Just as a little background for those of you who are not legal scholars, originally the Bill of Rights were a set of limited rights that only applied to the federal government (for example many states had official state religions). It wasn’t until after the Civil War and the passage of the 14th Amendment that some of the Bill of Rights were eventually “incorporated” into the 14th amendment and applied to states as well as the federal government. Through a hodgepodge of cases, the Supreme Court has recognized most of the rights in the Bill of Rights as “fundamental” rights, and thus states could not limit them. Curiously the 2nd amendment has never been included as one of these fundamental rights, and thus never incorporated (although non-existent rights like the Right to Privacy made the list somehow).
The opinion basically follows the Heller opinion from last year. The Heller opinion invalidated a Washington D.C. ordinance which banned all gun possession in the District. The SCOTUS ruled that this was unconstitutional because gun ownership “necessary to an Anglo-American regime of ordered liberty.” Following this framework, the 9th Circuit has basically said that since this is a fundamental right the 2nd Amendment must be incorporated into the 14th Amendment. Interestingly, the 9th Circuit did not use the Priviliges and Immunities Clause of the 14th Amendment, but by the Due Process Clause.The fact that this is coming from the Ninth, the most liberal of federal courts, is nothing short of amazing. This from the decision:
We therefore conclude that the right to keep and bear arms is “deeply rooted in this Nation’s history and tradition.” Colonial revolutionaries, the Founders, and a host of commentators and lawmakers living during the first one hundred years of the Republic all insisted on the fundamental nature of the right. It has long been regarded as the “true palladium of liberty.” Colonists relied on it to assert and to win their independence, and the victorious Union sought to prevent a recalcitrant South from abridging it less than a century later. The crucial role this deeply rooted right has played in our birth and history compels us to recognize that it is indeed fundamental, that it is necessary to the Anglo-American conception of ordered liberty that we have inherited.More from Snowflakes in Hell, Of Arms & the Law, Volokh Conspiracy.