The observations here are very far removed from public consciousness.

Also very far removed is what Fourteenth Amendment incorporation is really all about. The very ideologies that are very ambivalent, at best, about their acceptance of incorporation of other articles of the Bill of Rights will now rally to acceptance of Second Amendment incorporation. We will expand the powers of the Federal Government to protect the powers of insurrectionists and anarchists to resist under arms the powers of the Federal Government— and the powers of any and all government. But, not really. The courts will raise absurd expectations about a right to individual sovereignty and then dash them with registration and reasonable restrictions.

The great public debate that belongs in the political arena is taking place in the courts. The Ninth Circuit's Judge Reinhardt wrote his opinion in the earlier Silveira case to contradict the Fifth Circuit's Emerson opinion. The Ninth Circuit denied an en banc rehearing of Silveira in 2003. Judge O'Scannlain who wrote the present Nordyke opinion and also the original Nordyke opinion was one of six judges who dissented to the denial of a rehearing of Silveira. Judge Gould wrote concurring opinions in both cases. They were liberated by Heller to express their anarchy.

Judge Reinhardt wrote in Silveira, p. 44 (page numbers vary in different printings of the text):

In any event, as we will explain infra at 32, 45-47, 53-55, it is clear that the drafters believed the militia that provides the best security for a free state to be the permanent state militia, not some amorphous body of the people as a whole, or whatever random and informal collection of armed individuals may from time to time appear on the scene for one purpose or another.

Judges O'Scannlain and Gould signed on to Judge Kleinfeld's dissent to the denial of a rehearing to Silveira. Kleinfeld wrote referring to the US Code (10 USC § 331. Militia: composition and classes):

The "unorganized militia" is precisely what the panel says it is not, "an amorphous body of people as a whole".

Judge O'Scannlain in the revisited Nordyke opinion cites Alexander Hamilton from Federalist Paper No. 29. The part in bold is the part he cites. The words support the gun lobby/libertarian anarchic doctrine, but when the full context is restored they defeat it:

"The attention of the government ought particularly to be directed to the formation of a select corps of moderate extent, upon such principles as will really fit them for service in case of need. By thus circumscribing the plan, it will be possible to have an excellent body of well-trained militia, ready to take the field whenever the defense of the State shall require it. This will not only lessen the call for military establishments, but if circumstances should at any time oblige the government to form an army of any magnitude that army can never be formidable to the liberties of the people while there is a large body of citizens, little, if at all, inferior to them in discipline and the use of arms, who stand ready to defend their own rights and those of their fellow-citizens. This appears to me the only substitute that can be devised for a standing army, and the best possible security against it, if it should exist."

Hamilton was speaking from the apprehensions of historic memory. The US Army as created in the Constitution was explicitly modeled after the mercenary British Army recently removed. The right of the people in the militia, in the militia clauses of the Constitution, the Second Amendment and the Militia Act of 1792 was the republican right of the people to participate in the military functions of the state as conscript citizen soldiers rather than leave those functions up to a mercenary army. The antagonistic relationship between the conscript state militias and the mercenary US Army was combined in the twentieth century selective service acts. The US Army became in a sense a national militia. The life of the Republic moves on. The militia discussions in the Federalist Papers were relevant to the issues and concerns of the ratification period. They are anachronistic to our present politics and policies.

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
Judge Gould might explain the difference between a lawfully armed populace and an unlawfully armed populace and then try to get the gun lobby and the NRA to agree on the distinction. Prostitution, moonshining, cockfighting, lawful gun ownership— And, unlawful gun ownership— are deeply rooted in our history and tradition. During the 1930s when anti-lynching bills were before Congress, members of Congress defended the Ku Klux Klan, an extralegally armed terrorist militia, as a historical and traditional American institution.

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.

Judge Gould might explain the difference between NRA's "armed citizen guerrillas" whose individual diligence will defend us from tyranny and the Nazi Party's "armed citizen guerrillas", called Stormtroopers, who defended themselves against the Weimar Republic's perceived degeneration into tyranny.

Third, while the Second Amendment thus stands as a protection against both external threat and internal tyranny, 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.

