High-Profile Gun Rights Case Inches Toward Supreme Court

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August 25, 2009 2:30 AM
High-Profile Gun Rights Case Inches Toward Supreme Court
By Declan McCullagh.

A federal appeals court on September 24 will hear a high-profile gun rights case that's a leading candidate to end up before the U.S. Supreme Court.

The U.S. Ninth Circuit Court of Appeals is likely to decide whether the Second Amendment's guarantee of a right to "keep and bear arms" restricts only the federal government -- the current state of affairs -- or whether it can be used to strike down intrusive state and local laws too.

A three-judge panel ruled that the Second Amendment does apply to the states. But now a larger Ninth Circuit panel will rehear the case, a procedure reserved only for issues of exceptional importance, which means the earlier decision could be upheld or overruled.

Two other circuits have said the Second Amendment does not apply to the states, a legal term known as "incorporation." If the Ninth Circuit's en banc panel continues to disagree with its peers, the Supreme Court almost certainly would step in.

The Ninth Circuit case involves Russell and Sallie Nordyke, who run a gun show business that would like to rent Alameda County's fairgrounds (the county includes Oakland and is across the bay from San Francisco). After being blocked, they sued. The author of the ordinance in question, then-county supervisor Mary King, actually claimed such shows are nothing but "a place for people to display guns for worship as deities for the collectors who treat them as icons of patriotism."

The hearing is set for 10 a.m. PT in the federal courthouse at 95 Seventh Street in San Francisco.

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I just did a quick bit of research, and it is interesting that the states originally were not required to follow the US constitution, but over the years the supreme court decided to "incorporate" most of the bill of rights which forces each state to comply with them.

according to wiki: Provisions that the Supreme Court either has refused to incorporate, or whose possible incorporation has not yet been addressed, are the Second Amendment right to bear arms, the Fifth Amendment right to an indictment by a grand jury, and the Seventh Amendment right to a jury trial in civil lawsuits.



so.....If the right of the people to keep and bear arms, shall not be infringed by state or federal law......what does that mean to you and me?Will michigan gun laws change? specifiallylaws that restrict the carrying of firearms?

I love this country!

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lapeer20m wrote:

I just did a quick bit of research, and it is interesting that the states originally were not required to follow the US constitution, but over the years the supreme court decided to "incorporate" most of the bill of rights which forces each state to comply with them.

according to wiki: Provisions that the Supreme Court either has refused to incorporate, or whose possible incorporation has not yet been addressed, are the Second Amendment right to bear arms, the Fifth Amendment right to an indictment by a grand jury, and the Seventh Amendment right to a jury trial in civil lawsuits.



so.....If the right of the people to keep and bear arms, shall not be infringed by state or federal law......what does that mean to you and me?Will michigan gun laws change? specifiallylaws that restrict the carrying of firearms?

I love this country!

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I've heard the 3rd hasn't been either, because nobody has had a soldier in their house without their consent.

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Yooper wrote:

I've heard the 3rd hasn't been either, because nobody has had a soldier in their house without their consent.

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My guess it that the US military has probably become much larger and more powerful than the founders would have liked. It's an easy assumption to come to when you consider that they said the militia, not the military, is the requirement to keep a state free.

However one chooses to look at it, it's not exactly much of an issue when there are military bases within easy driving distance of pretty much every urban part of the country.

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Regarding 2A, this issue has haunted me indefinitely. This won't go over well with many here, but I tend to agree that the Bill of Rights exists to protect the state citizens from the federal government. I've tried, but I just can't make the leap in logic that's required to say that the federal constitution would protect the state citizens from the state governments. Frankly, I don't think Jefferson, Adams, etc. were concerned that this would ever be an issue within the state governments because, well, they already had this protection in their own state constitutions.

Instead, I believe they were concerned that a strong federal government might try to undermine the state constitution if the state protected the RKBA and the .gov legislated to forbid it. In this case, the 2A would come into play and protect the state citizens from the federal government.

Furthermore, I believe the founders recognized and respected the various customs and practices within the different states and in no way were attempting to create a uniform one-size-fits-all template to which the states themselves were expected to adhere. They were left to mind their own state business as they saw fit.

Frankly, Michigan's constitution affords the same stated protection of the right to keep and bear arms that is found in the US Const. What is the need for incorporation? If our state reps attempt to eliminate RKBA, I expect a large gathering on the capital steps to throw the bums out! Now, why other states have infringed on RKBA is beyond me, but that's their own business to deal with. I would say their political process has failed them. For such states, incorporation would certainly help turn this around.

