Monday, April 20, 2009

Second Amendment Incorporated? In the 9th Circuit of all places?

This is breaking news right now. Pro 2nd amendment Law Professor Eugene Volokh broke the news on his blog.

The decision is here, Nordyke v King



I haven't read it yet don't have time to until later today. Unanimous 3 judge panel ruled on this. Obviously, Stephen Reinhardt isn't on this panel.

We'll see if this goes to an en banc hearing (all the judges) on the 9th or if this goes to SCOTUS. So far, it looks good.

(For the non-legal beagals out there, a simplistic definition of incorporation means that the bill of rights apply to the states as well as the federal government through the 14th Amendment. Some of the bill of rights are incorporated, some are not.)

1 comment:

Dan Sheill said...

Last summer, I took a course at Cooley Law School called gun control seminar. I did my term paper on the Heller v. D.C. decision right after it came down. To be honest, Scalia's reasoning sucked! Why? It's complicated. Basically a "strict constructionist" like Scalia hates what are known under the 9th Amendment as "unenumerated rights," those not specifically referenced in the Constitution such as "freedom of speech." Right to abortion is probably the most notorious unenumerated right. So Scalia tried to establish a right to handguns strictly under the Second Amendment. Scalia tried to do this while at the same time trying to uphold the 1934 National Firearms Act which outlawed civiliam ownership of certain machine guns. But let's face it, if the Second Amendment was truly established to empower the people against a tyrannical government, then the people should have a "right to bear arms" with any kind of man-portable guns they can get their hands on. Scalia's effort to sanction handguns but not those arms more regularly used in combat is intellectually dishonest. But, granting the right to the use of a handgun could easily fall under a newly established unenumerated right to self-defense. The right to self-defense is deeply rooted in our nation's history and traditions and is essential to ordered liberty.