Historically, swords, archery equipment, slings, pikes, and clubs were "arms". The militia inventory in 1792 included lists of knapsacks, drums and fifes, and powders of powder, all militia "arms". The NRA works hard to prevent pounds of powder from being inventoried today. These might be useful for its "armed citizen guerrillas" to make bombs when they decide this government has degenerated into tyranny. Everything from kitchen knives and baseball bats to atomic bombs and chemical weapons could be classified as "arms" if needed for militia purposes. Let's put them on the militia inventory.

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.

Before we can decided what is reasonable and unreasonable, offensive and unoffensive we must decide the purpose of the Second Amendment right. If it is to maintain the NRA's "armed populace at large" and the Ninth Circuit's "amorphous body of the [armed] people as a whole", armed outside of the knowledge and reach of law and government, then the gun lobby, led by the NRA, will fight, as it always has, any regulation. If the purpose is to fulfill a civic obligation by militiamen who have pledged their "allegiance to the flag and to the Republic for which it stands" then the militiamen would be the first to line up for militia duty and put their arms on the militia inventory. Without the distinction, the courts will take their place in a progun/antigun culture war and create a constitutional mess.

The only real interest of the Federal Government is to shut down the illegal traffic between and among jurisditions— and now between and among foreign countries. That can only be accomplished by registration of ownership and reporting of private sales. As several states clamor for exemption from federal regulation as a states' rights issues, let them have their hearts' desire.
http://www.potowmack.org/abcnews.html.
The courts have already given their constitutional permission for a national policy and have no other business to attend to in this matter.

Judge Gould is equally as anarchic in his original Nordyke concurring opinion:

The Second Amendment protects not the rights of militias but the rights "of the people." It protects their right not only to "bear arms," which may have a military connotation, but to "keep arms," which has an individual one.
The first use of "keep" in any document of English or American fundamental law was the 1780 Massachusetts constitution. It is the only one of the original state constitutions still in force. It was a document of treason against the crown. To "keep" was to keep from the Crown for the common defense against the Crown for treasonous purposes. As the words were repeated in subsequent documents the original context was lost.

By giving inadequate weight to the individual right to keep arms, the Silveira majority does not do justice to the language of the Second Amendment and disregards the lesson of history that an armed citizenry can deter external aggression and can help avoid the internal danger that a representative government may degenerate to tyranny.

The tyranny here is any viable concept of law and government. It is disturbing how the "internal danger" of armed resistance to political authority runs through these opinions. The people do have a right of armed resistance. It is a natural right in the State of Nature outside of law and government. Contrary to what the NRA's Wayne LaPierre ( http://www.potowmack.org/parkappe.pdf, p. A-46) would have us believe, it is not a civil right that can possibly be secured by government.
Law and government's best defense is a good offense: Do what the Militia Act of 1792 did. Conscript the "amorphous body of the people as a whole" into the militia and call them out to fulfill their constitutional civic obligation to suppress insurrections not make them.

History does not repeat itself but there are instructive historic precedents. Someone might tell Lou Dobbs that at the end of the First World War Germany's borders were undefined. Paramilitary militias, called "Freikorps", formed to secure the borders. They had the tacit approval of the German government once the Weimar Republic was in place. They invaded neighboring territory and committed atrocities that were precursors of the actions of the German army twenty years later. Many Nazi Party leaders cut their political teeth and tasted their first political blood in the Freikorps.

There is another historical precedent. The Weimar Republic was a government that did not have the political will to maintain its internal sovereignty against the "internal danger" of "armed citizen guerrillas" who would outflank it. The history books tell us that the Weimar Republic ended when Hitler was made chancellor in Jan., 1933. Not exactly. The Weimar Constitution remained on the books until 1945. It was just amended out of existence. On March 23, 1933, when Hitler demanded a constitutional amendment that would empower him to rule by decree he brought his "armed citizen guerrillas", called Stormtroopers, into the legislative chambers with him to guarantee the vote. The Nazi Party's "armed citizen guerrillas" certainly thought the Weimar Republic was tyrannically oppressing them.

The right to "keep and bear arms" is a fundamental liberty upon which the safety of our Nation depends, and it requires for its efficacy that an individual right be recognized and honored.

