Nordyke v. King

to bear their own fees and party Each

costs. part part. and Vacated

Affirmed NORDYKE;

Russell Allen Ann Sallie Shows;

Nordyke, dba Trade Jess B. TS Darr; Jones;

Guy; Duane William J. David; Westyschyn;

Daryl N. Tasiana Baltes; Lee; Blair,

Jean Todd Dennis Adams; Baker; Roger

R.L. Mike

Fournier; McVicker, Virgil Plain-

tiffs-Appellants,

Mary KING; Steele; V. Gail Wilma

Chan; Carson; Haggerty; Keith Scott Alameda; Supervisors,

Alameda Defen- Board

dants-Appellees.

No. 07-15763. Appeals,

United States Court of

Ninth Circuit.

Argued and 2009. Submitted Jan. April

Filed Inc., America, Rifle & and the California Halbrook, Stephen P.

Pistol Association. Halbrook, P. Fair- Stephen Law Offices fax, VA, was also on the brief. Duefl-Cazes, Tra- Tracy Law Offices of Duell-Cazes, Jose, CA, filed a brief cy San Professors of on behalf of amici curiae Law. Zecher, A. Law Offices of

Vanessa Zecher, Jose, CA, a A. San filed Vanessa behalf of amici curiae Professors brief on Science, Law, or Phi- History, Political losophy. PLLC, Gura, Possessky,

Alan Gura & Alexandria, VA, on filed brief behalf Foun- amicus curiae Second Amendment dation, Inc. LLP, Eth,

Jordan Morrison & Foerster Francisco, CA, on San filed brief behalf Community Legal of Amici Curiae the Violence, Oakland, Against City City Francisco, Brady and of San Cen- Violence, ter to Prevent California Gun Association, Peace California Po- Officers’ Association, lice Chiefs California State Association, Stop Coalition to Gun Sheriffs’ Center, Violence, Policy Violence Angela Jacqueline Youth Alive!. Bos and Jr., Kilmer, E. Law Offices Donald Kleine, LLP, E. Morrison & Foerster San Jose, CA, Kilmer, argued Donald San Francisco, CA, were also on the brief. and filed plaintiffs-appellants cause for the Kates, Esq., B. Battle- the briefs. Don WA, supplemental on the

ground, was also

briefs. Pierce, Richards, &

T. Peter Watson CA, Gershon, argued the Angeles, Los ALARCÓN, Before: ARTHUR L. defendants-appellees and was cause for the O’SCANNLAIN, F. DIARMUID Winnie, County E. on the briefs. Richard GOULD, Judges. M. Circuit RONALD Counsel, CA; County, Sayre Alameda Gunderson, Rich- Weaver and Veronica S. O’Scannlain; Opinion by Judge Gershon, CA, Angeles, ards & Los Watson by Judge Gould Concurrence were also on the brief. O’SCANNLAIN, Judge: Circuit Trutanich-Michel, LLP, Michel, C.D. Beach, CA, decide whether the Second filed a on behalf of We must Long brief prohibits government a local amici the National Rifle Association Amendment curiae regulating gun possession from shootings its series of school that attracted property. 1990s, national attention in the late

most notorious of which occurred at Co- I Littleton, lumbine High School in Colora- do.2 A But insist that something Nordyke operate Russell and Sallie more sinister was They point afoot. promotes

business gun shows King’s some of other statements as evi- throughout A typical gun California. show actually dence that she intended to drive display involves the and sale of thousands gun shows out of County. Alameda firearms, generally ranging pistols from Shortly proposing Ordinance, before 1991, they publicized rifles. Since have King sent a memorandum state, including numerous shows across the asking Counsel him to research “the most public fairgrounds in Alameda appropriate way” might she “prohibit the County. County passed Before the gun County property. shows” on King appeal, law at issue this the Alameda declared she trying had “been get rid of routinely 4,000 gun peo- shows drew about gun shows on Country property” for ple. parties agree that nothing vio- years,” “about three “gotten but she had illegal happened lent or at those events. the run spineless around from people hid- In the summer of County ing constitution, behind the and been at- Supervisors, legislative body, Board of a by aggressive tacked gun toting mobs on (“the passed Ordinance No. 0-2000-22 Or- right wing talk press radio.” At her confer- dinance”), codified at County Alameda ence, King also said that County (“Alameda Code”) General Ordinance Code should “provide place people for section 9.12.120. The Ordinance makes it display guns worship as deities for the bring misdemeanor to onto or to possess collectors who treat them patri- as icons of a firearm or ammunition County prop- otism.” expressing any opinion Without 9.12.120(b). erty. § Alameda Code It remarks, King’s about the Board Super- gun does not mention shows. visors adopted the Ordinance. According County, the Board County officials then exchanged several passed the in response Ordinance to a letters with Nordykes. General shooting previous occurred the sum- Manager of fairgrounds asked fairgrounds during mer the annual Nordykes to plan Fair.1 submit a written begins The Ordinance to ex- with plain how findings “gunshot gun their next show epi- fatalities are of would com- ply proportions demic with the Ordinance. County.” Alameda As the 9.12.120(a). Id. § conference, At a Counsel had told the press Manager, General Ordinance, the author of the Supervisor expressly prohibit Ordinance did not gun Mary King, cited a gun-related “rash of shows or the sale of firearms. The Nor- year violence” in the dykes same as the fair- insisted then and maintain now that ground shooting. She was referring they to a cannot a gun guns; hold show -without shooter, ultimately apprehended See, 1. Police Pew Research Center for the Peo- e.g., Press, ple nothing Shooting Biggest had & the who to do with the Columbine or News Draw of http://people-press.org/ gun their shows. report/48/columbine-shootmg-biggest-news- (last 4, 2009). April draw-of-1999 visited futile, B they thought because perhaps a plan. submitted they never court are now rulings of the district Two us, history we tangled of which before period, representatives same During the summarize. (“the Games Caledonian of the Scottish Games”) about the effect inquired Scottish they activities tradi- on the the new law Nordykes argued that the Initially, the Those fairgrounds. tionally held on First Amendment violated their Ordinance reenactments, using peri- include activities speech preempted free and was right to ammunition, blank with od firearms loaded They sought temporary re state law. inquiries, After the of historic battles. order, court straining which the district the Ordinance to add County amended application preliminary an for a treated as Importantly, the Ordi- exceptions. several injunction. Nordyke King, (Nordyke longer applies no nance (9th Cir.2003). III), 319 F.3d an au- of a firearm possession [t]he injunc district court denied the After the picture, in a motion participant thorized tion, accepted the case for an interlocu we dance, television, video, or theatrical merits tory appeal. Rather than reach the event, partici- when the production or case, we certified to the California part firearm as lawfully uses the pant state question Court the whether event, provided that gun posses and the production regulating laws shows preempted firearms the Ordinance. firearm is not the actual sion of when such I), (Nordyke 229 Nordyke King v. See participant, the authorized possession of Cir.2000). (9th The California F.3d 1266 prevent to unauthorized it is secured Supreme Court answered Ordi use. preempted. Nordyke not v. nance was 9.12.120(f)(4). § This ex- Alameda Code II), 27 King (Nordyke Cal.4th 118 allows members the Scottish ception (Cal. 44 Cal.Rptr.2d P.3d they if to reenact historic battles Games 2002). weapons, but it is unclear secure their Nordykes’ proceeded We to address County exception created the whether challenges under the First and Second just for them. Construing the First Amendments.3 one, By challenge the time the had written this as a facial we Amendment Ordinance, rejected argument their the statute the Nor- exception into the expressive gun conduct of burdened the and dykes patrons and several exhibi- III, at Nordyke 319 F.3d possession. (collectively, gun tors at the shows “the rejection opinion noted that its 1190. Our already sued the Nordykes”) had not a of the facial attack did “foreclose Supervisors and its under U.S.C. applied challenge to the Ordi- future as § for various constitutional violations. at n. 3. nance.” Id. them, mollify amendment did not and through various their lawsuit has wended opinion prior also concluded that our We (9th Block, nearly for a procedural twists turns 81 F.3d 98 Hickman Cir.1996), precluded Nordykes’ Second decade. supplemental granted a file developments we motion to 3. Due to in the law while the briefing claim. on a Second Amendment question pending in the Califor- certified was III, Court, Nordyke F.3d at 1188. Nordykes filed and nia III, stay supplemental a Nordyke quest F.3d and file briefs. claim. Amendment course, Court, grant petition had held “that individ- The did 1191. Hickman at a standing Though initially to raise Second we uals lack for certiorari. denied challenge regulating to a law stay, Amendment a request the decision in keep to firearms” because thereafter, shortly came down Heller a collective one. Id. arms was bear parties to allow the prompted us fur- the case for 1191-92. We remanded Thus, supplemental file briefs. the Nor- proceedings. ther dykes appeal only not .the district court’s County’s summary motion for grant of the judgment, but also the district court’s de- remand, Nordykes moved for On nial of their motion for leave to amend Complaint. Amended to file a Second leave a cause of complaint their add action their First They rephrase wished to pursuant to the Second Amendment. that, 'ap- challenge, arguing Amendment fairgrounds, use of the

