Please note the capitalization on all URLs.

1) Original Silveira decision, PDF format as provided by the court and unedited:
http://www.ninehundred.com/~equalccw/Silveira.pdf - note that less than three weeks later, the court issued an amendment and stripped out all references to Michael Bellesiles as a “scholarly” source.  This link is to the original decision and may be the only archived copy of it on the web.

2) Nordyke decision, another three-judge panel of the 9th decided Feb 18th 2003:
http://www.ninehundred.com/~equalccw/nordyke.pdf

3) US vs. Cruikshank, 92 U.S. 542 (1875 US Supreme Court):
http://laws.findlaw.com/us/92/542.html

4) US vs. Miller, 307 U.S. 174 (1939 US Supreme Court):
http://laws.findlaw.com/us/307/174.html

5) Fresno Rifle and Pistol Club vs. Van De Camp, 965 F.2d 723 (9th Cir. 1992):
http://www.ninehundred.com/~equalccw/fresnorifle.txt - note: this was on a university website but was taken down, I had to recover it from the Google cache and at present, my website is probably the only non-subscription source for this case.

6) Hickman vs. Block, 96 C.D.O.S. 2323, 9th Circuit filed April 5, 1996:
http://www.rkba.org/judicial/hickman-block

7) State vs. Aymette, 2 Humphreys 154 (Tenn. Supreme Court 1840)
http://www.ninehundred.com/~equalccw/aymette.txt - note: this was on the same site as Van De Camp, also rescued from the Google cache.

8) CAN THE SIMPLE CITE BE TRUSTED?: LOWER COURT INTERPRETATIONS OF UNITED STATES V. MILLER AND THE SECOND AMENDMENT: BRANNON P. DENNING, 26 CUMB. L. REV. 961-1004 (1996):
http://www.guncite.com/journals/dencite.html

9) National Constitution Center, Congress’ official website on Constitutional history, page mentions Cruikshank in detail:
http://www.constitutioncenter.org/sections/history/19th.asp

10) US Code, TITLE 10, Subtitle A, PART I, CHAPTER 13, Sec. 311
http://www4.law.cornell.edu/uscode/10/311.html

Established 2nd Amendment doctrine in the 9th Circuit says that there is no individual right to arms under the 2nd Amendment at all, and even if there is it doesn’t apply to the states due to lack of “selective incorporation” under the 14th Amendment.  (“Selective Incorporation” is a doctrine invented by the US Supreme Court in which selected personal rights are applied to the states – states today have to honor the First Amendment, Fourth Amendment and the rest of the Bill Of Rights except for the “grand jury indictment” portion of the Fifth Amendment and the Second Amendment.)  Fresno Rifle and Hickman (previous 9th Circuit cases) were very specific on this “lack of incorporation” of the Second Amendment.  To quote Fresno Rifle on the Second Amendment’s applicability to the states:

The Supreme Court, however, has held that the Second Amendment constrains only the actions of Congress, not the states.  See United States v. Cruikshank, 92 U.S. 542, 553, 23 L.Ed. 588 (1876) ("The second amendment declares that [the right to bear arms] shall not be infringed; but this ... means no more than that it shall not be infringed by Congress.  This is one of the amendments that has no other effect than to restrict the powers of the national government. . . . "); Presser v. Illinois, 116 U.S. 252, 264-65, 6 S.Ct. 580, 583-84, 29 L.Ed. 615 (1886) (same).  We are therefore foreclosed from considering these arguments.

This case [Hickman] turns on the first constitutional standing element: whether Hickman has shown injury to an interest protected by the Second Amendment. We note at the outset that no individual has ever succeeded in demonstrating such injury in federal court. The seminal authority in this area continues to be United States v. Miller, 307 U.S. 174 (1939), in which the Supreme Court upheld a conviction under the National Firearms Act, 26 U.S.C. section 1132 (1934), for transporting a sawed-off shotgun in interstate commerce. The Court rejected the appellant's hypothesis that the Second Amendment protected his possession of that weapon. Consulting the text and history of the amendment, the Court found that the right to keep and bear arms is meant solely to protect the right of the states to keep and maintain armed militia. In a famous passage, the Court held that:

[i]n the absence of any evidence tending to show that the possession or use of a "shotgun having a barrel of less than eighteen inches in length" at this time has some reasonable relationship to the preservation or efficiency of a well-regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument.

