Nordyke v. King

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

RUSSELL ALLEN NORDYKE; ANN 

SALLIE NORDYKE, dba TS Trade

Shows; JESS B. GUY; DUANE DARR;

WILLIAM J. JONES; DARYL N.

DAVID; TASIANA WESTYSCHYN; JEAN

LEE; TODD BALTES; DENNIS BLAIR,

R.L. ADAMS; ROGER BAKER; MIKE No. 07-15763

FOURNIER; VIRGIL MCVICKER,

Plaintiffs-Appellants,  D.C. No.

CV-99-04389-MJJ

v. OPINION

MARY V. KING; GAIL STEELE;

WILMA CHAN; KEITH CARSON;

SCOTT HAGGERTY; COUNTY OF

ALAMEDA; COUNTY OF ALAMEDA

BOARD OF SUPERVISORS,

Defendants-Appellees.



Appeal from the United States District Court

for the Northern District of California

Martin J. Jenkins, District Judge, Presiding

Argued and Submitted

January 15, 2009—San Francisco, California

Filed April 20, 2009

Before: Arthur L. Alarcón, Diarmuid F. O’Scannlain, and

Ronald M. Gould, Circuit Judges.

Opinion by Judge O’Scannlain;

Concurrence by Judge Gould

4465

NORDYKE v. KING 4469

COUNSEL

Donald E. Kilmer, Jr., Law Offices of Donald Kilmer, San

Jose, California, argued the cause for the plaintiffs-appellants

and filed the briefs. Don B. Kates, Esq., Battleground, Wash-

ington, was also on the supplemental briefs.

Richard E. Winnie, County Counsel, Alameda County, Cali-

fornia, argued the cause for the defendants-appellees and was

on the briefs. T. Peter Pierce, Richards, Watson & Gershon,

Los Angeles, California, filed the brief; Sayre Weaver, Rich-

ards Watson & Gershon, Los Angeles, California, was also on

the brief.

C.D. Michel, Trutanich-Michel, LLP, Long Beach, California,

filed a brief on behalf of amici curiae the National Rifle Asso-

ciation of America, Inc., and the California Rifle & Pistol

Association. Stephen P. Halbrook, Law Offices of Stephen P.

Halbrook, Fairfax, Virginia, was also on the brief.

Tracy Duell-Cazes, Law Offices of Tracy Duell-Cazes, San

Jose, California, filed a brief on behalf of amici curiae Profes-

sors of Law.

4470 NORDYKE v. KING

Vanessa A. Zecher, Law Offices of Vanessa A. Zecher, San

Jose, California, filed a brief on behalf of amici curiae Profes-

sors of Law, History, Political Science, or Philosophy.

Alan Gura, Gura & Possessky, PLLC, Alexandria, Virginia,

filed a brief on behalf of amicus curiae Second Amendment

Foundation, Inc.

Jordan Eth, Morrison & Foerster LLP, San Francisco, Califor-

nia, filed a brief on behalf of Amici Curiae the Legal Commu-

nity Against Violence, City of Oakland, City and County of

San Francisco, Brady Center to Prevent Gun Violence, Cali-

fornia Peace Officers’ Association, California Police Chiefs

Association, California State Sherrifs’ Association, Coalition

to Stop Gun Violence, Violence Policy Center, and Youth

Alive!. Jacqueline Bos and Angela E. Kleine, Morrison &

Foerster LLP, San Francisco, California, were also on the

brief.

OPINION

O’SCANNLAIN, Circuit Judge:

We must decide whether the Second Amendment prohibits

a local government from regulating gun possession on its

property.

I

A

Russell and Sallie Nordyke operate a business that pro-

motes gun shows throughout California. A typical gun show

involves the display and sale of thousands of firearms, gener-

ally ranging from pistols to rifles. Since 1991, they have pub-

licized numerous shows across the state, including at the

NORDYKE v. KING 4471

public fairgrounds in Alameda County. Before the County

passed the law at issue in this appeal, the Alameda gun shows

routinely drew about 4,000 people. The parties agree that

nothing violent or illegal happened at those events.

In the summer of 1999, the County Board of Supervisors,

a legislative body, passed Ordinance No. 0-2000-22 (“the

Ordinance”), codified at Alameda County General Ordinance

Code (“Alameda Code”) section 9.12.120. The Ordinance

makes it a misdemeanor to bring onto or to possess a firearm

or ammunition on County property. Alameda Code

§ 9.12.120(b). It does not mention gun shows.

According to the County, the Board passed the Ordinance

in response to a shooting that occurred the previous summer

at the fairgrounds during the annual County Fair.1 The Ordi-

nance begins with findings that “gunshot fatalities are of epi-

demic proportions in Alameda County.” Id. § 9.12.120(a). At

a press conference, the author of the Ordinance, Supervisor

Mary King, cited a “rash of gun-related violence” in the same

year as the fairground shooting. She was referring to a series

of school shootings that attracted national attention in the late

1990s, the most notorious of which occurred at Columbine

High School in Littleton, Colorado.2

But the Nordykes insist that something more sinister was

afoot. They point to some of King’s other statements as evi-

dence that she actually intended to drive the gun shows out of

Alameda County. Shortly before proposing the Ordinance,

King sent a memorandum to the County Counsel asking him

to research “the most appropriate way” she might “prohibit

1

Police ultimately apprehended the shooter, who had nothing to do with

the Nordykes or their gun shows.

2

See, e.g., Pew Research Center for the People & the Press, Columbine

Shooting Biggest News Draw of 1999, http://people-press.org/report/48/

columbine-shooting-biggest-news-draw-of-1999 (last visited April 4,

2009).

4472 NORDYKE v. KING

the gun shows” on County property. King declared she had

“been trying to get rid of gun shows on Country property” for

“about three years,” but she had “gotten the run around from

spineless people hiding behind the constitution, and been

attacked by aggressive gun toting mobs on right wing talk

radio.” At her press conference, King also said that the

County should not “provide a place for people to display guns

for worship as deities for the collectors who treat them as

icons of patriotism.” Without expressing any opinion about

King’s remarks, the Board of Supervisors adopted the Ordi-

nance.

County officials then exchanged several letters with the

Nordykes. The General Manager of the fairgrounds asked the

Nordykes to submit a written plan to explain how their next

gun show would comply with the Ordinance. As the County

Counsel had told the General Manager, the Ordinance did not

expressly prohibit gun shows or the sale of firearms. The Nor-

dykes insisted then and maintain now that they cannot hold a

gun show without guns; perhaps because they thought it

futile, they never submitted a plan.

During the same period, representatives of the Scottish Cal-

edonian Games (“the Scottish Games”) inquired about the

effect of the new law on the activities they traditionally held

on the fairgrounds. Those activities include reenactments,

using period firearms loaded with blank ammunition, of his-

toric battles. After the inquiries, the County amended the

Ordinance to add several exceptions. Importantly, the Ordi-

nance no longer applies to

[t]he possession of a firearm by an authorized partic-

ipant in a motion picture, television, video, dance, or

theatrical production or event, when the participant

lawfully uses the firearm as part of that production

or event, provided that when such firearm is not in

the actual possession of the authorized participant, it

is secured to prevent unauthorized use.

NORDYKE v. KING 4473

Alameda Code § 9.12.120(f)(4). This exception allows mem-

bers of the Scottish Games to reenact historic battles if they

secure their weapons, but it is unclear whether the County

created the exception just for them.

By the time the County had written this exception into the

Ordinance, the Nordykes and several patrons of and exhibi-

tors at the gun shows (collectively, “the Nordykes”) had

already sued the County and its Supervisors under 42 U.S.C.

§ 1983 for various constitutional violations. The amendment

did not mollify them, and their lawsuit has wended through

various procedural twists and turns for nearly a decade.

B

Two rulings of the district court are now before us, the tan-

gled history of which we summarize.

1

Initially, the Nordykes argued that the Ordinance violated

their First Amendment right to free speech and was pre-

empted by state law. They sought a temporary restraining

order, which the district court treated as an application for a

preliminary injunction. Nordyke v. King, (Nordyke III), 319

F.3d 1185, 1188 (9th Cir. 2003). After the district court

denied the injunction, we accepted the case for an interlocu-

tory appeal. Rather than reach the merits of the case, we certi-

fied to the California Supreme Court the question whether

state laws regulating gun shows and the possession of fire-

arms preempted the Ordinance. See Nordyke v. King (Nordyke

I), 229 F.3d 1266 (9th Cir. 2000). The California Supreme

Court answered that the Ordinance was not preempted. See

Nordyke v. King (Nordyke II), 44 P.3d 133, 138 (Cal. 2002).

We proceeded to address the Nordykes’ challenges under

the First and Second Amendments.3 Construing the First

3

Due to developments in the law while the certified question was pend-

ing in the California Supreme Court, the Nordykes filed and we granted

4474 NORDYKE v. KING

Amendment challenge as a facial one, we rejected their argu-

ment that the statute burdened the expressive conduct of gun

possession. Nordyke III, 319 F.3d at 1190. Our opinion noted

that its rejection of the facial attack did not “foreclose a future

as applied challenge to the Ordinance.” Id. at 1190 n.3.

We also concluded that our prior opinion in Hickman v.

Block, 81 F.3d 98 (9th Cir. 1996), precluded the Nordykes’

Second Amendment claim. Nordyke III, 319 F.3d at 1191.

