2nd Amendment Applies to States

Landmark Decision by 9th Circuit Court

April 20 - SAN FRANCISCO - A landmark decision by the U.S. Ninth Circuit Court of Appeals in San Francisco today said that the Second Amendment applies to the states as well as the federal government. Previously, the courts held that the amendment was a barrier to only federal laws, not state laws. The decision is a major victory for gun-rights advocates.

The 3-0 decision by judges Alarcón, O’Scannlain, and Gould in Nordyke v. King will have far reaching effects on state and local gun laws. The decision puts many state and local laws under the magnifying glass in the same way as laws limiting free speech or searches and seizures. The ruling currently affects only the nine states in the 9th Circuit – Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, Washington.

The court found that the right to own firearms was "deeply rooted in this Nation’s history and tradition" which allows it to be applied to the states and local governments through the 14th Amendment's due process provisions.

Nevertheless, the decision also upheld the ban at the county fairgrounds, saying that governments may impose restrictions on "sensitive places" such as courthouses and schools.

The decision may play a part in a challenge to restrictive gun laws in Illinois by the Second Amendment Foundation, the NRA and other gun groups. That case is still in progress in the 7th District Court and today's decision could influence its decision. Today's decision may add weight to the pro-2A arguments in the Chicago case and bring about incorporation in the 7th district. Any disagreements between circuit courts would have to be resolved by the Supreme Court.

Second Amendment constitutional law is still in its infancy, much like First Amendment laws were at the beginning of the twentieth century. This decision will result in more challenges to state and local laws to define the scope of the amendment's protections against government intrusion.

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What does this mean to me?

This is only the first step in a long process. Eventually the Supreme Court will have to resolve the conflict between the 9th Circuit's decision and other circuits that have different opinions. Until the high court makes that determination (or another circuit agrees with the 9th), only the nine western states in the 9th Circuit can have their gun laws challenged under the 2nd Amendment.

Within the last year, we have won two major victories. The Heller case defined the Second Amendment right as a fundamental individual right, like that of free speech or the right to a lawyer. The Nordyke case says that the 2nd Amendment also applies to the states because it is deeply rooted in the history and tradition of the Republic. This integrates the 2nd Amendment into our legal system the same as your other constitutional rights - at least in nine western states.

Since both Heller and Nordyke find that the right is fundamental, challenges to state and local gun laws can be challenged on a "strict scrutiny" basis. If we challenge certain gun laws in this manner, the government must show a compelling government interest that is crucial and that the challenged law is both narrowly tailored and the least restrictive to the rights of citizens.

For instance, the Illinois firearms owner ID (FOID) card might be challenged as not being narrowly tailored and least restrictive. This is because the intent of the card was to stop criminals from obtaining firearms through legal channels. Yet, repeated studies show the majority of criminal firearm acquisitions are made illegally through black-market "street" sales. Thus the argument that forcing law abiding citizens to not only maintain documents to exercise their rights but pay an annual (or periodic) fee to do so, is not the "least restrictive".

Other laws that may be challenged are those that delay the exercise of your rights. One-gun-a-month laws can be likened to limiting free speech in the same manner. Waiting periods could also be compared to having to wait several days to obtain a lawyer or read a newspaper.

Don't expect huge, sweeping changes to occur overnight. It's taken 40 years for the anti-gun crowd to get this far. Our duty is to tread carefully with each challenge to keep building up our rights. We can anticipate it will take more than just a few years to overturn some of the worst legislation.

Your comments are welcome: editor@handgunclub.com