FN10. Moreover, even if we determined that Hickman had standing to sue for violation of the Second Amendment, his suit would nevertheless fail because the Second Amendment is not incorporated into the Bill of Rights. Fresno Rifle & Pistol Club, Inc. v. Van De Kamp, 965 F.2d 723 (9th Cir. 1992).

Because Fresno Rifle and Hickman are deeply legally flawed, and Reinhardt knew it.

Reinhardt therefore went out of his way to reconstruct an entirely new method of “denying a personal right to arms”, a method contrary to previous case law in the 9th Circuit and despite his lack of ability to overturn previous three-judge-panels.

Quoting Reinhardt in Silveira (footnote 17):

In Hickman, we did not rely on our earlier decision in Fresno Rifle & Pistol Club, Inc. v. Van de Kamp, 965 F.2d 723 (9th Cir. 1992), that the Second Amendment is not incorporated by the Fourteenth and does not constrain actions by the states, although we noted in dictum that had standing existed, Fresno Rifle would be applicable. We undoubtedly followed that approach in Hickman because, as noted above, we must decide standing issues first. Fresno Rifle itself relied on United States v. Cruikshank, 92 U.S. 542 (1876), and Presser v. Illinois, 116 U.S. 252 (1886), decided before the Supreme Court held that the Bill of Rights is incorporated by the Fourteenth Amendment’s Due Process Clause. Following the now-rejected Barron v. Baltimore, 32 U.S. (7 Pet.) 243 (1833) (holding that the Bill of Rights did not apply to the states), Cruikshank and Presser found that the Second Amendment restricted the activities of the federal government, but not those of the states. One point about which we are in agreement with the Fifth Circuit is that Cruikshank and Presser rest on a principle that is now thoroughly discredited. See Emerson, 270 F.3d at 221 n.13. Because we decide this case on the threshold issue of standing, however, we need not consider the question whether the Second Amendment presently enjoins any action on the part of the states.

In Hickman, we did not rely on our earlier decision in Fresno Rifle & Pistol Club, Inc. v. Van de Kamp, 965 F.2d 723 (9th Cir. 1992), that the Second Amendment is not incorporated by the Fourteenth and does not constrain actions by the states…

FN10. Moreover, even if we determined that [plaintiff] Hickman had standing to sue for violation of the Second Amendment, his suit would nevertheless fail because the Second Amendment is not incorporated into the Bill of Rights. Fresno Rifle & Pistol Club, Inc. v. Van De Kamp, 965 F.2d 723 (9th Cir. 1992).

The reference to Barron vs. Baltimore (1833) is a red herring, more or less…as an 1833 pre-14th-Amendment case, the fact that it’s outdated isn’t at all controversial.  The key to this lie on Reinhardt’s part is the 1876 Cruikshank case.  Quoting the National Constitution Center:

The Supreme Court decided the case of United States v. Cruikshank in 1876. The case grew out of a brutal massacre of blacks in the little Louisiana town of Colfax.

In Colfax whites burned the court house and murdered an unknown number of blacks. After the U.S. Army restored order, a federal grand jury indicted 72 white men. The United States Attorney brought nine to trial and won a conviction against William Cruikshank and two others.

Normally the federal government does not prosecute persons charged with murder. Control of ordinary crime has traditionally been the job of the states. In this case the U.S. Attorney used the 1870 Enforcement Act. This law makes it a crime for two or more persons to band together with intent to injure, oppress, threaten, or intimidate any citizen.

The Supreme Court threw out the convictions of Cruikshank and his cohorts. As it had in the Slaughterhouse Cases, the Court acted to protect states' power. "Every republican government," Chief Justice Morrison Remick Waite wrote, "is in duty bound to protect all its citizens." He then added, "That duty was originally assumed by the States; and it still remains there."

Reinhardt to his credit may be grossly dishonest but he’s no racist.  He could not, however, bring himself to admit that Hickman was based on the same horrific racism as Fresno Rifle, so he lied.

The other problem in the Fresno Rifle and Hickman cases is their treatment of US v. Miller.  Put simply, Miller says that any civilian arms ownership must be judged to have some connection to “potential militia duty”.  To identify such “militia weapons”, they relied on an 1840 TN Supreme Court case, State vs. Aymette, which defined “militia weapons” (of a type that can’t be banned) in this section:

As the object for which the right to keep and bear arms is secured is of general and public nature, to be exercised by the people in a body, for their common defense, so the arms the right to keep which is secured are such as are usually employed in civilized warfare, and that constitute the ordinary military equipment.  If the citizens have these arms in their hands, they are prepared in the best possible manner to repel any encroachments upon their rights by those in authority.  They need not, for such a purpose, the use of those weapons which are usually employed in private broils, and which are efficient only in the hands of the robber and the assassin.  These weapons would be useless in war.  They could not be employed advantageously in the common defense of the citizens.  The right to keep and bear them is not, therefore, secured by the constitution.