plied to their II of ex- violated their freedom Ordinance impossible. shows pression by making gun begin Nordykes’ attempt We with the addition, the Amended Com- In Second revive their Second Amendment claim. as-applied of oth- plaint contained versions court its denial of rested leave district challenges, including an er constitutional complaint precedent on our amend The district court equal protection claim. standing that an individual lacks bring Nordykes to add all of those allowed challenge Second Amendment because the claims, but denied the motion to add collective, protects an action. The Second cause Hickman, individual one. See 81 F.3d Nor- explained court that because district 102-03; III, Nordyke see also 319 F.3d at nature dyke holding Ill’s on the collective argue 1191. The now pre- and bear arms decision in Heller abro- Supreme Court’s claim, there was no sense in cluded the compels case law and gates our district relitigating it. grant court to their motion for leave to Fed- After two motions to dismiss under complaint. amend their 12(b)(6), only eral Rule of Civil Procedure merits, on the argument To reach this expressive conduct claim under the Heller we must first decide whether abro- equal protection First Amendment and the gated Hickman. It did. Hickman rested County moved for claim survived. The on our conclusion that the Second Amend- judgment remaining summary on those protects only right; ment a collective Hel- claims, granted. which the district court timely squarely ler overruled such conclusion. appealed. The Heller, (“There 128 S.Ct. 2799

3 doubt, to us no on the basis of both seems history, that text and the Second Amend- opening appeal, In their brief on keep an ment conferred individual Nordykes explicitly pending peti noted a arms.”). and bear Thus the basis for Supreme tion for certiorari in the Court holding evaporated, Hickman’s has Heller, of District Columbia v. the case — opinion clearly irreconcilable with U.S. -, 2783, 171 L.Ed.2d 128 S.Ct. circumstances, In we consid- (2008), that, Heller. such should the explained 637 prior abrogated by higher our decision grant petition, they would re- er Court Gammie, Barron.” explicitly has never overruled v. Miller authority.4 See (en banc). (Gould, Cir.2003) III, (9th F.3d at 1193 n. 3 Nordyke F.3d 899-900 Therefore, J., concurring). specially facing the Nor- obstacle The second directly ap- Second Amendment does is, must That we incorporation. dykes is v. ply to the states. See United States Amendment the Second decide whether Cruikshank, 542, 553, 23 L.Ed. 588 92 U.S. Four- through the the states applies to (1875) as a basis for the (citing Barron teenth, explicitly Heller left question second amendment “[t]he conclusion n. Final- at 2813 128 S.Ct. open. See ... means no more than [the Amendment if the Fourteenth ly, even infringed shall not be arms] and bear Second incorporate the does Illinois, by also Presser v. Congress”); see states, whether it actu- determine we must 252, 265, 580, 29 L.Ed. 615 the Ordinance. ally invalidates (1886) Amend- (concluding Second only upon power a limitation ment “is A Congress government, and the National ways the Sec- There are three doctrinal State”). upon and not that of the apply to the states: might ond (2) (1) incorporation application, direct Clause of the Privileges or Immunities (3) Amendment, incorpo- Fourteenth similarly are barred from con We of the ration the Due Process Clause incorporation through the Privi sidering Amendment. same leges or Immunities Clause. Clause provides that shall make or “[n]o State any abridge enforce law which shall of the precedent privileges fore or immunities of citizens

Supreme Court XIV, Bill amend. option. Rights the first United States.” U.S. Const. closes Cases, Slaughter-House § 1. directly applies only govern to the federal Under (16 Wall.) Balt, (1872), 21 L.Ed. this Mayor 32 U.S. U.S. ment. Barron (1833). (7 Pet.) only those language protects 8 L.Ed. 672 incorpo citizenship, derive from but “Although Supreme Court has United States rights independent Bill many Rights general of the not those civil rated clauses existence, Republic’s of the Four see id. 74- into the Due Process Clause Amendment, only include Court L.Ed. 394.5The former teenth Indeed, Incorporation Through dispute this ment the Fourteenth does not briefing. point supplemental Privileges in its Amendment or Immunities and Due 1, Clauses, 72 Mo. L.Rev. 12-35 Process judges and 5. We are aware that academics Amar, (2007); also Akhil Reed The Bill see of reading Slaughter-House's of have criticized (1998) Rights (arguing 163-230 that the Priv- See, e.g., Privileges or Immunities Clause. ileges applies against or Immunities Clause Roe, 489, 527-28, v. 526 U.S. 119 Saenz “personal privileges” of individ- the states all 1518, (1999) (Thomas, S.Ct. 143 L.Ed.2d 689 citizens, in the Bill ual whether enumerated J., (“Because dissenting) believe that the I not, Rights rights or but not the Privileges or Immunities demise Nevertheless, general public). states or part contributed in no small Clause has Slaughter-House good We remains law. disarray of[the Court's] the current note, however, pro- that the due substantive jurisprudence, I Fourteenth Amendment doctrine, pp. cess which we discuss meaning open reevaluating its would be infi-a 448-50, 1, appears to arrive at a result similar case.''); appropriate id. at 522 n. 119 an sources); urged by the from the Su- to that dissenters (collecting academic S.Ct. 1518 Lawrence, Slaughter-House. preme opinion in Anthony Second Amend- Court's Michael

447 900, 296, 60 S.Ct. 84 L.Ed. 1213 grants or U.S. the Federal Constitution Clause). (1940) (Establishment enables, not but government the national Rights Bill rights the preexisting those invasion. Id.

merely from federal protects 76-80, 21 L.Ed. 394. The Second at incorpo- The initial hurdle to selective predates that protects Amendment is our decision in Fresno & ration Rifle therefore, Constitution; the Constitu- Club, Kamp, Inc. De 965 Pistol v. Van Heller, See, e.g., it. 128 grant tion did not Cir.1992). (9th There, we con- F.2d 723 (“[I]t widely always at has been S.Ct. ap- cluded the Second Amendment Amendment, that the Second understood plies only government. to the federal Id. Amendments, Fourth like the First and that, Nordykes argue at 729-31. The al- It neces- right.”). a pre-existing codified though precluded application we direct Immu- Privileges that the or sarily follows incorporation the Second Amendment and protect nities Clause did through Privileges Immunities it was not a keep and bear arms because Clause, we did not address selective incor- right of citizens of the United States. See poration through the Due Process Clause. Presser, Cruikshank, 553; 92 U.S. cf. agree. We (holding 116 U.S. S.Ct. specify Fresno does not Rifle with others as “right to associate Clause of the Fourteenth Amendment— privilege is not a military company” Privileges or Immunities Clause or the States). citizens of the United rejected Due Process Clause-—we as the incorporation. Certainly, instrument plaintiffs “argue[d] the Fourteenth incorporation The final avenue for incorporates the Second such Bill provisions of the which other it limits the actions of states addi- Rights have come to bind the states: Congress,” rejected tion to those of and we incorporation through the Due selective argument. Id. at 729 such such “Until of the Fourteenth Amend- Process Clause time as Cruikshank and Presser are over- Louisiana, See, e.g., ment. Duncan v. turned,” stated, we “the Second Amend- 1444, 20 L.Ed.2d U.S. 88 S.Ct. action, only limits federal and we ment (1968) jury); Malloy criminal v. (right to court’s decision ‘that the affirm district 1489, 12 Hogan, 378 84 S.Ct. U.S. stays the Second Amendment hand of (1964) com- (privilege against L.Ed.2d 653 only.’” Id. at 731 National Government self-incrimination); v. Wain- pelled Gideon (citation omitted). County argues 335, 83 wright, 372 U.S. that this reliance on Cruikshank Pres- (1963) counsel); (right L.Ed.2d 799 any incorporation. precludes ser Ohio, v. Mapp (exclusion (1961) opinion of our of evi- But close examination 6 L.Ed.2d 1081 argument. defeats such by unreasonable search Fresno dence obtained Rifle Connecticut, First, seizure); noted that Cruikshank and Pres- we Cantwell omitted)), Slaughter-House, Glucksberg, with Compare Washington v. 521 U.S. and citation J., ("In 702, 719-721, (1997) ("[T]he (Bradley, dissenting) at 122 S.Ct. 2258 83 U.S. 117 judgment, peo- my it was the intention of the [of Clause the Fourteenth Due Process country adopting protects ple this in that amend- specially those funda- Amendment] are, provide security against vi- objec- National rights and liberties which ment mental history the States of the fundamental tively, deeply in Nation's olation rooted this citizen.”). ...(internal quotation of the marks and tradition 448 majority opinion, Amendment con- cited not the but Justice held that “the Second