Hickman had held “that individuals lack standing to raise a

Second Amendment challenge to a law regulating firearms”

because the right to keep and bear arms was a collective one.

Id. at 1191-92. We remanded the case for further proceedings.

2

On remand, the Nordykes moved for leave to file a Second

Amended Complaint. They wished to rephrase their First

Amendment challenge, arguing that, as applied to their use of

the fairgrounds, the Ordinance violated their freedom of

expression by making gun shows impossible. In addition, the

Second Amended Complaint contained as-applied versions of

other constitutional challenges, including an equal protection

claim. The district court allowed the Nordykes to add all of

those claims, but denied the motion to add a Second Amend-

ment cause of action. The district court explained that because

Nordyke III’s holding on the collective nature of the right to

keep and bear arms precluded the claim, there was no sense

in relitigating it.

After two motions to dismiss under Federal Rule of Civil

Procedure 12(b)(6), only the expressive conduct claim under

the First Amendment and the equal protection claim survived.

The County moved for summary judgment on those remain-

a motion to file supplemental briefing on a Second Amendment claim.

Nordyke III, 319 F.3d at 1188.

NORDYKE v. KING 4475

ing claims, which the district court granted. The Nordykes

timely appealed.

3

In their opening brief on appeal, the Nordykes explicitly

noted a pending petition for certiorari in the Supreme Court

in the case of District of Columbia v. Heller, 128 S. Ct. 2783

(2008), and explained that, should the Court grant the petition,

they would request a stay and file supplemental briefs. The

Court, of course, did grant the petition for certiorari. Though

we initially denied the request for a stay, the decision in

Heller came down shortly thereafter, which prompted us to

allow the parties to file supplemental briefs. Thus, the Nor-

dykes appeal not only the district court’s grant of the Coun-

ty’s motion for summary judgment, but also the district

court’s denial of their motion for leave to amend their com-

plaint to add a cause of action pursuant to the Second Amend-

ment.

II

[1] We begin with the Nordykes’ attempt to revive their

Second Amendment claim. The district court rested its denial

of leave to amend the complaint on our precedent that an indi-

vidual lacks standing to bring a Second Amendment challenge

because the right it protects is a collective, not an individual

one. See Hickman, 81 F.3d at 102-03; see also Nordyke III,

319 F.3d at 1191. The Nordykes now argue that the Supreme

Court’s decision in Heller abrogates our case law and com-

pels the district court to grant their motion for leave to amend

their complaint.

[2] To reach this argument on the merits, we must first

decide whether Heller abrogated Hickman. It did. Hickman

rested on our conclusion that the Second Amendment protects

only a collective right; Heller squarely overruled such conclu-

sion. See Heller, 128 S. Ct. at 2799 (“There seems to us no

4476 NORDYKE v. KING

doubt, on the basis of both text and history, that the Second

Amendment conferred an individual right to keep and bear

arms.”). Thus the basis for Hickman’s holding has evaporated,

and the opinion is clearly irreconcilable with Heller. In such

circumstances, we consider our prior decision abrogated by

higher authority.4 See Miller v. Gammie, 335 F.3d 889, 899-

900 (9th Cir. 2003) (en banc).

[3] The second obstacle facing the Nordykes is incorpora-

tion. That is, we must decide whether the Second Amendment

applies to the states through the Fourteenth, a question that

Heller explicitly left open. See 128 S. Ct. at 2813 n.23.

Finally, even if the Fourteenth Amendment does incorporate

the Second against the states, we must determine whether it

actually invalidates the Ordinance.

A

There are three doctrinal ways the Second Amendment

might apply to the states: (1) direct application, (2) incorpora-

tion by the Privileges or Immunities Clause of the Fourteenth

Amendment, or (3) incorporation by the Due Process Clause

of the same Amendment.

1

[4] Supreme Court precedent forecloses the first option.

The Bill of Rights directly applies only to the federal govern-

ment. Barron v. Mayor of Balt., 32 U.S. (7 Pet.) 243, 247-51

(1833). “Although the Supreme Court has incorporated many

clauses of the Bill of Rights into the Due Process Clause of

the Fourteenth Amendment, the Supreme Court has never

explicitly overruled Barron.” Nordyke III, 319 F.3d at 1193

n.3 (Gould, J., specially concurring). Therefore, the Second

Amendment does not directly apply to the states. See United

4

Indeed, the County does not dispute this point in its supplemental brief-

ing.

NORDYKE v. KING 4477

States v. Cruikshank, 92 U.S. 542, 553 (1875) (citing Barron

as a basis for the conclusion that “[t]he second amendment

. . . means no more than that [the right to keep and bear arms]

shall not be infringed by Congress”); see also Presser v. Illi-

nois, 116 U.S. 252, 265 (1886) (concluding that the Second

Amendment “is a limitation only upon the power of Congress

and the National government, and not upon that of the State”).

2

[5] We are similarly barred from considering incorporation

through the Privileges or Immunities Clause. The Clause pro-

vides that “[n]o State shall make or enforce any law which

shall abridge the privileges or immunities of citizens of the

United States.” U.S. Const. amend. XIV, § 1. Under the

Slaughter-House Cases, 83 U.S. (16 Wall.) 36 (1873), this

language protects only those rights that derive from United

States citizenship, but not those general civil rights indepen-

dent of the Republic’s existence, see id. at 74-75.5 The former

5

We are aware that judges and academics have criticized Slaughter-

House’s reading of the Privileges or Immunities Clause. See, e.g., Saenz

v. Roe, 526 U.S. 489, 527-28 (1999) (Thomas, J., dissenting) (“Because

I believe that the demise of the Privileges or Immunities Clause has con-

tributed in no small part to the current disarray of [the Supreme Court’s]

Fourteenth Amendment jurisprudence, I would be open to reevaluating its

meaning in an appropriate case.”); id. at 522 n.1 (collecting academic

sources); Michael Anthony Lawrence, Second Amendment Incorporation

Through the Fourteenth Amendment Privileges or Immunities and Due

Process Clauses, 72 Mo. L. Rev. 1, 12-35 (2007); see also Akhil Reed

Amar, The Bill of Rights 163-230 (1998) (arguing that the Privileges or

Immunities Clause applies against the states all “personal privileges” of

individual citizens, whether enumerated in the Bill of Rights or not, but

not the rights of the states or the general public). Nevertheless, Slaughter-

House remains good law. We note, however, that the substantive due pro-

cess doctrine, which we discuss infra pp. 4481-83, appears to arrive at a

result similar to that urged by the dissenters from the Supreme Court’s

opinion in Slaughter-House. Compare Washington v. Glucksberg, 521

U.S. 702, 719-721 (1997) (“[T]he Due Process Clause [of the Fourteenth

Amendment] specially protects those fundamental rights and liberties

4478 NORDYKE v. KING

include only rights the Federal Constitution grants or the

national government enables, but not those preexisting rights

the Bill of Rights merely protects from federal invasion. Id.

at 76-80. The Second Amendment protects a right that pre-

dates the Constitution; therefore, the Constitution did not

grant it. See, e.g., Heller, 128 S. Ct. at 2797 (“[I]t has always

been widely understood that the Second Amendment, like the

First and Fourth Amendments, codified a pre-existing right.”).

It necessarily follows that the Privileges or Immunities Clause

did not protect the right to keep and bear arms because it was

not a right of citizens of the United States. See Cruikshank,

92 U.S. at 553; cf. Presser, 116 U.S. at 266-67 (holding that

the “right to associate with others as a military company” is

not a privilege of citizens of the United States).

3

[6] The final avenue for incorporation is that by which

other provisions of the Bill of Rights have come to bind the

states: selective incorporation through the Due Process Clause

of the Fourteenth Amendment. See, e.g., Duncan v. Louisi-

ana, 391 U.S. 145 (1968) (right to criminal jury); Malloy v.

Hogan, 378 U.S. 1 (1964) (privilege against compelled self-

incrimination); Gideon v. Wainwright, 372 U.S. 335 (1963)

(right to counsel); Mapp v. Ohio, 367 U.S. 643 (1961) (exclu-

sion of evidence obtained by unreasonable search and sei-

zure); Cantwell v. Connecticut, 310 U.S. 296 (1940)

(Establishment Clause).

a

The initial hurdle to selective incorporation is our decision

in Fresno Rifle & Pistol Club, Inc. v. Van de Kamp, 965 F.2d

which are, objectively, deeply rooted in this Nation’s history and tradi-

tion . . . .” (internal quotation marks and citation omitted)), with Slaughter-

House, 83 U.S. at 122 (Bradley, J., dissenting) (“In my judgment, it was

the intention of the people of this country in adopting that amendment to

provide National security against violation by the States of the fundamen-

tal rights of the citizen.”).

NORDYKE v. KING 4479

723 (9th Cir. 1992). There, we concluded that the Second

Amendment applies only to the federal government. Id. at

729-31. The Nordykes argue that, although we precluded

direct application of the Second Amendment and incorpora-

tion through the Privileges or Immunities Clause, we did not

address selective incorporation through the Due Process

Clause. We agree.

