The Ninth Circuit, The Second Amendment And The Right To Bear Arms

BY Herschel Smith
7 months ago

Eugene Volokh is discussing the very recent Ninth Circuit decision on the right to bear arms outside the home.  See also here and here.  Eugene’s comments are well worth reading.  Here is one interesting excerpt from the decision.

… with Heller on the books, the Second Amendment’s original meaning is now settled in at least two relevant respects.  First, Heller clarifies that the keeping and bearing of arms is, and has always been, an individual right.  See, e.g., 554 U.S. at 616. Second, the right is, and has always been, oriented to the end of self-defense.

See, e.g., id. Any contrary interpretation of the right, whether propounded in 1791 or just last week, is error. What that means for our review is that historical interpretations of the right’s scope are of varying probative worth, falling generally into one of three categories ranked here in descending order: (1) authorities that understand bearing arm s for self-defense to be an individual right, (2) authorities that understand bearing arms for a purpose other than self-defense to be an individual right, and (3) authorities that understand bearing arms not to be an individual right at all.

To illustrate, a precedent in the first category that declared a general right to carry guns in public would be a great case for Peruta, while a decision in the same group that confined exercise of the right to the home would do his position much damage.  By contrast, those cases in the third category — which, like the dissenting opinions in Heller, espouse the view that one has a right to bear arms only collectively in connection with militia service and not for self-defense within or outside the home — are of no help.

It’s very important to understand what they’re arguing and what they’re not.  But first, let me rehearse my view of the Second Amendment.

Recall that I view the Second Amendment as primarily and first of all a restriction on the power of the federal government.  It was meant to frame in, or circumscribe the centralized powers.  Therefore, it needed only one reason to restrict that power, that reason being stated as concerning the militia.  The Second Amendment is not restrictive, it is inclusive.  I’ll return to that in a moment.

Later, the Second Amendment was applied to the States through incorporation, and thus it applies to all U.S. citizens regardless of State.  However, this should have been superfluous at the time, since most States (Illinois being one exception, having been corrected only recently) recognized the right to bear arms in State Constitutions.  It should have been … but it wasn’t because of collectivist designs on control.

God gives me my right to bear arms.  Man can and should only recognize and respect that right.  I do not have to be a member of the militia to justify my right to own weapons (the Second Amendment gives only one reason that the centralized powers cannot infringe on my rights to bear arms – there are many others).  Again I say – and always remember this – God gives me the right to weapons and to use them for self defense.

Such notables as my friend Bob Owens have asked the question, loosely paraphrased, if militia membership is required, then what kind of training should we be engaged in?

No, and a thousand times no.  Paraplegics, the elderly, shut-ins, and all manner of people who cannot be a member of the militia have just as much of a God-given right to weapons as does a healthy, 19-year old strapping young man ready for service.  It does no good to say that we’re all member of the unorganized militia, because my 90 year old grandmother in-law cannot get herself out of bed.  It’s a lie and a subterfuge to say otherwise, and it avoids the hard question about the ultimate root of my rights.

Now back to what the Ninth Circuit said.  While I am in both categories (i.e., right to bear arms for self defense and also for resistance to tyranny), again, it’s important not to misconstrue their words.

The case before them had nothing to do with the militia or resistance to tyranny.  It had to do with the right to bear arms at all times for personal self defense.  Thus, decisions, case law, and legal texts that have to do with anything but this are irrelevant to their decision.  They lack probative worth in this context.

I think that this is right, and I think that this is generally a good decision.  Let me make a careful note that I am not finished reading the decision, and I may stumble upon something outlandish.  I’ll point it out if I do.

David Codrea says that he doesn’t cede the decision whether we have a right to bear arms to the Ninth Circuit.  Properly so.  God gives it to me, and what God gives me, no court can take away.  But for the trashy decisions handed down by the Ninth Circuit, this one is surprising and delightful to read (so far).  And I do like their focus on the historical context of the constitution rather than on what judges have to say about it from their ivory tower perches today.

For more reading on this subject, see my Christians, The Second Amendment And The Duty Of Self Defense.



  • http://media.nola.com/tpphotos/photo/9346409-standard.jpg bondmen

    Maybe atheists, agnostics and naturalistic materialists are the ones judges can disabuse their individual right to own and operate arms because, like many judges and politicians, they have no call on or protection from the Creator God. Otherwise they best dare not tread!

  • Paul B

    Regardless of whether you believe in God, the right to self defense is inalienable.

    On the militia, the founders defined the militia as “everybody”. All can be called in the defense of the inalienable rights outlined in that wonderful document.

    Our founders where a very articulate and educated class of individuals. Heads and shoulders above the current crop of supposedly educated people who wish to rule us.

  • Barry Hirsh

    The point is, no matter who or what you believe is responsible for your creation, you WERE created with inherent rights.

    They are as much a part of us as our arms, legs, heads and brains.

  • http://captainsjournal.com/ Herschel Smith

    Unless you turn to God for your rights (and your concept of right and wrong), it isn’t apparent to me how we’re any different from the animals on the plains of the Serengeti. Atheists as smart as Bertrand Russell (arguing with Frederick Copleston) badly failed to formulate an ethics based on atheism.

    http://www.captainsjournal.com/2013/12/01/the-foundation-of-liberty/

    At any rate, if you turn anywhere else, you must think through the issue for formulate a philosophical basis for it and be able to defend and explain it.