ser Congress, Duncan, not only the actions of in strains Black’s concurrence in which states,” merely fol- proposition long-held he reiterated his view that the Moving Id. at 729. lows from Barron. applied entirety Bill of Rights its Rights of the Bill of application from direct 35, Appellant states. Brief of at Fresno we then concluded that incorporation, Duncan, Rifle, (citing 965 F.2d 723 391 and Presser foreclosed the ar- Cruikshank 162, J., (Black, 1444 U.S. at 88 S.Ct. con- the Four- gument plaintiffs of the Rifle, at curring)); Fresno 965 F.2d the Sec- incorporated teenth Amendment Duncan, 162, (citing 391 U.S. at 88 S.Ct. above, ond. M6 As discussed Cruikshank (Black, J., concurring)); see also application and Presser involved direct Duncan, 166, 391 U.S. at 88 S.Ct. 1444 incorporation through Privileges or (Black, J., concurring (arguing Clause, incorporation not Immunities but Privileges or Immunities “ex- Clause through the Due Process Clause. This press[es] the idea that henceforth the Bill suggests we referred to those cases as States”)).7 Rights apply shall In theories, reject shorthand to the first two rejecting attempt this to revive Justice incorporation but not the third-—selective view, Black’s which never commanded a the Due Process Clause. through Court, majority Supreme simply we litigation history of Fresno Rifle “[tjhis theory incorpo- noted that of total impression. plaintiffs bolsters this continually rejected.” ration ... has been incorporation argument pri- their rested (internal Rifle, Fresno 965 F.2d at 730 marily on historical evidence that the Priv- omitted). quotation marks ileges incorporated or Immunities Clause Thus, not, we did Rifle, Fresno reach and bear arms. Brief of question whether Second Rifle, Appellant Fresno 965 F.2d selectively incorporated is Duncan, Though they 723. referred through the Due Perhaps Process Clause. involving incorporation, they case selective party predicate because neither raised the brief, support quixotic argu- did so in of a arguments, we certainly engage “did not ment Fourteenth Amendment “automatically inquiry sort of Fourteenth Amendment incorporates every provi- required by Bill Rights.” Rifle, [the sion of the Fresno later Court’s] Heller, proposition they 965 F.2d at 730. For this cases.” 128 S.Ct. 2813 n. 23.8It Clause, rejected argument 6. We also that Miller v. the same Clause their briefs focused Texas, 874, probably rejected 153 U.S. 14 S.Ct. 38 L.Ed. on. Fresno Justice Rifle (1894), too, holdings theory limits the of Cruikshank Black's more holistic but it still Rifle, theory incorpo- and Presser. See Fresno 965 F.2d at left untouched the of selective through 730. ration the Due Process Clause. Cf. 78, 99, Twining Jersey, v. New 211 U.S. complete 7. Justice Black’s view was that "the that, (1908) (noting S.Ct. 53 L.Ed. 97 even Amendment, whole, Fourteenth as a makes incorporated by Privileges if a Rights applicable the Bill of to the States. Clause, Immunities what we would now call certainly language This would include the incorporation by selective the Due Process Clause, Privileges Immunities as well [or] consideration”), “requires separate Clause Duncan, as the Due Clause.” Process grounds by Malloy, overruled on other 1444; U.S. at 166 n. see also atU.S. 84 S.Ct. 1489. 46, 74-75, California, Adamson J., (1947) (Black, similarly 91 L.Ed. have Other circuits relied on Pres- dissenting). reject arguments application But the discussion in Duncan ser to for direct plaintiffs incorporation, addressing in Fresno cited con- or total without se- Rifle See, only Privileges incorporation. e.g., Maloney cerned or Immunities lective v. early the familiar formulation of inqui- Amendment Under that Fourteenth upon is Connecticut, only rights Palko v. those embark. ry which we now concept liberty” in the of ordered “implicit 319, 325, incorporated. were 302 U.S. b 149, (1937), 82 L.Ed. 288 overruled S.Ct. The Fourteenth 784, Maryland, Benton v. 395 U.S. any per “any depriving] (1969). 2056, [from] bars State S.Ct. 23 L.Ed.2d 707 life, property, without liberty, rights son of thus excluded “not of analysis those amend. of law.” U.S. Const. process very due essence of a scheme of ordered XIV, only § doctrine known as liberty,” including 1. Under the those without “guar enlightened system “a fair and process, due this Clause substantive Palko, in justice impossible.” would be Id. process, fair and the antees more than words, in specula- other invited an exercise than the includes more ‘liberty’ protects guided by “a political philosophy, tive Washing restraint.” physical absence study appreciation meaning, of the 702, 719, 117 Glucksberg, 521 U.S. ton v. implications, liberty itself.” (1997). essential 2258, In 138 L.Ed.2d 326, Id. at 58 S.Ct. 149. process encompasses conception, this due rights. “fundamental” Reno certain ultimately Court Flores, 292, 301-302, 113 S.Ct. in enterprise abandoned this abstract favor (1993). 1439, in L.Ed.2d 1 Selective concretely of a more historical one. In of substantive due corporation species is a Duncan, recognized the Court that it had Due Pro rights in which the process, jettisoned musings the metaphysical include some of the protects cess Clause analysis grounded for an in the “ac Palko in the first rights enumerated substantive virtually every systems bearing tual char eight amendments Constitution. system acteristic of the common-law Twining, 211 U.S. 29 S.Ct. developing contemporaneously has been (“[I]t possible personal is that some of England country.” and in this 391 U.S. at eight safeguarded the first Therefore, 149 n. 88 S.Ct. incor may National action Amendments given turns on “whether this kind poration action, against state safeguarded also be system particular procedure is funda a denial of them would be denial because is, whether, procedure mental — law.”); process of due see also Glucks necessary Anglo-American regime to an berg, 521 U.S. at liberty.” determining Id. In ordered rights together (speaking of enumerated incorpo the Due Process whether Clause rights in the implied jury with fundamental trials in criminal rated the cases, process). every Both context of substantive due Duncan noted American extensively, and im jury and substantive due state “uses the incorporation selective very punishments only serious after pose ques poses the same process require us a right a trial at which the defendant has is a so fundamental tion: jury’s Id. The Court guarantees it? Sub to a verdict.” also Due Process Clause place pre reviewed the process due addresses unenumer stantive by Founding English Founding law and incorporation, rights; ated selective 88 S.Ct. 1444 contrast, rights. era itself. See id. addresses enumerated Cir.1982) Cuomo, (2d Cir.2009) (7th (rejecting application (per direct 554 F.3d 58-59 curiam) (rejecting application); Quilici incorporation). direct and total Grove, 695 F.2d 269-70 v. Vill. Morton 450 Indeed, Bill part Declaration and of substantive due

(citing English process. Commentaries, early- Blackstone’s Rights, nonincorporation cases amount constitutions, and other evidence state straightforward model for application of era). Founding from the Duncan outside the context of criminal procedure.9 inqui that the same persuaded areWe rephrased, applies also ry, though slightly summarize, To our task is to determine crimi rights unconnected to to individual right whether the and bear arms Just as Duncan procedures. nal or trial fundamental, meaning “necessary ranks as rights” “fundamental as those defined Anglo-American to an regime of ordered Anglo-American regime an “necessary to Duncan, liberty.” 14, 391 at 149 U.S. n. liberty,” so the of ordered Court added). does, (emphasis 88 1444 If it determined, in outside the context of has incorpo- then the Fourteenth Amendment corporation, only those institutions culturally specific inquiry rates it. This in rights “deeply and rooted this Nation’s compels right us to determine whether the can

history and tradition” be fundamental “deeply is rooted in history this Nation’s pro due rights protected substantive and tradition.” Glucksberg, 521 U.S. at Cleveland, City v. E. 431 cess. Moore (internal 721, 117 quotation S.Ct. 2258 503, 1932, 494, U.S. 97 S.Ct. 52 L.Ed.2d omitted). marks and citation Guided (1977) opinion); (plurality 531 id. 503 n. both Duncan and Glucksberg, we must 10, (noting similarity 97 S.Ct. 1932 canvass the prac- attitudes historical general pro between this substantive due Founding post- tices of the era and the inquiry incorporation and the test cess Duncan); period, Civil War for Glucksberg, produced in see also those times stated (“Our 721, 117 provisions 521 S.Ct. 2258 Na the constitutional U.S. before us. traditions, history, legal and prac tion’s ... crucial provide guideposts tices for c

