by Michael Stephan
The Supreme Court’s controversial decision in District of Columbia v. Heller (2008) drew speculation from both sides of the gun-rights debate as to what our Second Amendment means today. The Second Amendment, which was largely unexplored by the Court until Heller, was held to protect individuals’ rights to possess firearms and to use those firearms for traditionally lawful purposes unrelated to service in a militia.
Now, three years later, we are still unclear about the contours of our Second Amendment as courts grapple with Heller and its progeny. That may soon change, however, as courts reconsider run-of-the-mill constitutional law cases as Second Amendment cases. A recent Ninth Circuit case, for instance, does just that.
In Nordyke v. King, the Ninth Circuit allowed pro-gun litigants to add a Second Amendment claim to their decade-old lawsuit challenging a California county ordinance that bans firearms on county property. The plaintiffs, two long-time gun show promoters, originally filed their challenge in 1999 and alleged that the county’s ban was intended to prohibit gun shows rather than reduce gun-related violence. The plaintiffs challenged the ban on First Amendment grounds, arguing that the county’s efforts to ban gun shows unconstitutionally burdened members of the “gun culture” from expressing their views about firearms.
The plaintiffs lost on their First Amendment claim. But during the many years that their case was being heard and appealed, the Supreme Court issued its landmark decisions in Heller and McDonald v. Chicago(2010), two cases that “[created] all of the Supreme Court’s modern Second Amendment case law.” Because the plaintiffs filed their complaint without the benefit of Heller and McDonald, the Ninth Circuit held, they may not have alleged facts or made arguments that would now substantiate a Second Amendment claim. Thus, the plaintiffs were “given the opportunity to further amend their complaint” in light of Heller and McDonald.
While the Nordyke case itself might eventually elucidate the modern meaning of our right to bear arms, it also gives precedential support to pro-gun litigants seeking to bolster their existing lawsuits with otherwise omitted Second Amendment claims.