I reach this conclusion despite a recognition that many may think that these ideas are outmoded, that there is no risk in modern times of our government becoming a tyranny,

We can find on a thousand websites and internet bulletin boards that it has already become a tyranny. The most reprehensible aspect of these anarchic opinions is that they do not address the unabashed proclamations of a right to treason and insurrection. Search Google for "second amendment reset button constitution". Do we now have a federal judge who is a certified "Patron of Anarchy"?

and that there is little threat that others would invade our shores or attack our heartland.
How about invading his courtroom and attacking him when he makes a ruling that a few disaffected members of his "amorphous body of the people as a whole" think is tyrannical.

However, the Second Amendment was designed by the Framers of our Constitution to safeguard our Nation not only in times of good government, such as we have enjoyed for generations, but also in the event, however unlikely, that our government or leaders would go bad.
If and when our government and leaders go bad, whose fault is that? Do we the people, those who think the government is good and those who think it is bad, take up arms against ourselves? That is called civil war.
Has Judge Gould embraced the anarchic notion widely asserted that political power descends from "the ballot box, to the jury box, to the cartridge box"? Search Google for more. Does the amorphous body of the people as a whole, constituted as the NRA's "armed citizen guerrillas", safeguard our Nation when federal judges go bad?

And it was designed to provide national security not only when our country is strong but also if it were to become weakened or otherwise subject to attack.
How about when our country does not have the political will to defend itself against the "armed citizen guerrillas" who would outflank it?

As the people bear the risk of loss of their freedom and the pain of any attack, our Constitution provides that the people have a right to participate in defense of the Nation. The Second Amendment protects that fundamental right.
Exactly. Participate as conscript citizen soldiers to enforce the laws of the Union, suppress insurrections (not make them), repel invasions.

Hamilton wrote in Federalist Paper No. 25:

Here I expect we shall be told that the militia of the country is its natural bulwark, and would be at all times equal to the national defense. This doctrine, in substance, had like to have lost us our independence. It cost millions to the United States that might have been saved. The facts which, from our own experience, forbid a reliance of this kind, are too recent to permit us to be the dupes of such a suggestion. The steady operations of war against a regular and disciplined army can only be successfully conducted by a force of the same kind. Considerations of economy, not less than of stability and vigor, confirm this position. The American militia, in the course of the late war, have, by their valor on numerous occasions, erected eternal monuments to their fame; but the bravest of them feel and know that the liberty of their country could not have been established by their efforts alone, however great and valuable they were. War, like most other things, is a science to be acquired and perfected by diligence, by perserverance, by time, and by practice.

The citizens must rush tumultuously to arms, without concert, without system, without resource; except in their courage and despair. The usurpers, clothed with the forms of legal authority, can too often crush the opposition in embryo. The smaller the extent of the territory, the more difficult will it be for the people to form a regular or systematic plan of opposition, and the more easy will it be to defeat their early efforts. Intelligence can be more speedily obtained of their preparations and movements, and the military force in the possession of the usurpers can be more rapidly directed against the part where the opposition has begun. In this situation there must be a peculiar coincidence of circumstances to insure success to the popular resistance.

...

It may safely be received as an axiom in our political system, that the State governments will, in all possible contingencies, afford complete security against invasions of the public liberty by the national authority. Projects of usurpation cannot be masked under pretenses so likely to escape the penetration of select bodies of men, as of the people at large. The legislatures will have better means of information. They can discover the danger at a distance; and possessing all the organs of civil power, and the confidence of the people, they can at once adopt a regular plan of opposition, in which they can combine all the resources of the community. They can readily communicate with each other in the different States, and unite their common forces for the protection of their common liberty.

...

... When will the time arrive that the federal government can raise and maintain an army capable of erecting a despotism over the great body of the people of an immense empire, who are in a situation, through the medium of their State governments, to take measures for their own defense, with all the celerity, regularity, and system of independent nations? The apprehension may be considered as a disease, for which there can be found no cure in the resources of argument and reasoning.