responsible decisionmaking [in area of The (internal Second Amendment reads: “A well process]” substantive due quota omitted)). Militia, regulated being necessary tion marks citation security State, analysis latter line of cases informs our of a free the right of the here, incorporation logically people Arms, because is to keep and bear shall not be sure, deciding 9. To be individual incorpo- unconnected to that the Due Process Clause procedure incorporated criminal have been speech press); rated the freedom of and of the See, Resweber, e.g., Jersey, before. v. Schneider New see also Louisiana ex rel. Francis v. 147, 146, 160, 459, 463, 374, U.S. 60 S.Ct. 84 L.Ed. 155 329 U.S. 67 S.Ct. 91 L.Ed. 422 (1939) (1947) (noting speech (plurality opinion) the "freedom of (incorporating the However, press” incorporated). right against and of the punishments). cruel and unusual general, employed only analysis Court either other mode of in the case test, see, Colorado, Palco-style e.g., approach v. law is the historical the Court ex- Wolf 25, 26-27, See, Chi., plicitly U.S. 69 S.Ct. e.g., L.Ed. 1782 sanctioned in Duncan. (1949) (incorporating right against Burlington Quincy Chicago, unrea & R.R. Co. v. seizures), 226, 235-41, sonable searches and overruled on U.S. 17 S.Ct. L.Ed. grounds by (1897) Mapp, other (incorporating just U.S. at com- Duncan, pensation 81 S.Ct. which it property public abandoned in taken for use on simply question stated that the principles the basis of of the common law as incorporated analy was without property, substantive revealed in cases on the sis, see, Schneider, e.g., Cooley's 308 U.S. at 160 n. Thomas seminal treatise constitu- limitations, (citing 60 S.Ct. 146 Joseph as its lead case Gitlow tional and in Justice Sto- York, 652, 666, New ry’s Commentaries on the Constitution (1925), States). L.Ed. 1138 which assumed without United

451 Const, keep and arms as right the to bear II. The terized amend. infringed.” U.S. corollary right de- to the individual of self- this Amendment clause of prefatory (“[T]he Supreme right inherent right protects. it Id. at 2817 the defense. scribes phrase the neces- explained has has been central to the Court of self-defense State,” “security of free sary the right.”). Amendment Thus the Second “security of a free to the necessary means political component— both a right contains Heller, at 128 S.Ct. polity.” public the from protect it is a means to omitted). (internal Thus marks quotation component tyranny personal —it —and already Amendment text of the Second the individual from protect a means to protects relates right suggests Amar, supra, at to life or limb. threats Cf. militia, institution, which is “nec- to an 46-59, 257-66. of regime essary Anglo-American to an right, thus de- must trace this as We Duncan, at 149 liberty.” ordered scribed, history our from the through 14, parallel is strik- 1444. The n. 88 S.Ct. the Four- Founding until the enactment of militia histori- because the ing, particularly Amendment. teenth citi- all male cally comprised able-bodied Heller, 128S.Ct. 2799. zens. i necessary “right people” of the ex- This Founding era. Hel- begin with We as Amendment the Second isted before evidence similar to ler reveals English- rights of of the fundamental “one Duncan relied to conclude 2797-98. Heller identified Id. at men.” incorporated right Process Clause Due militia was consid- why the several reasons began jury in criminal cases. Heller to a a free security “necessary to ered Right English Declaration of with the 1689 First, repelling in “it is useful state.” (which Rights), Bill English became insurrections. suppressing invasions Heller, Compare just as Duncan did. Second, standing armies large it renders that the Declaration (noting at 2798 Third, when the able- unnecessary.... arms), right to Right included the bear in arms a nation are trained men of bodied Duncan, 391 88 S.Ct. with U.S. they are better able organized, Right (noting that the Declaration of In addi- tyranny.” Id. at 2800-01. resist trial).11 jury to a Thus right included the Heller charac- purposes, to these civic tion argument security.”). This cannot argued for state the text of Some have oppo- suggests precisely the prefatory clause Court's admonition in survive the right keep arms was and bear site: that phrase 'security of a free that "the Heller important protecting the states from only have been and close variations seem to state’ See Parker Dist. federal encroachment. Columbia, 18th-century political dis- art in terms of (D.C.Cir.2007) 478 F.3d course, meaning country’ poli- a 'free or free J., ("The (Henderson, dissenting) Amendment Heller, (citing Eugene ty.” at 2800 perceived response was drafted Volokh, "Necessary Security a Free posed 'State[s]' 'free[dom]' threat to State," (2007)). L.Rev. 83 Notre Dame army standing controlled by a national (alteration original)); government.” federal that, because the En- 11. The contends Merkel, G. Uviller & William H. Richard Rights only glish secured Bill of The Case Context: Second Crown, it is not a bear arms Predicate, Vanishing 76 Chi.-Kent L.Rev. worthy incorporation. fundamental ("Most (2000) significantly, the Se- English Bill of precise contours of But the ‘State’ for ‘coun- substituted lect Committee point. a clear state- Rights As are beside security’ ‘best try’ the referent of the rights and liberties” clause, ment of the "undoubted proposed amendment now so that the Rights, 1 W. & Englishmen, Bill of directly antifederal solicitude addressed more enjoyment rights, and bear shares of these how- arms the actual ever, by fun- means of certain “barriers” de- ancestry right already deemed with a Resweber, 463, protect “to and maintain signed [them] at damental. Cf. right inviolate.” Id. The to bear arms opinion) (relying (plurality S.Ct. 374 67 among personal ranked these “bulwarks of solely prohibition on of a presence the rights.” Id. Blackstone considered the in punishments unusual cruel and allowance, public “a under re- right due English Rights Bill of for the conclu- strictions, right of the natural of resistance incorporated that it is into the Due sion self-preservation, and when the sanctions Clause). Process society and found of laws are insufficient parallel The continues. Heller noted the oppression.” of Id. to restrain violence right, emphasis placed Blackstone on the *144; Heller, at see also 128 S.Ct. at 2798- had looked just as Duncan to Blackstone. (“[T]he in right 1689 99 secured as result (“Black Heller, 128 at Compare S.Ct. 2798 monarchy] of of [abuses the Stuart was ... provision cited the arms stone founding time of to understood [English] Rights Bill the fun as one of individual right protecting against be an (citation Englishmen.” rights of damental violence.”). public private both and For Duncan, omitted)), with 391 at 151- U.S. therefore, Blackstone, right readers Blackstone). 52, (citing 88 1444 S.Ct. This closely to arms followed bear from the significant because Blackstone “consti rights personal security, per- absolute preeminent authority English tuted the on liberty, It personal property.12 sonal and founding generation.” law for the Alden right safeguarding was a crucial to all Maine, 706, 715, 119 S.Ct. U.S. rights. other (1999). 2240, 144 L.Ed.2d His theoret behavior The and words of the colonists right ical treatment of the arms bear themselves also demonstrate the right’s provides insight into how American colo out, importance. pointed As Heller nists would have understood it. American colonists of the 1760s and 1770s gave Blackstone to bear arms objected royal strongly infringements pride place in his scheme. divided He arms, bear just and rights of persons into absolute relative and objected they to the Crown’s interference rights. Blackstone, See William 1 Com- trials, jury with high- fact which Duncan mentaries It principal Heller, *123-24. is “the lighted. Compare at Blackstone, society,” (“[T]he aim of according began Crown disarm the protect “to enjoyment areas[, individuals inhabitants of the most rebellious rights,” *124-25; those provoked absolute id. at polemical which] reactions England among alone nations had invoking rights achieved Americans their as En- Duncan, arms.”), that aim. glishmen Blackstone defined abso- to keep these with 152, lute as “personal security, personal 1444 (“Royal U.S. liberty, private property.” and *141. jury Id. at interference with trial deeply was resented.”). English The only year Constitution could secure A before infamous M., Editors, Gazette, § (Eng.), precursor c. it is a to our Boston Feb. Rights. signifi- own Bill of Therein reprinted lies its 1 The Founders’ Constitution 90 eds., cance. (Philip Ralph B. Kurland & Lerner 1987). public It also suffused discourse at the 12. Blackstone's of the view to bear arms time of the Fourteenth Amendment's enact- Amar, pervades writings Revolutionary supra, (providing ment. See at 261-64 See, Adams, generation. e.g., examples); pp. Samuel Letter 455-56. infra them in the best manner pamphleteer one Massacre Boston defend suspi- they between are on the tensions can—Those evident Branches commented troops quar- of, from, the British cious colonists and than deductions rather city: Self-Preservation, in the Duty commonly tered Law of of the licentious outra- called the first Nature.” Instances military conserva- behavior of geous Adams, Rights Samuel Colo- us, multiply peace upon still tors (1772), in 5 Founders’ reprinted nists ... of which are of such nature some Constitution, supra, (emphasis to evince that a late fully as must serve added). Writing to an American unionist town, upon inhab- calling vote of this the Alexander Hamilton threatened provide to themselves with arms itants armed to British of resistance invasions defense, pru- their was a measure as rights. American See Hamil- Alexander legal: as it such violences are dent was (1775) ton, The reprinted Farmer Refuted always military be from apprehended to in 1 The Alexander Works of Hamilton body in the of a troops, quartered when 1904) ed., (Henry Lodge Cabot city.... right It is a natural populous (“If[Great Britain] determined to en- reserved people which the have to them- us, arms; by slave it must be force and of selves, [English] Bill by confirmed the of this, assert, to I attempt again would be Rights, to arms for their own de- keep nothing grossest infatuation, less than the fence; observes, and Mr. Blackstone also itself.”); madness see id. at 62-64 of when it is to be made use the sanc- (referring to Blackstone’s of conception society tions of and law are found insuf- “absolute rights”).13 of oppres- ficient to restrain the violence sion. Thus, suspension by jury, if the of trial Times, 17, 1769, Mar. A Journal the representation, taxation without and other of Journal, 13, 1769, April Supp. New York offenses constituted the most offensive in- Halbrook, A Stephen Right to quoted tyranny, ability stances of British the to (1989). Thus, the Bear Arms events of up armsbearing call citizens was consid- age Blackstone’s the confirmed assessment the of ered essential means colonial resis- of right. of the nature the Indeed, attempt by tance. British the Revolutionary destroy a cache agitators theoreti- soldiers to of American Concord, Massachusetts, further this cians advocated Blackstonian ammunition at right and bear sparked Lexington view of the to arms. the battles Massacre, Concord, years Two after the Boston began Revolutionary wrote, report Adams in a of of colonists, Samuel one importance War. For of Correspondence, the Committees of merely right to bear arms “was not It was speculative theory. expe- the lived “[a]mong Rights of Natural the Col- Amar, First, Life; age.” rience of at 47 right supra, are the[ ] onists to these[:] thirdly, Secondly, Liberty; Proper- (referring conception to to Locke’s of revolution). ty; Right right of together support with the beyond did to of Blackstone. It nonetheless is 13. Such rhetoric went what Black- those himself, significant Parliamentary purposes su- for our that the colonists stone believer support. right premacy, prepared considered the Blackstonian to be in- was See Blackstone, by advocacy of all supra, Colonial trinsic to their defense their *157. revolution, regardless of Blackstone arms therefore whether of revolution supported might similarity a closer of himself have the American bore theories position. political philosophers like John Locke than experience expressly is] This lived informed colo- tion .... in the recognized [It Pennsylvania.” they govern- constitution James Wil- when set out to form nists son, on the considered, Right Lecture of Individuals to They light ment. Safety, in Personal 3 The education, Works experience as well as of (Bird James Honorable Wilson Wil- to bear arms was preserving Phila., 1804). ed., son Lorenzo Press St. appropriate way both to resist Tucker, George impor- editor of “the most standing armies and to render the evil early tant American edition of Blackstone’s Heller, unnecessary. evil Commentaries,” Heller, 128 S.Ct. at Advocating for the new Con- 2800-01. extolled bear arms as the stitution, argued Hamilton that “if cir- palladium liberty.” George “true St. any oblige should at time cumstances Tucker, View Constitution any government army mag- form an States, United in Blackstone’s Commen- nitude[,] army can be formida- never (St. ed., at 300 app. George taries Tucker people ble to liberties of the while Phila., Birch Young William & Abraham a ... large body of who there citizens 1803). Small Emphasizing right’s im- ready rights stand to defend their own portance, Tucker that cautioned “[w]herev- and those of their fellow-citizens.” The standing er kept up, armies are and (Alexander No. at Federalist right people of the to keep and bear arms Hamilton) (Clinton 1961). ed., Rossiter is, any whatsoever, pretext under colour or citizens, many it was to of As his fellow prohibited, liberty, if not already annihilat- citizenry possessed of and arms trained ed, is on the brink of destruction.” Id. “appear[ed] in their use to [Hamilton] Joseph Story, Justice in his influential only substitute that devised for be c[ould] Constitution, Commentaries on the echoed standing army, possible and the best Joseph Story, that sentiment. 3 Commen- security it, against if it should exist.” Id. taries on Constitution the United of survey This brief history of our reveals a (Boston, Hilliard, § States at 746 right “deeply indeed in rooted this Na- 1833) (“The Gray & Col. citi- right of the history Moreover, tion’s and tradition.” keep zens to and bear justly arms has Supreme whereas the previously Court has considered, palladium been as the of the incorporated fought the colonists a republic; liberties since it offers a for, have they fought we here both a right strong usurpation moral check the right for and that them allowed to ”). arbitrary power and of rulers.... fight. Furthermore, state confirm constitutions importance keep right and ii throughout bear our history. arms “Four Evidence from the post-Revolutionary adopted analogues States to the Federal years strengthens impression. this Su- period Second Amendment in the between Wilson, preme Court Justice James one of independence and the ratification framers of Pennsylvania Constitu- Bill Rights[, and b]etween 1789 Constitution, tion and the Federal re- 1820, nine states adopted ana- [such] ferred, in one of his lectures on the com- Heller, logues.” 128 S.Ct. at 2802-03. (delivered mon law serially from 1790 Thus, twenty- as of thirteen of 1791), as “the self-defense three admitted states to the Union had great natural law of self-preservation, Amendment analogues. Second must We ... cannot be repealed, supersed- or prevalence take account of this of state ed, suspended by or any analogues human institu- constitutional to the Second Amendment, Many at 2810. former slave states just as the Court S.Ct. See, state Act ubiquity e.g., constitutional laws that effect. passed noted juries (“[N]o in criminal guaranteeing 29, 1865, provisions 1865 Miss. Laws 165 Nov. right. incorporated when freedman, cases Negro free or mulatto ... shall Duncan, 153-54, at 88 S.Ct. any kind, any carry fire-arms of or overwhelming as not as are The statistics ”). ammunition, or bowie knife.... dirk Duncan, but before the Court those Howard, H. in a Brigadier General Charles they compelling.14 are nonetheless provided Congress, reported letter con- general reflect the head the Freedmen’s Bureau

