Taking Liberties
September 23, 2009 6:39 PM

Appeals Court To Consider Key Gun Rights Question

By
Declan McCullagh
Topics
Gun Rights
(AP Photo/Steve Helber)
A federal appeals court in San Francisco on Thursday will confront America's next big gun rights question: Whether or not the Second Amendment prevents state governments from enacting anti-gun laws.

The U.S. Ninth Circuit Court of Appeals will hear oral arguments in a case that's likely to decide whether the Bill of Rights' guarantee of a right to "keep and bear arms" restricts only the federal government and the District of Columbia -- the current state of affairs -- or whether it can be invoked to strike down intrusive state and local laws too.

In an earlier ruling in April, a three-judge panel of the same court ruled that the Second Amendment did apply to the states, a different outcome than appeals courts in Chicago and New York had reached. On Thursday morning, a larger Ninth Circuit panel is scheduled to re-hear the case, meaning the earlier decision in Nordyke v. King could be upheld or rejected.

The applying-to-the-states question may seem like an odd one: After all, the First Amendment starts out by saying "Congress shall make no law," but the Supreme Court has interpreted that language to prevent states (and even state universities) from suppressing political speech. The Fourth Amendment has been interpreted to restrict state police from conducting "unreasonable searches," and while the right to an abortion is not clearly found anywhere in the U.S. Constitution, the 1973 Roe v. Wade decision struck down a Texas law on constitutional grounds.

So if much of the rest of the Bill of Rights applies to state governments -- a concept called "incorporation" -- why not the Second Amendment as well?

This topic sounds a bit like one that only a law professor might appreciate, but in the last 60 years or so, the Supreme Court has ruled that only "fundamental" rights in the Bill of Rights are incorporated. If a right is not deemed "fundamental," it doesn't apply to the states. So far, the justices have not yet ruled squarely on this question (even though Justice Scalia's majority opinion in last year's D.C. v. Heller case noted that "the right to have arms had become fundamental" in the early American colonies).

The incorporation question is already bubbling up to the Supreme Court thanks to the National Rifle Association v. Chicago and McDonald v. Chicago cases and the New York Maloney v. Rice case. On September 29, the justices will meet to decide whether to accept those cases for the 2009-2010 term; those appeals courts declined to apply the Second Amendment to state laws.

Of course, even if the Supreme Court eventually agrees that gun rights are "fundamental" and apply to individual states, that may not mean very much in practice.

The Ninth Circuit incorporated the Second Amendment but still upheld an Alameda County, Calif. ban on firearms on county property, including the fairgrounds. And the Seventh Circuit recently ruled that even if the Second Amendment applied to municipalities, they could get away with forcing citizens to register firearms or face legal consequences. In other words, courts could uphold the right to keep and bears arms in form and in theory, but ignore it in practice.

  • Declan McCullagh is the chief political correspondent for CNET. Declan previously was a reporter for Time and the Washington bureau chief for Wired and wrote the Taking Liberties section and Other People's Money column for CBS News' Web site.

Add a Comment See all 13 Comments
by helpme33 September 27, 2009 11:43 AM EDT
Constitution? Bill of Rights? Not in America, did'nt you hear, they don't exist anymore! The government has written every possible type of law to circumvent the Constitution, the Bill of Rights and everyone just keeps allowing it to happen.

Did you know, that if you have EVER had sex with someone (this was written for only women to be able to utilize, as the Police will not arrest or prosecute a women for it), all they have to do is call 911 and tell the police that they are "afraid of you" with no other explaination, you are thrown into jail (if you currently live with them, you are barred from your own possesions, personal belongings, shoes, underware etc...) until after a 9 month trial, to prove that she only falsified this to "_____ with you"?

And then the police, she and the State are immune from civil lawsuit? Sound unconstitutional? It is now Nationwide, all 50 States! And thousands upon thousands of men (mostly ones who file for divorce), are charged with every single day. I lost my career of 20 years (security clearance), my company, all of my personal possestions (she destroyed all of my family photos, yearbooks, childhood belongings, etc...) to which the courts refuse to adress. Then it is "illegal" to expunge the arrest records, resulting in a permanate arrest report that keeps you from returning to gainful employment for the rest of your life.

Only in America! I cannot believe that this has occured to me within the boundries of this country, it simply amazes me that our polititians have destroyed the very fabric of our country.

Down and out in Chicago.
Reply to this comment
by waypasthadenough September 25, 2009 9:23 AM EDT
The Bill of Rights was designed to force, that's FORCE, the federal, state and local governments to acknowledge our natural born rights. All of these are based upon our most basic right, that of self defense, the right to fight back against and kill if necessary those who would enslave us.

End of discussion. Those who 'disagree' need to take a leaky rowboat to Europe where they belong. If the so-called "conservatives" and "Libertarians" had any backbone at all we'd be helping them do that now.

Don't understand? Start here:

http://willowtown.com/promo/quotes.htm

And don't miss my news blog where this will also be posted:

http://willowtown.com/promo/blogfp.htm
Reply to this comment
by Woodpiggie1 September 25, 2009 3:09 AM EDT
Blanket gun bans are tyrany, pure and simple.