Violence Policy Center amicus curiae brief in Nordyke:
http://www.potowmack.org/nordvpc.pdf

Other actions in court

DISPOSITION: AFFIRMED.

Donald E. J. Kilmer, Jr., Law Offices of Donald Kilmer, San Jose, California, argued the cause and filed briefs for the appellants.

Sayre Weaver, Richards, Watson, & Gershon, San Francisco, California, argued the cause for the appellees; Richard Winnie, County Counsel, County of Alameda, was on the briefs.

C.D. Michel, Trutanich Michel, LLP, San Pedro, California, and Stephen P. Halbrook, Law Offices of Stephen P. Halbrook, Fairfax, Virginia, were on the brief for amicus curiae National Rifle Association of America, Inc.

O'SCANNLAIN, Circuit Judge:

We must decide whether a local ordinance prohibiting the possession of firearms on county property infringes upon constitutional rights protected by the First and Second Amendments.

Russell Nordyke and Sallie Nordyke (dba TS Trade Shows) ("Nordyke") have been promoting gun shows at the Alameda County Fairgrounds ("Fairgrounds") since 1991. The Fairgrounds are located on unincorporated county land in the City of Pleasanton. The exhibitors at the show include sellers of antique (pre-1898) firearms, modern firearms, ammunition, Old West memorabilia, and outdoor clothing. In addition, the show hosts educational workshops, issue groups, and political organizations.

In August 1999, Alameda County ("County") passed an ordinance making illegal the possession of firearms on County property ("Ordinance"). In pertinent part, the Ordinance reads: "Every person who brings onto or possesses on county property a firearm, loaded or unloaded, or ammunition for a firearm is guilty of a misdemeanor."Alameda County, Cal., Ordinance § 9.12.120(b). The Ordinance would forbid the presence of firearms at gun shows, such as Nordyke's, held at the Fairgrounds. As a practical matter, the Ordinance makes it unlikely that a gun show could profitably be held there.

Seeking to prevent the Ordinance's enforcement, Nordyke brought suit against the County in the United States District Court for the Northern District of California. Nordyke applied for a temporary restraining order, claiming that the Ordinance was preempted by state gun regulations and that it violated the First Amendment's free speech guarantee. The district court judge treated the application as one for a preliminary injunction and denied it. The judge noted that under either test for a preliminary injunction, a litigant must at least show a fair chance of success on the merits and ruled that Nordyke had failed to do so. Because he concluded that Nordyke had little chance of success on the merits, he did not reach the balance of the hardships determination. Nordyke then filed this timely interlocutory appeal.

We certified Nordyke's preemption claim to the California Supreme Court asking the following question: "Does state law regulating the possession of firearms and gun shows preempt a municipal ordinance prohibiting gun possession on county property"? Nordyke v. King ("Nordyke I"), 229 F.3d 1266, 1267 (9th Cir. 2000).

The California Supreme Court granted certification and ultimately held, "whether or not the Ordinance is partially preempted, Alameda County has the authority to prohibit the operation of gun shows held on its property, and, at least to

that extent, may ban possession of guns on its property. "Nordyke v. King ("Nordyke II"), 27 Cal. 4th 875, 44 P. 3d 133, 138 (Cal. 2002). Pursuant to Rule 29.5 of the California Rules of Court we follow the answer provided by the California Supreme Court to the certified question. We therefore conclude that the district court properly determined that Nordyke's preemption claim was without merit.

Nevertheless, we must still decide Nordyke's remaining constitutional claims. Nordyke urges, under the First Amendment, that the Ordinance impermissibly infringes upon constitutionally protected speech rights.

Nordyke also makes a Second Amendment challenge to the Ordinance. Pending the certification of Nordyke's preemption claim to the California Supreme Court, there were several judicial developments relating to the Second Amendment. As a result, Nordyke filed a motion for supplemental briefing with this court which we granted. Because of our sister circuit's holding in United States v. Emerson, 270 F.3d 203 (5th Cir. 2001), and the change in the United States government's position on the scope of the Second Amendment, n1 Nordyke now urges on appeal that the Ordinance unduly infringes the right of individuals under the Second Amendment to possess privately and to bear their own firearms.

