Another Setback

As reported at the Volokh Conspiracy, the U.S. Court of Appeals has ordered Nordyke v. King to be reviewed by the court en banc. This unexpected move means that, temporarily at least, the Second Amendment has been snatched back from California and the rest of the Ninth Circuit. However, the news may not be all bad.

While the rehearing may void incorporation, it is also possible that the court may instead correct some of the problems with the original ruling, which held that the Second Amendment applied to state and local governments but that the county ordinance in question did not violate it. Even if incorporation is voided in the Ninth Circuit, the U.S. Supreme Court is still likely to hear one of the other incorporation cases currently on appeal. In any event, pending civil-rights actions in California may face a longer, more difficult course.

Victory in Defeat

Lest it appear that I ignore setbacks and defeats …

As the New York Times reported today, the U.S. Senate failed to pass an amendment to a defense-spending bill that would have mandated nationwide recognition of concealed-weapons permits—which, technically, Article IV of the U.S. Constitution already requires. Actually, the amendment was approved 58 to 37, but procedural rules required 60 votes. Of course, even if the amendment had eventually passed into law, it would have done little for California … other than to further demonstrate that most other Americans enjoy more freedom than we do in this area.

However, this minor defeat illustrates how far we have come since the zenith of the gun-control movement in A.D. 1994. Over half the Senate voted in favor of a provision that would have benefited law-abiding gun owners. That is progress in itself.

Climatic Change and Human History

As we traveled through the tortured landscape of the Great Basin on our way to and from Utah, I was reminded of the long history of climatic change in this region. Millions of years ago, it was seabed. Thousands of years ago, it was largely filled with lakes and rivers fed by melting glaciers. Even after the glaciers began their abrupt but long retreat, the region remained wet and lush long enough for ancient humans to survive and prosper.


That prosperity didn’t last. The climate continued to change. Lakes and rivers shrank, and some disappeared altogether. Rainfall also declined. The Great Basin dried out. Crops failed. People died. The first inhabitants had all but vanished by the time more adaptable tribes arrived from the east to dig wells, divert rivers, and build cities.

Despite all the recent concern over climatic change, it is simply not a new phenomenon. In the broadest sense, human history has been defined by our response to this ongoing process. Legendary civilizations arose and thrived on the low-lying temperate plains, only to be washed away by the rising seas that heralded the beginning of a warmer, interglacial period. As the ice retreated, the survivors of the great floods migrated into the new lands, where they planted the seeds that grew into the nations we know today.

Humans have always adapted to such change or paid the price for failing to do so. Now, though, we talk of controlling the climate by our own hand and of spending the wealth of nations to do so. Assuming this ability is within our grasp and not another fiction of our own arrogance, how will we select the ideal global climate?

That is the question that still remains unanswered and, for that matter, largely unasked. Why should the predominant climate of the 20th century A.D. be our ideal? It was but one point on the climatic spectrum—and perhaps an unstable one at that. Should we forgo adaptation in our pursuit of control? Our civilization will pay a high price if our quest for control fails—or perhaps even if it succeeds.

California Asks for Nationwide Incorporation of the Second Amendment

On July 6th, Attorney General Edmund G. Brown submitted an amicus brief to the U.S. Supreme Court on two pending Second Amendment incorporation appeals out of Chicago. Citing the protection of Constitutional rights in California, AG Brown encouraged the high court to hear these cases and to affirm the applicability of the Second Amendment to the states. He also asked the court for guidance on what kinds of firearms regulations are permissible.

The momentum for reform is clearly mounting now. The Supreme Court will doubtlessly rule in favor of nationwide incorporation, which will make sweeping advances for the legal right to arms almost inevitable. Furthermore, AG Brown’s brief also focused attention on California’s particular plight, which is shared by a handful of other states (such as Illinois and New York). Together, we suffer under a tangled, ineffective mass of gun-control laws that are becoming ever more clearly unconstitutional.

It seems that the question I asked just two months ago has been answered. A quiet but well-placed ally has indeed found the political cover needed to move toward a more reasonable interpretation of the right to arms in California.