These materials commentary, sensus, in case law as well organizations opposite “militia keep and importance of the on the were county (Edgefield) of South Carolina republicanism. American bear arms to engaged disarming negroes.... 2805-09, Heller, See, e.g., Now, I Augusta, ... have authentic materials). They (discussing 2805-09 these continue. information abuses vitality the continued show I Georgia, In southwestern learned Revo- Englishmen of Glorious same, militia had done the sometimes lauded, declared, Blackstone lution to act under pretending orders from Unit- depended upon. American colonists Report ed States authorities.” of the Joint Reconstruction, H.R.Rep. Committee iii (1st Sess.1866). pt. at 46 No. period the immedi- Finally, survey we of the Amend- Framers Fourteenth it Although the Civil War. ately following sought oppressions. ment to end such in dispositive has not been considered During surrounding the the debates cases, under- Amendment the Fourteenth Act, the Rights Freedmen’s Bureau Civil of Framers of that Amend- standing the Act, Amendment, the and Fourteenth Sen- right a logically influences whether ment Pomeroy among “indispens- ator listed the fundamental, deeply of rooted in the sense liberty” “safeguards of someone’s necessary able” history and traditions and in our of “right of or- to bear arms for the defense Anglo-American conception an to family and his liberty. himself and homestead.” dered Globe, Cong., 1st Cong. 39th Sess. after- recognized, Heller the “[i]n As (1866), Heller, 128 at 2811. quoted in S.Ct. War, the was an out- math of there Civil a au- Representative Bingham, principal of of discussion the Second pouring Amendment, the ar- thor of Fourteenth dis- Congress public in and in Amendment necessary was to overrule gued course, and people as debated whether Rights and the Bill of .to the apply Barron for rights how to secure constitutional view, wrongly In Barron was states. his 2809-10; freed newly slaves.” Bill of “se- Rights because the decided Amar, supra, (noting at 192 see also in all every to all citizens State the cured] “slavery repudiation led virtual- to state of citizens, privileges the and immunities of every one the ... freedoms ly [in of rights all the all the people and to sacred major in Rights]”). concern Bill of One rights dear freemen persons to newly disarming debates these was —those only tyrants.” to Id. at formidable and states statute freed blacks in Southern Wilson, Heller, a Representative James 128 1090. as See vigilantism. as well Arms, Keep Rights and Bear forty-four protect the Constitutional to today, states 14. As Volokh, (2006). Eugene State 11 Tex. Rev. L. & Pol. right to bear arms. Amendment, in deeply history Fourteenth arms is supporter of the rooted tradition of Republic, right described Blackstone’s scheme of absolute Ameri- rights, with civil in cans rights synonymous as considered fundamental speech Rights Founding in Civil Act of favor of the and thereafter. The in- (a states, stead precursor argues Fourteenth in the exer- Amendment). Similarly, police Id. at 1115-19. cise their are the power, instru- Representative Hart listed right Roswell “the mentalities self-defense at arms,” keep and the heart right people of the to bear of the Amendment. Second This argument as among rights, merely rephrases other inherent a “re- the collective rights Id. at publican government.” argument 1629. The Court re- Indeed, testimony jected contain reports only similar evi- Heller. one need dence, confirming that the Framers of consider other constitutional to see poverty Fourteenth Amendment considered the po- this contention. State covers, right power instance, bear arms a lice keep and crucial also some safeguard against oppression of pro- white conduct the First Amendment Hallbrook, tects, P. Stephen deny freedmen. Freed- but not that does individuals men, Amendment, right Fourteenth and the First assert Arms, 1866-1876, Right to rights against Bear at 9-38 the states.15 (1998); Amar, supra, see also at 261-66. County actually Once the addresses the target doctrine,

