21 April 2009

The 9th on the 2nd

Now the Ninth Circuit Court of Appeals, the most struck down court in the federal schema, has issued a ruling on a Second Amendment case dealing with the ability of a municipality to restrict the sale of firearms on municipal property in Nordyke v. King.  Over at The Volokh Conspiracy they have put up their examination (and others) that have looked at the ruling, and have them all on one page, at the link.  Now the 9th affirms the individual right to bear arms, but also upholds the municipalities ability to regulate that on public grounds of the municipal government.

The decision is one that rests on one prime question, as given by Circuit Court Judge O'scannlain p.3:

We must decide whether the Second Amendment prohibits a local government from regulating gun possession on its property.

The case this arises from is the Alameda Gun Show that used to be held at the public fair grounds and is brought by Russell and Sally Nordyke who have a gun business that is negatively impacted by having the show removed from the public fair ground. An ordinance was put in place in 1999 by the County after a shooting at the County Fair that restricted bringing firearms or ammunition to the fairgrounds as a misdemeanor.  The author of the Ordinance, Supervisor Mary King, is cited as having an ambition to drive all gun shows out of Alameda County via regulation by prohibiting them on County property.  The Nordykes had sought a waiver, in which the County asked for an alternative in case they did not get it, and the Nordykes did not present one as it seemed futile to them to have a gun show without guns.

At that point the "Scottish Caledonian Games" sought a waiver for their historical re-enactment and got one, so long as firearms were secured when not in the actual possession of the individuals involved.  The Nordykes went through multiple appeals, wishing to add a Second Amendment claim to them, which the County denied under the rubric of possession of firearms being a collective, not individual, right.  That was struck down with the Heller case by the SCOTUS which affirmed the that it is the right of an individual to keep and bear arms. After a round of supplemental briefs, the case came to the 9th.

Got it?

Continuing on to page 9 of the pdf file on the case the Circuit Court Judge O'scannlain puts the issue of Constitutional Rights and the States as follows:

There are three doctrinal ways the Second Amendment might apply to the states: (1) direct application, (2) incorporation by the Privileges or Immunities Clause of the Fourteenth Amendment, or (3) incorporation by the Due Process Clause of the same Amendment.

The first venue is closed due prior case law of Barron v. Mayor of Balt. which prohibits the direct application of those rights to the States.

Similarly the Privileges and Immunities clause is not allowed due to prior case law under the Slaughter-House Cases as the Bill of Rights only protects from federal invasion of those rights.  A telling point here, court emphasis in italics mine in boldface, p.11:

The Second Amendment protects a right that predates the Constitution; therefore, the Constitution did not grant it. See, e.g., Heller, 128 S. Ct. at 2797 (“[I]t has always been widely understood that the Second Amendment, like the First and Fourth Amendments, codified a pre-existing right.”).  It necessarily follows that the Privileges or Immunities Clause did not protect the right to keep and bear arms because it was not a right of citizens of the United States. See Cruikshank, 92 U.S. at 553; cf. Presser, 116 U.S. at 266-67 (holding that the “right to associate with others as a military company” is not a privilege of citizens of the United States).

Thus those rights that existed before the Constitution cannot be intruded upon, which is why we have Amendments IX and X for all those 'un-enumerated rights'.

The third venue is the Fourteenth Amendment incorporation via the Due Process Clause and there are some citations under that first to the 9th decision in Fresno Rifle & Pistol Club, Inc. v. Van de Kamp, which did not consider the selective incorporation of the Second Amendment via the Fourteenth to the States.  The second area of citation is to the SCOTUS decision of Benton v. Maryland that examined a speculative philosophical view of rights that was political and abandoned that p.15:

The Supreme Court ultimately abandoned this abstract enterprise in favor of a more concretely historical one. In Duncan, the Court recognized that it had jettisoned the metaphysical musings of Palko for an analysis grounded in the “actual systems bearing virtually every characteristic of the common-law system that has been developing contemporaneously in England and in this country.” 391 U.S. at 149 n.14. Therefore, incorporation turns on “whether given this kind of system a particular procedure is fundamental—whether, that is, a procedure is necessary to an Anglo-American regime of ordered liberty.” Id. In determining whether the Due Process Clause incorporated the right to jury trials in criminal cases, Duncan noted that every American state “uses the jury extensively, and imposes very serious punishments only after a trial at which the defendant has a right to a jury’s verdict.” Id. The Court also reviewed the place of the right in pre-Founding English law and in the Founding era itself. See id. at 151-54 (citing the English Declaration and Bill of Rights, Blackstone’s Commentaries, early state constitutions, and other evidence from the Founding era).

The 9th is persuaded that this is the line of reasoning to use in this case, that of seeking an Anglo-Saxon regime of ordered liberty.  From this the Second Amendment then is examined, which comes up next, and is of interest to Second Amendment and 9th Circuit watchers, both p.17:

The Second Amendment reads: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” U.S. Const. amend. II. The prefatory clause of this Amendment describes the right it protects. The Supreme Court has explained that the phrase necessary to the “security of a free State,” means necessary to the “security of a free polity.” 10 See Heller, 128 S. Ct. at 2800 (internal quotation marks omitted). Thus the text of the Second Amendment already suggests that the right it protects relates to an institution, the militia, which is “necessary to an Anglo-American regime of ordered liberty.” Duncan, 391 U.S. at 149 n.14. The parallel is striking, particularly because the militia historically comprised all able-bodied male citizens. Heller, 128 S. Ct. at 2799.

This is of no surprise to anyone, as I've examined before, the Militia Act of 1903 (aka the Dick Act) specifically includes the problem the States had of militia upkeep.  There were two classes of individuals that were cited: those that were willing to be trained and get paid, as the organized militia, and those who were unwilling to get trained and they are the unorganized militia.  Every able-bodied adult male (17-45) who is not part of the organized militia is part of the unorganized militia.

The 9th traces the history of firearms in US culture, and that the right to keep and bear arms is one that pre-exists the Constitution and is deemed a fundamental right.  Blackstone cites two classes of rights, absolute and relative rights, and I'll take out some of the central paragraph on this, p.20:

Blackstone defined these absolute rights as “personal security, personal liberty, and private property.” Id. at *141. The English Constitution could only secure the actual enjoyment of these rights, however, by means of certain “barriers” designed “to protect and maintain [them] inviolate.” Id. The right to bear arms ranked among these “bulwarks of personal rights.” Id. Blackstone considered the right “a public allowance, under due restrictions, of the natural right of resistance and self-preservation, when the sanctions of society and laws are found insufficient to restrain the violence of oppression.”

The 9th also cites other sources in colonial America, including Sam Adams' Rights of the Colonists, which I examined here.  I will take the 9th to task for not putting down the first date of that as 1769, and reprinted in 1772.  The numerous citations of the Founders and other legal scholars at the era of colonial America demonstrates a deeply rooted Anglo-Saxon right.  This then continues in the Antebellum era then through the post-Civil War era and the Fourteenth Amendment to provide that those who had been freed had the right to protect themselves, their families and homesteads.

From these the 9th examines the regulations provided and their rubric of 'collective rights' and finds that such a basis is unfounded given the deep history of the Nation and the fundamental rights of individuals to keep and bear arms.  Thus the Due Process Clause of the Fourteenth is to be used as it was the means to ensure that freed slaves could protect themselves using the fundamental right of citizens in society.

The Court then examines that the ordinance is not one that impedes civil rights as it pertains only to those places that are County property.  There is the particular citation of Heller to the ability of government to exclude firearms possession in sensitive places with this citation from Heller, pp.32-33:

...nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.

