Heller. Similarly, what’s most important for the future of
gun rights jurisprudence with Nordyke is not whether Alameda County
will once again see gun shows on its property (it won’t) but that the decision
creates a clear circuit split on whether or not the Second Amendment applies,
through what’s called “incorporation” via the 14th Amendment, to state and local

Thus, even though the particular gun show operators who fought
Nordyke lost, they won a great victory for the gun rights cause and
almost certainly laid the ground for a future Supreme Court case. This year has
already seen another federal circuit case, the Second Circuit’s Maloney
v. Cuomo
, which involves a New York ban on nunchuk possession, declare
that the Second Amendment does not apply to states or localities. This
has been the standard position on Second Amendment incorporation in the federal
courts. The plaintiff in Maloney intends to petition for
certiorari from the Supreme Court. The Nordyke plaintiffs can’t, since
the particular issue on which they lost, a government’s ability to ban or
restrict guns on government property, is not an issue on which there is
a circuit split the Supremes need to resolve.

Nordyke’s stroll through the court system was long and twisted and the
plaintiffs used a variety of legal arguments to try to overthrow the county’s
ban. The line of reasoning by Judge Diarmuid F. O’Scannlain in Nordyke
has proved particularly interesting as it has attempted to follow the 14th
Amendment’s call that “No state shall make or enforce any law which shall
abridge the privileges or immunities of citizens of the United States; nor shall
any State deprive any person of life, liberty, or property, without due process
of law.”

Elements of the federal Bill of Rights might be said to apply to states and
localities in at least two ways, and most of the Bill of Rights has already been
thus applied. But until Nordyke, the Second Amendment had been
glaringly left out. For non-lawyers, the way the 14th Amendment ended up being
parsed in Nordyke, and most other cases, might seem peculiar, but
here’s how it went.

O’Scannlain declared that the Second Amendment is not one of the “privileges
or immunities of citizens of the United States,” precisely because the right is
one of “those general civil rights independent of the Republic’s existence,” and
not a peculiar possession of Americans as Americans. Peculiarly, it is too
to be imposed on the states via the 14th Amendment by the
"privileges or immunities" clause.|

Luckily, there is another way. Though you might think “due process” refers
merely to the ways or procedures by which government deals
with our rights, courts have come to believe in something called “substantive
due process
.” The Due Process Clause “guarantees more than fair process, and
the ‘liberty’ it protects includes more than the absence of physical restraint,”
as explained in 1997’s Washington v.

Thus, as O’Scannlain wrote in Nordyke, if the Second Amendment right
is “fundamental, meaning ‘necessary to an Anglo-American regime of
ordered liberty’…then the Fourteenth Amendment incorporates it.” And using
reasoning analogous to how trial by jury was incorporated on states and
localities in the 1968 Duncandecision, he held that the
Second Amendment also must be incorporated.

The decision in Nordyke, much like Heller, laid out in
convincing detail that the right of self-defense through weapons protected in
the Second Amendment is indeed “deeply rooted in this Nation’s history and
tradition....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."

Still, since Heller’s outline of that right kept it rooted in
self-defense in the home, O’Scannlain nonetheless decided that Alameda County
could keep its ordinance banning weapons on county property since that
restriction did not unduly restrict the core element of the gun possession right
as Heller interpreted it.

While the New York Times would
have you believe
Heller has had few meaningful after-effects, gun
rights scholar David Kopel sums
up well
how significant the decision has been already:

"On the day that Heller was decided, the citizens of five Chicago
suburbs, and of Chicago itself, were prohibited from owning guns. Residents of
apartments provided by the San Francisco Housing Authority were prohibited from
owning any gun. Within 24 hours of the Heller decision, gun rights
organizations—including the National Rifle Association (NRA) and the Second
Amendment Foundation (SAF)—filed
lawsuits against the gun bans.

"Today, the residents of San Francisco public housing can own guns in their
homes. In four of the five Chicago suburbs (Morton Grove, Evanston, Wilmette,
and Winnetka), the handgun bans have been repealed."

Moving forward, a series of interesting and potentially game-changing new
legal challenges have been launched in Heller’swake. A
sampling of a few:

  • With the help of the National Rifle Association (NRA), Heller
    plaintiff Dick Heller is challenging the way D.C. has redesigned its gun
    control laws post-Heller. As the NRA explained in a press
    , “Under the current D.C. law, prospective gun owners are required to
    pass a written test graded at the sole discretion of the Metropolitan Police
    Department. They must also have vision better or equal to that required to get a
    driver’s license (even for those who just want to possess a collector’s item),
    submit employment history for the past five years and surrender all handguns for
    ballistics testing, among other restrictions.” Heller and the NRA think those
    limitations on a recognized constitutional right should not stand.
  • The Seventh Circuit Court of Appeals will be hearing in late May a set
    of legal challenges
    to various Chicago area gun restrictions that amount to
    a total restriction on handgun possession and use in the home. Both victorious
    Heller lawyer Alan Gura and the NRA are involved, with various earlier
    cases having been combined on appeal on the court’s order
  • Tracey Hanson, one of the original six plaintiffs in what ended up as the
    Heller case, has reunited with Gura in March to sue D.C. over the fact
    that the city's narrow roster of approved guns barred her from registering her
    own handgun because of its color.
  • The Second Amendment Foundation and other plaintiffs filed in late April a
    suit in California challenging that state’s arbitrary list of “approved” guns—a
    list manufacturers have to pay a fee to appear on. As the press release announcing the
    suit stated, quoting attorney Alan Gura, “A handgun protected by the Second
    Amendment does not need to appear on any government-approved list and cannot be
    banned because a manufacturer does not pay a special annual fee.”
  • The Second Amendment Foundation also in late March sued Attorney General
    Eric Holder, as their press
    announcing the suit summed up, “seeking an injunction against
    enforcement of a federal law that makes it impossible for American citizens who
    reside outside the United States to purchase firearms while they are in this

With the precedents of Heller and Nordyke, and with various
unreasonable gun rights restrictions under skilled legal fire, the future of
Second Amendment jurisprudence is brighter than it has been in living memory.
Justice Souter’s retirement doesn’t change the gun rights balance of power at
the Supreme Court—he was a Heller dissenter, and undoubtedly whoever
replaces him would have been as well.

But because Heller very explicitly set limits on how far the Court's
gun rights thinking would go (and indeed the Nordyke court relied on
that limiting language to uphold Alameda’s gun possession restrictions), some
believed it was going to be a complete dud. It is possible that gun
jurisprudence will stay stuck in a very narrow groove, with courts deciding
across the board that if a law doesn’t clearly and directly and entirely prevent
someone from defending themselves in their home with a common weapon then the
Second Amendment has been properly honored. But it seems far more probable that
Heller will end up reshaping the landscape of American liberty.

Ninth Circuit Judge Ronald Gould nicely laid out the ambiguity facing the
courts in his Nordyke concurrence: “The problem for our courts will be
to define, in the context of particular regulation by the states and
municipalities, what is reasonable and permissible and what is unreasonable and
offensive to the Second Amendment.” That’s a vague mandate, and different courts
will make different decisions under different circumstances. But after
Heller and Nordyke, even if they lack a magic bullet to shoot
down unnecessarily restrictive gun laws, courts have the proper core principles
laid out. That’s far more than the gun rights community could have said even a
year ago.


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