We also note that modern right incorporation it relies on peri- general and bear arms shifted run assertions that afoul of Heller. leading up od the Civil War. For example, While the declares that generation of “the English 1789 envisioned law common tradition does component recognize of local resistance central- an pos- individual’s tyranny, federal, ized whether British or sess a firearm right.” as a fundamental generation of 1868 envisioned Heller plainly contradicts that statement safeguard as protect says “[b]y to individuals from because it that the time of the oppressive govern- or indifferent local founding, right have to arms had be- Amar, supra, ments. at come English subjects.” 257-66. But fundamental for though may the source of the threat have 128 S.Ct. at County 2798. The also claims migrated, the antidote remained the that Heller same: concludes that “nowhere an arms, right keep individual to and bear individual right possess to firearms for a recourse for “when sanctions of soci- personal self-defense is a fundamental ety and laws are found insufficient to re- right.” point. But that If misses Hel- strain the oppression.” violence 1 ler right had indeed held that the to keep Blackstone, supra, at *144. and bear right arms was a fundamental as we use process the term in substantive due

iv doctrine, then the issue would be foreclos- The little does to ed. point language refute this The is that throughout powerful right evidence that the suggests right to bear Heller is funda- argument 15. perfect Another liberty which the viduals sacrificed their in na- devotes time idiosyn- fight considerable is a preserve rather ture to themselves in order peroration political cratic philosophy. to secure the benefits the social contract. County argues Though eigh- perhaps summary the ideas of true as a state- ment, teenth-century argument says nothing social contractarianism —the this about the general political philosophy society of men like extent to which limits the absolute or presumed Blackstone right and that indi- natural of self-defense. Locke— revolutionaries, the Found- way tion.” Colonial characterizing it the same mental ers, and law- a host of commentators and enumerated described opinions other during the first one hundred living makers incorporated. to be found on the Republic all insisted years of the carefully, “guide- for Surely, we tread right. of the It has nature fundamental decisionmaking responsible posts palladium “true regarded as the long been open- are scarce area this uncharted it to relied on assert liberty.” Colonists 720, 117 Glucksberg, 521 U.S. ended.” independence, and and to win their (internal marks and quotation a recal- sought prevent victorious Union omitted). a have before us But we citation abridging it less than from citrant South described],” be- “careful[ly] right both deeply role this century later. crucial Rights and asso- in the Bill of listed cause in our birth and played has rooted understanding dating with an ciated recognize that it is history compels us to history and, foregoing Founders, as fundamental, necessary to that it is indeed reveals, in this Nation’s “deeply rooted of ordered conception Anglo-American Id. tradition.” history and are that we have inherited.17 We liberty (internal marks and quotation S.Ct. 2258 the Due Process persuaded therefore omitted). Thus, because citation in- Fourteenth Amendment of the Clause the crite- can meet and bear arms ap- Amendment and the Second corporates Glucksberg, we by Duncan ria set govern- and local the states plies historical the further have undertaken ments.18 in Hel- what necessary to confirm analysis suggestion.16 only a ler was B we conclude that the Due Though

d Fourteenth Amend of the Process Clause protections Second applies conclude ment therefore We govern and local “deeply Amendment to state arms is keep and bear ments, whether such question remains history and tradi- Nation’s rooted in this imply out, liberty” mean to Because, do not ordered points Heller itself —we incorporation two-pronged test. The and Presser distinct Cruilcshank n. S.Ct. at 2813 process due cases the substantive incorporation cases and selective did discuss Clause, aspects phrases as treat these two is no both there through the Due Process inquiry. point directly on holistic precedent Supreme Court sugges heeding s Heller us from that bars that, Quijas Rodriguez point de v. Shear out and its amici tions. 18. The Cf. 477, 484, Inc., support, 109 Express, U.S. earlier the 490 universal its Am. however son/ (1989) ("If 1917, 526 arms has now become right 104 L.Ed.2d to and bear S.Ct. application generally Levin Court has direct Sanford precedent of this controversial. Amendment, case, son, yet appears Embarrassing to rest on reasons Second in a The decisions, (1989). the we do not measure rejected in some other line But Yale L.J. 637 right Appeals follow the case affords a protection should the Court of the Constitution controls...."). Maloney, contempo directly But see times. If by values of our own the (concluding fore that Presser to read out rary at 58-59 desuetude sufficed F.3d Constitution, Amendment there would be little application of the Second then closes states). them. Some written statement of to a benefit of the Found disagree with the decision may given right in the Constitu enshrine incor- ers to parts of the By speaking of the two so, people can amend then the tion. If separately "deeply rooted inquiiy poration — for amendments are not But such document. history tradition” and this Nation’s courts to ordain. regime of "necessary Anglo-American to an scrutiny, Ordi- specific invalidates the constitutional law application District’s Nordykes challenge. nance could not survive. Heller tells us that the Second guarantee Amendment’s around revolves Heller,

Again, begin we with If armed self-defense. laws make such any not announce which did standard impossible in self-defense crucial most review, though precluded it rational basis by place rendering firearms protection as an insufficient for a review home— —the useless, they then violate the Constitution. specifically right.19 enumerated See Hel ler, than 128 S.Ct. at 2817 n. 27. Rather a standard of review the out

