A recent decision in the liberal 9th U.S. Circuit Court of Appeals actually advances the constitutional concept of an individual right to gun ownership even as the judges upheld an Alameda County, Calif., decision to ban gun shows from county property.
The decision is a mixed bag, but the case shows the degree to which the U.S. Supreme Court’s Heller decision last year is influencing the way other courts view the Second Amendment.
That’s a good thing.
Heller struck down portions of an onerous District of Columbia gun ban. It was the first time the nation’s high court directly addressed the question of whether the Second Amendment protected individual gun ownership rights or whether the amendment merely protected a collective right to own guns as part of a militia.
Although the Supreme Court defended the ability of governments to pass restrictions on gun ownership, it found that the D.C. law “amounts to a prohibition on an entire class of ‘arms’ that Americans overwhelmingly choose for the lawful purpose of self-defense.”
Now enter the Nordyke vs. King case, decided by the 9th Circuit this month. At issue was a law that banned most firearms from most county property and was used to keep the proprietors of a gun show (the Nordykes) from holding a show at the county fairgrounds.
The county supervisor who proposed the ordinance made statements suggesting that for years she had been seeking a way to keep gun shows out of the county. Yet the appeals court sided with the county on First Amendment and equal-protection claims and affirmed “the district court’s refusal to grant the Nordykes leave to amend their complaint to add a Second Amendment claim to this case.”
The appeals court ruled, essentially, that the county has a right to prohibit firearms on its property if it so chooses.
That’s bad news for the Nordykes, but the 9th Circuit’s reasoning contains a significant victory for gun-right advocates. The court unequivocally stated that individuals have the constitutional right to own firearms. Because the right to keep and bear arms was a fundamental right that predates the Constitution and is a necessary part of the nation’s history and traditions, the court also found the 14th Amendment applies this right to the states.
The 9th Circuit panel pointed to Heller, which “characterized the right to keep and bear arms as a corollary to the individual right of self-defense.” The court offered a history lesson of the development of this individual right, and pointed to William Blackstone’s views that “the right to bear arms closely followed from the absolute rights to personal security, personal liberty and personal property. It was a right crucial to safeguarding all other rights.”
The judges also made the compelling argument of the importance of gun ownership in the case of civil rights by pointing to efforts by government authorities following the Civil War to disarm newly freed slaves. Ending such abuses, the court explained, was one reason the 14th Amendment was applied to states.
“So, inside this dark cloud of an opinion — which allows a local government to deny a fundamental right simply because a person happens to be in or even walk across property owned by the local government entity — is a sliver lining,” said former Libertarian Party presidential candidate Bob Barr. “Perhaps if we have more court decisions with such silver linings, in the not-too-distant future, citizens all across America will be able to enjoy the practical manifestation of the fundamental right recognized in the Heller decision.”
Perhaps we will. As always, the task of protecting our liberties is a long and torturous battle, but at least in this case even the 9th Circuit got the fundamental point right.