The Gun Counter

For the foregoing reasons, we AFFIRM the district court’s
grant of summary judgment to the County on the Nordykes’
First Amendment and equal protection claims and, although
we conclude that the Second Amendment is indeed incorporated
against the states, we AFFIRM the district court’s
refusal to grant the Nordykes leave to amend their complaint
to add a Second Amendment claim in this case.

GOULD, Circuit Judge, concurring:
I concur in Judge O'Scannlain's opinion but write to elabo-
rate my view of the policies underlying the selective incorpo-
ration 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 ter-
rorist 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 degener-
ate into tyranny, and though this may seem unlikely, this pos-
sibility should be guarded against with individual diligence.
Third, while the Second Amendment thus stands as a protec-
tion against both external threat and internal tyranny, the rec-
ognition 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 par-
ticular regulation by the states and municipalities, what is rea-
sonable and permissible and what is unreasonable and
offensive to the Second Amendment.

1
English history as summarized by Winston Churchill shows constant
recourse to militia to withstand invading forces that arrived not rarely
from Englandþs 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 military 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).

Netpackrat wrote:Ninth circuit did that? huh.

to reach this argument on the merits, we must first
decide whether Heller abrogated Hickman. It did. Hickman
rested on our conclusion that the Second Amendment protects
only a collective right; Heller squarely overruled such conclu-
sion. See Heller, 128 S. Ct. at 2799 (“There seems to us no doubt, on the basis of both text and history, that the Second
Amendment conferred an individual right to keep and bear
arms.”). Thus the basis for Hickman’s holding has evaporated,
and the opinion is clearly irreconcilable with Heller. In such
circumstances, we consider our prior decision abrogated by
higher authority.4 See Miller v. Gammie, 335 F.3d 889, 899-
900 (9th Cir. 2003) (en banc).