I join Zenmervolt in applauding the Ninth Circuit’s decision to incorporate the Second Amendment. I’m not a huge fan of the selective incorporation doctrine (it’s another one of those mushy multi-factor made-up balancing tests), but the reality is it’s here to stay, and any court applying the doctrine honestly would have to come to the same conclusion the Ninth Circuit did yesterday.
I write separately to note that although the plaintiffs challenging the county’s gun ban won on the incorporation issue, they actually lost the overall case. The Court found that the ban on possession on county lands fell within the “sensitive places” exception to the Second Amendment right highlighted by the Heller opinion. The Court didn’t go into much detail in explaining why all “county lands” are considered “sensitive places” for purposes of the Second Amendment; certainly there would be a more compelling justification for the ban in some particular venues than in others. This sort of question highlights the relative novelty of Second Amendment litigation. Unlike, say, the First or Fourth Amendments (but not the Third Amendment), which are backed up by reams of caselaw analyzing how those rights apply in particular circumstances, the precise scope of the Second Amendment right is yet to be delineated. Once the incorporation hurdle has been passed (and I have little doubt that most of the other Circuits, and eventually the Supreme Court, will follow the Ninth’s lead), the rubber will really meet the road, and Courts will get down to the gritty business of figuring out what is and isn’t a permissible limitation of the right to bear arms. Stay tuned.
And for a more expert analysis of the Ninth Circuit’s decision, and links to other relevant sources, see Eugene Volokh’s post here.
