In the historic D.C. v. Heller case, the Supreme Court made clear that the federal government cannot infringe the Second Amendment right to keep and bear arms for self defense and other traditional lawful purposes. One of the issues not addressed, however, was the incorporation of the 2nd Amendment into the 14th Amendment. Information about what “incorporation” means,why it is important, and what the Nordyke v. Alamenda case is about can be seen below:
What “Incorporation” Means
The bill of rights, which includes the Second Amendment, originally applied against only the federal government. This meant that while the national government could not infringe a basic right protected by the bill of rights, state or local governments were not so restricted. The 14th Amendment to the US Constitution was passed to prohibit state and local governments from infringing basic rights. However before a basic right (such as the 2nd Amendment) is applied against state and local governments, the courts must “incorporate” that right into the 14th Amendment. Put another way, incorporation is the process through which courts determine that a basic right applies against state/local governments the same way it applies against the Federal government.
Why Incorporation is so Important
Most of the 2nd Amendment violations that occur in the US today are the result of laws passed by state and local governments. At the top of that list are the handgun bans in Chicago, IL and Oak Park, IL. Both of these municipalities still have handgun bans in effect. Since the 2nd Amendment has not yet been incorporated into the 14th Amendment, these handgun bans were unaffected by the D.C. v. Heller case – although they are being challenged in court right now. Once the Second Amendment is (hopefully) incorporated into the 14th Amendment, these handgun bans will also be struck down.
The Nordyke v. Alamenda Case
The Nordyke v. Alamenda case is now before the Ninth Circuit Court of Appeals, which is the appellate court for California and several other states. This case was filed by gun show promoters challenging an anti-gun ordinance that banned guns on county property. If the Second Amendment is incorporated by the Ninth Circuit Court of Appeals, then the same 2nd Amendment protections that currently apply against the federal government would be applied against state and local governments that are within the Ninth Circuit’s geographical bounds. That means that the Chicago and Oak Park handgun bans would not be immediacy struck down, as neither Chicago or Oak Park are in that circuit. However the findings of the 9th Circuit would be persuasive to the other courts of appeal across the country (including the Seventh Circuit, in which Chicago and Oak Park reside). When the case made its way up to the Supreme Court and was affirmed, or when the Seventh Circuit incorporated the 2nd Amendment into the 14th Amendment, then the Chicago and Oak Park handgun bans would be abolished.
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