Having read that Aymette cite, go back and read US vs. Miller again, and see if it adds up to support for a “we can ban any gun we want to” as Fresno Rifle and Hickman baldly state.  Or if you don’t believe your own eyes, read Professor Denning’s 1996 law review article debunking the various “Miller Mutilations” the lower courts have perpetrated.

Reinhardt picks and chooses quotes carefully to get a desired effect: “proof” that the “well regulated militia” of the 2nd Amendment is some sort of “organized armed forces under STATE control as a check upon potential Federal tyranny”.  Even a brief look at some of his “positive sources” causes them to collapse.

One example is the aforementioned State vs. Aymette, of which Reinhardt writes:

For instance, Professor Dorf, after canvassing documents from the founding era, concluded that “[o]verwhelmingly, the term had a military connotation.” Dorf, supra, at 314. Our own review of historical documents confirms the professor’s report.  The Tennessee Supreme Court, in the most significant judicial decision to construe the term “bear arms,” concluded that it referred to the performance of a military function: “A man in pursuit of deer, elk and buffaloes might carry his rifle every day for forty years, and yet it would never be said of him that he had borne arms.” Aymette v. State, 21 Tenn. (2 Humph.) 154 (1840).

“the arms the right to keep which is secured [by Constitutional guarantees - ed] are such as are usually employed in civilized warfare, and that constitute the ordinary military equipment.  If the citizens have these arms in their hands, they are prepared in the best possible manner to repel any encroachments upon their rights by those in authority.

Per Reinhardt, the “militia” is a “state’s army” – yet nowhere in his text does he mention US Code, Title 10, section 311:

Sec. 311. - Militia: composition and classes

(a) The militia of the United States consists of all able-bodied males at least 17 years of age and, except as provided in section 313 of title 32, under 45 years of age who are, or who have made a declaration of intention to become, citizens of the United States and of female citizens of the United States who are members of the National Guard.

(b) The classes of the militia are -

(1) the organized militia, which consists of the National Guard and the Naval Militia; and
(2) the unorganized militia, which consists of the members of the militia who are not members of the National Guard or the Naval Militia

This omission is pure fraud.  US vs. Miller mentioned this basic Federal law with approval:

The signification attributed to the term Militia appears from the debates in the Convention, the history and legislation of Colonies and States, and the writings of approved commentators. These show plainly enough that the Militia comprised all males physically capable of acting in concert for the common defense. 'A body of citizens enrolled for military discipline.' And further, that ordinarily when called for service these men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time.

Reinhardt goes so far as to quote Madison in the Federalist Papers (46):

Let a regular army, fully equal to the resources of the country, be formed; and let it be entirely at the devotion of the federal government: still it would not be going too far to say that the State governments with the people on their side would be able to repel the danger. . . . Besides the advantage of being armed, which the Americans possess over the people of almost every other nation, the existence of subordinate governments, to which the people are attached and by which the militia officers are appointed, forms a barrier against the enterprises of ambition, more insurmountable than any which a simple government of any form can admit of.

Advocates of the traditional individual rights view often quote Madison’s observation that the American people have the “advantage of being armed” as conclusive evidence that the Founders intended to protect the personal ownership of firearms. See, e.g., Emerson, 270 F.3d at 249 n.3; Don B. Kates, Jr., Gun Control: Separating Reality From Symbolism, 20 J. CONTEMP. L. 353, 364 (1994). However, examination of those words in context, as set forth above, suggests that Madison was referring to armed citizens in the service of state governments, i.e., militiamen.

