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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 for national defense and for preservation of freedom depends on the premise that the states cannot disarm the citizenry. Presser, 116 U.S. at 264-266 (AIt is undoubtedly true that all citizens capable of bearing arms constitute the reserved military force or reserve militia of the United States as well as of the states, and, in view of this prerogative of the general government, as well as of its general powers, the states cannot, even laying the constitutional provision in question out of view, prohibit the people from keeping and bearing arms, so as to deprive the United States of their rightful resource for maintaining the public security, and disable the people from performing their duty to the general government.@) In this respect, 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 14th Amendment.

Our panel is bound by Hickman, and we cannot reach the merits of Nordyke=s challenge to Second Amendment. But the holding of Hickman can be discarded by our court en banc or can be rejected by the Supreme Court if it decides to visit the issue of what substantive rights are safeguarded by the Second Amendment.5

I write to express disagreement with the Acollective rights view@ advanced in Hickman and Silveira because I conclude that an Aindividual rights view@ of the Second Amendment is most consistent with the Second Amendment=s language, structure, and purposes, as well as colonial experience and pre-adoption history.6

The Second Amendment provides: AA well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.@ U.S. Const. amend. II. Because the Acollective rights@ view of Hickman and Silveira relies on the Second Amendment=s introductory clause, it denigrates the right Aof the people@ and seeks to limit that right to participation in militia activity. The first eight Amendments of the Bill of Rights protect personal rights of the people. 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 Athe right of the people.@ Limiting the Second Amendment=s protection to collective rights of militias affronts the most basic protections of the Second Amendment. The subject of the Second Amendment is the right of the people to keep and bear arms; the text of the Second Amendment protects that right from infringement.

Also, the Acollective rights@ view of the Silveira majority gives too little weight to the Second Amendment=s protection of a right to Akeep@ arms. The Silveira majority seeks to enhance collective rights theory by contending that to Abear@ arms has a military meaning. Silveira, 312 F.3d at 1072. But the Second Amendment=s literal terms are conjunctive. The Silveira majority urges that Akeep and bear@ should be read together. Id. at 1074. Though the terms are related, the distinct right to Akeep@ arms is individual and a helpful antecedent to bearing arms in a militia.

The Silveira majority also urges that the word Akeep@ has no independent content because the Second Amendment does not protect a right to Aown@ or a right to Apossess@ arms. Id. at 1072 (AWe consider it highly significant, however, that the second clause does not purport to protect the right to >possess= or >own=, but rather to >keep and bear= arms.@). This argument is not valid. First, ownership is irrelevant. One can keep arms that belong to a friend or relative, and a bailee of arms can protect a homestead or serve in a militia. Second, as for the argument that the Second Amendment doesn=t say Apossess@ arms, consider the American Heritage dictionary=s first definition of Akeep@: Ato retain possession of.@ The American Heritage Dictionary 459 (3d ed. 1974); see also Thomas Sheridan, A Complete Dictionary of the English Language (6th ed. 1796) (defining Ato keep@ as A[t]o retain; to have in custody@); Samuel Johnson, A Dictionary of the English Language (7th ed. 1785) (defining Ato keep@ as Ato retain; not to lose@ and also A[t]o have in custody.@). Because literally a right to Akeep@ arms means a right to possess arms, Silveira=s argument, to the extent that it rests on a distinction between Akeep@ and Apossess,@ is not persuasive. Third, Silveira=s argument that a right to Akeep@ arms is subordinate to a right to Abear@ arms sidesteps the literal conjunctive language of the Amendment and misconstrues the nature of a militia in which ordinary citizens contribute their personal arms to, and risk their lives for, the Nation=s defense.

The conclusion that the Second Amendment=s language supports an individual right to Akeep and bear arms@ is strengthened when we consider the nature and meaning of the term AMilitia.@ The Second Amendment=s language indicates that the AMilitia@ rests upon the shoulders of the people. As Professor Akhil Amar has explained, Athe militia were the people and the people were the militia.@ Akhil Reed Amar, The Second Amendment: A Case Study in Constitutional Interpretation 2001 Utah. L. Rev. 889, 892. He further explained that an earlier draft of the Amendment recited that the militia would be Acomposed of the body of the people.@ Id. (citing The Complete Bill of Rights 170-173) (Neil H. Cogan, ed., 1997).