We consider first Nordyke's challenge to the Ordinance on the grounds that it infringes his First Amendment right to free speech. The district court squarely rejected Nordyke's argument that gun possession is expressive conduct protected by

n1 See Opposition to Petition for Certiorari in United States v. Emerson,No. 01-8780, at 19 n.3, available at
http://www.usdoj.gov/osg/briefs/2001/0respon ses/2001-8780.resp.pdf

the First Amendment and that the ban on the possession of firearms unconstitutionally interferes with commercial speech. n2

[1] As to Nordyke's expressive conduct claim, the Supreme Court has "rejected the view that an apparently limitless variety of conduct can be labeled 'speech' whenever the person engaging in the conduct intends thereby to express an idea." Texas v. Johnson, 491 U.S. 397, 404 (1989) (citation and internal quotation marks omitted). However, the Court has "acknowledged that conduct may be sufficiently imbued with elements of communication to fall within the scope of the First and Fourteenth Amendments." Id. (citation and internal quotation marks omitted).

In the case at hand, Nordyke argues that possession of guns is, or more accurately, can be speech. In evaluating his claim, we must ask whether "[a]n intent to convey a particularized message [is] present, and [whether] the likelihood [is] great that the message would be understood by those who viewed it." Spence v. Washington, 418 U.S. 405, 410-11 (1974). If the possession of firearms is expressive conduct, the question becomes whether the County's "regulation is related to the suppression of free expression." Johnson, 491 U.S. at 403. If so, strict scrutiny applies. If not, we must apply the less stringent standard announced in United States v. O'Brien, 391 U.S. 367, 377 1673 (1968).

The first step of this inquiry— whether the action is protected expressive conduct— is best suited to an as applied challenge to the Ordinance. However, in this case, Nordyke challenged the law before it went into effect. Accordingly, he mounts a facial challenge, relying on hypotheticals and exam-

n2 In addition, the district court considered whether the Ordinance was a constitutional time, place, and manner regulation. Nordyke does not press this argument on appeal, however.

ples to illustrate his contention that gun possession can be speech.

[2] In evaluating Nordyke's claim, we conclude that a gun itself is not speech. The question in Johnson was whether flag burning was speech, not whether a flag was speech. 491 U.S. at 404-06. Here too, the correct question is whether gun possession is speech, not whether a gun is speech. Someone has to do something with the symbol before it can be speech. Until the symbol is brought onto County property, the Ordinance is not implicated. See also Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503 (1969) (analyzing whether the wearing of armbands is speech, not whether armbands themselves are speech); O'Brien, 391 U.S. at 376 (analyzing whether burning of draft cards is speech).

[3] In the context of a facial challenge, Nordyke's contentions are unpersuasive. Gun possession can be speech where there is "an intent to convey a particularized message, and the likelihood [is] great that the message would be understood by those who viewed it." Spence, 418 U.S. at 410-11. As the district court noted, a gun protestor burning a gun may be engaged in expressive conduct. So might a gun supporter waving a gun at an anti-gun control rally. Flag waving and flag burning are both protected expressive conduct. See Johnson, 491 U.S. at 404-06. Typically a person possessing a gun has no intent to convey a particular message, nor is any particular message likely to be understood by those who view it. The law itself applies broadly to ban the possession of all guns for whatever reason on County property. The law includes exceptions, primarily for those otherwise allowed to carry guns under state law, but these exceptions do not narrow the law so that it "has the inevitable effect of singling out those engaged in expressive activity." Arcara v. Cloud Books, Inc., 478 U.S. 697, 706-07 3172 (1986).

[4] As Nordyke's "facial freedom of speech attack" does not involve a statute "directed narrowly and specifically at

expression or conduct commonly associated with expression," his challenge fails. See Roulette v. City of Seattle, 97 F.3d 300, 305 (9th Cir. 1996) (quoting City of Lakewood v. Plain Dealer Publishing Co., 486 U.S. 750, 760 (1988)). In Roulette, we turned back a facial First Amendment challenge to a city ordinance prohibiting sitting or lying on the sidewalk. The plaintiffs argued that the law infringed their free speech rights because sitting and lying can sometimes communicate a message. See 97 F.3d at 303. We "reject[ed] plaintiffs' facial attack on the ordinance" because this conduct is not "integral to, or commonly associated with, expression." 97 F.3d at 305. Likewise, Nordyke's challenge fails because possession of a gun is not "commonly associated with expression."