No state shall, without the consent of Congress, lay any duty of tonnage, keep troops, or ships of war in time of peace, enter into any agreement or compact with another state, or with a foreign power, or engage in war, unless actually invaded, or in such imminent danger as will not admit of delay. [Emphasis added]
http://www.law.cornell.edu/constitution/constitution.articlei.html

Reinhardt went out of his way to disparage the idea of an “armed citizen militia” at the time of the nation’s founding:

Washington in particular felt that the need was acute; in 1783 he wrote a document entitled Sentiments On A Peace Establishment, in which he recommended establishing a national militia that would exist along with those maintained by the individual states. Subsequently, he wrote to John Adams in the wake of Shays’s Rebellion that because of the lack of a unified national military force, “[w]e are fast verging to anarchy and confusion!” Letter from George Washington to James Madison (Nov. 5, 1786), in 29 THE WRITINGS OF GEORGE WASHINGTON, 1745-1799, at 51 (John Clement Fitzpatrick ed., 1931) (quoted in Michael A. Bellesiles, The Second Amendment in Action, 76 CHI.-KENT L. REV. 61, 65 (2000)).

The Writings of George Washington from the Original Manuscript Sources, 1745-1799. John C. Fitzpatrick, Editor.

Mount Vernon, November 5, 1786.

My dear Sir: I thank you for the communications in your letter of the first instt. The decision of the House on the question respecting a paper emission, is portentous I hope, of an auspicious Session. It may certainly be classed among the important questions of the present day; and merited the serious consideration of the Assembly. Fain would I hope, that the great, and most important of all objects, the foederal governmt., may be considered with that calm and deliberate attention which the magnitude of it so loudly calls for at this critical moment. Let prejudices, unreasonable jealousies, and local interest yield to reason and liberality. Let us look to our National character, and to things beyond the present period. No morn ever dawned more favorably than ours did; and no day was ever more clouded than the present! Wisdom, and good examples are necessary at this time to rescue the political machine from the impending storm. Virginia has now an opportunity to set the latter, and has enough of the former, I hope, to take the lead in promoting this great and arduous work. Without some alteration in our political creed, the superstructure we have been seven years raising at the expense of so much blood and treasure, must fall. We are fast verging to anarchy and confusion!

Sources:

http://www.claytoncramer.com/weblog/2002_12_01_archive.html - check under Friday, Dec. 12th.
http://memory.loc.gov/ammem/gwhtml/gwhome.html - Washington’s papers online.

Other authors cited by Reinhardt relied on Michael Bellesiles as a “scholarly source”, but by December 2002 the evidence was that his entire premise regarding the early militia wasn’t just flawed, it was fraudulent.  Less than two weeks after Reinhardt’s decision, Bellesiles quit Emory University to avoid being fired, and his Bancroft prize for his “history” book “Arming America” was revoked (plus the Bancroft Committee wanted their $4k back!).

Using Bellesiles as a “scholarly source” was pure desperation on Reinhardt’s part.  Emory University’s official probe into his “scholarship” had called his honesty into serious question months before.

Amusingly, Reinhardt penned a quick retraction and revised the Silveira judgment to eliminate all references to “Bell-liar” less than two weeks after the initial judgment but that alone doesn’t fix the problems, because other “scholarship” cited in Silveira uses Bellesiles as a primary source.  To quote historian Clayton Cramer, the main “Bellesiles debunker”:
 

Unsurprisingly, Reinhardt quotes at length from the one-sided Chicago-Kent Law Review symposium issue published two years ago in which only those opposed to the individual rights view were invited--and paid for their articles. (This is almost unheard in scholarly publications.)  Of course, Reinhardt cites the well-known soon-to-be former Professor Michael Bellesiles for support for the collective rights view [ed. - in Silveira’s first draft], apparently unaware or unconcerned about Bellesiles's scholarly integrity problem.
http://www.claytoncramer.com/weblog/2002_12_01_archive.html#85556032

Reinhardt was so desperate to back this “state armies” view of the militia, he quotes a retired US Supreme Court Justice writing not in a formal opinion or even a dissent, but in Parade Magazine(!) in this quote from Silveira:

Finally, we note that, after his retirement, Chief Justice Warren Burger uttered one of the most widely publicized comments about the Second Amendment ever made by a Justice inside or outside the context of a judicial opinion. In an interview, former Chief Justice Burger stated that the traditional individual rights view was: “…one of the greatest pieces of fraud, I repeat the word ‘fraud,’ on the American public by special interest groups that I’ve ever seen in my lifetime. The real purpose of the Second Amendment was to ensure that state armies — the militia — would be maintained for the defense of the state. The very language of the Second Amendment refutes any argument that it was intended to guarantee every citizen an unfettered right to any kind of weapon he or she desires.” Warren E. Burger, The Right to Bear Arms, PARADE MAGAZINE, Jan. 14, 1990, at 4. Although we in no way share Chief Justice Burger’s view that Second Amendment enthusiasts are guilty of fraud, we do generally agree with his statements regarding the Amendment’s purpose and scope.

