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Ninth Circuit Disputes Silveira Decision, Judge Calls Second Amendment an Individual Right

Monday, March 10, 2003

The U.S. Court of Appeals for the 9th Circuit in a February 18 ruling questioned that circuit`s recent anti-Second Amendment decision in Silveira v. Lockyer. One judge even wrote a concurrence showing the Second Amendment to guarantee individual rights. Nordyke v. King, 2003 WL 347009 (9th Cir. 2003). The National Rifle Association filed an amicus curiae brief in the case.

The Nordyke decision was written by Judge O`Scannlain, a Reagan appointee, and joined by Judge Alarcón (Carter appointee) and Judge Gould (Clinton appointee). The issue was "whether a local ordinance prohibiting the possession of firearms on county property infringes upon rights protected by the First and Second Amendments." Promoters wishing to hold gun shows on county property brought the case against the county.

The court held the ban valid on its face under the First Amendment because gun possession generally is not speech. However, it noted that some guns are engraved with political messages, such as the NRA banner, a militia member, and the Second Amendment. "Where the symbols on the gun (not the gun itself) convey a political message, the gun likely represents a form of political speech itself." Such messages, together with other expressive activities typical of gun shows, could be the basis of an attack on the ban as invalid as applied to gun shows. The court stated, "our holding does not foreclose a future as applied challenge to the Ordinance."

In a previous case, the court held that a ban on offers to sell guns violated commercial free speech rights. But this case involved a ban on possession, not offers to sell. In short, the gun show promoters are free to bring a First Amendment challenge to the ordinance as applied to gun shows, and if they do so, this decision will support them. But in this case, the court refused to recognize a First Amendment right based on a facial challenge to a ban on gun possession on county property.

The Second Amendment was introduced into the case on appeal as a result of the Fifth Circuit`s decision in United States v. Emerson. The court in Nordyke noted that the individual-rights view "has enjoyed recent widespread academic endorsement." Further, Emerson "engaged in a very thoughtful and extensive review of both the text and historical record surrounding the enactment of the Second Amendment. And if we were writing on a blank slate, we may be inclined to follow the approach of the Fifth Circuit in Emerson." However, the Ninth Circuit had already endorsed the "collective-rights" view in Hickman v. Block (1996), and the panel here was bound by that precedent. Without an en banc rehearing by eleven judges on the circuit, a three-judge panel cannot overturn circuit precedent.

Still, Nordyke sharply criticized the recent decision by another panel of the same court in Silveira v. Lockyer which went into great detail in an attempt to refute Emerson and the individual-rights view: "We feel that the Silveira panel`s exposition of the conflicting interpretations of the Second Amendment was both unpersuasive and, even more importantly, unnecessary. . . . There was simply no need for the Silveira panel`s broad digression. . . . The Silveira panel`s decision to re-examine the scope and purpose of the Second Amendment was improper. . . . We ignore the Silveira panel`s unnecessary historical disquisition as the dicta that it is . . . ." In a special concurrence, Judge Gould wrote that Hickman was "wrongly decided," that "the remarks in Silveira v. Lockyer about the ‘collective rights` theory of the Second Amendment are not persuasive," and that the individual-rights view of Emerson should be adopted. Further, contrary to other Ninth Circuit precedent (Fresno Rifle & Pistol Club v. Van de Kamp), States cannot violate the Second Amendment, for "maintenance of an armed citizenry might be argued to be implicit in the concept of ordered liberty and protected by the Due Process Clause of the Fourteenth Amendment."

Judge Gould proceeded to show in detail that the individual rights view "is most consistent with the Second Amendment`s language, structure, and purposes, as well as colonial experience and pre-adoption history." "The introductory clause of the Second Amendment provides one justification, not the sole one, for the personal right that is granted. The introductory clause cannot properly be read to eliminate the substantive protection of ‘the right of the people.`" Regardless of the meaning of "bear arms," "the distinct right to ‘keep` arms is individual and a helpful antecedent to bearing arms in a militia."

Moreover, a militia not only protects against invasion, but guards "against the internal threat that our republic could degenerate to tyranny." Judge Gould explained:

Those who debated and framed the Bill of Rights were educated in practical political concepts and doubtless recognized that an opening gambit for tyrants is to disarm the public. If the Second Amendment is held to protect only a state-regulated militia, then there would be no constitutional bar to a federal government outlawing possession of all arms by hunters and those with legitimate needs for protection. A general confiscation of guns could become the order of the day. I believe that result is foreclosed by the salient purpose of the Second Amendment to guard against tyranny, and that an individual right to keep and bear arms must be recognized.

As no right is absolute, reasonable regulation under the Second Amendment is possible under the theories that "(1) all weapons are not ‘arms` within the meaning of the Second Amendment; (2) ‘arms` protected may be limited to those consistent with use by an organized military force, as suggested in Miller; and (3) important government interests may justify reasonable regulation."

But "Restricting the Second Amendment to ‘collective rights` of militias and ignoring individual rights of the people betray a key protection against the recurrent tyranny that may in each generation threaten individual liberty." Judge Gould eloquently closes:

I reach this conclusion despite a recognition that many may think that these ideas are outmoded, that there is no risk in modern times of our government becoming a tyranny, and that there is little threat that others would invade our shores or attack our heartland. However, the Second Amendment was designed by the Framers of our Constitution to safeguard our Nation not only in times of good government, such as we have enjoyed for generations, but also in the event, however unlikely, that our government or leaders would go bad. . . . As the people bear the risk of loss of their freedom and the pain of any attack, our Constitution provides that the people have a right to participate in defense of the Nation. The Second Amendment protects that fundamental right.

The bottom line in the Nordyke case is that the three-judge panel agreed that (1) a ban on gun possession on county property does not on its face violate the right to free speech, but (2) that same ban as applied to gun shows might be a violation, and the plaintiffs here are free to bring such an action. Further, (3) the Silveira opinion was ill-advised and wrong, and the Ninth Circuit`s prior Second Amendment cases should be reviewed. Judge Gould went further and positively embraced the individual-rights view of the Second Amendment, further undermining Silveira and buttressing Emerson. These are further signs that the collective-rights construct within the federal judiciary is starting to crumble and that the individual-rights view is steadily gaining the recognition it dese

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