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An Opening Gambit For Tyrants Is To Disarm The Public

Friday, March 21, 2003

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



Wednesday, November 25, 2015

Appropriations Act Signed Into Law With Important Pro-Second Amendment Provisions

On Wednesday, November 25, the President signed S. 1356, the National Defense Authorization Act for Fiscal Year 2016 into law. Included in the bill were some very important pro-gun provisions that represent the culmination of long-term efforts by ...


Friday, May 15, 2015

Obama Administration Opposes CMP Handgun Sales

The House of Representatives has approved Congressman Mike D. Rogers’ amendment to the National Defense Authorization Act, which—if accepted in ...

Gun Laws  

Thursday, January 1, 2015

Guide To The Interstate Transportation Of Firearms

CAUTION: Federal and state firearms laws are subject to frequent change. This summary is not to be considered ...


Friday, November 20, 2015

“F” Stands for Fail: Gun Turn-in Event Nets a Stack of Paper Pledges and Some Surplus Sporting Goods

Recently, we reported on Hillary Clinton’s praise for local firearm “buyback” events and her view that forcing Americans to participate ...


Friday, November 27, 2015

President Obama Signs NRA-Backed Measures into Law

President Barack Obama signed into law the National Defense Authorization Act (NDAA). It includes several NRA-backed provisions -- expanding gun rights on stateside military bases; prohibiting the Environmental Protection Agency (EPA) from banning traditional ammunition; and saving taxpayer dollars ...


Friday, November 20, 2015

Anti-gun Politicians, Media Exploit Paris Attacks in “Terrorist Gap” Rehash

The Paris terrorist attacks were not easily pinned on America’s supposedly lax gun laws or the NRA, but ...

Tuesday, November 24, 2015

Michigan: Governor Snyder Signs Firearm Inheritance Protection Act

Today, November 24, Governor Rick Snyder (R) signed Senate Bills 225 and 226.


Friday, November 20, 2015

Brussels Pushes Gun Control in Wake of Paris Attacks

On November 18, the European Commission expedited a plan to overhaul the European Union’s already restrictive gun control laws. The ...


Friday, November 20, 2015

Overwhelming 81 Percent of Current and Former Military have Unfavorable View of Clinton

More bad news for Hillary Clinton. Coming off the heels of survey results that found the former Secretary ...

Washington Times  

Wednesday, November 25, 2015

White House to GOP: Worry about gun control

The White House said Monday that Republicans concerned about Syrian refugees waging terrorist attacks in the U.S. should focus their energy instead on banning guns sales to people on the government’s terrorist watch list.


Established in 1975, the Institute for Legislative Action (ILA) is the "lobbying" arm of the National Rifle Association of America. ILA is responsible for preserving the right of all law-abiding individuals in the legislative, political, and legal arenas, to purchase, possess and use firearms for legitimate purposes as guaranteed by the Second Amendment to the U.S. Constitution.