by David H. Gans, Director of the Human & Civil Rights Program, Constitutional Accountability Center

A second Supreme Court showdown on guns just got a lot more likely.

In an important decision handed down yesterday, the U.S. Court of Appeals for the Ninth Circuit held in Nordyke v. King that the Fourteenth Amendment requires states and localities to respect the Second Amendment’s right to bear arms. The Ninth Circuit ultimately rejected plaintiff Nordyke’s Second Amendment claim, finding that the individual Second Amendment right, first recognized by the Supreme Court last year in District of Columbia v. Heller, does not include the right to hold gun shows on public property, but this widely expected holding should not be overshadowed by the significant constitutional step the court took on the way to this decision.

In legal parlance, the Ninth Circuit held that the Fourteenth Amendment incorporates the protections of the Second Amendment, and applies it against states and local governments. This incorporation question provides the Supreme Court with the opportunity to decide whether and, even more important, how the Fourteenth Amendment protects the substantive fundamental right recognized in Heller from encroachment by the states. Yesterday’s decision creates a split among the federal courts of appeal on the incorporation question – the Second Circuit rejected incorporation of the Second Amendment in a decision earlier this year – and makes it all but inevitable that the Supreme Court will soon have to decide this important constitutional question.

As we have argued in the past (see here, and here), the strongest textual basis for incorporation of the Second Amendment is the Privileges or Immunities Clause, the Fourteenth Amendment’s explicit textual protection for substantive fundamental rights. The text and history of the Fourteenth Amendment show that the Privileges or Immunities Clause was written to guarantee substantive fundamental rights, including the rights enumerated in the Bill of Rights as well as the unwritten fundamental rights of citizens (for discussion, see here and here). In yesterday’s opinion, however, the Ninth Circuit explained that, as a lower court, it could not consider the Privileges or Immunities Clause as a basis for incorporation because, in its view, that route had been foreclosed by the Supreme Court’s 1873 decision in The Slaughter-House Cases, which radically limited the protections of the Privileges or Immunities Clause. (For a discussion of Slaughter-House and how it misconstrued the Privileges or Immunities Clause, see here, here, and here).

At the same time the Ninth Circuit read Slaughter-House to foreclose incorporation even though that issue was not specifically before the Supreme Court in the case, it read very narrowly the Supreme Court’s late 19th century precedents that rejected application of the Second Amendment to the states, including United States v. Cruikshank and Presser v. Illinois. The Ninth Circuit held that these decisions never specifically examined the Fourteenth Amendment’s Due Process Clause, and thus did not prevent the court from invoking the Due Process Clause to incorporate the individual right to bear arms recognized in Heller. Having dispatched these precedents, the Nordyke Court concluded that the right to bear arms was a fundamental right “deeply rooted in this Nation’s history and tradition” and thus was protected against state action under the Supreme Court’s substantive due process precedents. Although the Supreme Court has been bitterly divided in past decisions about how to conduct this “history and tradition” approach when unwritten fundamental rights are at issue, the Ninth Circuit found the case for Second Amendment incorporation overwhelming under any standard. According to the court, the Constitution’s original framers had treated the right to bear arms as a fundamental right (as Heller held), most state constitutions throughout our Nation’s history protected a right to bear arms, and the framers of the Fourteenth Amendment had written the Amendment to prevent Southern states from stripping the newly freed slaves of arms for their defense.

Nordyke may not end up before the Supreme Court – even if the County seeks Supreme Court review, the Court may want to wait for a case involving a Second Amendment claim closer to the heartland right at issue in Heller – but, by finding incorporation, the Ninth Circuit’s decision sets the stage for the Supreme Court to consider how the Fourteenth Amendment protects substantive liberty. While the Nordyke Court cannot be faulted for following the path of recent precedent, the Supreme Court has the opportunity to get the text and history of the Fourteenth Amendment right, correcting the errors that pervaded Slaughter-House, as well as the later rulings in Cruikshank and Presser. While the Supreme Court could also choose to hew to recent due process incorporation precedent, the approach most in line with constitutional text and history would be to overrule Slaughter-House and apply the Second Amendment to the States via the Privileges or Immunities Clause. The Privileges or Immunities Clause is the Fourteenth Amendment’s explicit textual protection of substantive fundamental rights. Indeed, much of the evidence Nordyke recites from the drafting and ratification of the Fourteenth Amendment shows that the Privileges or Immunities Clause was meant to protect the newly freed slaves’ right to bear arms.

The Nordyke opinion moves our country a big step closer to a historic opportunity for the Supreme Court to finally recognize that Slaughter-House was wrong when written, and restore the Privileges or Immunities Clause to its rightful place.