Perhaps most importantly, the Second Amendment=s purposes strongly support the theory of an individual right to Akeep and bear@ arms. The Second Amendment serves at least the following two key purposes: (1) to protect against external threats of invasion; and (2) to guard against the internal threat that our republic could degenerate to tyranny.7 The purpose of militia to oppose external threat and preserve the national security is apparent from the face of the Second Amendment. The purpose of militia to check potential tyranny of a national government is implicit and is documented by contemporaneous parallel provisions of state constitutions.8

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.9 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. It does not follow that such a right is absolute. The Bill of Rights, though robust, must be interpreted in light of societal needs. For example, even the broad protections of free speech in the First Amendment do not protect a person who Afalsely shout[s] fire in a theatre and caus[es] a panic.@ Schenck v. U.S., 249 U.S. 47, 52 (1919) (Holmes, J.). Similarly, the Fourth Amendment=s general requirement of a warrant for a search permits exceptions for exigent circumstances. See Payton v. New York, 445 U.S. 573 (1980). And though recognizing an individual right to keep and bear arms, government can within due bounds regulate ownership or use of weapons for the public good. We would make progress if the Supreme Court were to establish a doctrine of an individual Second Amendment right subject to reasonable government regulation. The decisional chips would thereafter fall where they may on the basis of particular cases and the delicate balance of their precise facts, aided by the complementary efforts of lawyers, scholars and judges.10 The law would best put aside extreme positions and adopt an assessment of reasonableness of gun regulation, for this would place us on the right track.11

Restricting the Second Amendment to Acollective 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.12 The Silveira majority takes the position that the Framers= concerns to check the possibility of a Federal government tyranny are sufficiently answered by reading the Second Amendment merely to ensure that the states could not be barred from funding state-organized militia. Silveira, 312 F.3d at 1085. I disagree. The Second Amendment cannot properly be interpreted to entrust the freedom of the people to the premise that state governments would arm a self-reliant people and protect the people against a federal tyranny. The practical concept of militia contemplates an armed citizenry capable of rising up, with what arms they hold or can find, to defeat, resist or at minimum delay an invader until more organized power can be marshalled. The likelihood of broad resistance from an armed citizenry is a deterrent to any would be invader. Equally important, the practical concept of militia, embracing an armed citizenry, stands to deter risk of government degradation to tyranny. This concept is weakened by Silveira=s premise that the citizens could rely on their states to be an arsenal and repository for arms, and otherwise have no right.

The Second Amendment protects not the rights of militias but the rights Aof the people.@ It protects their right not only to Abear arms,@ which may have a military connotation, but to Akeep arms,@ which has an individual one. By giving inadequate weight to the individual right to keep arms, the Silveira majority does not do justice to the language of the Second Amendment and disregards the lesson of history that an armed citizenry can deter external aggression and can help avoid the internal danger that a representative government may degenerate to tyranny. 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.

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. And it was designed to provide national security not only when our country is strong but also if it were to become weakened or otherwise subject to attack. 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.

1 This view is the current view of the United States. See Opposition to Petition for Certiorari in U.S. v. Emerson, No. 01-8780, at 19 n.3, available at http://www.usdoj.gov/osg/briefs/2001/0responses/2001-8780.resp.pdf (AThe current position of the United States . . . is that the Second Amendment more broadly protects the rights of individuals, including persons who are not members of any militia or engaged in active military service or training, to possess and bear their own firearms, subject to reasonable restrictions . . . .@).

2 Emerson, 270 F.3d at 260. See also Memorandum from the Attorney General [John Ashcroft] to all United States Attorneys, Re: U.S. v. Emerson, Nov. 9, 2001. (AThe [Emerson] opinion also makes the important point that the existence of this individual right does not mean that reasonable restrictions cannot be imposed to prevent unfit persons from possessing firearms or to restrict possession of firearms particularly suited to criminal misuse.@).

