Heller: A Crucial Reminder That Politics Matter

On April 20, 2009, we scored an historic victory at the U.S. Ninth Circuit Court of Appeals—and for reasons that aren’t clear to me, it received very little press attention. What attention it received was often shockingly incomplete.

The case was Nordyke v. King,1 which has been working its way up and down the federal courts since I lived in California, almost ten years ago. The dispute was very simple: did Alameda County (where Oakland is located) have authority to prohibit gun shows at the county fairgrounds? Russell and Sallie Nordyke, for many years, have put on gun shows across California, often at county fairgrounds or other publicly owned venues. As the decision points out, both sides agree that nothing illegal or violent had ever occurred at the gun shows that the Nordykes put on at the Alameda County Fairgrounds.2

In the mid-1990s, at least partly because of the Gian Ferri mass murder in a San Francisco law office, cities and counties in the more urban parts of California looked for ways to discourage gun ownership—or at least ways to show their self-righteous superiority over us knuckle draggers. One of the ways that they chose to do so was to prohibit gun shows at county facilities.

One difficulty is that you can’t just prohibit gun shows as such. Santa Clara County, where San Jose is located, announced that it would no longer allow gun shows on county owned property starting in 1996. It was not an ordinance—merely a change to the lease agreement with the operator of the county fairgrounds. The Ninth Circuit Court of Appeals ruled that such a provision, because it effectively stopped lawful, commercial speech (the offering of guns for sales), was unlawful. The First Amendment’s protection of free speech was offended, because the Santa Clara County had failed to establish that there was any compelling governmental interest advanced by their effort to stop gun shows. As a 9th Circuit Court of Appeals decision in 1997 explained:

“We acknowledge that a distinct goal underlying the County's gun show policy is to avoid sending the message to the community that the County promotes gun usage. It is debatable whether that qualifies as a substantial interest…. The County has not presented a shred of evidence that any County resident, or anyone else, has somehow gotten the mistaken impression that the County promotes gun usage. Even assuming that some people mistakenly believe that to be true, the County has offered no evidence to substantiate its claim that the practice of holding gun shows at the Fairgrounds either caused or reinforces that mistaken belief. Rather, the record suggests that the [contract] addendum is at best an inept response to pressure by residents who strongly support the cause of gun control.”3

So the next step for counties responding to the screeching of gun control advocates was to ban possession of firearms and ammunition on county property. California law already prohibited possession of loaded firearms in cities, but these ordinances applied to unloaded firearms. Gun shows were still free to operate—as long as there were no guns and no ammunition present. Of course, a gun show without guns is rather like a meatless hamburger—no one expected much of an audience for gunless gun shows.

And that’s what Alameda County did. They passed a gun and ammunition ban on county-owned property, at the urging of Mary King, Alameda County supervisor. She decided that this was necessary because of a shooting at the Alameda County Fair—completely unrelated to any gun show. King also argued that a series of high profile shootings across the country—including at Columbine High School—justified such a ban. Worst of all, King, in a memo to the county’s attorney, explaining that the purpose of the ban was to stop gun shows. King complained, “she had ‘been trying to get rid of gun shows on Country property’ for ‘about three years,’ but she had ‘gotten the run around from spineless people hiding behind the constitution, and been attacked by aggressive gun toting mobs on right wing talk radio.’”4

Don’t you just love that? “Hiding behind the constitution.” Nothing offends power-mad sorts more than that document. I’m still trying to understand how one “totes” guns on the radio. I always got the impression that those were disembodied voices!

Just to add to the foolishness of King admitting that her goal was to drive gun shows off county-owned property, the county next had to amend the firearms ban because of another group. The Scottish Caledonian Games takes place every year at the Alameda County Fairgrounds—lots of sweaty men in kilts tossing the caber. (Yes, I’ve attended a few times with my wife.) During these events, there are dramatic reenactments of famous battles with black powder firearms—so the county had to write an exemption for them.5

The first time that this lawsuit reached the Ninth Circuit, the judges were sympathetic to the claim that Alameda County was violating our Second Amendment rights. The problem was that the U.S. Supreme Court had not yet issued a clear ruling about whether the Second Amendment protected an individual right, or a collective right. In Hickman v. Block, the Ninth Circuit had ruled that the Second Amendment did not protect an individual right,6 this panel of judges was obligated to follow that precedent.

Last year, the U.S. Supreme Court turned the world upside. They ruled in D.C. v. Heller, and citing some of my work, that the Second Amendment protected an individual right to possess handguns in one’s home for self-defense. Because Heller involved a federal jurisdiction—not a state law—it left open the question of whether the Second Amendment applied to the states or not.

Starting with Barron v. Baltimore (1833), the Supreme Court held that the Bill of Rights only restricted the federal government. This decision was correct; while James Madison wanted the Bill of Rights (at least some provisions) to restrict the states as well, there was no general enthusiasm for the idea. As far as Congress was concerned, the Bill of Rights applied only to the federal government.

After the Civil War, Congress passed the Fourteenth Amendment, and the states ratified it, at least partly to impose the Bill of Rights on the states. In the South, many freedmen and Union sympathizers were subject to abusive laws—including abusive gun control laws. The Framers of the Fourteenth Amendment intended the Fourteenth Amendment to fix this.