Fresno Rifle does not specify which Clause of the Four-

teenth Amendment—the Privileges or Immunities Clause or

the Due Process Clause—we rejected as the instrument of

incorporation. Certainly, plaintiffs “argue[d] that the Four-

teenth Amendment incorporates the Second such that it limits

the actions of states in addition to those of Congress,” and we

rejected such argument. Id. at 729 “Until such time as Cruik-

shank and Presser are overturned,” we stated, “the Second

Amendment limits only federal action, and we affirm the dis-

trict court’s decision ‘that the Second Amendment stays the

hand of the National Government only.’ ” Id. at 731 (citation

omitted). The County argues that this reliance on Cruikshank

and Presser precludes any incorporation.

But close examination of our opinion in Fresno Rifle

defeats such argument. First, we noted that Cruikshank and

Presser held that “the Second Amendment constrains only the

actions of Congress, not the states,” a proposition that merely

follows from Barron. Id. at 729. Moving from direct applica-

tion of the Bill of Rights to incorporation, we then concluded

that Cruikshank and Presser foreclosed the argument of the

plaintiffs that the Fourteenth Amendment incorporated the

Second. Id.6 As discussed above, Cruikshank and Presser

involved direct application and incorporation through the

Privileges or Immunities Clause, but not incorporation

through the Due Process Clause. This suggests we referred to

6

We also rejected the argument that Miller v. Texas, 153 U.S. 535

(1894), limits the holdings of Cruikshank and Presser. See Fresno Rifle,

965 F.2d at 730.

4480 NORDYKE v. KING

those cases as shorthand to reject the first two theories, but

not the third—selective incorporation through the Due Pro-

cess Clause.

The litigation history of Fresno Rifle bolsters this impres-

sion. The plaintiffs rested their incorporation argument pri-

marily on historical evidence that the Privileges or Immunities

Clause incorporated the right to keep and bear arms. Brief of

Appellant at 39-43, Fresno Rifle, 965 F.2d 723 (No. 91-

15466). Though they referred to Duncan, a case involving

selective incorporation, they did so in support of a brief, quix-

otic argument that the Fourteenth Amendment “automatically

incorporates every provision of the Bill of Rights.” Fresno

Rifle, 965 F.2d at 730. For this proposition they cited not the

majority opinion, but Justice Black’s concurrence in Duncan,

in which he reiterated his long-held view that the Bill of

Rights applied in its entirety to the states. Brief of Appellant

at 35, Fresno Rifle, 965 F.2d 723 (No-91-15466) (citing Dun-

can, 391 U.S. at 162 (Black, J., concurring)); Fresno Rifle,

965 F.2d at 730 (citing Duncan, 391 U.S. at 162 (Black, J.,

concurring); see also Duncan, 391 U.S. at 166 (Black, J., con-

curring (arguing that the Privileges or Immunities Clause “ex-

press[es] the idea that henceforth the Bill of Rights shall apply

to the States”).7 In rejecting this attempt to revive Justice

Black’s view, which never commanded a majority of the

7

Justice Black’s complete view was that “the Fourteenth Amendment,

as a whole, makes the Bill of Rights applicable to the States. This would

certainly include the language of the Privileges [or] Immunities Clause, as

well as the Due Process Clause.” Duncan, 391 U.S. at 166 n.1; see also

Adamson v. California, 332 U.S. 46, 74-75 (1947) (Black, J., dissenting).

But the discussion in Duncan that the plaintiffs in Fresno Rifle cited con-

cerned only the Privileges or Immunities Clause, the same Clause their

briefs focused on. Fresno Rifle probably rejected Justice Black’s more

holistic theory too, but it still left untouched the theory of selective incor-

poration through the Due Process Clause. Cf. Twining v. New Jersey, 211

U.S. 78, 99 (1908) (noting that, even if a right is not incorporated by Privi-

leges or Immunities Clause, what we would now call selective incorpora-

tion by the Due Process Clause “requires separate consideration”),

overruled on other grounds by Malloy, 378 U.S. at 6.

NORDYKE v. KING 4481

Supreme Court, we simply noted that “[t]his theory of total

incorporation . . . has been continually rejected.” Fresno Rifle,

965 F.2d at 730 (internal quotation marks omitted).

[7] Thus, we did not, in Fresno Rifle, reach the question of

whether the Second Amendment is selectively incorporated

through the Due Process Clause. Perhaps because neither

party raised the predicate arguments, we certainly “did not

engage in the sort of Fourteenth Amendment inquiry required

by [the Supreme Court’s] later cases.” Heller, 128 S. Ct. at

2813 n.23.8 It is upon that Fourteenth Amendment inquiry

which we now embark.

b

[8] The Fourteenth Amendment bars “any State [from]

depriv[ing] any person of life, liberty, or property, without

due process of law.” U.S. Const. amend. XIV, § 1. Under the

doctrine known as substantive due process, this Clause “guar-

antees more than fair process, and the ‘liberty’ it protects

includes more than the absence of physical restraint.” Wash-

ington v. Glucksberg, 521 U.S. 702, 719 (1997). In this con-

ception, due process encompasses certain “fundamental”

rights. Reno v. Flores, 507 U.S. 292, 301-302 (1993). Selec-

tive incorporation is a species of substantive due process, in

which the rights the Due Process Clause protects include

some of the substantive rights enumerated in the first eight

amendments to the Constitution. See Twining, 211 U.S. at 99

(“[I]t is possible that some of the personal rights safeguarded

by the first eight Amendments against National action may

also be safeguarded against state action, because a denial of

8

Other circuits have similarly relied on Presser to reject arguments for

direct application or total incorporation, without addressing selective

incorporation. See, e.g., Maloney v. Cuomo, 554 F.3d 56, 58-59 (2d Cir.

2009) (per curiam) (rejecting direct application); Quilici v. Vill. of Morton

Grove, 695 F.2d 261, 269-70 (7th Cir. 1982) (rejecting direct application

and total incorporation).

4482 NORDYKE v. KING

them would be a denial of due process of law.”); see also

Glucksberg, 521 U.S. at 720 (speaking of enumerated rights

together with implied fundamental rights in the context of

substantive due process). Both selective incorporation and

substantive due process require us to pose the same question:

is a right so fundamental that the Due Process Clause guaran-

tees it? Substantive due process addresses unenumerated

rights; selective incorporation, by contrast, addresses enumer-

ated rights.

Under the familiar early formulation of Palko v. Connecti-

cut, only those rights “implicit in the concept of ordered liber-

ty” were incorporated. 302 U.S. 319, 325 (1937), overruled by

Benton v. Maryland, 395 U.S. 784 (1969). The analysis thus

excluded those rights “not of the very essence of a scheme of

ordered liberty,” including only those without which “a fair

and enlightened system of justice would be impossible.” Id.

Palko, in other words, invited an exercise in speculative polit-

ical philosophy, guided by “a study and appreciation of the

meaning, the essential implications, of liberty itself.” Id. at

326.

The Supreme Court ultimately abandoned this abstract

enterprise in favor of a more concretely historical one. In

Duncan, the Court recognized that it had jettisoned the meta-

physical musings of Palko for an analysis grounded in the

“actual systems bearing virtually every characteristic of the

common-law system that has been developing contemporane-

ously in England and in this country.” 391 U.S. at 149 n.14.

Therefore, incorporation turns on “whether given this kind of

system a particular procedure is fundamental—whether, that

is, a procedure is necessary to an Anglo-American regime of

ordered liberty.” Id. In determining whether the Due Process

Clause incorporated the right to jury trials in criminal cases,

Duncan noted that every American state “uses the jury exten-

sively, and imposes very serious punishments only after a trial

at which the defendant has a right to a jury’s verdict.” Id. The

Court also reviewed the place of the right in pre-Founding

NORDYKE v. KING 4483

English law and in the Founding era itself. See id. at 151-54

(citing the English Declaration and Bill of Rights, Black-

stone’s Commentaries, early state constitutions, and other evi-

dence from the Founding era).

We are persuaded that the same inquiry, though slightly

rephrased, also applies to individual rights unconnected to

criminal or trial procedures. Just as Duncan defined “funda-

mental rights” as those “necessary to an Anglo-American

regime of ordered liberty,” so the Supreme Court has deter-

mined, outside the context of incorporation, that only those

institutions and rights “deeply rooted in this Nation’s history

and tradition” can be fundamental rights protected by substan-

tive due process. Moore v. City of E. Cleveland, 431 U.S. 494,

503 (1977) (plurality opinion); id. at 503 n.10 (noting the sim-

ilarity between this general substantive due process inquiry

and the incorporation test stated in Duncan); see also Glucks-

berg, 521 U.S. at 721 (“Our Nation’s history, legal traditions,

and practices . . . provide the crucial guideposts for responsi-

ble decisionmaking [in the area of substantive due process]”

(internal quotation marks and citation omitted)). The latter

line of cases informs our analysis here, because incorporation

is logically a part of substantive due process. Indeed, the non-

incorporation cases amount to a model for straightforward

application of Duncan outside the context of criminal proce-

dure.9

9

To be sure, individual rights unconnected to criminal procedure have

been incorporated before. See, e.g., Schneider v. New Jersey, 308 U.S.

