In an opinion that echoed the arguments of the SCOTUS Heller decision, the 9th Circus Circuit Court ruled today that the rights enshrined in the Second Amendment are “fundamental” and deeply rooted” rights that judges may not change through their court rulings. (View the announcement on the SCOTUS Blog) The Court reasoned that the Fourteenth Amendment incorporates the Second Amendment to the States, in much the same way that courts have ruled other rights in the Constitution also extend to the States. So at least in Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, and Washington, residents will now benefit from the Heller decision’s affirmation of the Second Amendment.
Some observers will say the Court’s ruling was a mixed bag, since it affirmed the right of a local government to prohibit guns on its property — a ruling that opens the way for some local governments to try to shut down gun shows on their fairgrounds, coliseums and other public squares. However, the ruling also unabashedly affirms the personal constitutional right to keep and bear arms for personal defense purposes.
Two passages in the opinion, written by Judge Diarmuid O’Scannlain stand out. The key passage is here:
“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.”
But a footnote may have the most effect, as it will likely be cited in decisions not related to the Second Amendment by judges who wish to counter the post-modern hermeneutic that has destroyed the meaning of so much of our precious Constitution:
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.
Today was a good day for Constitutional government!