April 21st, 2009

9th Circuit Rules that Second Amendment Applies to Actions of States and Local Governments

Nordyke v. King 9th Circuit

The Ninth Circuit Court of Appeals ruled yesterday that the Second Amendment of the U.S. Constitution restricts the powers of state and local government as much as it does those of the federal government. A three-judge panel issued this ruling in Nordyke v. King (Alameda County). This is the first case where a Circuit Court has declared that the actions of states or municipalities are subject to the Second Amendment protections recognized by the U.S. Supreme Court in D.C. v Heller last year. (Other cases challenging state action on Second Amendment grounds are pending before the Seventh Circuit.)

In finding that the Second Amendment applies to actions of States, counties, and local municipalities, the 9th Circuit applied the due process clause of the 14th Amendment. The Circuit Court concluded “that the right to keep and bear arms” as a personal right has been recognized by the Supreme Court in Heller, and that this applies to the states through the Fourteenth Amendment’s due process clause.

Nordyke v. King 9th CircuitIn Nordyke v. King, the plaintiffs challenged an Alameda County ordinance that effectively prevented plaintiffs from holding a gun show at the Alameda Fairgrounds. Though the 9th Circuit acknowledged the existence of rights under the Second Amendment, the three-judge panel concluded that D.C. v. Heller was limited in scope, and only recognized a right of “armed self-defense in the home”. Accordingly, the Ninth Circuit ruled against plaintfiffs, and upheld the Alameda County ordinance, which banned possession of guns “on county property.” Disturbingly, the Ninth Circuit ruling attempts to carve out a “public property” exception to the Second Amendment. The Nordyke v. King opinion states that a gun ban on county property: “fits within the exception from the Second Amendment for ‘sensitive places’ that Heller recognized.”

We’re not certain that the U.S. Supreme Court would agree with the Ninth Circuit’s holding that a fairground was a ‘sensitive place’ where the Second Amendment, effectively, has no sway. If a state or county can ban guns at a fairground, then why not public parks, parking lots, bus stops and so on? This could lead to cities and counties declaring extensive “gun-free zones” within their boundaries. Ironically, public places such as parking lots may be exactly where citizens are most at risk of violent crime. And ask yourself this… what other Constitutional rights are geographically limited? Would a court dare to restrict the First Amendment so as to eliminate the right of free speech on public property?

CLICK HERE to Read Full 9th Circuit Decision (.pdf download).