Second Amendment Incorporated by 9th Circuit, Nordyke

seanc

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Not being a lawyer.. Could somebody let me know what this means? Esp. in light of the 2nd circuit ruling??

[Eugene Volokh, April 20, 2009 at 1:03pm] Trackbacks
Second Amendment Incorporated by Ninth Circuit Panel, in
Nordyke v. King. For those who count such things, the unanimous panel consists of a Reagan appointee (Judge O'Scannlain, who wrote), a Carter appointee (Judge Alarcon), and a Clinton appointee (Judge Gould).

The panel avoids the late 19th-century cases United States v. Cruikshank (1876) and Presser v. Illinois (1886) by reading them as simply foreclosing the direct application of the Second Amendment to the states, or the application of the Second Amendment to the states via the Privileges or Immunities Clause. The panel instead follows the Supreme Court's "selective incorporation" cases under the Due Process Clause, and concludes that the right to bear arms "ranks as fundamental, meaning 'necessary to an Anglo-American regime of ordered liberty.'" And in footnote 16 it points out that
 
Its huge news. The 2nd amendment is now incorporated in the 9th, and we can now start suing for our 2nd amendment rights in California.

CCW is first on the list for strategic reasons. ;)

Alameda county can not ask for an en banc review because they won, only the Nordykes can do that.

The wedge has been driven back in the other way. We are on the offensive. :)
 
Incorporation is good. We still seem to be looking at the Second Amendment as extending only so far as keeping a functioning firearm in one's home. The Nordyke decision went in favor of the County restriction on possessing firearms on government property.

To broaden the Second Amendment to include carry, open or concealed, will be an uphill hike.
 
There is a potential "dicta" argument to be made against the incorporation argument since the plaintiff lost. I am not smart enough to know what kind of traction it might get. Think of it in terms of the 5th Circuit ruling on Emerson where Emerson lost, but the court said that 2A was an individual right. Nobody found that language particularly binding in the 5th. SCOTUS needs to find a way to weigh-in here.
 
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