It is that last part, and classifying the County Fairgrounds as a gathering place for large numbers of people (typically 4,000 per gun show) that the County restricts the use of it for a gun show.  And here is where things get sticky, p.37:

Undeterred, the Nordykes also argue that the statute’s exception for certain artistic productions or events indicates its constitutionally suspect relation to the suppression of speech. They cry foul because the Ordinance effectively bans gun shows at the fairgrounds by regulating gun possession there so strictly, while it goes out of its way to accommodate the Scottish Games. But most statutes have exceptions; they only suggest unconstitutional favoritism if what they allow generates the same problems as what they permit. See, e.g., Metromedia, Inc. v. City of San Diego, 453 U.S. 490, 510-12 (1981) (plurality opinion). The Scottish Games reenact old battles; the Nordykes sponsor heavily attended gun shows. It is not difficult to see how 4,000 shoppers trading in modern firearms pose more danger than a crowd of history buffs in traditional garb playing with blank ammunition. In any event, only if the Scottish Games ensure that “authorized participants” possess the firearms or that the firearms are secure can they get the benefit of the exception. If the Nordykes could meet one of those criteria, they could get the benefit of the exception as well.

Note that last sentence: "If the Nordykes could but meet one of those criteria, they would get the benefit of the exception as well."

The criteria exception by the County for the "Scottish Games" is given previously in the ruling, and I will extract that, now p.5:

[t]he possession of a firearm by an authorized participant in a motion picture, television, video, dance, or theatrical production or event, when the participant lawfully uses the firearm as part of that production or event, provided that when such firearm is not in the actual possession of the authorized participant, it is secured to prevent unauthorized use.

From that they uphold the Ordinance and the personal right to keep and bear arms.

Now here is the rub: the Militia Act of 1903.

As all adult citizens between 17-45 ARE part of the unorganized militia, they have an historic Anglo-Saxon right to purchase, keep and bear arms, as well as trade them.  This is a historic and honorable set of transactions between responsible citizens that is deeply fundamental beyond mere acts, stage plays or other theatrical productions: it is the thing itself.

The militia is given to the STATE via the Militia Act of 1903 and Constitutionally in the following part of Article I, Section 10:

No State shall, without the Consent of Congress, lay any Duty of Tonnage, keep Troops, or Ships of War in time of Peace, enter into any Agreement or Compact with another State, or with a foreign Power, or engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay.

The Court also cites a pamphleteer in 1770 on p.21:

Instances of the licentious and outrageous behavior of the military conservators of the peace still multiply upon us, some of which are of such a nature . . . as must serve fully to evince that a late vote of this town, calling upon the inhabitants to provide themselves with arms for their defense, was a measure as prudent as it was legal: such violences are always to be apprehended from military troops, when quartered in the body of a populous city . . . . It is a natural right which the people have reserved to themselves, confirmed by the [English] Bill of Rights, to keep arms for their own defence; and as Mr. Blackstone observes, it is to be made use of when the sanctions of society and law are found insufficient to restrain the violence of oppression.

The 9th also examines the following on p.27:

We also note that the target of the right to keep and bear arms shifted in the period leading up to the Civil War. While the generation of 1789 envisioned the right as a component of local resistance to centralized tyranny, whether British or federal, the generation of 1868 envisioned the right as safeguard to protect individuals from oppressive or indifferent local governments. See Amar, supra, at 257-66. But though the source of the threat may have migrated, the antidote remained the same: the individual right to keep and bear arms, a recourse for “when the sanctions of society and laws are found insufficient to restrain the violence of oppression.” 1 Blackstone, supra, at *144.

The grounds to go after the Ordinance?  Something along the following:

1)  The Militia Act of 1903 recognizes the unorganized militia as a militia and a State concern - it is federally recognized and for the State government, not localities, to have oversight of it.  Local law enforcement is involved in some aspects of this, also, due to such regulations and are informed of those who are collectors and such as part of their normal functions.

2)  The sale, purchase and trade of firearms is already regulated at the federal and State levels.  These are legal transactions that meet all safety prerogatives  given by pre-existing regulations and all those at functions of such gun shows meet all such guidelines already set down for the SAFE sale, purchase and trade of such items.  As all able bodied adults are part of the unorganized militia, restriction upon them are restrictions upon those who serve to defend society during emergencies or times of Danger.

