The Ninth Circuit Affirms the Second Amendment

[Kulindahr]

In a case that's been moving along for a decade, the U.S. Court of Appeals for the Ninth Circuit affirmed what most courts have been saying all along through U.S. history, namely, that the right to keep and bear arms is a traditional and essential part of liberty, right up there with the right to trial by jury.

Then they went a step farther, making this common-sense decision:

"...the Due Process clause of the Fourteenth Amendment incorporates the Second Amendment and applies it against the states and local governments."

A very powerful argument is made for this: one major impetus for the passing of the Fourteenth Amendment in the first place was that states and lower jurisdictions in the south were seizing arms from the recently freed blacks after the Civil War had ended.


In a statement that all advocates of a "living constitution" should take note of, the Court slammed the notion that the Constitution should be interpreted according to any currently popular political notions:

"...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."

I note that the language of the Court at this point cedes the existence of rights apart from the Constitution, as it speaks of "protection", not "creation". So it should be noted in passing that even if the Constitution were amended, as the Court's comment indicates is possible, the rights would remain -- they merely would not be protected.


So at least in the western end of the U.S., the Second Amendment is finally, as was intended by the Fourteenth from the beginning, and arguably by the Founders from the foundation, applies to the states, and all lesser jurisdictions.

It's about time.

 

[jackoroe]

The Ninth Circuit Court of Appeals is by far the most extreme group of screwballs to ever don judicial robes. But even a broken clock is right twice a day, I suppose. Good call, in any event!

 

[Kulindahr]

The actual core of the decision reads like an apologist for taking away rights any time the government pleases, but they did some good work on examining the Second Amendment in the light of the Fourteenth.

 

[Glafna]

Although I don't necessarily think that this is a completely good idea, I guess I'll have to take Kul's word for it that it will end up being a good thing.

 

[Kulindahr]

Although I don't necessarily think that this is a completely good idea, I guess I'll have to take Kul's word for it that it will end up being a good thing.

If nothing else it restores the intended balance to the Fourteenth Amendment. When it was debated, some of the issues concerned were free speech, trial by jury, and keeping and bearing arms by blacks. The first two have long since been declared incorporated by the courts, so it's about time this one, did, too.

It's always puzzled me that in the debates over the Fourteenth, it was pretty clear that the proponents meant it to cover not just all the enumerated protected rights in the Bill of Rights, but everything that had come to be accepted as a right -- yet we've played this "incorporation" lawyers' game for generations. It's too bad it took the extreme pro-crime politicians to cause lawsuits to get us to this point -- though I shouldn't be surprised; it took case after case after case of laws against freedom of speech and of the press to finally get the First standing up healthy.

Now, if the courts would just recognize that "shall not be infringed" is the strongest language of any of the rights-protecting amendments, being an absolute prohibition and not one limited to Congress, then we'd have a solid basis on which to design laws actually aimed at criminals, actually effective in keeping them from getting firearms -- or to thunder down on them like the vengeance of all the gods together if they do, and so much as make them visible during the commission of a crime.

 

[hotatlboi]

The Ninth Circuit Court of Appeals is by far the most extreme group of screwballs to ever don judicial robes.

And when they become the first federal appellate court to rule in favor of gay marriage (pretty high likelihood imo) I'm sure you'll feel the same way right?

 

[jackoroe]

^Fact is, they are the most overturned court in the land. I'm frankly amazed that they got this one right. Kuli is correct in that they did so in an almost apologetic way. So, no matter what they rule in the future, it isn't going to change my view of them.

 

[Kulindahr]

^Fact is, they are the most overturned court in the land. I'm frankly amazed that they got this one right. Kuli is correct in that they did so in an almost apologetic way. So, no matter what they rule in the future, it isn't going to change my view of them.

Well, they didn't have a Michael Bellesiles to falsify and invent data for them on this one, so they were stuck with the well-known historical facts.

It's rather bizarre that they managed to conclude correctly that the Fourteenth incorporates the Second, and so it applies to the states, and then go on to argue that such application doesn't count when the states/localities don't want it to!