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Concurrence by Judge Gould (a Clinton Appointee) in the Second Amendment Incorporation Case:

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.

Tony Tutins (mail):
My fear is that this whole analysis will be rejected as dicta, because selling guns at the fairgrounds was only tenuously connected to having operable guns in the home, and because the plaintiff's Second Amendment argument was dismissed.
4.20.2009 2:24pm
Jacob Berlove:
Republicans should lobby Obama to nominate Judge Gould for the next vacant SCOTUS seat as the "consensus" candidate. Obama's current position is that he supports a constitutional right to bear arms and nominating Gould would give him a chance to put his money where his mouth is.
4.20.2009 2:55pm
tdsj:
Noting that Gould is a Clinton appointee doesn't tell us much. Clinton nominated several very conservative judges to the 9th Circuit (eg Tallman), mostly as part of political deals.

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.
4.20.2009 3:04pm
Tony Tutins (mail):

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?
4.20.2009 3:10pm
J. Aldridge:
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.

Maybe all "arms" are really weapons belonging to state militias? Any other reading leads to the above nonsense.
4.20.2009 3:13pm
Kazinski:
J. Aldridge,
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.
4.20.2009 3:41pm
J. Aldridge:
Kazinski: Swimming against the NRA tide yes, but not the tide of truth.
4.20.2009 4:02pm
Letalis Maximus, Esq. (mail):
I don't recall reading anywhere that the NRA has supported private, individual ownership of weapons of mass destruction like nuclear or chemical weapons. If J. Aldridge is aware of an NRA press release or other writing that supports such an interpretation of the 2nd Amendment, he really should post a link ASAP.
4.20.2009 4:24pm
Kazinski:
J. Aldridge,
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.
4.20.2009 4:38pm
NaG (mail):
The "collective right" approach to the 2d Amended lost 9-0 at the U.S. Supreme Court (even the dissents noted that the Amendment protected an individual right), and nowadays it appears that those in legal circles that once backed the collective interpretation have, belatedly, realized that there was absolutely no merit whatsoever to that position, and now are quick to adopt a more originalist view of the Amendment. Heck, you even have a Democratic appointee arguing that the 2d Amendment ensures protection against a totalitarian state! Prior to Heller, only those who would be labeled "gun nuts" would ever espouse such a view.

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?
4.20.2009 5:06pm
Dan Hamilton:

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.
4.20.2009 5:21pm
Ian Argent (www):
State-level weapon-types bans, ownership/purchase permits, and waiting periods would seem to be the next logical target.
4.20.2009 5:29pm
Xenocles (www):
Can anyone make sense of that paragraph from the majority opinion? What exactly was the CSA trying to "abridge?" RKBA? Independence? It's not at all clear.
4.20.2009 8:10pm
RKV (mail):
Guys, this is really rather simple. Why? Because Article 1 Section 8 already defines the missions of the militia.

"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!
4.20.2009 9:02pm
wfw:
The "bear arms" phrase is misleading. We know that the drafters of America's founding documents did <i>not</i> intend to limit private arms to those a man could carry.

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.
4.21.2009 4:32am
Tony Tutins (mail):

We know that the drafters of America's founding documents did not intend to limit private arms to those a man could carry.

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?
4.21.2009 2:05pm
Clayton E. Cramer (mail) (www):

We know that the drafters of America's founding documents did not intend to limit private arms to those a man could carry.
You may be right, in the sense that artillery were commonly privately owned. But how do we know that they intended to enshrine that as a constutional right?
4.21.2009 10:50pm

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