Court - Gun Rights

[darrels joy]

Page 18
This necessary “right of the people” existed before the Second
Amendment as “one of the fundamental rights of Englishmen.”

Id.

at 2797-98. Heller identified several reasons why
the militia was considered “necessary to the security of a free
state.” First, “it is useful in repelling invasions and suppressing
insurrections. Second, it renders large standing armies
unnecessary . . . . Third, when the able-bodied men of a nation
are trained in arms and organized, they are better able to resist
tyranny.” Id. at 2800-01. In addition to these civic purposes,

Heller

characterized the right to keep and bear arms as a corollary
to the individual right of self-defense. Id. at 2817
(“[T]he inherent right of self-defense has been central to the
Second Amendment right.”). Thus the right contains both a
political component—it is a means to protect the public from
tyranny—and a personal component—it is a means to protect
the individual from threats to life or limb. Cf. Amar, supra,

at 46-59, 257-66.

Page 19
We must trace this right, as thus described, through our history

from the Founding until the enactment of the Fourteenth

Amendment.

Page 20
Blackstone gave the right to bear arms pride of place in his

scheme. He divided rights of persons into absolute and relative
rights.

See William Blackstone, 1 Commentaries *123-
24. It is “the principal aim of society,” according to Blackstone,
“to protect individuals in the enjoyment of those absolute
rights,” id. at *124-25; England alone among nations had
achieved that aim. Blackstone defined these absolute rights as
“personal security, personal liberty, and private property.” Id.

at *141. The English Constitution could only secure the actual
enjoyment of these rights, however, by means of certain “barriers”
designed “to protect and maintain [them] inviolate.”

Id.

The right to bear arms ranked among these “bulwarks of personal
rights.”

Id. Blackstone considered the right “a public
allowance, under due restrictions, of the natural right of resistance
and self-preservation, when the sanctions of society and
laws are found insufficient to restrain the violence of oppression.”

Id.

at *144; see also Heller, 128 S. Ct. 2798-99 (“[T]he
right secured in 1689 as a result of the [abuses of the Stuart
monarchy] was by the time of the founding understood to be
an individual right protecting against both public and private
violence.”). For readers of Blackstone, therefore, the right to
bear arms closely followed from the absolute rights to personal
security, personal liberty, and personal property.12 It was

a right crucial to safeguarding all other rights.

Page 23
[11] This brief survey of our history reveals a right indeed

“deeply rooted in this Nation’s history and tradition.” Moreover,
whereas the Supreme Court has previously incorporated
rights the colonists fought for, we have here both a right they

fought for and the right that allowed them to fight.

Page 25-26

As

Heller recognized, “[i]n the aftermath of the Civil War,
there was an outpouring of discussion of the Second Amendment
in Congress and in public discourse, as people debated
whether and how to secure constitutional rights for newly
freed slaves.” 128 S. Ct. at 2809-10; see also Amar, supra, at
192 (noting that “slavery led to state repudiation of virtually
every one of the . . . freedoms [in the Bill of Rights]”). One
major concern in these debates was the disarming of newly
freed blacks in Southern states by statute as well as by vigilantism.

See Heller

, 128 S. Ct. at 2810. Many former slave
states passed laws to that effect. See, e.g., Act of Nov. 29,
1865, 1865 Miss. Laws 165 (“[N]o freedman, free Negro or
mulatto . . . shall keep or carry fire-arms of any kind, or any

14

As of today, forty-four states protect the right to bear arms. See

Eugene Volokh,

State Constitutional Rights to Keep and Bear Arms, 11
Tex. Rev. L. & Pol. 191, 205 (2006).

4492 N

ORDYKE v. KING

ammunition, dirk or bowie knife . . . .”). Brigadier General
Charles H. Howard, in a letter provided to Congress, reported
to the head of the Freedmen’s Bureau that the “militia organizations
in the opposite county of South Carolina (Edgefield)
were engaged in disarming the negroes. . . . Now, at Augusta,
. . . I have authentic information that these abuses continue. In
southwestern Georgia, I learned that the militia had done the
same, sometimes pretending to act under orders from United
States authorities.” Report of the Joint Committee on Reconstruction,
H.R. Rep. No. 39-30, pt. 3, at 46 (1st Sess. 1866).
The Framers of the Fourteenth Amendment sought to end
such oppressions. During the debates surrounding the Freedmen’s
Bureau Act, the Civil Rights Act, and the Fourteenth
Amendment, Senator Pomeroy listed among the “indispensable”
“safeguards of liberty” someone’s “right to bear arms
for the defense of himself and family and his homestead.”
Cong. Globe, 39th Cong., 1st Sess. 1182 (1866),