147, 160 (1939) (noting that the “freedom of speech and of the press” is

incorporated). However, in general, the Court either employed the Palko-

style test, see, e.g., Wolf v. Colorado, 338 U.S. 25, 26-27 (1949) (incorpo-

rating the right against unreasonable searches and seizures), overruled on

other grounds by Mapp, 367 U.S. at 654-55, which it abandoned in Dun-

can, or it simply stated that the right in question was incorporated without

substantive analysis, see, e.g., Schneider, 308 U.S. at 160 n.8 (citing as its

lead case Gitlow v. New York, 268 U.S. 652, 666 (1925), which assumed

without deciding that the Due Process Clause incorporated the freedom of

speech and of the press); see also Louisiana ex rel. Francis v. Resweber,

4484 NORDYKE v. KING

[9] To summarize, our task is to determine whether the

right to keep and bear arms ranks as fundamental, meaning

“necessary to an Anglo-American regime of ordered liberty.”

Duncan, 391 U.S. at 149 n.14 (emphasis added). If it does,

then the Fourteenth Amendment incorporates it. This cultur-

ally specific inquiry compels us to determine whether the

right is “deeply rooted in this Nation’s history and tradition.”

Glucksberg, 521 U.S. at 721 (internal quotation marks and

citation omitted). Guided by both Duncan and Glucksberg, we

must canvass the attitudes and historical practices of the

Founding era and the post-Civil War period, for those times

produced the constitutional provisions before us.

c

[10] The Second Amendment reads: “A well regulated

Militia, being necessary to the security of a free State, the

right of the people to keep and bear Arms, shall not be

infringed.” U.S. Const. amend. II. The prefatory clause of this

Amendment describes the right it protects. The Supreme

Court has explained that the phrase necessary to the “security

of a free State,” means necessary to the “security of a free poli-

ty.”10 See Heller, 128 S. Ct. at 2800 (internal quotation marks

329 U.S. 459, 463 (1947) (plurality opinion) (incorporating the right

against cruel and unusual punishments). The only other mode of analysis

in the case law is the historical approach the Court explicitly sanctioned

in Duncan. See, e.g., Chi., Burlington & Quincy R.R. Co. v. Chicago, 166

U.S. 226, 235-41 (1897) (incorporating the right to just compensation for

property taken for public use on the basis of principles of the common law

as revealed in cases on the right to property, in Thomas Cooley’s seminal

treatise on constitutional limitations, and in Justice Joseph Story’s Com-

mentaries on the Constitution of the United States).

10

Some have argued that the text of the prefatory clause suggests pre-

cisely the opposite: that the right to keep and bear arms was only impor-

tant for protecting the states from federal encroachment. See Parker v.

Dist. of Columbia, 478 F.3d 370, 406 (D.C. Cir. 2007) (Henderson, J., dis-

senting) (“The Amendment was drafted in response to the perceived threat

NORDYKE v. KING 4485

omitted). Thus the text of the Second Amendment already

suggests that the right it protects relates to an institution, the

militia, which is “necessary to an Anglo-American regime of

ordered liberty.” Duncan, 391 U.S. at 149 n.14. The parallel

is striking, particularly because the militia historically com-

prised all able-bodied male citizens. Heller, 128 S. Ct. at

2799.

This necessary “right of the people” existed before the Sec-

ond Amendment as “one of the fundamental rights of English-

men.” Id. at 2797-98. Heller identified several reasons why

the militia was considered “necessary to the security of a free

state.” First, “it is useful in repelling invasions and suppress-

ing insurrections. Second, it renders large standing armies

unnecessary . . . . Third, when the able-bodied men of a nation

are trained in arms and organized, they are better able to resist

tyranny.” Id. at 2800-01. In addition to these civic purposes,

Heller characterized the right to keep and bear arms as a cor-

ollary to the individual right of self-defense. Id. at 2817

(“[T]he inherent right of self-defense has been central to the

Second Amendment right.”). Thus the right contains both a

political component—it is a means to protect the public from

tyranny—and a personal component—it is a means to protect

the individual from threats to life or limb. Cf. Amar, supra,

at 46-59, 257-66.

to the ‘free[dom]’ of the ‘State[s]’ posed by a national standing army con-

trolled by the federal government.” (alteration in original)); H. Richard

Uviller & William G. Merkel, The Second Amendment in Context: The

Case of the Vanishing Predicate, 76 Chi.-Kent L. Rev. 403, 499 (2000)

(“Most significantly, the Select Committee substituted ‘State’ for ‘coun-

try’ as the referent of the ‘best security’ clause, so that the proposed

amendment now addressed more directly antifederal solicitude for state

security.”). This argument cannot survive the Supreme Court’s admonition

in Heller that “the phrase ‘security of a free state’ and close variations

seem to have been terms of art in 18th-century political discourse, mean-

ing a ‘free country’ or free polity.” Heller, 128 S. Ct. at 2800 (citing

Eugene Volokh, “Necessary to the Security of a Free State,” 83 Notre

Dame L. Rev. 1, 5 (2007)).

4486 NORDYKE v. KING

We must trace this right, as thus described, through our his-

tory from the Founding until the enactment of the Fourteenth

Amendment.

i

We begin with the Founding era. Heller reveals evidence

similar to that on which Duncan relied to conclude that the

Due Process Clause incorporated the right to a jury in crimi-

nal cases. Heller began with the 1689 English Declaration of

Right (which became the English Bill of Rights), just as Dun-

can did. Compare Heller, 128 S. Ct. at 2798 (noting that the

Declaration of Right included the right to bear arms), with

Duncan, 391 U.S. at 151 (noting that the Declaration of Right

included the right to a jury trial).11 Thus the right to keep and

bear arms shares ancestry with a right already deemed funda-

mental. Cf. Resweber, 329 U.S. at 463 (plurality opinion)

(relying solely on the presence of a prohibition against cruel

and unusual punishments in the English Bill of Rights for the

conclusion that it is incorporated into the Due Process

Clause).

The parallel continues. Heller noted the emphasis Black-

stone placed on the right, just as Duncan had looked to Black-

stone. Compare Heller, 128 S. Ct. at 2798 (“Blackstone

. . . cited the arms provision of the [English] Bill of Rights as

one of the fundamental rights of Englishmen.” (citation omit-

ted)), with Duncan, 391 U.S. at 151-52 (citing Blackstone).

This is significant because Blackstone “constituted the preem-

inent authority on English law for the founding generation.”

Alden v. Maine, 527 U.S. 706, 715 (1999). His theoretical

11

The County contends that, because the English Bill of Rights only

secured the right to bear arms against the Crown, it is not a fundamental

right worthy of incorporation. But the precise contours of the English Bill

of Rights are beside the point. As a clear statement of the “undoubted

rights and liberties” of Englishmen, Bill of Rights, 1689, 1 W. & M., c.

2, § 7 (Eng.), it is a precursor to our own Bill of Rights. Therein lies its

significance.

NORDYKE v. KING 4487

treatment of the right to bear arms provides insight into how

American colonists would have understood it.

Blackstone gave the right to bear arms pride of place in his

scheme. He divided rights of persons into absolute and rela-

tive rights. See William Blackstone, 1 Commentaries *123-

24. It is “the principal aim of society,” according to Black-

stone, “to protect individuals in the enjoyment of those abso-

lute rights,” id. at *124-25; England alone among nations had

achieved that aim. Blackstone defined these absolute rights as

“personal security, personal liberty, and private property.” Id.

at *141. The English Constitution could only secure the actual

enjoyment of these rights, however, by means of certain “bar-

riers” designed “to protect and maintain [them] inviolate.” Id.

The right to bear arms ranked among these “bulwarks of per-

sonal rights.” Id. Blackstone considered the right “a public

allowance, under due restrictions, of the natural right of resis-

tance and self-preservation, when the sanctions of society and

laws are found insufficient to restrain the violence of oppres-

sion.” Id. at *144; see also Heller, 128 S. Ct. 2798-99 (“[T]he

right secured in 1689 as a result of the [abuses of the Stuart

monarchy] was by the time of the founding understood to be

an individual right protecting against both public and private

violence.”). For readers of Blackstone, therefore, the right to

bear arms closely followed from the absolute rights to per-

sonal security, personal liberty, and personal property.12 It was

a right crucial to safeguarding all other rights.

The behavior and words of the colonists themselves also

demonstrate the right’s importance. As Heller pointed out, the

American colonists of the 1760s and 1770s strongly objected

12

Blackstone’s view of the right to bear arms pervades the writings of

the Revolutionary generation. See, e.g., Samuel Adams, Letter to the Edi-

tors, Boston Gazette, Feb. 27, 1769, reprinted in 1 The Founders’ Consti-

tution 90 (Philip B. Kurland & Ralph Lerner eds., 1987). It also suffused

public discourse at the time of the Fourteenth Amendment’s enactment.

See Amar, supra, at 261-64 (providing examples); infra pp. 4492-94.

4488 NORDYKE v. KING

to royal infringements on the right to keep and bear arms, just

as they objected to the Crown’s interference with jury trials,

a fact which Duncan highlighted. Compare Heller, 128 S. Ct.

at 2799 (“[T]he Crown began to disarm the inhabitants of the

most rebellious areas[, which] provoked polemical reactions

by Americans invoking their rights as Englishmen to keep

arms.”), with Duncan, 391 U.S. at 152 (“Royal interference

with the jury trial was deeply resented.”). A year before the

infamous Boston Massacre in 1770, one pamphleteer com-

mented on the tensions between suspicious colonists and the

British troops quartered in the city:

Instances of the licentious and outrageous behavior

of the military conservators of the peace still multi-

ply upon us, some of which are of such a nature . . .

as must serve fully to evince that a late vote of this

town, calling upon the inhabitants to provide them-

selves with arms for their defense, was a measure as

prudent as it was legal: such violences are always to

be apprehended from military troops, when quar-

tered in the body of a populous city . . . . It is a natu-

ral right which the people have reserved to

themselves, confirmed by the [English] Bill of

Rights, to keep arms for their own defence; and as

Mr. Blackstone observes, it is to be made use of

when the sanctions of society and law are found

insufficient to restrain the violence of oppression.