insist on set, regula the Heller Court evaluated the But Ordinance before us is issue of conduct tion at kind directly that ilk. It does not impede protected Amendment from in Second efficacy of self-defense or limit self-defense fringement. Rather, gun the home. it regulates began analysis The Court its of the Dis- possession public places that are by noting trict Columbia’s law what property. activity totally law covered: law “the Nordykes counter that the Ordi- handgun possession bans in the home. It indirectly effective, nance burdens armed requires any also lawful firearm in the self-defense because it diffi- makes it more by home be disassembled or a trig- bound cult purchase guns. They point case times, ger at all rendering inopera- lock law on the to sexual an privacy as added). Id. at (emphases ble.” analog. Carey In Population Services Next, the Court connected the statute’s International, operation to the conduct the Second (1977), instance, 52 L.Ed.2d 675 protects: “the inherent regulations Court measured state has self-defense been central to the limiting access to contraceptives right. handgun Second Amendment yardstick they same as would a ban prohibition amounts to a total ban an entire contraceptives. See id. at S.Ct. overwhelmingly class of ‘arms’ that is cho- 2010. Just the Court society sen American held that “[limit- for that lawful ing Id. It the distribution of purpose.” nonprescription was con- thus statute’s traceptives pharmacists burdens on effective licensed clearly that im- self-defense plicated the imposes significant Second Amendment. More burden on the particularly, “prohi- Heller noted that the individuals use contraceptives,” home, bition extends ... where id. at so the self, need argue for defense of family, prop- limiting the availability of fire- erty Court, most acute.” Id. For arms their right burdens bear keep and that, this meant no intensity matter the purpose arms for the of self-defense.20 rights usually Fundamental rights, strict against receive ment whether the or the 19. states scrutiny as a pro- matter of due government, trigger substantive federal the stan- same See, e.g., Glucksberg, cess doctrine. 521 U.S. dards of review. We find no treat reason to 721, the differently. S.Ct. 2258. the Second Amendment But where Due incorporates Process Clause one the Rights, enumerated in the Bill of the standard County responds 20. Nordykes’ The of review appropriate becomes that objection nothing to Ordinance to do has specific right. example, For Amend- First with everything self-defense and with to do right to and bear every protects law which makes arms for But “not is, self-defense, ipso it does difficult to exercise individual not contain right more infringement right.” of that to bring guns govern- an an entitlement onto facto, Casey, Pa. v. Parenthood Se. property. Planned ment 2791, 112 S.Ct. U.S. County points The also to the famous (1992)(joint opinion of O’Con- L.Ed.2d 674 in in as- passage Heller which Court JJ.). Indeed, Souter, nor, Kennedy & sured that “[njumerous regulation forms of state opinion taken nothing in our should be effect of increas might have the incidental longstanding prohibi- to cast on doubt availability decreasing the or ing cost possession tions on the of firearms abortion,” ... for in care of medical ill, mentally or felons and laws for- Even 112 S.Ct. 2791. Id. at stance. bidding carrying in sen- firearms recognized has though Supreme Court places gov- such as schools and sitive abortion, it has approved an to buildings, imposing ernment or laws regulations. of those some qualifications on com- conditions also that The Court has held mercial sale arms. abortions, even need not fund government Heller, (emphasis 128 S.Ct. 2816-17 pro have a substantive due though women added). County that argues The its Ordi- obtain them. See Harris cess to merely nance forbids the of fire- carrying McRae, places, in arms sensitive includes (1980). Harris, In 65 L.Ed.2d 784 County fairgrounds the Alameda and other a crucial distinction be the Court drew County property. activi government interference with tween object Nordykes The gov and the ty protects the Constitution way provided no has to determine what encourage, decision not ernment’s place.” a “sensitive But nei- constitutes facilitate, activity. in partake such Heller; ther did Second Amendment law protected by the “Although liberty infancy. remains in its The Court listed affords protection Due Process Clause ex- government buildings schools and as interfer government unwarranted possessing amples, presumably because with freedom of choice the context ence places great harm to firearms such risks decisions,” Harris de personal of certain people (e.g., chil- numbers of defenseless clared, an not confer entitlement “it does dren). lines, notice Along same we may necessary as be to such funds buildings and schools are government of that freedom.” advantages realize all the important government functioning. 317-18, 100 2671.21 If we Id. at here, argue Ordinance conclude apply principles these we Amendment, than is because it covers more ap overbroad although Second Clause, places. They list the areas through the Due Process such sensitive plied recently According County, Similarly, the Court con profit. the Second great governments have a deal of firmed that protect does not to sell leeway managing property. For their own efficiently guns profitably and on messages example, they can certain adopt point. em- property. This beside adopt and decline to others without their own phasis placed effective armed self- Heller Speech infringing Free Clause the First requires inquiry an into defense whether Summum, City Grove v. Amendment. Pleasant impossi- self-defense Ordinance renders such — -, 1131, 1125, U.S. 129 S.Ct. practical ble as a matter. (2009). L.Ed.2d 853 172 460 venues, such on their claim the “open space under First Amend-

covered: areas, ment. parks, recreational County-owned sites, public lots of build- parking historic already template We have laid out the fairgrounds.” ings ... and the claim, analyzing for the First Amendment that seems odd as a only The one of these albeit in the context a challenge: facial place” lots. The rest parking “sensitive is claim, evaluating Nordykes’] In we [the where places high numbers gathering are must convey ask whether intent to “[a]n congregate. pre- is people might That particularized message present, [is] “open why they space are called sumably great and [whether] the likelihood [is] Indeed, fairgrounds the venues.” itself message the would be understood >public private hosts numerous events by those who viewed it.” v. Spence large year, the number throughout 405, 410-11, 418 Washington, U.S. 94 attend; presumably again, of people (1974). 2727, 41 S.Ct. L.Ed.2d 842 If Nordykes’ gun routinely shows attracted the possession of firearms is expressive 4,000 people. Although about Heller does conduct, question becomes whether open, provide guidance, pub- much County’s “regulation is related County’s lic Ordinance spaces covers suppression expression.” of free Texas comfortably

fit category within same Johnson, 397, 403, v. 491 109 U.S. buildings. government as schools and (1989). so, If L.Ed.2d not, scrutiny applies. strict If we must To the Ordinance summarize: does not apply stringent the less an- standard meaningfully impede ability individ- O’Brien, nounced United States uals to defend themselves their homes U.S. 20 L.Ed.2d firearms, with usable core of the (1968). analyzed as Heller it. The Ordinance falls division, on lawful side of familiar III, (alterations Nordyke F.3d from pro- other areas of substantive due in original). Because the “does doctrine, cess between unconstitutional in- not that gun possession contest in the con- terference per- with individual gun text may of a show involve certain government missible nonfacilitation of protected speech,” assume, elements of we Finally, their prohibiting exercise. fire- deciding, without Nordykes’ pos- possession arm municipal property on fits guns session speech amounts to under within the exception from the Second Spence test. places” “sensitive A recognized. Heller These considerations compel us to conclude that the Second specif-

Amendment does not invalidate Next, question whether Therefore, ic Ordinance us. before apply scrutiny strict un Ordinance district court did not abuse its discretion in der stringent Johnson “the less stan denying the Nordykes leave amend dard” of O’Brien. complaint their to add Second Amend- ment claim that would have been futile. depends scrutiny level of whether Ordinance is “unrelated suppression expression,” free John

Ill son, (inter U.S. 109 S.Ct. 2533 appeal omitted), also nal quotation from dis- marks and citation trict grant court’s summary judgment which in hinges turn on the aim the law. necessarily any to the par bear relation aims not may “proscribe government Indeed, County. of the the expressive it and interests has conduct because

ticular litigants the com Court has admonished directed at A law elements.... must, legis- a of attributing like the motivations of conduct nature municative itself, legislatures: justified be lators speech at law directed of showing need legislator make by the substantial motivates one What at requires.” Id. necessarily is First Amendment about a not speech statute (internal quotation marks what motivates scores others enact of omitted). words, In other it, citation sufficiently high and are and the stakes aim of law eval the courts determine guesswork. us to eschew We decline at interest uating governmental “the essentially ground on the that it to void 406-07, 109 If a at Id. S.Ct. ... legislation stake.” is unwise which could be it, it at then aimed speech law hits because in its exact form if the same reenacted scrutiny; but if must strict apply a court legislator another made a ‘wiser’ or it, having at aimed speech hits without it. speech about inter apply a court must O’Brien then O’Brien, 88 S.Ct. 1673 U.S. scrutiny standard. mediate added). (emphasis Johnson, too, the In Court determined related to whether law issue was County Nordykes argue suppression speech psychoana- of without to silence order adopted Ordinance opinion lyzing its authors. The never even culture” “gun of the so-called members history or the legislative mentioned stated social political and expressing their from Instead, legislator. of it ana- any motives and the Second about firearms views in terms lyzed statute interests However, language Amendment. declared, not personal the State likes violence, gun not suggests the statute dislikes of the law’s backers. Other culture, its Sec- passage. motivated gun piece. cases of a First Amendment are 9.12.120(a) statistics recites several tion See, The- e.g., City Playtime Renton injuries and gunshot about deaths atres, Inc., 48, 106 S.Ct. County and then concludes Alameda (“The (1986) L.Ed.2d 29 ordinance firearms possession “[prohibiting crime, designed prevent its terms is promote pub- will property trade, maintain city’s retail protect contributing safety by and lic health values, generally protect and and property injuries and gunshot fatalities reduction city’s neighbor- preserve quality County.” Id. in the districts, hoods, quali- commercial and to al- Nevertheless, point life, the ex- ty suppress of urban not purpose: (emphasis unpopular of the statute’s views.” pression ternative evidence (internal added) Supervisor King quotation marks and al- the comments of 9.12.120(f)(4) omitted)); Barry, author- exception for Boos v. section terations 312, 320-21, certain events. firearm use at artistic ized U.S. (1988) O’Connor, (opinion of L.Ed.2d 333 above, supra them quoted As we have J.). re- private public King’s

pp. appropri- approach particularly she This suggest marks could be read here, County has offered a of a ate because the people to exclude harbored motive plausible purpose for the Ordi- perfectly But fairgrounds. view certain from violence on gun nance: the reduction do feelings one official conduct, sufficiently The Ordinance itself of property. important gov proclaims Supervisor even purpose; ernmental interest in regulating the non- during King press it her confer- expressed speech justify element can limi incidental ence. tations First Amendment freedoms.”

