Monday, April 20, 2009
Good News on the Gun Rights Front
A panel on the 9th Circuit has ruled that the 2nd Amendment (providing a private right to own and carry guns) applies in each of the states through the doctrine of incorporation. Good. Here's some background on the case, Nordyke v. King.
The Heller case which held, narrowly, that the 2nd Amendment is a private right, involved laws against any private ownership of a readily available, working gun in the District of Columbia. It was therefore a purely federal case. What about a citizen of one of the 50 states? Can he, faced with a state law prosecution, say he has a federal constitutional right to own and carry a gun under the 2nd Amendment? Well, only if the 2nd has been incorporated as to the laws the states. Unfortunately, there were no cases at the time of Heller which said that. Now there is one and it's from the very liberal 9th Circuit. As I said, good news.
It doesn't matter in this state really, or in most states, as 44 of them have a gun right in the state constitution, because our "2nd Amendment" in the Colorado Constitution, Article II, Section 13 (at page 5), is substantially the same as the Heller holding regarding the real 2nd. And ours doesn't even mention a "well regulated militia." Still ours has been held to be so inconsequential that subordinate governments in this state can ban the ownership of certain guns that look really mean. Not that I'm bitter, but I have never held the Appellate Courts in this state in high regard.
(h/t Volokh Conspiracy via Instapundit)
UPDATE: The Ace of Spades notes that the gun regulation was upheld, that is, the rule now is that you can probably have a semi auto pistol at your home, but the state government can tell you where you can't carry it once you're outside, and that prohibition can be very wide indeed. Oh well, take the rough with the smooth.
The Heller case which held, narrowly, that the 2nd Amendment is a private right, involved laws against any private ownership of a readily available, working gun in the District of Columbia. It was therefore a purely federal case. What about a citizen of one of the 50 states? Can he, faced with a state law prosecution, say he has a federal constitutional right to own and carry a gun under the 2nd Amendment? Well, only if the 2nd has been incorporated as to the laws the states. Unfortunately, there were no cases at the time of Heller which said that. Now there is one and it's from the very liberal 9th Circuit. As I said, good news.
It doesn't matter in this state really, or in most states, as 44 of them have a gun right in the state constitution, because our "2nd Amendment" in the Colorado Constitution, Article II, Section 13 (at page 5), is substantially the same as the Heller holding regarding the real 2nd. And ours doesn't even mention a "well regulated militia." Still ours has been held to be so inconsequential that subordinate governments in this state can ban the ownership of certain guns that look really mean. Not that I'm bitter, but I have never held the Appellate Courts in this state in high regard.
(h/t Volokh Conspiracy via Instapundit)
UPDATE: The Ace of Spades notes that the gun regulation was upheld, that is, the rule now is that you can probably have a semi auto pistol at your home, but the state government can tell you where you can't carry it once you're outside, and that prohibition can be very wide indeed. Oh well, take the rough with the smooth.
Labels: Second Amendment; Heller Case; Nordyke Case; Incorporation
# posted by Roger Fraley @ 12:10 PM 
