Published on:

Arms And The Law

We’ve hit a “perfect storm” of sorts for guns and the law.

First, we had heavily armed attorney Wayne Anthony Ross rejected for the post of Alaska Attorney General. This one made you catch your breath for a second since it’s the first time in state history a cabinet-level nominee has gone down in flames. But at least WAR accepted his fate and retired from the scene with as much dignity as he could muster. I think it significant that WAR did not strap on a Peacemaker and invite Hollis French (Anchorage Democratic Senator and fellow lawyer) to meet him out on 4th Street at high noon. (“Go ahead, Hollis. Make my day.”)

Next, the 10th anniversary of the Columbine shootings came up. This one made you catch your breath for a minute because of the awful memory of the senseless attack. It was particularly disconcerting to find out that all the motivations we had been lead to believe lay behind the tragedy were bogus. According to the myth busters, the shooters were not actually bullied, did not set out for revenge against the jocks, and were never part of the Trench Coat Mafia. Instead, the reasons for the terrible killings were just that Eric Harris was a maniacal psychopath and Dylan Klebold was not very good at picking his friends. Not real comforting for the fans of an ordered society who like explanations for what went wrong. Even Oprah was discouraged by it.

Peace.jpgNow, we’ve got the Ninth Circuit jumping into the fray with both barrels blazing. On April 20, 2009, the Nines issued an important ruling in Nordyke v. King about the Second Amendment to the Constitution. This one made you hold your breath for a full half hour while sorting through the Scalia-esque twists and turns of constitutional law that are set out in the hefty opinion.

The Nordyke case arose because Alameda County, California denied some folks a permit to hold a gun show at the County Fairgrounds. The County based its decision on an ordinance it had adopted that made it a misdemeanor to pack a gun or ammo on County property. The Nordyke plaintiffs took exception to this, claiming in essence that the Second Amendment gave them the right to take a gun or ammo wherever they wanted to go.

The remarkable part of the opinion is that the Nines had to wrestle with the fundamental question of whether the Second Amendment even applied to the States at all. Apparently there was some doubt about the issue and other courts had rejected the notion. But rest assured gun advocates. The Ninth Circuit, in spite of its reputation as a den of liberality, found the Second Amendment applied to the States through the black art of “selective incorporation” under the Due Process Clause of the Fourteenth Amendment.

Yet the application of the Second Amendment to the State of California and its counties did not mean the Nordyke plaintiffs won their case. Instead, the Nines held the ordinance prohibiting guns and ammo on County property did not really infringe on the right to keep and bear arms. The Nordyke plaintiffs could keep their guns and pass them around amongst themselves all they wanted, just not on this particular spot. So in spite of the lofty constitutional issues involved, it was a half-a-loaf deal in the final analysis.

Here in Alaska, the fundamental question the Ninth Circuit confronted is a non-starter since the Constitution of the State of Alaska contains its own version of the Second Amendment. Section 19 of Article I to the Alaska Constitution even says the “individual right to keep and bear arms shall not be denied or infringed by the State or a political subdivision of the State.” This “individual right” phrase differs from the words of the federal Constitution. The unique Alaska language saved us the bother of having to pay much attention at all to the U.S. Supreme Court’s recent decision in District of Columbia v. Heller.

Still, I commend the Nordyke decision to your reading list. It’s a mini-course in constitutional law and it even brings up some old law school chestnuts that are perhaps better off forgotten, such as the Slaughter-House Cases.

Nordyke also has a short concurring opinion that’s worth reading. In the concurrence, Judge Gould feels compelled to point out that “[a]ll weapons are not ‘arms’ within the meaning of the Second Amendment, so, for example, no individual could sensibly argue that the Second Amendment gives them a right to have nuclear weapons or chemical weapons in their home for self-defense.” I’m thinking about highlighting this segment of the decision and sending it over to WAR. You know, just in case he might be getting any ideas about responding to the Alaska Legislature.