So did Reinhardt make up this view of the “militia” as being a “state’s armed forces”?

No.  He appears to have got it from his wife.

I wish I was kidding.

Judge Reinhardt is married to Ramona Ripston, a director of the ACLU known as an anti-self-defense zealot.  To quote an ACLU press release:

ACLU NEWS
of Southern California
1616 Beverly Blvd.
Los Angeles, CA 90026
Public Affairs Department
 (213) 977-9500 Ext 260
After Hours: (213) 303-3178

For Immediate Use
Contact: ACLU Public Affairs, x260
Wednesday, Feb. 9, 1994
Mary Tokita, X209

ACLU OF SOUTHERN CALIFORNIA LAUNCHES EDUCATIONAL CAMPAIGN ON GUN CONTROL AND THE SECOND AMENDMENT

As the nation's oldest and most prominent defender of Constitutional Rights, the ACLU of Southern California today launched an educational campaign to eliminate popular myths about the Second Amendment to the U.S. Constitution.

"Governor Wilson's crime summit and other political posturing to 'get tough on crime' are not focusing on ways to limit violence in our communities," said Ramona Ripston, ACLU executive director.  "We want to support one positive and obvious tool that will have a direct impact on thousands of lives.  And, as an advocate of our freedoms under the U.S. Constitution, the ACLU wants to set the record straight on what our forefathers truly intended about our right to bear arms."

The Second Amendment was written shortly after the Revolutionary War when Bill of Rights author James Madison and other leaders were still suspicious of any centralized   government.  In that context, the phrase "a well regulated Militia, being necessary to the security of a free State" reflected a vital concern of that time: the ability of states to defend themselves against a possibly tyrannical federal government or outside threats to the Union.  Equipment and ammunition were kept in the house of private citizens because the militia of 1792 consisted of part-time citizen-soldiers.

In four cases in which the Supreme Court addressed the issue, it has consistently held that the Second Amendment does not grant a blanket right of individual gun ownership," said ACLU attorney Alan Friel.  "Despite what is commonly believed, the Amendment does not prohibit rational and effective gun control."

As part of the campaign, the civil liberties group has published a new public education brochure and has placed a full-page advertisement in the West Coast edition of today's New York Times. Public speaking and other educational activities are also planned.
Quoted by J. Neil Schulman at: http://www.rkba.org/research/schulman/aclu

Solid evidence came in an Email exchange between Ramona Ripston and pro-RKBA activist David Codrea, who showed and debunked quotes from the written sources Ripston provided, such as:

While some scholars have suggested that the Amendment gives individuals the constitutional right to bear arms, still others have argued for discarding the Amendment as irrelevant and out of date.
However, the vast majority of constitutional experts agree that the right to keep and bear arms was intended to apply only to members of state-run citizen militias."
...
"Q- If it doesn't guarantee the right to own a gun, why was the Second Amendment included in the Bill of Rights?
A- When James Madison...proposed the Bill of Rights in the late 1780s, people were still suspicious of any centralized federal government. Just 10 years earlier, the British army had been an occupying force in Colonial America— enforcing arbitrary laws decreed from afar.
After the Revolutionary War, the states insisted on the constitutional right to defend themselves in case the fledgling U.S. government became tyrannical like the British Crown. The states demanded the right to keep an armed 'militia' as a form of insurance."
...
"Q- What exactly is 'a well-regulated militia?'
A- Militias in 1792 consisted of part-time citizen soldiers organized by individual states. Its members were civilians who kept arms, ammunition and other military equipment in their houses and barns—there was no other way to muster a militia with sufficient speed."
...
"Q- Does the Second Amendment in any way guarantee gun rights to individuals?
A- No. The weight of historical and legal scholarship clearly shows that the Second Amendment was intended to guarantee that states could maintain armed forces to resist the federal government.
Most scholars overwhelmingly concur that the Second Amendment was never intended to guarantee gun ownership rights for individual personal use. Small arms ownership was common when the Bill of Rights was adopted, with many people owning single-shot firearms for hunting in what was then an overwhelmingly rural nation."  [Both the questions and answers were in the ACLU materials]
Source: http://www.keepandbeararms.com/information/XcIBViewItem.asp?ID=315

Reinhardt understood that 9th Circuit anti-self-defense jurisprudence was in trouble, propped by the shaky foundation of the “Miller Mutilations” on the one hand, and the horrifically racist Cruikshank case on the other.

