U.S. 9th Circuit Court Incorporates the 2nd Amend.
Apr 21, 2009 1:27:02 GMT -5
Post by GunShowOnTheNet on Apr 21, 2009 1:27:02 GMT -5
O’SCANNLAIN, Circuit Judge:
We must decide whether the Second Amendment prohibits a local government from regulating gun possession on its property....
...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....
...We begin with the Founding era. Heller reveals evidence similar to that on which Duncan relied to conclude that the Due Process Clause incorporated the right to a jury in criminal cases. Heller began with the 1689 English Declaration of Right (which became the English Bill of Rights), just as Duncan did. Compare Heller, 128 S. Ct. at 2798 (noting that the Declaration of Right included the right to bear arms), with Duncan, 391 U.S. at 151 (noting that the Declaration of Right included the right to a jury trial).11 Thus the right to keep and bear arms shares ancestry with a right already deemed fundamental. Cf. Resweber, 329 U.S. at 463 (plurality opinion)(relying solely on the presence of a prohibition against cruel and unusual punishments in the English Bill of Rights for the conclusion that it is incorporated into the Due Process Clause)....
...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....
...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 Amendment and applies it against the states and local governments.18....
www.ca9.uscourts.gov/datastore/opinions/2009/04/20/0715763.pdf
We must decide whether the Second Amendment prohibits a local government from regulating gun possession on its property....
...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....
...We begin with the Founding era. Heller reveals evidence similar to that on which Duncan relied to conclude that the Due Process Clause incorporated the right to a jury in criminal cases. Heller began with the 1689 English Declaration of Right (which became the English Bill of Rights), just as Duncan did. Compare Heller, 128 S. Ct. at 2798 (noting that the Declaration of Right included the right to bear arms), with Duncan, 391 U.S. at 151 (noting that the Declaration of Right included the right to a jury trial).11 Thus the right to keep and bear arms shares ancestry with a right already deemed fundamental. Cf. Resweber, 329 U.S. at 463 (plurality opinion)(relying solely on the presence of a prohibition against cruel and unusual punishments in the English Bill of Rights for the conclusion that it is incorporated into the Due Process Clause)....
...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....
...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 Amendment and applies it against the states and local governments.18....
www.ca9.uscourts.gov/datastore/opinions/2009/04/20/0715763.pdf