This is a big decision. For the first time ever, a federal court has found that the 2nd amendment is indeed incorporated into the Constitution through the 14th amendment. Just as a little background for those of you who are not legal scholars, originally the Bill of Rights were a set of limited rights that only applied to the federal government (for example many states had official state religions). It wasn’t until after the Civil War and the passage of the 14th Amendment that some of the Bill of Rights were eventually “incorporated” into the 14th amendment and applied to states as well as the federal government. Through a hodgepodge of cases, the Supreme Court has recognized most of the rights in the Bill of Rights as “fundamental” rights, and thus states could not limit them. Curiously the 2nd amendment has never been included as one of these fundamental rights, and thus never incorporated (although non-existent rights like the Right to Privacy made the list somehow).

The opinion basically follows the Heller opinion from last year. The Heller opinion invalidated a Washington D.C. ordinance which banned all gun possession in the District. The SCOTUS ruled that this was unconstitutional because gun ownership “necessary to an Anglo-American regime of ordered liberty.” Following this framework, the 9th Circuit has basically said that since this is a fundamental right the 2nd Amendment must be incorporated into the 14th Amendment. Interestingly, the 9th Circuit did not use the Priviliges and Immunities Clause of the 14th Amendment, but by the Due Process Clause.

From the concurrence:

First, as Judge O’Scannlain has aptly explained, the rights secured by the Second Amendment are “deeply rooted in this Nation’s history and tradition,” and “necessary to the Anglo-American regime of ordered liberty.” The salient policies underlying the protection of the right to bear arms are of inestimable importance. 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. 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.

Third, while the Second Amendment thus stands as a protection against both external threat and internal tyranny, the recognition of the individual’s right in the Second Amendment, and its incorporation by the Due Process Clause against the states, is not inconsistent with the reasonable regulation of weaponry. All weapons are not “arms” within the meaning of the Second Amendment, so, for example, no individual could sensibly argue that the Second Amendment gives them a right to have nuclear weapons or chemical weapons in their home for self-defense. Also, important governmental interests will justify reasonable regulation of rifles and handguns, and the problem for our courts will be to define, in the context of particular regulation by the states and municipalities, what is reasonable and permissible and what is unreasonable and offensive to the Second Amendment.

The ruling then states:

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.

What is very interesting about this opinion is that it is the 9th Circuit that has ruled this way. They are by far the most liberal Circuit and the most over-ruled Circuit (although two of the judges were appointed by Democrats, one by Reagan). This sets up two possibilities. The first is that the court will now hear the case en banc. This basically means that the whole 9th Circuit could review the opinion of the 3 judges who heard this case. Would that automatically mean they would over turn it? No, not automatically, although if I were a betting man I’d guess there is a good chance of that. However, this will almost certainly be appealed to the Supreme Court, who would then finally have the question presented to them: Is the 2nd Amendment Incorporated by the 14th Amendment? Under the current make-up of the Court I think there is a very good chance that they would indeed find this to be the case.

This is indeed good news for those who support and cherish the 2nd Amendment, the fact that it is coming from the 9th Circuit is just gravey.