3)  The right of the population of those in militia age must have the freedom to buy, sell or trade firearms safely, within federal and State guidelines as a recognized organ of society and not to overburden it with regulations it would not apply to any other item that can be legally bought, sold and traded, without exception.  No State, County or other government has demonstrated that this activity is any more inherently dangerous than attending a Municipal Fair.

4)  As almost all gun shows have historical artifacts and reproductions of certain eras, these are of historical interest to the public at large, and part of a long tradition of firearms knowledge, use, creation and recreation in America.  Historical artifacts and knowledge are SUPERIOR to mere artistic endeavors as they deal with the ACTUAL historical items and their history.  Additionally those offering such items and the general populous often have far superior knowledge about them and their era to any re-enactment or modern production featuring firearms.

5)  As historical recreations often have a 'Master at Arms' or someone to oversee such events, so, to, do gun shows that verify the legitimacy of the sellers and purchase transactions, along with mediating any problems at such events.  Thus there is a lineage reaching back into history where 'Master at Arms' was more than a ceremonial title, but an actual job description, as it is in Congress.

6)  Attempts by governments to suppress such legal, honorable and historically important activities are oppressive even if they are done due to indifference.

7)  Any level of government worried about deaths due to firearms safety have, as their first remedy, teaching firearm use and safety starting in schools and offering free classes to interested adults.  There are a variety of local, State and National organizations that will gladly do this for FREE and many police forces have outreach services for just such activities.  Firearm safety requires knowledge, not ignorance, so that the general population can better understand the safe exercise of this right.

The historical re-enactors give the key to this: the long lineage of firearms skill, knowledge, production and use.  Actually having a deep-rooted right and exercising it is more than just mere re-enactment or theater: it is the continuation of a long lineage of activities that goes deep into human history and serves as the foundation of civilization.  Interacting at a gun show is not re-enactment, it is the act itself.  By invoking history, the exception to the Ordinance allows the invocation of the living lineage of that history - the continued right that has been continuous throughout our shared history and having its modern counterparts seen not as individual shows, but the continued exercise of an ancient right that pre-dates the State of California and the United States itself.

This is not just an infringement of rights: it is an infringement upon society's right to defend itself and for the States to be able to defend themselves due to government negligence, inaction or hostility.  The history of doing this is paramount: as a free people via the Anglo-Saxon society, we have upheld this capability and see all law abiding citizens that are able-bodied as defenders of society.  This is the right of the able-bodied to gather, learn of the best ways to defend themselves and society, and procure such means within all civil guidelines set down by the controlling authorities at the State level.  States, themselves, need to be wary of trying to infringe this right, as its ancient roots point to the requirement for upholding the rights of law abiding citizens as they are the backbone of civil society. 

We did not become civilized without civil force of arms and we cannot stay civilized without them.  The negative liberty of warfare we pass upwards for our protection as a Nation.  The positive right of self-defense for oneself, one's family, one's goods and society cannot be abridged.  When things go to hell and the organs of government are unable or unwilling to respond, it is up to the citizenry to uphold civil society.

I would place bets that gun shows are far safer than any Municipal or County fair, and more likely to have individuals skilled at first aid there, too.  I am certain that even one, single shooting at a gun show would get National exposure.  To my knowledge they have been few and far between, with normal assaults and killings far more likely at your local mall than a gun show. 

The answer to fears is not scare tactics, but supporting knowledge and responsible use of firearms.  Those who use fear wish to control you with it.  To deny them that requires knowledge and gives the opportunity builds civil society, discourse and interaction by that learning.  That takes patience and an unwillingness to stigmatize others due to your fears.  It is sad that man so easily reverts to savage nature and kills his fellow man.  It is even sadder when our fellow man is driven by fear to disarm us against our worse nature so that we may not protect our better nature.  Those who peddle fear have no interest in you beyond controlling you.  And yet it is so easy to be free of such fears.

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