Ninth Circuit Holds 14th Amendment Incorporates the 2nd

In a decision released today, the Court of Appeals for the 9th Circuit held in Nordyke v. King, No. 07-15763, that the Due Process Clause of the 14th Amendment incorporates the 2nd Amendment and applies it against the states and local governments:

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. 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.

Judge Gould's concurring opinion is even more strongly worded:

I concur in Judge O’Scannlain’s opinion but write to elaborate my view of the policies underlying the selective incorporation decision. 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.