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A 2nd Amendment breakthrough

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Whoda thunk it? One of the most wackily reliable liberal courts in the country actually might have gotten a case on the 2nd Amendment right. That’s hard to believe!

The 9th Circuit Court of Appeals in California actually ruled the 2nd Amendment right to keep and bear arms is "deeply rooted in this nation’s history and tradition" and has long been regarded as the "true palladium of liberty," so it actually must be applied against state and local government weapon restrictions as well as federal gun limits.

This ruling came as a result of a dispute lasting more than ten years over a private operation’s request to hold a gun show at a county fair ground in spite of the fact the county prohibited possessing a gun at its facilities.

When the usually liberal 9th Circuit said Alameda County in California was allowed to ban guns at it facilities, it also said in general the 2nd Amendment provided for Americans to keep and bear arms not just in federal gun limitations but in local rules as well.

This could be huge folks. Is it just possible we could be witnessing the beginning of the end where state and local governments need not so much as even pay lip service to the 2nd Amendment?

This development can’t be understated. The 9th Circuit is the largest, and hence one of the most important, federal circuit courts. It’s also considered the most liberal and thus perhaps the most hesitant to protect the right to keep and bear arms.

In one of the concurring opinions, Judge Ronald M. Gould wrote that nothing less than the security of the nation – a defense against both external and internal threats – rests upon this 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 a tyranny and though this may seem unlikely, this possibility should be guarded against with individual diligence."

The court opinion 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 this 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 sustained. (On a personal note, the South had no intention of abridging any 2nd Amendment rights when it withdrew from the Union.) It went on to say, "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 case was Nordyke v. King. Alameda 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 company.

Now, I’ve never been a big fan of the Fourteenth Amendment as it was ratified in a shifty and duplicitous manner and stuffed down the throats of the Southern states, however, it is a fact of life so we have to live with it. While I may disagree with its ratification, the intent was clearly to bring the states to heel on the first eight amendments by making the privileges and immunities of citizens of the United States mean the same thing in state law as it did in federal law.

So, now, in that large swath of our country covered by the 9th Circuit – the entire West Coast, plus Idaho, Montana, Nevada and Arizona – incorporation of the Second Amendment is a settled issue (unless the Supreme Court says "no").

I’ve said that since courts have beat us over the head with "incorporation" on the so-called First Amendment separation of church and state, why not apply it to the 2nd Amendment as well? That was one huge disappointment I had in the Heller decision, plus the question as to why so many other amendments are appropriate for such treatment and not the Second? The answer, of course, is that liberals abhor the notion of an armed populace capable of defending itself.

It’s good to finally have the 2nd Amendment incorporated so that it protects us against capricious state and local officials, but we have yet to know how much protection it will provide in the long run. At any rate, it’s most definitely a good start.


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Nelson Propane

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