quoted in
Heller, 128 S. Ct. at 2811. Representative Bingham, a principal
author of the Fourteenth Amendment, argued that it was
necessary to overrule Barron and apply the Bill of Rights to
the states. In his view, Barron was wrongly decided because
the Bill of Rights “secur[ed] to all the citizens in every State
all the privileges and immunities of citizens, and to all the
people all the sacred rights of persons—those rights dear to
freemen and formidable only to tyrants.” Id. at 1090. Representative
James Wilson, a supporter of the Fourteenth
Amendment, described Blackstone’s scheme of absolute
rights as synonymous with civil rights, in a speech in favor of
the Civil Rights Act of 1866 (a precursor to the Fourteenth
Amendment). Id. at 1115-19. Similarly, Representative Roswell
Hart listed “the right of the people to keep and bear
arms,” among other rights, as inherent in a “republican government.”

Id.

at 1629. The reports and testimony contain similar
evidence, confirming that the Framers of the Fourteenth
Amendment considered the right to keep and bear arms a crucial
safeguard against white oppression of the freedmen. Stephen

P. Hallbrook, Freedmen, the Fourteenth Amendment,

Page 29

[12]

We therefore conclude that the right to keep and bear
arms is “deeply rooted in this Nation’s history and tradition.”
Colonial revolutionaries, the Founders, and a host of commentators
and lawmakers living during the first one hundred
years of the Republic all insisted on the fundamental nature
of the right. It has long been regarded as the “true palladium
of liberty.” Colonists relied on it to assert and to win their
independence, and the victorious Union sought to prevent a
recalcitrant South from abridging it less than a century later.
The crucial role this deeply rooted right has played in our
birth and history compels us to recognize that it is indeed fundamental,
that it is necessary to the Anglo-American conception
of ordered liberty that we have inherited.17 We are
therefore persuaded that the Due Process Clause of the Fourteenth

Amendment incorporates the Second and

applies it against the states and local governments.

18

B
Though we conclude that the Due Process Clause of the
Fourteenth Amendment applies the protections of the Second

Amendment to state and local governments, the question

Page 31

[13]

Heller tells us that the Second Amendment’s guarantee
revolves around armed self-defense. If laws make such
self-defense impossible in the most crucial place—the home

—by rendering firearms useless, then they violate the Constitution.

Page 32

The County also points to the famous passage in

Heller in
which the Court assured that

nothing in our opinion should be taken to cast doubt
on longstanding prohibitions on the possession of
firearms by felons and the mentally ill, or laws forbidding

the carrying of firearms in sensitive places
such as schools and government buildings, or laws

imposing conditions and qualifications on the commercial

sale of arms.

Page 41-43

GOULD, Circuit Judge, concurring:
I concur in Judge O’Scannlain’s opinion but write to elaborate
my view of the policies underlying the selective incorporation
decision. First, as Judge O’Scannlain has aptly
explained, the rights secured by the Second Amendment are
“deeply rooted in this Nation’s history and tradition,” and
“necessary to the Anglo-American regime of ordered liberty.”
The salient policies underlying the protection of the right to
bear arms are of inestimable importance. The right to bear

arms is a bulwark against external invasion. We should not be

overconfident that oceans on our east and west coasts alone
can preserve security. We recently saw in the case of the terrorist
attack on Mumbai that terrorists may enter a country
covertly by ocean routes, landing in small craft and then
assembling to wreak havoc. That we have a lawfully armed
populace adds a measure of security for all of us and makes
it less likely that a band of terrorists could make headway in
an attack on any community before more professional forces
arrived.

1 Second, the right to bear arms is a protection against
the possibility that even our own government could degenerate
into tyranny, and though this may seem unlikely, this possibility
should be guarded against with individual diligence.
Third, while the Second Amendment thus stands as a protection
against both external threat and internal tyranny, the recognition
of the individual’s right in the Second Amendment,
and its incorporation by the Due Process Clause against the
states, is not inconsistent with the reasonable regulation of
weaponry. All weapons are not “arms” within the meaning of
the Second Amendment, so, for example, no individual could
sensibly argue that the Second Amendment gives them a right
to have nuclear weapons or chemical weapons in their home
for self-defense. Also, important governmental interests will
justify reasonable regulation of rifles and handguns, and the
problem for our courts will be to define, in the context of particular

regulation by the states and municipalities, what is rea-

sonable and permissible and what is unreasonable and

offensive to the Second Amendment.

http://www.ca9.uscourts.gov/datastor...20/0715763.pdf