3 Whether and to what extent the Bill of Rights should be incorporated into the Due Process Clause of the 14th Amendment is a question that has intrigued many. See Felix Frankfurter, Memorandum on AIncorporation@ of the Bill of Rights into the Due Process Clause of the 14th Amendment, 78 Harv. L. Rev. 746 (1965); Hugo Lafayette Black, A Constitutional Faith, at xvi-vii, 34-42 (1968); William J. Brennan Jr., The Bill of Rights and the States, 36 N.Y.U. L. Rev. 761 (1961); William J. Brennan Jr., The Bill of Rights and the States: The Revival of State Constitutions as Guardians of Individual Rights, 61 N.Y.U. L. Rev. 535 (1986); Duncan v. Louisiana, 391 U.S. 145, 171-193 (1968) (Harlan, J., dissenting); Erwin N. Griswold, Due Process Problems Today in the United States, in The 14th Amendment 161, 164 (Bernard Schwartz ed., 1970); Akhil Reed Amar, The Bill of Rights and the 14th Amendment, 101 Yale L.J. 1193 (1992).

4 Another potential avenue for incorporation is via the Privileges and Immunities Clause of the 14th Amendment which also may convey restrictions of the Second Amendment on the states. See Akhil Reed Amar, The Second Amendment: A Case Study in Constitutional Interpretation 2001 Utah. L. Rev. 889, 898-899. See also Laurence H. Tribe, Taking Text and Structure Seriously: Reflections on Free-Form Method in Constitutional Interpretation, 108 Harv. L. Rev. 1221, 1297 n.247 (1995) (advocating use of the Privileges and Immunities Clause and calling for Slaughter-House Cases, 83 U.S. 36 (1872), to be overruled in order to accomplish this goal). I express no view on this theory.

5 The Supreme Court=s Second Amendment cases have displayed limited analysis of the structure and meaning of the Second Amendment. See generally 1 Laurence H. Tribe, American Constitutional Law 894-902 (3d ed. 2000). The Supreme Court in any appropriate case, however, may decide to review and clarify Second Amendment theory and application, and, as Justice Thomas has remarked, Adetermine whether Justice Story was correct when he wrote that the right to bear arms >has justly been considered, as the palladium of the liberties of a republic.=@ Printz v. United States, 521 U.S. 898, 938-939 (1997) (Thomas, J., concurring) (quoting 3 Joseph Story, Commentaries ` 1890, p. 746 (1833)).

6 In addition to the Fifth Circuit, see Emerson, 270 F.3d at 264, many scholars have reached this conclusion. See, e.g., Don B. Kates, Jr. Hand-gun Prohibition and the Original Meaning of the Second Amendment, 82 Mich. L. Rev. 204, 211-43 (1983) (advocating the individual rights view); Sanford Levinson, The Embarrassing Second Amendment, 99 Yale L.J. 637, 642 (1989) (same); Robert E. Shalhope, The Ideological Origins of the Second Amendment, 69 J. Am. Hist. 599 (1982) (same); William Van Alstyne, The Second Amendment and the Personal Right to Arms, 43 Duke L.J. 1236, 1253 (1994) (same); but see Michael C. Dorf, What Does the Second Amendment Mean Today, 76 Chi.- Kent L. Rev. 291, 294 (2000) (advocating a collective rights view); Jack N. Rakove, The Second Amendment: The Highest Stage of Originalism, 76 Chi-Kent L. Rev. 103, 124 (2000) (same); David Yassky, The Second Amendment: Structure, History and Constitutional Change, 99 Mich. L. Rev. 588, 597 (2000)(arguing that Athe Founders= overriding concern was to ensure that the new nation=s military force would be composed of state militias instead of, or at least in addition to, a federal standing army@).

7 On the general problem of risks that a democratic republic may not endure, a classic work, first published in 1885 by 19th-century legal scholar Sir Henry Sumner Maine, is Popular Government (Liberty Classics 1976).