Having said that, and because most of the other BOR amendments have been incorporated, I would love to see the 2A incorporated as well.

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mikestilly wrote:

The author of the ordinance in question, then-county supervisor Mary King, actually claimed such shows are nothing but "a place for people to display guns for worship as deities for the collectors who treat them as icons of patriotism."

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Drive-by comment #1: If gun shows were truely a question of ideology, as suggested by Ms. King, then her prohibition could be construed as an attack on the show organizer's first amendment rights.


lapeer20m wrote:

so.....If the right of the people to keep and bear arms, shall not be infringed by state or federal law......what does that mean to you and me?Will michigan gun laws change? specifiallylaws that restrict the carrying of firearms?

I love this country!

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Drive-by comment #2: If incorporation happens for 2a, I would think you could challenge any number of MI firearm laws in federal court.


Yooper wrote:

I've heard the 3rd hasn't been either, because nobody has had a soldier in their house without their consent.

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Drive-by comment #3: I would think that this would have to be a state soldier quartered in your home and then challenged in federal court. It seems to me that a federal soldier quartered in your home could already be challenged in federal court, i.e. that this is already the proper jurisdiction. Know any state soldiers?

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Michigander wrote:

My guess it that the US military has probably become much larger and more powerful than the founders would have liked. It's an easy assumption to come to when you consider that they said the militia, not the military, is the requirement to keep a state free.

However one chooses to look at it, it's not exactly much of an issue when there are military bases within easy driving distance of pretty much every urban part of the country.

Click to expand...

Drive-by comment #4: Michigander, riddle me this: if the US Constitution only authorizes the Congress to raise an army for no longer than a period of two years, exactly how is it that 1) the military HAS grown so large, and that 2) we now have a standing army?

Honestly, I don't have an answer. :?


Article I, Section 8 (excerpt):
"The Congress shall have power...To raise and support armies, but no appropriation of money to that use shall be for a longer term than two years; "

http://www.law.cornell.edu/constitution/constitution.articlei.html#section8

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CoonDog wrote:

SNIP Regarding 2A, this issue has haunted me indefinitely. This won't go over well with many here, but I tend to agree that the Bill of Rights exists to protect the state citizens from the federal government. I've tried, but I just can't make the leap in logic that's required to say that the federal constitution would protect the state citizens from the state governments...

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I think you can be unhaunted.

The states ratified the 14th Amendment, which says in relevant part:

Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. (emphasis added)

The senator who introduced it to the US Senate made expressreference the RKBA in his speech to the Senate.

The 2A is incorporated. It has been all along. The government has been playing monkey business in pretending it is not.

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CoonDog wrote:

Regarding 2A, this issue has haunted me indefinitely. This won't go over well with many here, but I tend to agree that the Bill of Rights exists to protect the state citizens from the federal government.

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You are correct. BUT our founding fathers DID include a way to amend the constitution if need be. They found the need, and passed the 14th amendment to the Constitution.

Section 1 of it reads: All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.


After reading that, at least to me, it appears like it would be within the scope of the amendment to incorporate the Bill of Rights to apply to the states.

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Citizen beat me to it....barely

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I hope so. This is getting crazy...fighting all these laws one state at a time. But, then again, thats what they want, hoping we'll just get tired of it all and give in.

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MarlboroLts5150 wrote:

I hope so. This is getting crazy...fighting all these laws one state at a time. But, then again, thats what they want, hoping we'll just get tired of it all and give in.

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If we would have gotten tired, we'd be stuck with 1/2 dozen shall issue states.

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True That.

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CoonDog wrote:

Michigander wrote:

My guess it that the US military has probably become much larger and more powerful than the founders would have liked. It's an easy assumption to come to when you consider that they said the militia, not the military, is the requirement to keep a state free.

However one chooses to look at it, it's not exactly much of an issue when there are military bases within easy driving distance of pretty much every urban part of the country.

Click to expand...

Drive-by comment #4: Michigander, riddle me this: if the US Constitution only authorizes the Congress to raise an army for no longer than a period of two years, exactly how is it that 1) the military HAS grown so large, and that 2) we now have a standing army?

Honestly, I don't have an answer. :?


Article I, Section 8 (excerpt):
"The Congress shall have power...To raise and support armies, but no appropriation of money to that use shall be for a longer term than two years; "

http://www.law.cornell.edu/constitution/constitution.articlei.html#section8

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It simply means that every two years they have to re-vote the appropriations for the (money) military.