In desperation, he told outright lies and depended on sources as shaky as Parade Magazine and the by-then-utterly-discredited Bellesiles to craft an entirely new approach to anti-gun jurisprudence in the 9th, one not founded on systematically lying about Miller and without need of Cruikshank as backup.  He ignored Federal law regarding the “unorganized militia”, he ignored most of Miller, he ignored the plain meaning of Aymette, he ignored the Constitutional ban on states having standing armies, and he relied on a documented con artist as a source.

These aren’t “mistakes”.  He read US. v Emerson, he had to have read Miller, he was aware of all of these issues and he didn’t even bother to dismiss them, he flat-out ignored them.

Less than three months later, Judge O’Scannlain wrote a scathing indictment of the Silveira decision in the Nordyke case, at footnote 4:

We should note in passing that in Silveira v. Lockyer, 312 F.3d 1052 (9th Cir. 2002), another panel took it upon itself to review the constitutional protections afforded by the Second Amendment even though that panel was also bound by our court’s holding in Hickman. The panel in Silveira concluded that analysis of the text and historical record led it to the conclusion that the collective view of the Second Amendment is correct and that individual plaintiffs lack standing to sue.

However, we feel that the Silveira panel’s exposition of the conflicting interpretations of the Second Amendment was both unpersuasive and, even more importantly, unnecessary. We agree with the concurring opinion in Silveira: “[W]e are bound by the Hickman decision, and resolution of the Second Amendment issue before the court today is simple: plaintiffs lack standing to sue for Second Amendment violations because the Second Amendment guarantees a collective, not an individual, right.” Silveira v. Lockyer, 312 F.3d 1094 (9th Cir. 2002) (Magill, J., concurring). This represents the essential holding of Hickman and is the binding law of this circuit.

There was simply no need for the Silveira panel’s broad digression. In a recent case, an individual plaintiff cited to the Fifth Circuit’s holding in Emerson and argued that the Second Amendment protects an individual right to bear arms. United States v. Hinostroza, 297 F.3d 924, 927 (9th Cir. 2002). However, we summarily, and properly as a matter of stare decisis, rejected the Second Amendment challenge on the grounds that it is foreclosed by this court’s holding in Hickman. Therefore, despite the burgeoning legal scholarship supporting the “individual rights” theory as well as the Fifth Circuit’s holding in Emerson, the Silveira panel’s decision to re-examine the scope and purpose of the Second Amendment was improper. Because “only the court sitting en banc may overrule a prior decision of the court,” Morton v. De Oliveira, 984 F.2d 289, 292 (9th Cir. 1993), the Silveira panel was bound by Hickman, and its rather lengthy re-consideration of Hickman was neither warranted nor constitutes the binding law of this circuit. Accordingly, we ignore the Silveira panel’s unnecessary historical disquisition as the dicta that it is and consider ourselves bound only by the framework set forth in Hickman.

I join the court’s opinion, and write to elaborate that Hickman v. Block, 81 F.3d 98 (9th Cir. 1996), was wrongly decided, that the remarks in Silveira v. Lockyer, 312 F.3d 1052 (9th Cir. 2002), about the “collective rights” theory of the Second Amendment are not persuasive, and that we would be better advised to embrace an “individual rights” view of the Second Amendment, as was adopted by the Fifth Circuit in United States v. Emerson, 270 F.3d 203, 260 (5th Cir. 2001), consistent with United States v. Miller, 307 U.S. 174 (1939). We should recognize that individual citizens have a right to keep and bear arms, subject to reasonable restriction by the government. We should also revisit whether the requirements of the Second Amendment are incorporated into the Due Process Clause of the Fourteenth Amendment.

Our panel is bound by Hickman, and we cannot reach the merits of Nordyke’s challenge to Second Amendment. But the holding of Hickman can be discarded by our court en banc or can be rejected by the Supreme Court if it decides to visit the issue of what substantive rights are safeguarded by the Second Amendment.

I write to express disagreement with the “collective rights view” advanced in Hickman and Silveira because I conclude that an “individual rights view” of the Second Amendment is most consistent with the Second Amendment’s language, structure, and purposes, as well as colonial experience and pre-adoption history.

Add it up, folks.  Judge Reinhardt took certain oaths to uphold and defend the Constitution and laws, and he systematically trampled that oath.

Impeachment is not an unreasonable response.

Jim March
Equal Rights for CCW Home Page
http://www.equalccw.com