8 A few examples from state constitutions illustrate the point:

A[T]he people have a right to bear arms, for the defence of the State; and, as standing armies, in time of peace, are dangerous to liberty, they ought not be kept up; and that the military should be kept under strict subordination to, and governed by, the civil power.@ N.C. Declaration of Rights, ` XVII (1776)

A[T]he people have a right to bear arms for the defence of themselves and the state; and as standing armies in the time of peace are dangerous to liberty, they ought not to be kept up; And . . . the military should be kept under strict subordination, to, and governed by, the civil power.@ Penn. Const. Declaration of Rights, cl. XIII (1776)

A[T]he people have a right to bear arms for the defence of themselves and the State - and as standing armies in time of peace are dangerous to liberty, they ought not to be kept up; and . . . the military should be kept under strict subordination to and governed by the civil power.@ Vt. Const. ch. I., art. 16 (1777)

A[A] well regulated militia, composed of the body of the people, trained to arms, is the proper, natural, and safe defense of a free state; . . . standing armies, in time of peace, should be avoided as dangerous to liberty; and . . . in all cases the military should be under strict subordination to, and governed by, the civil power.@ Va. Const. art. I., ` 13 (1776).

This view is also reinforced by English and colonial history. English history shows constant recourse to militia to withstand invading forces that arrived not rarely from England=s neighboring lands. See generally 2 Winston S. Churchill, History of the English Speaking Peoples: The New World (Dodd, Mead, & Co. 1966); 3 Winston S. Churchill, History of the English Speaking Peoples: The Age of Revolution (Dodd, Mead, & Co. 1967). In the colonies, not only soldiers, but also farmers, merchants, and statesmen typically owned weapons, and there can be no doubt that militia played important roles in defending the colonies in the seventeenth and eighteenth centuries and during the revolutionary break with Great Britain.

9 AOne of the ordinary modes, by which tyrants accomplish their purposes without resistance, is, by disarming the people, and making it an offense to keep arms, and by substituting a regular army in the stead of a resort to the militia. The friends of a free government cannot be too watchful, to overcome the dangerous tendency of the public mind to sacrifice, for the sake of mere private convenience, this powerful check upon the designs of ambitious men.@ Joseph Story, A Familiar Exposition of the Constitution of the United States ` 450, p. 246 (1840).

10 The law develops through interdependent actions of academics advancing theories, advocates championing them in litigation, and Judges making decisions that clarify doctrine. The process is ongoing, for after decisions, academics will critique and offer suggested improvements, advocates will bring cases arguing what Judges said as refined by academic feedback, and more refined decisions result from this process. See Hon. Wade H. McCree, Jr., The Annual John Randolph Tucker Lecture, Partners in a Process: The Academy and the Courts, 37 Wash. & Lee. L. Rev. 1041 (1981).

11 In my view it is an error, though understandable one, to view the Second Amendment exclusively or primarily with the issue in mind of whether it constrains gun control. That controversial issue, as important as it may be, can be a distorting lens through which to view the Amendment if it clouds judgment and prevents understanding of the basic purposes of the Second Amendment. Instead, the Second Amendment should be considered in light of its core purposes of protecting the nation=s safety from external threat or internal tyranny. However, recognition of individual right in the Second Amendment, to protect national security, is not inconsistent with reasonable regulation, which may be permissible under several theories: (1) all weapons are not Aarms@ within the meaning of the Second Amendment; (2) Aarms@ 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.

12 We should instead heed the observations of President John F. Kennedy on the Second Amendment, which have remaining vitality:

By calling attention to >a well regulated militia,= the >security= of the nation, and the right of each citizen >to keep and bear arms,= our founding fathers recognized the essentially civilian nature of our economy. Although it is extremely unlikely that the fears of governmental tyranny which gave rise to the Second Amendment will ever be a major danger to our nation, the Amendment still remains an important declaration of our basic civilian-military relationships, in which every citizen must be ready to participate in the defense of his country. For that reason I believe the Second Amendment will always be important.

John F. Kennedy, Know Your Lawmakers, Guns, April 1960, at 4.

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