holding that the Fourteenth Amendment incorporates the individual rights now found in the Second Amendment and therefore limits the states and local governments
How later courts described this case
- holding that the Fourteenth Amendment incorporates the individual rights now found in the Second Amendment and therefore limits the states and local governments
- concluding that the Fourteenth Amendment’s Due Process Clause incorporates the Second Amendment and applies it against state and local governments
- holding that pre-Heller Supreme Court case law is not binding, and that the Second Amendment right is selectively incorporated against the States
- stating that a law that directly regulates speech is subject to strict scrutiny
Written by the judges who cited it.
The opinion
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, *465 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.
. English history as summarized by Winston Churchill 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). Also, during World War II, when England feared for its survival and anticipated the possibility of a Nazi invasion, its homeland security policy took into account that its Home Guard might slow or retard an offensive, which could come at any point on the coastline, until trained militaiy forces could be brought to bear to repel an invader — because "England was to be defended by its people, not destroyed.” See generally 1 Winston Churchill, Their Finest Hour 161-76, esp. 174-76 (Houghton Mifflin Co.1949).