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Big news. Ninth Circuit panel opinion incorporates the second amendment via the 14th amendment in Nordyke v. King. Opinion is here.

From David Hardy, who says:

Court incorporates the 2A on a selective incorporation, due process, theory, holding that the right is a fundamental one, deeply rooted in Anglo-American history, and traditionally seen as a natural right rather than a politically-created one.

More from Eugene Volokh.

12 Responses to “Incorporation”

  1. Stan Says:

    I’ve been asking this but haven’t quite got an answer. Since they incorporated it via Due Process, recognizing a ‘fundamental right,’ how do reasonable regulations jibe with the strict scrutiny test required for all fundamental rights?

  2. Stan Says:

    The 9th apparently thinks this broad and ‘reasonable’ regulation passes that test, except it doesn’t.

  3. Hypnagogue Says:


    I don’t know where you are getting your information, but property owned by the government is still controlled by them. The free exercise clause was incorporated in Cantwell v. Connecticut, yet I still am not allowed to hold church services in the Oval Office.

  4. Stan Says:

    But you are allowed to speak freely. Do you forfeit your 4th amendment rights whenever you set foot in a school or government building? They talk of schools and government buildings, but also include parks, fairgrounds, and city streets. I thought the whole idea of rights was to have them protected, especially from the government.

  5. Hypnagogue Says:


    Sorry, no dice. I doubt very much that you will be able to exercise your freedom of speech from the floor of the House of Representatives. But, just in case you want to prove me wrong, I’ll keep the TV tuned to CSPAN.

    Your understanding of strict scrutiny fails the sniff test.

  6. Stan Says:

    No it doesn’t. Strict scrutiny can allow for the regulation of guns in government buildings. Perhaps not all, but many of those buildings.

    Anyway, I found how the court got around it. Apparently my conlaw mojo is lacking. See footnote #19. The footnote pretty much says that it not necessarily deserves strict scrutiny, and as Ace explained to me it likely deserves something more than ‘reasonableness’.

  7. mdmnm Says:

    Well, the decision relied upon the Heller majority’s language endorsing the forbidding of firearms in “sensitive spaces” such as schools and government buildings in to conclude that the county fairgrounds and any other county property (except perhaps parking lots) can be declared off limits for guns. I’d imagine that gun-hostile municipalities will forbid carrying on all government property, and encourage private property holders to do the same, in order to effectively limit concealed carry.
    That aside, its hard not to love footnote 18 coming from the Ninth Circuit: ” 18. The County and its amici point out that, however universal its earlier support, the right to keep and bear arms has now become controversial. See generally Sanford Levinson, The Embarrassing Second Amendment, 99 Yale L.J. 637 (1989). But we do not measure the protection the Constitution
    affords a right by the values of our own times. If contemporary desuetude sufficed to read rights out of the Constitution, then there would be little benefit to a written statement of them. Some may disagree with
    the decision of the Founders to enshrine a given right in the Constitution. If so, then the people can amend the document. But such amendments are not for the courts to ordain.”

  8. Chas Says:

    “I still am not allowed to hold church services in the Oval Office.”

    County fairgrounds have always been routinely rented out for use by private organizations. The Oval Office, which has always been exclusively for the personal use of the president, never has. Apples and oranges.

  9. Hypnagogue Says:

    Apples and oranges, indeed. Which was my point. There is no clear cut strict scrutiny application here. As stupid as gun-free zones are in practice, they do not necessarily fail a strict scrutiny test. SCOTUS made the point about “sensitive areas”, and that language clearly applies.

  10. Chas Says:

    A county fairground, being little more than an open area, or exhibit halls rented out to the public, is clearly not a “sensitive area”. About the only thing “sensitive” about such areas, that I’ve noticed is that I have to watch where I step when there’s a horse show on the grounds at the same time that there’s a gun show.

  11. Hypnagogue Says:

    So you agree that there is a gray area for which some test should be applied, and then contend that an access-controlled facility on county fairgrounds “clearly” fails that test? Am I to assume that the presence of manure is your bright line?

    Sarcasm put away: would you prefer the test be defined by the federal judiciary or by local, elected officials?

  12. Suki Says:

    yet I still am not allowed to hold church services in the Oval Office.

    I think you can when it is your office, same as you can as Sheriff if you like.

    Hi Uncle! One of my online buddies from TN reminded me about you. I need to come back more.

    Can you get a preview thingie?


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