"Rebellion against tyrany is service to God" Ben Franklin 1776.
Reply to this comment
by fallingblock September 24, 2009 11:26 PM EDT
"More people are killed by guns in this country than all of the other countries combined."

An absolute lie, PartyofAmerican!

First: No one is 'killed BY' a gun!

Firearms are inanimate objects which require manipulation to function.

Second: The U.S. is statistically about the mid-point of western nations with respect to firearms-related deaths. There are far more murders per capita (dead is dead, whatever the tool selected by the murderer) in about half the world's nations than in the U.S.A.

"Does that make you feel safer?"

Yes indeed, the natural right to self defense with an appropriate tool is an inherent right which certainly does contribute to my safety. And you will not be allowed to infringe upon that right.

"Gun nuts should stick to mowing down herds of elk with automatic machine guns and propose it as time management."

You're becoming incoherent there PartyofAmerica".

The term "automatic machine guns" is redundant.
Besides, machine guns are for fighting, not for fun. ;)
Reply to this comment
by PartyofAmerican September 24, 2009 7:47 PM EDT
More people are killed by guns in this country than all of the other countries combined. Does that make you feel safer? Gun nuts should stick to mowing down herds of elk with automatic machine guns and propose it as time management.
Reply to this comment
by momo0001 September 24, 2009 9:08 PM EDT
The only problem with your statment is that you have no stats to back it up. The truth of the matter is that you are afraid of Freedom and Liberty.
You Can't or won't take resposibility for yourself.
England and Austrailia are two good examples of gun crime gone up 50% and guns are totally banned. More people drownd in pools each year . Should pools be banned. Doctors kill more people than guns each year . Should we ban doctors .
By the way , you would'nt happen to be part of the New world Order , would ya!
by SHEEIT September 25, 2009 11:26 AM EDT
My dear PartyofAmerican, what you have just said is in fact not a fact. It is a lie fostered by the anti-gun people and parroted by the mass media. Please google "Gun Facts" and just read, or go directly to 'Gun Facts 5.0' which is a well documented pdf file that is free to all. Most everything there is taken from real government statistics and is as near real truth as there is in this jungle we live in. Thank you. Oh yes, you might also google 'On Sheep, Wolves and Sheepdogs by Dave Grossman'. another very educational piece that is an anology of the human condition. This sheepdog loves all of my sheep.
by sam_mosin September 24, 2009 2:42 PM EDT
correction - sotomayor was defending a weapons law - she was attacking the right to keep and bear arms
Reply to this comment
by sam_mosin September 24, 2009 2:41 PM EDT
When former Alabama governor Fob James argued that the Bill of Rights doesn't apply to the states, when he was defending school prayer, he was ridiculed. When Sonia Sotomayor argued that the Bill of Rights doesn't apply to the states, when she was attacking a weapons law, she was lauded as a fine constitutional law scholar. What's good for the goose is good for the gander. Which way shall it be?

Here is my argument. The Constitution would not have been approved without the addition of the Bill of Rights. Therefore, any government in these United States that refuses to uphold, protect and defend those rights has lost its legitimacy and authority. The Bill of Rights exists to protect the people. The people have every right to ignore any law or ordinance to the contrary, because those laws and ordinances are unconstitutional. Lawmakers, law enforcement officers and officers of the court have a duty to ignore those laws and defend the constitutional rights of the people. All of them.
Reply to this comment
by growlll September 24, 2009 1:24 PM EDT
Anything in the bill of rights is a "civil right"
Reply to this comment
by MikeSettles September 24, 2009 11:03 AM EDT
Could the 2nd Amendment be considered a "Civil Right"?

So, could charges/suits be filed against officials and agencies which deny this fundamental "civil" right?
Reply to this comment
by CC_Ryder September 24, 2009 7:56 AM EDT
It seems incredible that there are elected officials and others who have sworn to uphold the constitution that are actually working to prevent citizens from exercising their rights.
I have said for many years that the problem with the constitution and the Bill of Rights is that it has no teeth.
It's like waking up as the hero of a Kafka novel every day.
Senseless morons in public office; or more accurately people of zero integrity.
Reply to this comment
by george_sand September 27, 2009 4:36 PM EDT
CC_Ryder, you sound like a person who knows a bit about rights and the Constitution. Don't forget that NO right is unlimited. As Oliver Wendell Holmes famously said in Schenck v. US, "there is no right to falsely shout 'fire' in a crowded theatre." If that's the case with speech rights, where the instrument has only indirect consequences, so much the more should it apply where fatal consequences are directly involved in a right. The right to own guns must be reasonably limited with registration and use laws. Consider that the US leads the globe in gun deaths/capita, and that in practice, guns are used very rarely in self-defense (in 0.2% of all crimes and 0.84% of violent crimes between 1987 and 1990 - http://en.wikipedia.org/wiki/Gun_violence_in_the_United_States). Is exercising your "right," essentially for its own sake, really worth the sacrifice of thousands of accidental deaths each year that come of keeping guns so easily available?

Before namecalling and attacking the integrity of legislators, consider all the facts, as they have to do.
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