Undeterred, Nordykes argue also O'Brien, 391 U.S. at 88 S.Ct. 1673. exception for certain ar- the statute’s specifically, government More regula “a events productions tistic or indicates its tion sufficiently justified is if it is within constitutionally sup- relation to the suspect of power constitutional the Govern They pression speech. cry foul because ment; important if it furthers an or sub effectively bans gun Ordinance shows interest; governmental stantial the gov if fairgrounds by regulating gun pos- at the ernmental interest is unrelated to the strictly, goes while session there so out suppression of free if expression; and way of its to accommodate the Scottish incidental restriction on alleged First excep- But statutes have Games. most is greater freedoms no than tions; they only suggest unconstitutional is essential the furtherance that in they if allow generates favoritism what terest.” at Id. 88 S.Ct. 1673. See, they problems permit. same as what Metromedia, e.g., v. City Inc. San Die- The first prong has more rele go, (1981) (plurality opinion). government, L.Ed.2d vance to the federal for it battles; The Scottish Games reenact old only powers. exercises enumerated Nordykes sponsor heavily attended reverse, course, is the case with state gun It shows. is not difficult to see how and local governments. Unless the Con 4,000 trading in shoppers modern firearms stitution specifically removes a from power pose danger history more than crowd states, they authority have the to use garb playing buffs traditional blank with Const, (“The it.22 X powers U.S. amend. event, any only ammunition. In if the not delegated by to the United States Scottish Games ensure “authorized Constitution, nor prohibited by it to the possess participants” the firearms or that States, respec are reserved to the States get firearms are can they secure tively, or to the people.”); see also Cruik benefit If exception. shank, (“The government U.S. criteria, they could meet one of those could delegated pow United States is one of get exception of the benefit as well. authority ers Its alone. is defined Nordykes’ We reject invitation to limited powers Constitution. All apply scrutiny strict because we conclude granted to it that instrument are the Ordinance is “unrelated reserved to the people.”). States Johnson, suppression expression.” of free passWe prong over the first because the (internal U.S. 109 S.Ct. 2533 Nordykes make no argument that munici omitted). quotation marks and citation In- palities power regulate lack the firearms stead, heightened scrutiny O’Brien’s stan- possession on their property. own dard applies.

B prong requires The second us to evaluate whether the ‘speech’ Ordinance furthers ‘nonspeech’ “[W]hen elements are combined the same course the County’s safety interest in promoting als, power something, A may preclude State to do doing states from course, separate things from the they power of individu- have the to do. or Nordykes property strictly The armed. To ban to violence. discouraging that, as-applied, op regulate gun possession County their as on land is argue given facial, challenge, the Ordinance only straightforward response to a the to such posed County because is unconstitutional a danger. any that violence ever oc

cannot show passes We conclude that the Ordinance But gun courts at their shows. curred test to applied as the Nor- O’Brien constitutionality as analyze of statutes dykes’ gun shows. The district court abstract, litigant in the re applied to a properly granted summary judgment to or he has himself whether not gardless of County on this claim. that actually problem moti created See, challenges. e.g., he vates the law IV Non-Violence, Cmty. v. Creative Clark for alleges final Nordykes’ The claim the Equal violation of Protection Clause. (1984) (“[T]he validity this L.Ed.2d 221 suspicion It around revolves their judged not solely need be regulation in the for hand.”); exception Ordinance certain ar at the demonstration reference to events, tistic Alameda Code Family City Now v. & World One One 9.12.120(f)(4), Honolulu, § designed n. County 76 F.3d was to favor Cir.1996) (9th (noting, gun in the context of like the groups Scottish Games over govern challenge, an as-applied participants, resting show a favoritism on any “offer concrete evi ment need not County’s “gun for the disdain culture.” plaintiffs demonstrating that [the dence equal first part protection The actually” the harm the caused activities] analysis gov is determine whether the sought The government prevent). has people. ernment classified County reasonably guns believe that could (9th Hodel, Christy v. F.2d Nordykes’ gun dangerous are as Cir.1988). plaintiff “Once the establishes on they are other events Coun shows as classification, governmental necessary it is ty property. ‘similarly class identify situated’ the O’Brien test prong The third be plaintiffs which the class can inquiry simply repeats threshold goal a simi compared. identifying unrelated to the whether the statute is larly ... is to situated class isolate expression, free which we suppression of allegedly subject impermissible factor We therefore move on addressed above. similarly discrimination. The situated final, prong: fourth restric- group group.” control Freeman necessary. The greater tion be no than (9th Ana, City Santa 68 F.3d other, Nordykes argue there are less Cir.1995) (internal and ci quotation marks County ways the could reduce restrictive omitted). tations violence, metal gun by using such as detec- 9.12.120(f)(4)exempts from the Section pre- tors. But how would metal detectors possession of a Ordinance’s reach “[t]he County property on un- gun violence vent in a participant an authorized firearm confiscate the County less officials could dance, television, video, or picture, motion those devices discovered? And guns that event,” long as production theatrical could not confiscate officials gun he is secures when participant visitors un- weapons away or turn armed actually it. Code using Alameda bring illegal less it firearms were 9.12.120(f)(4). words, § the stat- In other County thought property. The are distinguishes ute between those who around its dangerous people to wander GOULD, participants specified Judge, concurring: in the Circuit authorized productions or events and those who are I in Judge opinion concur O’Scannlain’s amount clas- Though might not. this to a my but write to elaborate view sification, point cannot policies underlying incorpo- the selective similarly group.” situated “control First, as Judge ration decision. O’Scann- Games, with their historical reen- Scottish aptly lain explained, has secured actments, very different kettle fish are of by “deeply the Second Amendment are Nordykes gun from the and their shows. in history rooted this Nation’s and tradi- argued Crucially, Nordykes have not tion,” “necessary and to the Anglo-Ameri- they exception’s that could meet the re- regime can of liberty.” ordered The sa- that be quirement firearms secured when- policies underlying protection lient participant ever an authorized is not actu- ally using They right them. No have bear arms are of wonder. inestimable very gun that nature importance. admitted to bear arms is a shows, weapons in show which vendors against bulwark external invasion. We admirers, buyers prospective and makes it should not be overconfident that oceans on impossible. our pre- east and west coasts can alone security. recently serve in We saw Nordykes

We that conclude are not case of the terrorist attack on Mumbai similarly situated to the Scottish in Games that may country terrorists enter a that covert- they safety cannot meet the require- ly by routes, ocean exception. landing ments of the The district court small craft was therefore correct to award the assembling and then to wreak havoc. summary judgment on this claim well. as lawfully That we have a populace armed security adds a measure of for all us and

V likely less that a makes band terror- reasons, headway ists could make in an attack foregoing For the we AFFIRM on grant summary judg- any community the district court’s professional before more Nordykes’ ment to the on the Second, First forces arrived.1 to bear equal protection Amendment and claims protection against arms is possibility and, although we conclude the Second government our even own could de- incorporated Amendment is indeed against generate tyranny, into though and this states, we AFFIRM the district court’s may unlikely, seem this possibility should grant refusal leave to guarded be against with individual dili- amend complaint their to add a Second Third, gence. while Second Amend- Amendment claim in this case. ment thus protection against stands as .a AFFIRMED. both external and tyranny, threat internal English history invasion, ticipated possibility summarized Winston of a Nazi its Churchill shows constant recourse to militia security policy homeland took into account invading to withstand forces arrived not might that its Home Guard slow or retard an rarely England’s neighboring from See lands. offensive, point any could come at Churchill, generally History 2 Winston S. coastline, militaiy until trained forces English Speaking Peoples: The New brought be repel could to bear to an invad- Mead, (Dodd, 1966); World & Co. 3 Winston "England er—because was to be defended Churchill, History English Speaking S. people, destroyed.” generally its (Dodd, Mead, Peoples: Age of Revolution Churchill, Winston Their Finest Hour Co.1967). Also, II, during & World War Co.1949). esp. (Houghton 174-76 Mifflin England when feared for its survival an- and for our handguns, problem and the the individual’s recognition define, in the context of Amendment, incorpo- will be to and its courts the Second mu- by the states and regulation particular Due Process Clause by the ration permis- with the states, inconsistent what is reasonable nicipalities, is not All weaponry. and offen- regulation what is unreasonable sible and reasonable mean- within the not “arms” are Amendment. weapons sive to the Second so, Amendment, for ex- ing of Second sensibly argue could individual

ample, no them a gives the Second or chemical weapons have nuclear

right to self-defense. their home for

weapons interests

Also, important governmental of rifles regulation justify reasonable

will

Case Details

Case Name: Nordyke v. King

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Apr 20, 2009

Citation: 563 F.3d 439

Docket Number: 07-15763

Court Abbreviation: 9th Cir.