Explore The NRA Universe Of Websites

APPEARS IN Legal & Legislation

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

TRENDING NOW
Washington: One Anti-Gun Substitute Dies in Committee, Another is Headed to the House Floor

Thursday, February 16, 2017

Washington: One Anti-Gun Substitute Dies in Committee, Another is Headed to the House Floor

Today, the House Judiciary Committee considered substitute bills for House Bill 1387 and House Bill 1122. 

Massachusetts: Legislation Introduced to Challenge AG Healey’s Gun Ban

Thursday, February 16, 2017

Massachusetts: Legislation Introduced to Challenge AG Healey’s Gun Ban

The Massachusetts General Court’s 2017 legislative session is in full swing with the introduction of numerous pro- and anti-gun bills.  Among the pro-gun bills are Senate Docket 1157 and Senate Docket 1889.  Both SD 1157 ...

Kentucky: House Introduces Constitutional/Permitless Carry Legislation

Tuesday, February 14, 2017

Kentucky: House Introduces Constitutional/Permitless Carry Legislation

The Kentucky House of Representatives introduced their own constitutional/permitless carry bill. House Bill 316, sponsored by Representative C. Wesley Morgan (R-81), recognizes Kentuckians’ freedom to legally carry a concealed firearm without the burdensome requirement of acquiring ...

Senate Votes to Block Obama Social Security Administration Gun Ban; Legislation Heads to President Trump

News  

Friday, February 17, 2017

Senate Votes to Block Obama Social Security Administration Gun Ban; Legislation Heads to President Trump

On Wednesday morning, the U.S. Senate voted 57-43 in favor of H.J.Res.40, which would block the implementation of an Obama-era rule under which the Social Security Administration (SSA) would report the names of tens of ...

NRA-Backed Resolution to Stop Obama Attack on State Wildlife Management Passes House

News  

Hunting  

Friday, February 17, 2017

NRA-Backed Resolution to Stop Obama Attack on State Wildlife Management Passes House

On Friday, the U.S. House of Representatives passed H.J. Res. 69, a measure that would use the Congressional Review Act to repeal an Obama-era rule passed by the U.S. Fish and Wildlife Service (FWS) to preempt ...

Connecticut Governor Covers for Failed Policies by Increasing Fees on Gun Owners

News  

Friday, February 17, 2017

Connecticut Governor Covers for Failed Policies by Increasing Fees on Gun Owners

Times are tough in the Constitution State, where Democrat governor Dannel Malloy of Connecticut, despite governing the fifth wealthiest state in the nation, where 25% of households earn more than $100,000 and 10% earn more ...

Georgia: Multiple Firearm-Related Bills to be Considered in Committee Next Week

Friday, February 17, 2017

Georgia: Multiple Firearm-Related Bills to be Considered in Committee Next Week

On Monday, February 20, the Georgia House Public Safety and Homeland Security Committee is scheduled to hear multiple important pro-gun bills:

California DOJ Withdraws “Assault Weapon” Regulations

Monday, February 13, 2017

California DOJ Withdraws “Assault Weapon” Regulations

As previously reported, after the California Department of Justice submitted regulations regarding newly classified “assault weapons” to the Office of Administrative Law (“OAL”) for publication in the California Code of Regulations (CCR), NRA and California ...

Washington: Gun Control Bills to be Voted on in House Committee

Monday, February 13, 2017

Washington: Gun Control Bills to be Voted on in House Committee

This Thursday, February 16th, the Washington House Judiciary Committee is scheduled to vote on House Bill 1387 and House Bill 1122.

Media Smears the Disabled, Misinforms on Social Security Gun Ban

News  

Friday, February 17, 2017

Media Smears the Disabled, Misinforms on Social Security Gun Ban

Last week, the Richmond Times-Dispatch issued an editorial titled, “Time to license guns - for journalists,” which cited an embarrassing string of journalistic blunders to illustrate the media’s dearth of firearms knowledge. The piece concluded, ...

MORE TRENDING +
LESS TRENDING -
NRA ILA

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.