But let's not get off topic.

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Citizen and Yooper. All I can say is 'Wow', that's quite an eye opener. Thanks for posting the info on the 14th Amendment.

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Fishous wrote:

CoonDog wrote:

Michigander wrote:

My guess it that the US military has probably become much larger and more powerful than the founders would have liked. It's an easy assumption to come to when you consider that they said the militia, not the military, is the requirement to keep a state free.

However one chooses to look at it, it's not exactly much of an issue when there are military bases within easy driving distance of pretty much every urban part of the country.

Click to expand...

Drive-by comment #4: Michigander, riddle me this: if the US Constitution only authorizes the Congress to raise an army for no longer than a period of two years, exactly how is it that 1) the military HAS grown so large, and that 2) we now have a standing army?

Honestly, I don't have an answer. :?


Article I, Section 8 (excerpt):
"The Congress shall have power...To raise and support armies, but no appropriation of money to that use shall be for a longer term than two years; "

http://www.law.cornell.edu/constitution/constitution.articlei.html#section8

Click to expand...

It simply means that every two years they have to re-vote the appropriations for the (money) military.

But let's not get off topic.

Click to expand...

Why would the part after it state, "To provide and maintain a Navy."

"Raising" would imply that it would not be a standing army.

"Maintaining" would imply a "standing" (or "floating," if you will) Navy.

If a "standing army" were the intent, I propose that the term "raise" would not have been used in the first case, and "maintain" would not have been used in the second. Add to that the limited time to "support" a "raised" army and I believe it is clear that our founders did not envision the kind of "standing army" we have today. Remember, when they wrote the Constitution, each State was a sovereign one.

And back on topic, each State should still be a sovereign one and each state should have their own say on many issues. However, the RKBA is a sovereign individual right and no State, nor the Federal Government, should be allowed to infringe upon it.

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CoonDog wrote:

Citizen and Yooper. All I can say is 'Wow', that's quite an eye opener. Thanks for posting the info on the 14th Amendment.

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If you do some research, you can find out exactly what the founding fathers intended when they wrote the constitution. It doesn't take a constitutional scholar to figure it out.

Another example..... When they wrote that congress could "regulate" interstate commerce, they were ENCOURAGING interstate commerce, and not allow states to tax the imports from other states. No where is it mentioned that their intention was to give the federal government control over interstate commerce.

Yet every law congress passes they throw in that it affects interstate commerce. Heck, with the Montana Firearms Freedoms act, and a same law passed in TN, the feds are still claiming jurisdiction. But read what the founding fathers said about interstate commerce and it's clear that most of our national laws are unconstitutional.

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I sure wish someone would go all the way to the supreme court and argue the word
"infringed."

especially powerful since the sc decided that an INDIVIDUAL has the rtkba.

How much more plain could the language be?

"...the right of the people to keep and bear Arms, shall not be infringed."

Imagine the impact this wold have on American's lives. Not just us free citizens, but also the ones that are imprisoned for firearm possession charges.

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CoonDog wrote:

Citizen and Yooper. All I can say is 'Wow', that's quite an eye opener. Thanks for posting the info on the 14th Amendment.

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You're welcome. You can find out more on top-tier 2A blogs and legal blogs.

Just google key wordsBill of Rightsand incorporation.

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As I see it, it is simply like this:

The Bill of Rights enumerate rights of the People. The People are citizens of their respective States. Since the People maintain the rights enumerated in the BOR, then no State shall abridge or infringe upon them.

No State can make it illegal for the press to report freely. No State can make it illegal for People to speak freely. No State can sponsor, or prohibit the free exercise of, religion. No State can make it illegal to keep and bear arms. Etc, etc, etc.

Further driving this point, there is a reason the Separation of Church and State doctrine exists. I'm paraphrasing here, but the Constitution states that "Congress shall make no law establishing religion...". The problem with the particular wording of "Congress" is that it left the door open for individual States to establish religion. The anecdote was the establishment of the Separation of Church and State doctrine... it was meant to say, "Oops... Congress NOR STATES shall make no law establishing religion..."

To me, this clearly demonstrates that the rights enumerated in the federal Constitution belong to the PEOPLE and not to the States.

I'm all for State rights. But at the end of the day, I'm for the PEOPLE'S rights first. Afterall, it is the People who are meant to control their States... and the States, collectively known as the United States, who are meant to govern our collective affairs.