Tuesday, April 21, 2009

2nd and 14th admendment are tied better now

The 9th Circuit Court of Appeals just issued it ruling in Nordyke vs. King and has "incorporated" the 2nd Amendment against the states and local governments via the Due Process clause of the 14th Amendment! The times, they are a-changin'!

All the rights enumerated in The Bill of Rights protect us only from the federal government. The states and local governments were perfectly free to violate them all they wanted. So we passed the 14th amendment to incorporate these protections against all levels of government. After all, it's kind of silly to say that you have the right to do X, but if you do X, you're going to be arrested by state/county/city law enforcement officers. Now the authors of the 14th amendment understood the danger of enumerating rights, so they didn't enumerate exactly which rights were being applied to the state and local governments (though they made it quite clear that they included those rights listed in The Bill of Rights). To make a long story short, before you can really claim that you have a right, a federal court must rule that this particular right is "incorporated" in the 14th amendment. The 9th Federal Circuit Court of Appeals just done so for the 2nd amendment. The recent Heller decision established that the 2nd amendment referred to an individual right, Nordyke says that the states and local governments may not violate our individual 2nd amendment rights.

As for practical effects, nothing immediate. Now, if you have the time, money, and inclination, you can legitimately claim that certain gun control laws are unconstitutional, and you won't be dismissed out of hand. We still don't have any good case law fleshing out exactly what is and is not protected by the 2nd amendment. There is still a lot of painful and expensive work to be done. But, this was a major victory and fundamental to everything to come. Now will come a storm of cases challenging every single gun control law, executive regulation, import restriction, etc.

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