The 9th U.S. Circuit Court of Appeals in California has ruled that the 2nd Amendment right to keep and bear arms is “deeply rooted in this nation’s history and tradition” and long has been regarded as the “true palladium of liberty,” so it therefore must be applied against state and local government weapon restrictions as well as federal gun limits.
The ruling came in a decade-old dispute over a private operation’s request to hold a gun show at a county fairground, even though the county prohibited gun possession at its facilities.
The new ruling from the usually liberal 9th Circuit said Alameda County in California was allowed to ban guns at its facilities, but in general the 2nd Amendment provision for Americans to keep and bear arms applies not to just federal gun limits but local rules as well.
“In Nordyke v. King … we may very well be seeing the beginning of the end of that very unsatisfactory set of circumstances, wherein state and local governments need not so much as pay lip service to the 2nd Amendment,” he continued. “In the 9th Circuit, in fact, that end has indeed arrived.
“This development is very significant, because the 9th is the largest, and thus one of the most important, federal circuit courts. It is also considered the most ‘liberal,’ and thus perhaps the most resistant to protecting the right to keep and bear arms,” he continued.
Hofmann cited a concurring opinion by Judge Ronald M. Gould, who wrote that nothing less than the security of the nation – a defense against both external and internal threats – rests on the provision.
“The right to bear arms is a bulwark against external invasion. We should not be overconfident that oceans on our east and west coasts alone can preserve security,” Gould wrote. “We recently saw in the case of the terrorist attack on Mumbai that terrorists may enter a country covertly by ocean routes, landing in small craft and then assembling to wreak havoc. That we have a lawfully armed populace adds a measure of security for all of us and makes it less likely that a band of terrorists could make headway in an attack on any community before more professional forces arrived. Second, the right to bear arms is a protection against the possibility that even our own government could degenerate into tyranny, and though this may seem unlikely, this possibility should be guarded against with individual diligence.”
The court opinion this week said, “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 court continued.
“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,” the opinion said.
The court previously had ruled exactly the opposite way, but it said the U.S. Supreme Court’s Heller decision, which confirmed that the 2nd Amendment right is personal as well as collective, prompted the reversal.
At Poligazette, a commentator noted it is a major victory for the pro-gun position.
And another Gun Rights Examiner writer, David Codrea, said, “This is big – especially coming from the 9th Circuit, notorious for its hostility to gun rights. Look for an appeal. And then look to see if the Supreme Court agrees to hear it.”
Technically the county cannot appeal, since its policy to restrict guns on county property was upheld. But the plaintiffs, Russell and Sallie Nordyke, could appeal on behalf of their gun show operation.
The 2nd Amendment states: “A well regulated
Militia, being necessary to the security of a free State, the
right of the people to keep and bear Arms, shall not be
“This necessary ‘right of the people’ existed before the Second
Amendment as ‘one of the fundamental rights of Englishmen,’” the ruling said. “Heller identified several reasons why
the militia was considered ‘necessary to the security of a free
state.’ First, ‘it is useful in repelling invasions and suppressing
insurrections. Second, it renders large standing armies
unnecessary . . . . Third, when the able-bodied men of a nation
are trained in arms and organized, they are better able to resist
He’s already advocated for a treaty that would require a federal license for hunters to reload their ammunition, has expressed a desire to ban “assault” weapons, has seen a plan to require handgun owners to submit to mental health evaluations and sparked a rush on ammunition purchases with his history of anti-gun positions.