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The 9th Circuit Court ruled yesterday that the 2nd Amendment is incorporated through the 14th Amendment!
Who does it affect and what does incorporation mean?
It applies to residents of: Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, and Washington.
What it means is that the Second Amendment is now a right protected at the state and local levels for the residents of the above.
For California this could be huge: California has no protection for the right to keep and bear arms in their constitution. This new ruling means that the Second Amendment rights are protected regardless. This could help open California up to becoming a "shall issue" state, for example. It might also invalidate their "assault weapon" ban down the road.
Hawaii is in the same boat as California.
While it doesn't mean anything for Virginia at this time, it is a very promising thing for us as the 9th Circuit is not known as being particularly gun friendly. Indeed, until overturned by the Supreme Court in DC vs Heller, the 9th Circuit had ruled that the Second Amendment was but a collective right.
The case that triggered the ruling was brought on behalf of a gun show company that wanted to use county property to hold a gun show. The ruling actually went against the gun show. The 9th Circuit claimed that since the U.S. Supreme Court ruling in DC vs Heller had said that guns can be banned from "sensitive" government buildings, the county was within its powers to ban the gun show. To say that a coliseum is a sensitive government building is stupid, of course. Welcome to the 9th Circuit.
Parts of the Heller ruling on where guns can be prohibited are going to haunt us for some time to come. For example, here in Virginia the antis have invoked the "sensitive government building" dicta when trying to prohibit guns in libraries and government meetings.
("Dicta" is where a court says something, like a remark, comment, or thought, that is not part of an actual ruling. Thus dicta does not carry the weight of law, but it carries some weight nevertheless.)
Here's is an article on the incorporation by the Cato Institute:
Yes, California, There Is an Individual Right to Keep and Bear Arms
Posted by Ilya Shapiro
Last June, the Supreme Court ruled in District of Columbia v. Heller that the Second Amendment protects an individual’s right to keep and bear arms, at least in the home for self-defense. Here’s our own Bob Levy, who masterminded the Heller litigation, talking about that decision:
While the Court’s ruling was a watershed in constitutional interpretation, it technically applied only to D.C., striking down the District’s draconian gun ban but not having a direct effect in the rest of the country.
Well, today the Ninth Circuit (the federal appellate court covering most Western states) ruled that the Second Amendment restricts the power of state and local governments to interfere with individual right to have guns for personal use. That is, the Fourteenth Amendment “incorporates” the Second Amendment against the states, as the Supreme Court has found it to do for most of the Bill of Rights. I rarely get a chance to say this, but the Ninth Circuit gets it exactly right.
Here’s the key part of Judge Diarmuid O’Scannlain’s opinion:
We therefore conclude that the right to keep and bear arms is “deeply rooted in this Nation’s history and tradition.” Colonial revolutionaries, the Founders, and a host of commentators and lawmakers living during the first one hundred years of the Republic all insisted on the fundamental nature of the right. It has long been regarded as the “true palladium of liberty.” Colonists relied on it to assert and to win their independence, and the victorious Union sought to prevent a recalcitrant South from abridging it less than a century later. The crucial role this deeply rooted right has played in our birth and history compels us to recognize that it is indeed fundamental, that it is necessary to the Anglo-American conception of ordered liberty that we have inherited. We are therefore persuaded that the Due Process Clause of the Fourteenth Amendment incorporates the Second Amendment and applies it against the states and local governments.
In short, residents of Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, and Washington now join D.C. residents in having their Second Amendment rights protected. And courts covering other parts of the country — most immediately the Seventh Circuit, based in Chicago — will have their chance to make the same interpretation in due course.
Just as interesting — and potentially equally significant — is the footnote Judge O’Scannlain drops at the end of the above text in response to arguments that the right to keep and bear arms, regardless of its provenance as a fundamental natural right, is now controversial:
But we do not measure the protection the Constitution affords a right by the values of our own times. If contemporary desuetude sufficed to read rights out of the Constitution, then there would be little benefit to a written statement of them. Some may disagree with the decision of the Founders to enshrine a given right in the Constitution. If so, then the people can amend the document. But such amendments are not for the courts to ordain.
Quite right.