It seems worth quoting, especially because Gould was one of the two Democrat-appointed judges on the panel (paragraph breaks added):
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.
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 reasonable and permissible and what is unreasonable and offensive to the Second Amendment.
The panel opinion, which Judges Gould and Alarcon fully joined, also says something similar:
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.
Related Posts (on one page):
- Ninth Circuit Will Rehear Nordyke v. King En Banc:
- Ninth Circuit Judge Calls for En Banc Review in Ninth Circuit's Second Amendment Gun Show Case:
- What Now for the Question Whether the Second Amendment is Incorporated Against State and Local Governments?
- Why the Gun Show Organizers Nonetheless Lost their Case,
- Concurrence by Judge Gould (a Clinton Appointee) in the Second Amendment Incorporation Case:
- Second Amendment Incorporated by Ninth Circuit Panel, in
Gould I think is best described as a moderate conservative. On en banc panels and voting, my sense is that he sides with conservatives more often than not (though admittedly I haven't counted).
Nor is he a realistic SCOTUS candidate, given his unfortunate and apparently degenerating physical condition.
Judge K!
Judge K!
Judge K!
Whatever happened to his family joke server kerfuffle?
Maybe all "arms" are really weapons belonging to state militias? Any other reading leads to the above nonsense.
You are swimming against the tide.
It would be perfectly reasonable for the courts to limit an individual right to bear arms to weapons that are suitable to individual use. A rifle or a handgun is suitable to individual use, it takes a crew to man a tank, deploy chemical weapons, or drop a nuke.
You really need to separate your personal policy preferences from your critical reading skills. I realize that you hate, with every thread of your being, that your fellow citizens are armed and dangerous, but you need to recognize that it's their right.
I'd like to see a single quote from any authoritative source, and please the quote only, no spin, that shows the collective rights reasoning was even considered at the founding.
Incorporating the 2d Amendment against the states seems inevitable at this point. Once incorporation is set, though, it will be very interesting to see how pro-gun-rights groups choose to test the constitutionality of the various federal and state laws concerning guns. Bans, like in Chicago, will be the first to go. But after that, where will courts start drawing the line?
Heller only recognizes the right to arms for self defense.
Next will be a Assult Weapons Ban. These are not Usefull or needed for Self-Defense. Upheald by SC.
Then Ban on Semi-auto weapons because these are to dangerious and not needed for Self-Defense. Revolvers are perfectly fine as are pump action shotguns, etc. Upheald by SC
Sniper rifles (bolt action hunting rifles) not needed for Self-Defense because they are for use at long range which is not valid for Self-Defense. Upheald by SC
Registration of all guns. Upheald by SC
The sheeple continue to be taught that guns are BAD, that anybody that would want to use a gun is Bad, and they will be kept ignorant about guns. Just like the last three decades. The NEA and other teacher unions have seen to that.
Heller doesn't protect much.
"To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions"
The founders spelled out what the militia is supposed to do, and then protected the possession of man-portable arms to do the job (which can be "borne"). A simple proxy that I would propose to the court is that arms which are used by the police and the army are what is protected, since they have similar missions. Any sane reading of Miller (and we all know how hard that can be) comes to the same point - with the remand to a trial court to determine if a short-barreled shotgun has militia use.
And oh by the way, Aldridge, hows the crow taste? And you're going to get more of it when the Chicago case goes to the Supes. Enjoy!
Not only did they <i>not</i> forbid the citizenry to have larger weapons; they <i>counted</i> on them to "bear" such weapons in the country's defense.
Recall that a considerable portion of the War of 1812 was fought (and quite successfully, too) with privately owned and operated artillery - the most powerful weapon of the day.
What's the point of making the gun control advocates' slippery slope argument for them? (If you let them have an M-16, they'll want nuclear warheads.) Where's the utility in being able to own a crew-served weapon? Does it outweigh the fear factor of having your neighbors own howitzers?
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