  • Heyoka

    The Second Amendment was a mere ention of a right that was to remain inviolate. It along with the first eight et out to make forever know that these rights were beyond the reaches of
    government. We cannot say by reference what was intended by the amendments ecause they were after the formation and discussion does not appear in the ebates as reported by Madison, he being the secretary and shall I say scribe” who faithfully recorded the deliberations of the members.

    What we do know is that the Bill of Rights was contested by Hamilton in ederalist Paper 84. Hamilton spoke of the danger of listing certain rights. is prophetic pronouncement that the enumeration of certain rights would give hose disposed to usurp a plausible pretext were spot on. Hamilton contended hat if it was not an expressly written grant from the people to the overnment, then there was no power to do by the government. Read it yourself. o not listen to me and be sure you do not listen to any usurping double ounged politician and of course none of the dumbed down communist educated udiciary.

    Madison stated that the “powers delegated were few and defined” in ederalist Paper 45. Hamilton said in Federalist 33 that the “just and roper” clause in the Constitution referred to only those express terms, ne of the delegated authorities, expressly stated.

    From this information it is easy to understand that the people were not atisfied with no word being mentioned, that express terms authorizing only ery few and written delegations of authority were not enough, that they emanded expressly written statements carving out what government cannot do and as included before a full ratification was able to be achieved.

    In short, per Hamilton’s warning, the officers and officials in government have sed the Bill of Rights to limit the people and to rationalize an authority to egulate the black and white language of what they were never meant to be able o touch. Don’t take my word for it and don’t take the word of the educated in he Marxists schools idiots. Felix Frankfurter and Louis Brandeis were educated n Yale and Harvard, were both Justices on the Supreme Court, they were both advisors o Woodrow Wilson and both devout Communists. Where do you think they learned
    it??? Now consider that all the similarly educated jurists came from these
    schools or from educators from these schools and you begin to get the picture.

    If you do not educate yourself ou do not have the knowledge to defend you inate sense of right and wrong. his is how the Marxists work. By attacking you belief system and causing doubt
    they cut you off from the truth. If you have the knowledge you are able to efend your belief and the truth and their prattling will become very. Their patterns f deception and, psychological attacks and circular reasoning will stand out. o one can do this for you. Either you suck it in and become men and women as nowledgeable as the Framers about your heritage or not.

    So look up the passages I told you f. It is not real easy to grasp at first it is 18th century English. It will ake a very little time, however. Put in the key words in the Find block at the op of the PDF page. I have included a link to the online version of the ederalist below.

    http://www2.hn.psu.edu/faculty/jmanis/poldocs/fed-papers.pdf

    Now look up “tyranny” and “arms” and see how many times those words hit and how they are really meant.

    The Bible says “let no man deceive you” and to “study to show yourself approved”. Hosea 4:6 states, “My people are destroyed for their lack of knowledge”. And I leave you with this, if the Framers would have decided to wait on God to deliver them, we would still be an English Colony.

    “If you love wealth greater than liberty, the tranquility of servitude greater than the animating contest for freedom, go home from us in peace. We seek not your counsel, nor your arms. Crouch down and lick the hand that feeds you; May your chains set lightly upon you, and may posterity forget that you were our countrymen.” Samuel Adams

    “We must prevent these things being done, by either congresses or courts — The people — the people — are the rightful masters of both Congresses, and courts — not to overthrow the Constitution, but to overthrow the men who pervert it —” Abraham Lincoln

  • Heyoka

    Please excuse my errors a bit of editing problems I am afraid.

  • Heyoka

    I saw a special on darwin the other night. Darwin was adamate that the study of the natural world in no way demeaned the knowledge of God. When speaking of his study and how applicable it was to religious positions, he said that the human mind was incapable of knowing the mind of God. He accounted his study to learning of creation in the study of the natural world.
    The entire made up thoery of modern “science” is a complete abboration of what Darwin actually studied and presented. Typical Marxist subversion. Alinski dedicated his book Rules for Radicals to Lucifer… I think that is enough. The dedication to the “Father of Lies” and the “Author of Confusion”, as the Bible states it, is more than enough for my evaluation. Evil !

  • http://captainsjournal.com/ Herschel Smith

    I have to say that it isn’t really clear to whom you’re speaking or what the theme of your comment is.

  • http://media.nola.com/tpphotos/photo/9346409-standard.jpg bondmen

    Yes neo-darwinists have made evolution the creation story thus taking away the glory and honor due the Creator God by His creation. Operational science is one thing we all agree on; forensic science is evaluating historical events and is open to great interpretation. Your second paragraph is as stupendous as it is accurate!

  • Ron

    I disagree with one of your statements.

  • Josh

    Eh…let’s not confuse things by trying to cram a wedge into science that suggests differences between “historic” and “observational”. I was with you until you started parroting Ken Ham who, frankly, is a horrible apologist for intelligent design and espouses preposterous and scientifically unsound notions.

    If ever there was a case to be made for a “god of the gaps”, Ken Ham and his ilk make it wonderfully in spite of themselves.

  • Josh

    Well that was anti-climactic…

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You are currently reading "The Ninth Circuit, The Second Amendment And The Right To Bear Arms", entry #11887 on The Captain's Journal.

This article is filed under the category(s) Firearms,Guns,Second Amendment and was published February 13th, 2014 by Herschel Smith.

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