A Journal of the Times, Mar. 17, 1769, New York Journal,

Supp. 1, April 13, 1769, quoted in Stephen Halbrook, A Right

to Bear Arms 7 (1989). Thus, the events of the age confirmed

Blackstone’s assessment of the nature of the right.

Revolutionary agitators and theoreticians further advocated

this Blackstonian view of the right to keep and bear arms.

Two years after the Boston Massacre, Samuel Adams wrote,

in a report of one of the Committees of Correspondence, that

NORDYKE v. KING 4489

“[a]mong the Natural Rights of the Colonists are

these[:] First, a right to Life; Secondly, to Liberty;

thirdly, to Property; together with the Right to sup-

port and defend them in the best manner they can—

Those are evident Branches of, rather than deduc-

tions from, the Duty of Self-Preservation, commonly

called the first Law of Nature.”

Samuel Adams, The Rights of the Colonists (1772), reprinted

in 5 The Founders’ Constitution, supra, at 394, 395 (emphasis

added). Writing to an American unionist in 1775, Alexander

Hamilton threatened armed resistance to British invasions of

American rights. See Alexander Hamilton, The Farmer

Refuted (1775) reprinted in 1 The Works of Alexander Ham-

ilton 55, 163 (Henry Cabot Lodge ed., 1904) (“If [Great Brit-

ain] is determined to enslave us, it must be by force of arms;

and to attempt this, I again assert, would be nothing less than

the grossest infatuation, madness itself.”); see also id. at 62-

64 (referring to Blackstone’s conception of “absolute rights”).13

Thus, if the suspension of trial by jury, taxation without

representation, and other offenses constituted the most offen-

sive instances of British tyranny, the ability to call up arms-

bearing citizens was considered the essential means of colo-

nial resistance. Indeed, the attempt by British soldiers to

destroy a cache of American ammunition at Concord, Massa-

chusetts, sparked the battles at Lexington and Concord, which

began the Revolutionary War. For the colonists, the impor-

tance of the right to bear arms “was not merely speculative

theory. It was the lived experience of the[ ] age.” Amar,

13

Such rhetoric went beyond what Blackstone himself, a believer in Par-

liamentary supremacy, was prepared to support. See 1 Blackstone, supra,

*157. Colonial advocacy of the right to revolution by arms therefore bore

a closer similarity to the theories of political philosophers like John Locke

than it did to those of Blackstone. It nonetheless is significant for our pur-

poses that the colonists considered the Blackstonian right to be intrinsic

to their defense of all their rights by revolution, regardless of whether

Blackstone himself might have supported the American position.

4490 NORDYKE v. KING

supra, at 47 (referring to Locke’s conception of the right of

revolution).

This lived experience informed the colonists when they set

out to form a government. They considered, by the light of

experience as well as of education, that preserving the right

to bear arms was the appropriate way both to resist the evil

of standing armies and to render the evil unnecessary. See

Heller, 128 S. Ct. at 2800-01. Advocating for the new Consti-

tution, Hamilton argued that “if circumstances should at any

time oblige the government to form an army of any magni-

tude[,] that army can never be formidable to the liberties of

the people while there is a large body of citizens . . . who

stand ready to defend their own rights and those of their

fellow-citizens.” The Federalist No. 29, at 153 (Alexander

Hamilton) (Clinton Rossiter ed., 1961). As it was to many of

his fellow citizens, a citizenry possessed of arms and trained

in their use “appear[ed] to [Hamilton] the only substitute that

c[ould] be devised for a standing army, and the best possible

security against it, if it should exist.” Id.

[11] This brief survey of our history reveals a right indeed

“deeply rooted in this Nation’s history and tradition.” More-

over, whereas the Supreme Court has previously incorporated

rights the colonists fought for, we have here both a right they

fought for and the right that allowed them to fight.

ii

Evidence from the post-Revolutionary years strengthens

this impression. Supreme Court Justice James Wilson, one of

the framers of the Pennsylvania Constitution and the Federal

Constitution, referred, in one of his lectures on the common

law (delivered serially from 1790 to 1791), to the right of self-

defense as “the great natural law of selfpreservation, which

. . . cannot be repealed, or superseded, or suspended by any

human institution. . . . [It is] expressly recognized in the con-

stitution of Pennsylvania.” James Wilson, Lecture on the

NORDYKE v. KING 4491

Right of Individuals to Personal Safety, in 3 The Works of the

Honorable James Wilson 77, 84 (Bird Wilson ed., Phila.,

Lorenzo Press 1804). St. George Tucker, editor of “the most

important early American edition of Blackstone’s Commen-

taries,” Heller, 128 S. Ct. at 2799, extolled the right to bear

arms as the “true palladium of liberty.” St. George Tucker,

View of the Constitution of the United States, in 1 Black-

stone’s Commentaries app. at 300 (St. George Tucker ed.,

Phila., William Birch Young & Abraham Small 1803).

Emphasizing the right’s importance, Tucker cautioned that

“[w]herever standing armies are kept up, and the right of the

people to keep and bear arms is, under any colour or pretext

whatsoever, prohibited, liberty, if not already annihilated, is

on the brink of destruction.” Id. Justice Joseph Story, in his

influential Commentaries on the Constitution, echoed that

sentiment. 3 Joseph Story, Commentaries on the Constitution

of the United States § 1890, at 746 (Boston, Hilliard, Gray &

Col. 1833) (“The right of the citizens to keep and bear arms

has justly been considered, as the palladium of the liberties of

a republic; since it offers a strong moral check against the

usurpation and arbitrary power of rulers . . . .”).

Furthermore, state constitutions confirm the importance of

the right to keep and bear arms throughout our history. “Four

States adopted analogues to the Federal Second Amendment

in the period between independence and the ratification of the

Bill of Rights[, and b]etween 1789 and 1820, nine states

adopted [such] analogues.” Heller, 128 S. Ct. at 2802-03.

Thus, as of 1820, thirteen of the twenty-three states admitted

to the Union had Second Amendment analogues. We must

take account of this prevalence of state constitutional ana-

logues to the Second Amendment, just as the Supreme Court

noted the ubiquity of state constitutional provisions guaran-

teeing juries in criminal cases when it incorporated that right.

See Duncan, 391 U.S. at 153-54. The statistics are not as

4492 NORDYKE v. KING

overwhelming as those before the Court in Duncan, but they

are nonetheless compelling.14

These materials reflect a general consensus, in case law as

well as commentary, on the importance of the right to keep

and bear arms to American republicanism. See, e.g., Heller,

128 S. Ct. 2805-09, 2805-09 (discussing materials). They

show the continued vitality of the right that the Englishmen

of the Glorious Revolution declared, Blackstone lauded, and

the American colonists depended upon.

iii

Finally, we survey the period immediately following the

Civil War. Although it has not been considered dispositive in

Fourteenth Amendment cases, the understanding of the Fram-

ers of that Amendment logically influences whether a right is

fundamental, in the sense of deeply rooted in our history and

traditions and necessary to an Anglo-American conception of

ordered liberty.

As Heller recognized, “[i]n the aftermath of the Civil War,

there was an outpouring of discussion of the Second Amend-

ment in Congress and in public discourse, as people debated

whether and how to secure constitutional rights for newly

freed slaves.” 128 S. Ct. at 2809-10; see also Amar, supra, at

192 (noting that “slavery led to state repudiation of virtually

every one of the . . . freedoms [in the Bill of Rights]”). One

major concern in these debates was the disarming of newly

freed blacks in Southern states by statute as well as by vigi-

lantism. See Heller, 128 S. Ct. at 2810. Many former slave

states passed laws to that effect. See, e.g., Act of Nov. 29,

1865, 1865 Miss. Laws 165 (“[N]o freedman, free Negro or

mulatto . . . shall keep or carry fire-arms of any kind, or any

14

As of today, forty-four states protect the right to bear arms. See

Eugene Volokh, State Constitutional Rights to Keep and Bear Arms, 11

Tex. Rev. L. & Pol. 191, 205 (2006).

NORDYKE v. KING 4493

ammunition, dirk or bowie knife . . . .”). Brigadier General

Charles H. Howard, in a letter provided to Congress, reported

to the head of the Freedmen’s Bureau that the “militia organi-

zations in the opposite county of South Carolina (Edgefield)

were engaged in disarming the negroes. . . . Now, at Augusta,

. . . I have authentic information that these abuses continue. In

southwestern Georgia, I learned that the militia had done the

same, sometimes pretending to act under orders from United

States authorities.” Report of the Joint Committee on Recon-

struction, H.R. Rep. No. 39-30, pt. 3, at 46 (1st Sess. 1866).

The Framers of the Fourteenth Amendment sought to end

such oppressions. During the debates surrounding the Freed-

men’s Bureau Act, the Civil Rights Act, and the Fourteenth

Amendment, Senator Pomeroy listed among the “indispens-

able” “safeguards of liberty” someone’s “right to bear arms

for the defense of himself and family and his homestead.”

