An Opening Gambit For Tyrants Is To Disarm The Public

Posted on March 21, 2003

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An Opening Gambit For Tyrants

Is To Disarm The Public

The right to Akeep and bear arms@ is a fundamental liberty upon which the safety of our Nation depends, and it requires for its efficacy that an individual right be recognized and honored.

In a special concurring opinion in Nordyke v. King, Judge Ronald Gould of the U.S. Court of Appeals for the Ninth Circuit writes eloquently about the right to keep and bear arms. He also is critical of earlier Ninth Circuit Second Amendment decisions, including Silveira v. Lockyer.

I join the court=s opinion, and write to elaborate that Hickman v. Block, 81 F.3d 98 (9th Cir. 1996), was wrongly decided, that the remarks in Silveira v. Lockyer, 312 F.3d 1052 (9th Cir. 2002), about the Acollective rights@ theory of the Second Amendment are not persuasive, and that we would be better advised to embrace an Aindividual rights@ view of the Second Amendment, as was adopted by the Fifth Circuit in U.S. v. Emerson, 270 F.3d 203, 260 (5th Cir. 2001), consistent with U.S. v. Miller, 307 U.S. 174 (1939).1 We should recognize that individual citizens have a right to keep and bear arms, subject to reasonable restriction by the government.2 We should also revisit whether the requirements of the Second Amendment are incorporated into the Due Process Clause3 of the 14th Amendment.4

The Silveira majority states that U.S. v. Cruikshank, 92 U.S. 542 (1876), and Presser v. Illinois, 116 U.S. 252 (1886), cases holding that the Second Amendment is not applicable to the states, Awere decided before the Supreme Court held that the Bill of Rights is incorporated by the 14th Amendment=s Due Process Clause.@ Silveira, 312 F.3d at 1066 n.17. These remarks of Silveira on incorporation are overbroad and inaccurate. Many Amendments of the Bill of Rights have been incorporated against the states. See, e.g., Duncan v. Louisiana, 391 U.S. 145 (1968) (right to criminal jury); Malloy v. Hogan, 378 U.S. 1 (1964) (privilege against compelled self-incrimination; New York Times Co. v. Sullivan, 376 U.S. 254 (1964) (freedom of speech and press); Abington Sch. Dist. v. Schempp, 374 U.S. 203 (1963) (nonestablishment of religion); Gideon v. Wainwright, 372 U.S. 335 (1963) (right to counsel); Mapp v. Ohio, 367 U.S. 643 (1961) (exclusion of evidence obtained by unreasonable search and seizure). However, the entire Bill of Rights has not been incorporated into the 14th Amendment=s Due Process Clause. See John E. Nowak & Ronald D. Rotunda, Constitutional Law 332-334 (4th ed. 1991).

We have held that the Second Amendment is not incorporated and does not apply to the states. Fresno Rifle and Pistol Club, Inc. v. Van de Kamp, 965 F.2d 723 (9th Cir. 1992). If Fresno controls, then the Second Amendment cannot be considered to apply to state and local regulation. Fresno in turn is grounded on Cruikshank and Presser. Silveira urges that Cruikshank and Presser have been undermined, asserting that Barron v. Baltimore, 32 U.S. 243 (1833) (holding that the Bill of Rights does not apply to the states), on which Cruikshank and Presser relied, is Anow-rejected.@ Silveira, 312 F.3d at 1066 n.17.

Although the Supreme Court has incorporated many clauses of the Bill of Rights into the Due Process Clause of the 14th Amendment, the Supreme Court has never explicitly overruled Barron. More importantly, the Supreme Court has never explicitly overruled Cruikshank and Presser.

If reconsideration of Fresno is nonetheless permissible, we must ask whether the liberty guaranteed by the Second Amendment is protected by the Due Process Clause of the 14th Amendment. The Due Process Clause of the 14th Amendment protects those liberties which are Adeeply rooted in this Nation=s history and tradition, and implicit in the concept of ordered liberty, such that neither liberty nor justice would exist if they were sacrificed.@ Washington v. Glucksberg, 521 U.S. 702, 721 (1997) (internal quotation marks and citations omitted). To the extent that the Second Amendment was aimed at maintaining an armed citizenry and local power as a check against the possibility of federal tyranny, that purpose is not directly applicable to the states, and a Second Amendment restraint on the states in this sense is not implicit to the concept of ordered liberty. No single state could foreclose liberty of its citizens when faced with the collective power of the federal government and other states. On the other hand, as Presser recognized, the vitality of the Second Amendment=s protection fo

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