Ninth Circuit: Second Amendment also protects gun owners from state law

Big news for constitutional law junkies, not so big for gun owners. We’re dealing here with the doctrine of “incorporation,” the notion that some — but not all — of the rights in the Bill of Rights protect people not only from the federal government but from their state governments, too. That wasn’t the case until the Fourteenth Amendment was passed, thereby “incorporating” certain federal constitutional rights to the state level; ever since, courts have agonized over deciding which rights are sufficiently “fundamental” as to qualify for incorporation. Why not just say that the entire Bill of Rights was incorporated instead of picking and choosing from it? Don’t ask. The whole subject’s a major clusterfark.

Per the Ninth Circuit, as of today, the Second Amendment is officially “fundamental” on the west coast. No surprise there, even with two Democratic appointees on the three-judge panel: On the very day that the Supreme Court decided the Heller case, I told you it was a fait accompli that the Second Amendment would end up being incorporated. The whole logic of the Heller opinion was that gun ownership is an important safeguard of liberty and deeply rooted in American history; if that’s not “fundamental,” nothing is. The real question is how much this matters in practical terms. Answer: Not much, as TNR predicted more than a year ago when the Court was hearing oral arguments in the Heller case.

For all but the hardest-core gun lovers, prudence and public safety ultimately limit libertarianism–and the justices don’t seem inclined to dive off a cliff and read the amendment so as to permit individual ownership of upper-end military hardware. That seemed almost as clear at arguments as the court’s direction on the question of whether the Second Amendment protects an individual right. A lawyer for those challenging the ban acknowledged, for example, that “of course” background checks for firearms purchases would be constitutional. Justice Antonin Scalia told Solicitor General Paul Clement, “I don’t see why” the federal government would “have a problem” sustaining its ban on machine guns if D.C.’s handgun ban fell. All sides appeared comfortable with the idea that criminals would not receive protection from the amendment. Outside of Washington D.C., in other words, a revitalized Second Amendment would largely forbid what nobody was seriously contemplating anyway: bans on common weapons for the recreational and self-protective uses of law-abiding people.

Even Scalia didn’t imagine a Second Amendment right to bear machine guns. Which brings us to today’s ruling, the most amazing detail of which isn’t the incorporation finding but the fact that, as Ace notes, the Ninth Circuit ended up upholding the gun regulation. The money bit, from page 4497 of the opinion:

Heller tells us that the Second Amendment’s guarantee revolves around armed self-defense. If laws make such self-defense impossible in the most crucial place — the home — by rendering firearms useless, then they violate the Constitution.

But the Ordinance before us is not of that ilk. It does not directly impede the efficacy of self-defense or limit self-defense in the home. Rather, it regulates gun possession in public places that are County property…

The Nordykes argue that the Ordinance is overbroad because it covers more than such sensitive places. They list the areas covered: “open space venues, such as County-owned parks, recreational areas, historic sites, parking lots of public buildings . . . and the County fairgrounds.” The only one of these that seems odd as a “sensitive place” is parking lots. The rest are gathering places where high numbers of people might congregate. That is presumably why they are called “open space venues.” Indeed, the fairgrounds itself hosts numerous public and private events throughout the year, which a large number of people presumably attend; again, the Nordykes’ gun shows routinely attracted about 4,000 people. Although Heller does not provide much guidance, the open, public spaces the County’s Ordinance covers fit comfortably within the same category as schools and government buildings.

Translation: You may have a Second Amendment right to defend your home but you have no Second Amendment right to concealed carry, especially in densely populated “sensitive places.” In fact, one of the Democratic judges wrote a separate opinion today specifically to emphasize that “important governmental interests will justify reasonable regulation of rifles and handguns, and 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.” The legal question going forward is how broadly courts will interpret the “sensitive places” exception; given the number of lefty judges we’re in store for from The One, I’m guessing darned broadly. All of which means that we’re trending towards a narrow understanding of the Second Amendment that limits gun rights to handguns inside the home (and conceivably a limit on how many you can own?). That’s better than nothing, but not much better.

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