Cong. Globe, 39th Cong., 1st Sess. 1182 (1866), quoted in

Heller, 128 S. Ct. at 2811. Representative Bingham, a princi-

pal author of the Fourteenth Amendment, argued that it was

necessary to overrule Barron and apply the Bill of Rights to

the states. In his view, Barron was wrongly decided because

the Bill of Rights “secur[ed] to all the citizens in every State

all the privileges and immunities of citizens, and to all the

people all the sacred rights of persons—those rights dear to

freemen and formidable only to tyrants.” Id. at 1090. Repre-

sentative James Wilson, a supporter of the Fourteenth

Amendment, described Blackstone’s scheme of absolute

rights as synonymous with civil rights, in a speech in favor of

the Civil Rights Act of 1866 (a precursor to the Fourteenth

Amendment). Id. at 1115-19. Similarly, Representative Ros-

well Hart listed “the right of the people to keep and bear

arms,” among other rights, as inherent in a “republican gov-

ernment.” Id. at 1629. The reports and testimony contain simi-

lar evidence, confirming that the Framers of the Fourteenth

Amendment considered the right to keep and bear arms a cru-

cial safeguard against white oppression of the freedmen. Ste-

phen P. Hallbrook, Freedmen, the Fourteenth Amendment,

4494 NORDYKE v. KING

and the Right to Bear Arms, 1866-1876, at 9-38 (1998); see

also Amar, supra, at 261-66.

We also note that the target of the right to keep and bear

arms shifted in the period leading up to the Civil War. While

the generation of 1789 envisioned the right as a component of

local resistance to centralized tyranny, whether British or fed-

eral, the generation of 1868 envisioned the right as safeguard

to protect individuals from oppressive or indifferent local

governments. See Amar, supra, at 257-66. But though the

source of the threat may have migrated, the antidote remained

the same: the individual right to keep and bear arms, a

recourse for “when the sanctions of society and laws are

found insufficient to restrain the violence of oppression.” 1

Blackstone, supra, at *144.

iv

The County does little to refute this powerful evidence that

the right to bear arms is deeply rooted in the history and tradi-

tion of the Republic, a right Americans considered fundamen-

tal at the Founding and thereafter. The County instead argues

that the states, in the exercise of their police power, are the

instrumentalities of the right of self-defense at the heart of the

Second Amendment. This argument merely rephrases the col-

lective rights argument the Supreme Court rejected in Heller.

Indeed, one need only consider other constitutional rights to

see the poverty of this contention. State police power also

covers, for instance, some of the conduct the First Amend-

ment protects, but that does not deny individuals the right to

assert First Amendment rights against the states.15

15

Another argument to which the County devotes considerable time is

a rather idiosyncratic peroration on political philosophy. The County

argues that the ideas of eighteenth-century social contractarianism—the

general political philosophy of men like Blackstone and Locke—presumed

that individuals sacrificed their perfect liberty in nature to fight to preserve

themselves in order to secure the benefits of the social contract. Though

perhaps true as a summary statement, this argument says nothing about the

extent to which society limits the absolute or natural right of self-defense.

NORDYKE v. KING 4495

Once the County actually addresses modern incorporation

doctrine, it relies on general assertions that run afoul of

Heller. For example, the County declares that “the English

common law tradition does not recognize an individual’s right

to possess a firearm as a fundamental right.” Heller plainly

contradicts that statement because it says that “[b]y the time

of the founding, the right to have arms had become funda-

mental for English subjects.” 128 S. Ct. at 2798. The County

also claims that Heller “nowhere concludes that an individual

right to possess firearms for personal self-defense is a funda-

mental right.” But that misses the point. If Heller had indeed

held that the right to keep and bear arms was a fundamental

right as we use the term in substantive due process doctrine,

then the issue would be foreclosed. The point is that language

throughout Heller suggests that the right is fundamental by

characterizing it the same way other opinions described enu-

merated rights found to be incorporated.

Surely, we tread carefully, for “guideposts for responsible

decisionmaking in this uncharted area are scarce and open-

ended.” Glucksberg, 521 U.S. at 720 (internal quotation

marks and citation omitted). But we have before us a right

both “careful[ly] descri[bed],” because listed in the Bill of

Rights and associated with an understanding dating to the

Founders, and, as the foregoing history reveals, “deeply

rooted in this Nation’s history and tradition.” Id. at 721 (inter-

nal quotation marks and citation omitted). Thus, because the

right to keep and bear arms can meet the criteria set by Dun-

can and Glucksberg, we have undertaken the further historical

analysis necessary to confirm what in Heller was only a sugges-

tion.16

16

Because, as Heller itself points out, 128 S. Ct. at 2813 n.23, Cruik-

shank and Presser did not discuss selective incorporation through the Due

Process Clause, there is no Supreme Court precedent directly on point that

bars us from heeding Heller’s suggestions. Cf. Rodriguez de Quijas v.

Shearson/Am. Express, Inc., 490 U.S. 477, 484 (1989) (“If a precedent of

this Court has direct application in a case, yet appears to rest on reasons

rejected in some other line of decisions, the Court of Appeals should fol-

low the case which directly controls . . . .”). But see Maloney, 554 F.3d at

58-59 (concluding that Presser forecloses application of the Second

Amendment to the states).

4496 NORDYKE v. KING

d

[12] 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 com-

mentators 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 fun-

damental, that it is necessary to the Anglo-American concep-

tion of ordered liberty that we have inherited.17 We are

therefore persuaded that the Due Process Clause of the Four-

teenth Amendment incorporates the Second Amendment and

applies it against the states and local governments.18

B

Though we conclude that the Due Process Clause of the

Fourteenth Amendment applies the protections of the Second

Amendment to state and local governments, the question

17

By speaking of the two parts of the incorporation inquiry separately—

“deeply rooted in this Nation’s history and tradition” and “necessary to an

Anglo-American regime of ordered liberty”—we do not mean to imply a

distinct two-pronged test. The incorporation cases and the substantive due

process cases both treat these two phrases as aspects of a holistic inquiry.

18

The County and its amici point out that, however universal its earlier

support, the right to keep and bear arms has now become controversial.

See generally Sanford Levinson, The Embarrassing Second Amendment,

99 Yale L.J. 637 (1989). But we do not measure the protection the Consti-

tution affords a right by the values of our own times. If contemporary

desuetude sufficed to read rights out of the Constitution, then there would

be little benefit to a written statement of them. Some may disagree with

the decision of the Founders to enshrine a given right in the Constitution.

If so, then the people can amend the document. But such amendments are

not for the courts to ordain.

NORDYKE v. KING 4497

remains whether such application invalidates the specific

Ordinance the Nordykes challenge.

1

Again, we begin with Heller, which did not announce any

standard of review, though it precluded rational basis review

as an insufficient protection for a specifically enumerated

right.19 See Heller, 128 S. Ct. at 2817 n.27. Rather than insist

on a standard of review at the outset, the Heller Court evalu-

ated the regulation at issue against the kind of conduct the

Second Amendment protected from infringement.

The Court began its analysis of the District of Columbia’s

law by noting what activity the law covered: “the law totally

bans handgun possession in the home. It also requires that any

lawful firearm in the home be disassembled or bound by a

trigger lock at all times, rendering it inoperable.” Id. at 2817

(emphases added). Next, the Court connected the statute’s

operation to the conduct the Second Amendment protects:

“the inherent right of self-defense has been central to the Sec-

ond Amendment right. The handgun ban amounts to a prohi-

bition of an entire class of ‘arms’ that is overwhelmingly

chosen by American society for that lawful purpose.” Id. It

was thus the statute’s burdens on effective self-defense that

implicated the Second Amendment. More particularly, Heller

noted that the “prohibition extends . . . to the home, where the

need for defense of self, family, and property is most acute.”

Id. For the Court, this meant that, no matter the intensity of

constitutional scrutiny, the District’s law could not survive.

19

Fundamental rights usually receive strict scrutiny as a matter of sub-

stantive due process doctrine. See, e.g., Glucksberg, 521 U.S. at 721. But

where the Due Process Clause incorporates one of the rights enumerated

in the Bill of Rights, the standard of review becomes that appropriate to

the specific right. For example, First Amendment rights, whether against

the states or the federal government, trigger the same standards of review.

We find no reason to treat the Second Amendment differently.

4498 NORDYKE v. KING

[13] Heller tells us that the Second Amendment’s guaran-

tee revolves around armed self-defense. If laws make such

self-defense impossible in the most crucial place—the home

—by rendering firearms useless, then they violate the Consti-

tution.

2

[14] But the Ordinance before us is not of that ilk. It does

not directly impede the efficacy of self-defense or limit self-

defense in the home. Rather, it regulates gun possession in

public places that are County property.

The Nordykes counter that the Ordinance indirectly bur-

dens effective, armed self-defense because it makes it more

difficult to purchase guns. They point to case law on the right

to sexual privacy as an analog. In Carey v. Population Ser-

vices International, 431 U.S. 678 (1977), for instance, the

Supreme Court measured state regulations limiting access to

contraceptives by the same yardstick as they would a total ban

on contraceptives. See id. at 688. Just as the Court held that

“[l]imiting the distribution of nonprescription contraceptives

to licensed pharmacists clearly imposes a significant burden

on the right of the individuals to use contraceptives,” id. at

689, so the Nordykes argue that limiting the availability of

firearms burdens their right to keep and bear arms for the pur-

pose of self-defense.20

But “not every law which makes a right more difficult to

exercise is, ipso facto, an infringement of that right.” Planned

Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 873 (1992)

20

The County responds that the Nordykes’ objection to the Ordinance

has nothing to do with self-defense and everything to do with profit.

