Something Feral

Digging up the flower-beds.

Monday, April 20, 2009

Who are you people, and what have you done with the Ninth Circuit?

I am certain that every so often, the Ninth Circuit does something like this just to throw the rest of us off-balance:
... The County does little to refute this powerful evidence that the right to bear arms is deeply rooted in the history and tradition of the Republic, a right Americans considered fundamental at the Founding and thereafter. The County instead argues that the states, in the exercise of their police power, are the instrumentalities of the right of self-defense at the heart of the Second Amendment. This argument merely rephrases the collective rights argument the Supreme Court rejected in Heller. Indeed, one need only consider other constitutional rights to see the poverty of this contention. State police power also covers, for instance, some of the conduct the First Amendment protects, but that does not deny individuals the right to assert First Amendment rights against the states. (15)

Once the County actually addresses modern incorporation doctrine, it relies on general assertions that run afoul of Heller. For example, the County declares that “the English common law tradition does not recognize an individual’s right to possess a firearm as a fundamental right.” Heller plainly contradicts that statement because it says that “[b]y the time of the founding, the right to have arms had become fundamental for English subjects.” 128 S. Ct. at 2798. The County also claims that Heller “nowhere concludes that an individual right to possess firearms for personal self-defense is a fundamental right.” But that misses the point. If Heller had indeed held that the right to keep and bear arms was a fundamental right as we use the term in substantive due process doctrine, then the issue would be foreclosed. The point is that language throughout Heller suggests that the right is fundamental by characterizing it the same way other opinions described enumerated rights found to be incorporated.

... 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. (17) 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. (18)

(Pages 4476-4496)
In a peculiar turn of events, the County prevailed on the ordinance, so it may not appeal the decision, which leaves the State in an awkward position without further review inside the court-system. (Eugene Volokh also adds that this is only one of three cases currently under-way to provide access to incorporation regarding the Second Amendment.)

This is by far my favorite quip regarding the case:
"What an pyrrhic victory for the gun grabbing county executive. She got the gun shows banned from county property, but accidently got the 2nd amendment incorporated in the process..."
Oops. Sometimes, when the stars are aligned and the Keynesian animal-spirits are near, even the Ninth Circuit can get it right.


MikeT said...

The 9th circuit gets it right a lot more than conservatives are willing to admit. They're one of the only courts radical enough to turn precedent on its head when they believe that a constitutional issue is at stake. IIRC, Alito indicated that he wouldn't be quick to overturn Roe v Wade simply because it had been precedent for 35 years. There are too many judges who think that change that is needed must be delayed because quick change is somehow inherently bad. Fortunately for us, the 9th circuit often doesn't feel that way, and this wouldn't be the first time that some California statist has rued the day that he or she set foot into their court.

Something Feral said...

This is true; the 9th Circuit does seem to raise the dander of the Supreme Court like no other, which is not a bad thing at all.

That said, and to be a little more fair to the 9th, I did not expect any court (much less this one) to pick up the incorporation for the Second Amendment this quickly. Furthermore, out of the three possible cases, I would not have put my money on this one, much less in the condition in which it was delivered.

Not that I'm unhappy... Quite to the contrary!

Elusive Wapiti said...

Yeah, I have to admit that it sure seems the 9th Circuit got body-snatched here.

MikeT makes a good point...courts and judges are overly cautious about overturning precedent set by others. Even when that precedent is morally offensive or un-Constitutional.

Erik said...

I have seen quite a few good decisions out of the ninth. It came as a surprise to me after the big to-do about the pledge (which I am against anyways, but thats a different story) I had not heard a peep from them before that time. So my impression was fairly poor to start off with but I find myself agreeing with their rulings on a regular basis, perhaps moreso than any other single court.

Something Feral said...

Looking back to that particular decision, it's interesting to see how much my opinion has shifted from that of standard conservatism to rabid libertarianism; the 9th has two more items to its credit: upholding Proposition 209 here in the PRK, and the overturned Gonzales v. Raich (the evil of Wickard v. Filburn knows no bounds). Not an exhaustive list, but credit is due.

That's a good post at your blog there, Erik, and educational to boot. Furthermore, I agree that one cannot serve two masters.