Over the course of the twentieth century, the Supreme Court has “incorporated” various provisions of the Bill of Rights against the states, piece by piece. This process is known as “selective incorporation.” Why some provisions, and not others?

The Fourteenth Amendment has two different clauses upon which the controversy rests. “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States….” The other says, “nor shall any State deprive any person of life, liberty, or property, without due process of law….”7 There is a very credible body of evidence that the authors of the “privileges or immunities” clause intended this to apply the first eight of the Bill of Rights to the states. Even many liberal law professors grudgingly admit this. But the Supreme Court, for a variety of bad reasons in the nineteenth century, chose to pretend that it did not.

Instead, the Supreme Court in the twentieth century started to decide that certain rights were so fundamental “to ordered liberty” that they were protected by the “due process” clause. If this doesn’t make a lot of sense to you—you are not alone. Many academics who like the result of selective incorporation through the due process clause recognize that this is nonsense—that the Court was simply overriding the legislatures because they thought that freedom of speech, freedom of religion, freedom from warrantless searches, among other rights, were too important.

And what does “ordered liberty” mean? The Court has never given a clear statement of what this means—because it means whatever the judge writing the particular opinion wants it to mean. Not surprisingly, with the dominance of liberals on the Court for the last sixty years, the Second Amendment has never been incorporated against the states.

What makes this especially bizarre is that the Supreme Court, over the last four decades, has used selective incorporation to declare as constitutional rights actions that are never explicitly mentioned in the Constitution. These include a right to contraceptives,8 a right to abortion,9 a right to collect welfare without meeting residency requirements,10 and a right to engage in homosexual sex.11 At the same time, the Court refused to incorporate a right that was, you know, actually written down: the Second Amendment.

So after the Heller decision, the lawyers who represented Nordyke refiled, pointing out that the Second Amendment was now clearly an individual right—and asked the Ninth Circuit to reconsider their ruling, and with respect to incorporation against the states. The clerk of the Ninth Circuit was going to assign this case to a new panel of judges—and the judges who had heard this last time said, “Wait a minute! We’ll take care of this.” In the decision just handed down, that three judge panel ruled that the Second Amendment applies to the states, through the due process clause.

To reach this conclusion, based on the pretty sloppy, and I would say, dishonest Supreme Court precedents concerning selective incorporation, the Ninth Circuit had to decide whether the right to keep arms for self-defense was a “fundamental” right.12 This should be obvious; if you lack the right to defend yourself against a deadly attack, all other rights are quite irrelevant; only the breathing care about other rights.

They also had to decide if the right protected by the Second Amendment is “deeply rooted in this Nation’s history and tradition.”13 As my book Armed America makes clear, this isn’t even a serious question anymore. As the Ninth Circuit opinion eloquently observes,

“This brief survey of our history reveals a right indeed ‘deeply rooted in this Nation’s history and tradition.’ Moreover, whereas the Supreme Court has previously incorporated rights the colonists fought for, we have here both a right they fought for and the right that allowed them to fight.”14

Now, when it came to the specific question of whether this county ordinance violated the Second Amendment or not, the Ninth Circuit ruled that it did not—and I believe that they were correct. Remember that the Heller decision answered a very specific question: is there a right to have a handgun, or any loaded firearm, in your home? The Alameda County ordinance, as silly as it was, did not prevent that. Nor did it apply to public streets. It applied only to non-public facilities owned by the county. A government acting as landlord has substantially more discretion than the government acting as government.15

Professor Eugene Volokh points out this is similar to Webster v. Reproductive Health Servs. (1989), a case in which the Supreme Court ruled that a government could prohibit abortions in government-owned hospitals. Even though the Court found that there was a right to abortion, government as landlord could exercise discretion that it could not exercise on private property or public streets.16

Now, you may be thinking that this isn’t quite the victory that you were hoping for—Nordyke lost. There will be no gun shows at the Alameda County Fairgrounds. It turns out that because Alameda County technically “won,” they can’t appeal to the Supreme Court. They can, at most, request what is called an en banc hearing of the Ninth Circuit (in which a larger panel of judges decides whether this decision is correct or not). At this point, it appears unlikely that such an en banc hearing will take place.17

Since other circuits of the Court of Appeals have ruled that the Second Amendment does not apply to the states, and the Seventh Circuit case involving the city of Chicago’s handgun ban is likely to come to the same decision, we will have what is known as a “circuit split,” which means that some circuits have come to one conclusion, and others have come to another conclusion. While the U.S. Supreme Court is not required to hear an appeal because of a circuit split, in practice, when an important question of law is involved, they usually do so.

This is a really good thing. The Heller decision alluded to the question of incorporation—and some informal remarks by members of the Heller majority suggest that they had thought about this question, and agreed that incorporation against the states was inevitable. Best of all, it looks like such a Supreme Court hearing will take place sooner, rather than later—and while the five judge majority that decided Heller still sits on the bench.

Clayton E. Cramer is a software engineer and historian. His sixth book, Armed America: The Remarkable Story of How and Why Guns Became as American as Apple Pie (Nelson Current, 2006), is available in bookstores. His web site is http://www.claytoncramer.com.