According to the County, the Second Amendment does not protect the

right to sell guns profitably and efficiently on County property. This is

beside the point. The emphasis Heller placed on effective armed self-

defense requires an inquiry into whether the Ordinance renders such self-

defense impossible as a practical matter.

NORDYKE v. KING 4499

(joint opinion of O’Connor, Kennedy & Souter, JJ.). Indeed,

“[n]umerous forms of state regulation might have the inciden-

tal effect of increasing the cost or decreasing the availability

of medical care . . . for abortion,” for instance. Id. at 874.

Even though the Supreme Court has recognized a right to an

abortion, it has approved some of those regulations.

The Court has also held that the government need not fund

abortions, even though women have a substantive due process

right to obtain them. See Harris v. McRae, 448 U.S. 297, 315-

16 (1980). In Harris, the Court drew a crucial distinction

between government interference with activity the Constitu-

tion protects and the government’s decision not to encourage,

to facilitate, or to partake in such activity. “Although the lib-

erty protected by the Due Process Clause affords protection

against unwarranted government interference with freedom of

choice in the context of certain personal decisions,” Harris

declared, “it does not confer an entitlement to such funds as

may be necessary to realize all the advantages of that free-

dom.” Id. at 317-18.21 If we apply these principles here, we

conclude that although the Second Amendment, applied

through the Due Process Clause, protects a right to keep and

bear arms for individual self-defense, it does not contain an

entitlement to bring guns onto government property.

The County also points to the famous passage in Heller in

which the Court assured that

nothing in our opinion should be taken to cast doubt

on longstanding prohibitions on the possession of

firearms by felons and the mentally ill, or laws for-

bidding the carrying of firearms in sensitive places

21

Similarly, the Supreme Court recently confirmed that governments

have a great deal of leeway in managing their own property. For example,

they can adopt certain messages as their own and decline to adopt others

without infringing the Free Speech Clause of the First Amendment. See

Pleasant Grove City v. Summum, 129 S. Ct. 1125, 1131 (2009).

4500 NORDYKE v. KING

such as schools and government buildings, or laws

imposing conditions and qualifications on the com-

mercial sale of arms.

Heller, 128 S. Ct. at 2816-17 (emphasis added). The County

argues that its Ordinance merely forbids the carrying of fire-

arms in sensitive places, which includes the Alameda County

fairgrounds and other County property.

The Nordykes object that the County has provided no way

to determine what constitutes a “sensitive place.” But neither

did Heller; Second Amendment law remains in its infancy.

The Court listed schools and government buildings as exam-

ples, presumably because possessing firearms in such places

risks harm to great numbers of defenseless people (e.g., chil-

dren). Along the same lines, we notice that government build-

ings and schools are important to government functioning.

The Nordykes argue that the Ordinance is overbroad

because it covers more than such sensitive places. They list

the areas covered: “open space venues, such as County-owned

parks, recreational areas, historic sites, parking lots of public

buildings . . . and the County fairgrounds.” The only one of

these that seems odd as a “sensitive place” is parking lots. The

rest are gathering places where high numbers of people might

congregate. That is presumably why they are called “open

space venues.” Indeed, the fairgrounds itself hosts numerous

public and private events throughout the year, which a large

number of people presumably attend; again, the Nordykes’

gun shows routinely attracted about 4,000 people. Although

Heller does not provide much guidance, the open, public

spaces the County’s Ordinance covers fit comfortably within

the same category as schools and government buildings.

[15] To summarize: the Ordinance does not meaningfully

impede the ability of individuals to defend themselves in their

homes with usable firearms, the core of the right as Heller

analyzed it. The Ordinance falls on the lawful side of the divi-

NORDYKE v. KING 4501

sion, familiar from other areas of substantive due process doc-

trine, between unconstitutional interference with individual

rights and permissible government nonfacilitation of their

exercise. Finally, prohibiting firearm possession on municipal

property fits within the exception from the Second Amend-

ment for “sensitive places” that Heller recognized. These con-

siderations compel us to conclude that the Second

Amendment does not invalidate the specific Ordinance before

us. Therefore, the district court did not abuse its discretion in

denying the Nordykes leave to amend their complaint to add

a Second Amendment claim that would have been futile.

III

The Nordykes also appeal from the district court’s grant of

summary judgment on their claim under the First Amend-

ment.

We have already laid out the template for analyzing the

First Amendment claim, albeit in the context of a facial chal-

lenge:

In evaluating [the Nordykes’] claim, we must ask

whether “[a]n intent to convey a particularized mes-

sage [is] present, and [whether] the likelihood [is]

great that the message would be understood by those

who viewed it.” Spence v. Washington, 418 U.S.

405, 410-11 (1974). If the possession of firearms is

expressive conduct, the question becomes whether

the County’s “regulation is related to the suppression

of free expression.” Texas v. Johnson, 491 U.S. 397,

403 (1989). If so, strict scrutiny applies. If not, we

must apply the less stringent standard announced in

United States v. O’Brien, 391 U.S. 367, 377 (1968).

Nordyke III, 319 F.3d at 1189 (alterations in original).

Because the County “does not contest that gun possession in

the context of a gun show may involve certain elements of

4502 NORDYKE v. KING

protected speech,” we assume, without deciding, that the Nor-

dykes’ possession of guns amounts to speech under the

Spence test.

A

1

Next, the question is whether to apply strict scrutiny to the

Ordinance under Johnson or “the less stringent standard” of

O’Brien.

[16] The level of scrutiny depends on whether the Ordi-

nance is “unrelated to the suppression of free expression,”

Johnson, 491 U.S. at 407 (internal quotation marks and cita-

tion omitted), which in turn hinges on the aim of the law. The

government may not “proscribe particular conduct because it

has expressive elements. . . . A law directed at the communi-

cative nature of conduct must, like a law directed at speech

itself, be justified by the substantial showing of need that the

First Amendment requires.” Id. at 406 (internal quotation

marks and citation omitted). In other words, courts determine

the aim of a law by evaluating “the governmental interest at

stake.” Id. at 406-07. If a law hits speech because it aimed at

it, then a court must apply strict scrutiny; but if it hits speech

without having aimed at it, then a court must apply the

O’Brien intermediate scrutiny standard.

2

[17] The Nordykes argue that the County adopted the Ordi-

nance in order to silence members of the so-called “gun cul-

ture” from expressing their political and social views about

firearms and the Second Amendment. However, the language

of the statute suggests that gun violence, not gun culture,

motivated its passage. Section 9.12.120(a) recites several sta-

tistics about gunshot deaths and injuries in Alameda County

and then concludes that “[p]rohibiting the possession of fire-

NORDYKE v. KING 4503

arms on County property will promote the public health and

safety by contributing to the reduction of gunshot fatalities

and injuries in the County.” Id.

Nevertheless, the Nordykes point to alternative evidence of

the statute’s purpose: the comments of Supervisor King and

the section 9.12.120(f)(4) exception for authorized firearm

use at certain artistic events.

As we have quoted them above, supra pp. 4471-72, King’s

private and public remarks could be read to suggest that she

harbored a motive to exclude people of a certain view from

the fairgrounds. But the feelings of one County official do not

necessarily bear any relation to the aims and interests of the

County. Indeed, the Supreme Court has admonished litigants

against attributing the motivations of legislators to legisla-

tures:

What motivates one legislator to make a speech

about a statute is not necessarily what motivates

scores of others to enact it, and the stakes are suffi-

ciently high for us to eschew guesswork. We decline

to void essentially on the ground that it is unwise

legislation . . . which could be reenacted in its exact

form if the same or another legislator made a ‘wiser’

speech about it.

O’Brien, 391 U.S. at 384 (emphasis added).

In Johnson, too, the Court determined whether the law at

issue was related to the suppression of speech without psy-

choanalyzing its authors. The opinion never even mentioned

legislative history or the stated motives of any legislator.

Instead, it analyzed the statute in terms of the interests the

State declared, not the personal likes or dislikes of the law’s

backers. Other First Amendment cases are of a piece. See,

e.g., City of Renton v. Playtime Theatres, Inc., 475 U.S. 41,

48 (1986) (“The ordinance by its terms is designed to prevent

4504 NORDYKE v. KING

crime, protect the city’s retail trade, maintain property values,

and generally protect and preserve the quality of the city’s

neighborhoods, commercial districts, and the quality of urban

life, not to suppress the expression of unpopular views.”

(emphasis added) (internal quotation marks and alterations

omitted)); Boos v. Barry, 485 U.S. 312, 320-21 (1988) (opin-

ion of O’Connor, J.).

This approach is particularly appropriate here, because the

County has offered a perfectly plausible purpose for the Ordi-

nance: the reduction of gun violence on County property. The

Ordinance itself proclaims that purpose; even Supervisor

King expressed it during her press conference.

Undeterred, the Nordykes also argue that the statute’s

exception for certain artistic productions or events indicates

its constitutionally suspect relation to the suppression of

speech. They cry foul because the Ordinance effectively bans

gun shows at the fairgrounds by regulating gun possession

there so strictly, while it goes out of its way to accommodate

the Scottish Games. But most statutes have exceptions; they

only suggest unconstitutional favoritism if what they allow

generates the same problems as what they permit. See, e.g.,

Metromedia, Inc. v. City of San Diego, 453 U.S. 490, 510-12

(1981) (plurality opinion). The Scottish Games reenact old

battles; the Nordykes sponsor heavily attended gun shows. It

is not difficult to see how 4,000 shoppers trading in modern

firearms pose more danger than a crowd of history buffs in

traditional garb playing with blank ammunition. In any event,

only if the Scottish Games ensure that “authorized partici-

pants” possess the firearms or that the firearms are secure can

they get the benefit of the exception. If the Nordykes could

meet one of those criteria, they could get the benefit of the

exception as well.

[18] We reject the Nordykes’ invitation to apply strict scru-

tiny because we conclude that the Ordinance is “unrelated to

the suppression of free expression.” Johnson, 491 U.S. at 407

NORDYKE v. KING 4505

(internal quotation marks and citation omitted). Instead,

O’Brien’s heightened scrutiny standard applies.

B

“[W]hen ‘speech’ and ‘nonspeech’ elements are combined

in the same course of conduct, a sufficiently important gov-

ernmental interest in regulating the nonspeech element can

justify incidental limitations on First Amendment freedoms.”

O’Brien, 391 U.S. at 376. More specifically, “a government

regulation is sufficiently justified if it is within the constitu-

tional power of the Government; if it furthers an important or

substantial governmental interest; if the governmental interest

is unrelated to the suppression of free expression; and if the

incidental restriction on alleged First Amendment freedoms is

no greater than is essential to the furtherance of that interest.”

Id. at 377.

The first prong has more relevance to the federal govern-

ment, for it exercises only enumerated powers. The reverse,

of course, is the case with state and local governments. Unless

the Constitution specifically removes a power from the states,

they have the authority to use it.22 U.S. Const. amend. X (“The

powers not delegated to the United States by the Constitution,

nor prohibited by it to the States, are reserved to the States

respectively, or to the people.”); see also Cruikshank, 92 U.S.

at 551 (“The government of the United States is one of dele-

gated powers alone. Its authority is defined and limited by the

Constitution. All powers not granted to it by that instrument

are reserved to the States or the people.”). We pass over the

first prong because the Nordykes make no argument that

municipalities lack the power to regulate firearms possession

on their own property.

22

A power of the State to do something, of course, is separate from the

rights of individuals, which may preclude states from doing things they

have the power to do.

4506 NORDYKE v. KING

[19] The second prong requires us to evaluate whether the

Ordinance furthers the County’s interest in promoting safety

and discouraging violence. The Nordykes argue that, given

their as-applied, as opposed to a facial, challenge, the Ordi-

nance is unconstitutional because the County cannot show

that any violence ever occurred at their gun shows. But courts

analyze the constitutionality of statutes as applied to a litigant

in the abstract, regardless of whether or not he has himself

actually created the problem that motivates the law he chal-

lenges. See, e.g., Clark v. Cmty. for Creative Non-Violence,

468 U.S. 288, 296-97 (1984) (“[T]he validity of this regula-

tion need not be judged solely by reference to the demonstra-

tion at hand.”); One World One Family Now v. City & County

of Honolulu, 76 F.3d 1009, 1013 n.6 (9th Cir. 1996) (noting,

in the context of an as-applied challenge, that the government

need not “offer any concrete evidence demonstrating that [the

plaintiff’s activities] actually” caused the harm the govern-

ment sought to prevent). The County could reasonably believe

that guns are as dangerous at the Nordykes’ gun shows as

they are at other events on County property.

[20] The third prong of the O’Brien test simply repeats the

threshold inquiry of whether the statute is unrelated to the

suppression of free expression, which we addressed above.

We therefore move on to the final, fourth prong: that the

restriction be no greater than necessary. The Nordykes argue

that there are other, less restrictive ways the County could

reduce gun violence, such as by using metal detectors. But

how would metal detectors prevent gun violence on County

property unless County officials could confiscate the guns that

those devices discovered? And County officials could not

confiscate the weapons or turn away armed visitors unless it

were illegal to bring firearms on County property. The County

thought it dangerous for people to wander around its property

armed. To ban or strictly to regulate gun possession on

County land is the only straightforward response to such a

danger.

NORDYKE v. KING 4507

[21] We conclude that the Ordinance passes the O’Brien

test as applied to the Nordykes’ gun shows. The district court

properly granted summary judgment to the County on this

claim.

IV

The Nordykes’ final claim alleges a violation of the Equal

Protection Clause. It revolves around their suspicion that the

exception in the Ordinance for certain artistic events, Ala-

meda Code § 9.12.120(f)(4), was designed to favor groups

like the Scottish Games over gun show participants, a favorit-

ism resting on the County’s disdain for the “gun culture.”

The first part of equal protection analysis is to determine

whether the government has classified people. See Christy v.

Hodel, 857 F.2d 1324, 1331 (9th Cir. 1988). “Once the plain-

tiff establishes governmental classification, it is necessary to

identify a ‘similarly situated’ class against which the plain-

tiff’s class can be compared. The goal of identifying a simi-

larly situated class . . . is to isolate the factor allegedly subject

to impermissible discrimination. The similarly situated group

is the control group.” Freeman v. City of Santa Ana, 68 F.3d

1180, 1187 (9th Cir. 1995) (internal quotation marks and cita-

tions omitted).

Section 9.12.120(f)(4) exempts from the Ordinance’s reach

“[t]he possession of a firearm by an authorized participant in

a motion picture, television, video, dance, or theatrical pro-

duction or event,” as long as the participant secures the gun

when he is not actually using it. Alameda Code

§ 9.12.120(f)(4). In other words, the statute distinguishes

between those who are authorized participants in the specified

productions or events and those who are not. Though this

might amount to a classification, the Nordykes cannot point

to a similarly situated “control group.” The Scottish Games,

with their historical reenactments, are a very different kettle

of fish from the Nordykes and their gun shows. Crucially, the

4508 NORDYKE v. KING

Nordykes have not argued that they could meet the excep-

tion’s requirement that firearms be secured whenever an

authorized participant is not actually using them. No wonder.

They have admitted that the very nature of gun shows, in

which vendors show weapons to prospective buyers and

admirers, makes it impossible.

[22] We conclude that the Nordykes are not situated simi-

larly to the Scottish Games in that they cannot meet the safety

requirements of the exception. The district court was therefore

correct to award the County summary judgment on this claim

as well.

V

For the foregoing reasons, we AFFIRM the district court’s

grant of summary judgment to the County on the Nordykes’

First Amendment and equal protection claims and, although

we conclude that the Second Amendment is indeed incorpo-

rated against the states, we AFFIRM the district court’s

refusal to grant the Nordykes leave to amend their complaint

to add a Second Amendment claim in this case.

AFFIRMED.

GOULD, Circuit Judge, concurring:

I concur in Judge O’Scannlain’s opinion but write to elabo-

rate my view of the policies underlying the selective incorpo-

ration decision. First, as Judge O’Scannlain has aptly

explained, the rights secured by the Second Amendment are

“deeply rooted in this Nation’s history and tradition,” and

“necessary to the Anglo-American regime of ordered liberty.”

The salient policies underlying the protection of the right to

bear arms are of inestimable importance. The right to bear

arms is a bulwark against external invasion. We should not be

NORDYKE v. KING 4509

overconfident that oceans on our east and west coasts alone

can preserve security. We recently saw in the case of the ter-

rorist attack on Mumbai that terrorists may enter a country

covertly by ocean routes, landing in small craft and then

assembling to wreak havoc. That we have a lawfully armed

populace adds a measure of security for all of us and makes

it less likely that a band of terrorists could make headway in

an attack on any community before more professional forces

arrived.1 Second, the right to bear arms is a protection against

the possibility that even our own government could degener-

ate into tyranny, and though this may seem unlikely, this pos-

sibility should be guarded against with individual diligence.

Third, while the Second Amendment thus stands as a protec-

tion against both external threat and internal tyranny, the rec-

ognition of the individual’s right in the Second Amendment,

and its incorporation by the Due Process Clause against the

states, is not inconsistent with the reasonable regulation of

weaponry. All 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. Also, important governmental interests will

justify reasonable regulation of rifles and handguns, and the

problem for our courts will be to define, in the context of par-

ticular regulation by the states and municipalities, what is rea-

1

English history as summarized by Winston Churchill shows constant

recourse to militia to withstand invading forces that arrived not rarely

from England’s neighboring lands. See generally 2 Winston S. Churchill,

History of the English Speaking Peoples: The New World (Dodd, Mead,

& Co. 1966); 3 Winston S. Churchill, History of the English Speaking

Peoples: The Age of Revolution (Dodd, Mead, & Co. 1967). Also, during

World War II, when England feared for its survival and anticipated the

possibility of a Nazi invasion, its homeland security policy took into

account that its Home Guard might slow or retard an offensive, which

could come at any point on the coastline, until trained military forces

could be brought to bear to repel an invader—because “England was to be

defended by its people, not destroyed.” See generally 1 Winston Churchill,

Their Finest Hour 161-76, esp. 174-76 (Houghton Mifflin Co. 1949).

4510 NORDYKE v. KING

sonable and permissible and what is unreasonable and

offensive to the Second Amendment.