[5] Nordyke points out that several of the rifles for sale are decorated with political messages, most prominently the National Rifle Association Tribute Rifle, which depicts the NRA banner, a militia member and an inscription quoting the Second Amendment: "The Right of the People to Keep and Bear Arms." Where the symbols on the gun (not the gun itself) convey a political message, the gun likely represents a form of political speech itself. See Gaudiya Vaishnava Soc'y v. City and County of San Francisco, 952 F.2d 1059, 1063 (9th Cir. 1991) (holding that merchandise displaying political messages are entitled to First Amendment protection). Here, Nordyke is mounting a facial challenge. In this context, the presence of a handful of NRA Tribute Rifles at a show at which the vast majority of the prohibited guns bear no message whatsoever does not impugn the facial constitutionality of the Ordinance. See Roulette, 97 F.3d at 305; cf. Gaudiya, 952 F.2d at 1064-65 (upholding First Amendment challenge where case involved only merchandise bearing political messages). Thus, we agree with the district court's conclusion that the Ordinance does not unconstitutionally infringe expressive conduct. n3

n3 However, we note that our holding does not foreclose a future as applied challenge to the Ordinance.

[6] Next, Nordyke contends that the Ordinance's prohibition of gun possession on County property unconstitutionally burdens his right to commercial speech. We have previously held that the act of exchanging money for a gun is not "speech" for the purposes of the First Amendment. See Nordyke v. Santa Clara County ("Nordyke III"), 110 F.3d 707, 710 (9th Cir. 1997). In Nordyke III, the very same Nordykes that are before us in this case successfully challenged an addendum to a lease between the county and the fairgrounds operator that barred gun shows from the fairgrounds. The lease addendum held to be an unconstitutional infringement of commercial free speech rights in Nordyke III prohibited offers to sell guns. In contrast, the Ordinance here bars neither sales nor offers to sell, only possession. See Alameda County, Cal., Ordinance § 9.12.120(b). Nevertheless, Nordyke argues that the prohibition on possession makes the sale more difficult and sometimes impossible, stifling commercial speech.

[7] Pursuant to Nordyke III, the sale itself is not commercial speech. It is difficult to argue then that making the sale (non speech) more difficult by barring possession (non-speech) infringes speech. Nordyke cites no authority for this proposition. Nor is this the case of making a sale more difficult by barring speech. In cases such as Nordyke III, what renders the law unconstitutional is the interference with speech itself, not the hindering of actions (e g., sales) that are not speech. As possession itself is not commercial speech and a ban on possession at most interferes with sales that are not commercial speech, we agree with the district court's conclusion that the County's prohibition on possession does not infringe Nordyke's right to free commercial speech.

[8] Finally, we turn to Nordyke's challenge to the Ordinance on Second Amend-

ment grounds. The Second Amendment provides: "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear arms, shall not be infringed." U.S. Const. amend. II. The meaning of this amendment and the extent of the constitutional right it confers have been the subject of much scholarly and legal debate.

The "individual rights" view advocated by Nordyke has enjoyed recent widespread academic endorsement. See, e.g., Sanford Levinson, "The Embarrassing Second Amendment", 99 Yale L. J. 637 (1989); Eugene Volokh, "The Commonplace Second Amendment", 73 N.Y.U. L. Rev. 793 (1998). In addition, Nordyke finds support for the individual rights interpretation from our sister circuit's recent holding in United States v. Emerson, 270 F.3d 203 (5th Cir. 2001), that the Second Amendment "protects the right of individuals, including those not then actually a member of any militia or engaged in active military service or training, to privately possess and bear their own firearms." Id. at 260.

[9] We recognize that our sister circuit engaged in a very thoughtful and extensive review of both the text and historical record surrounding the enactment of the Second Amendment. And if we were writing on a blank slate, we may be inclined to follow the approach of the Fifth Circuit in Emerson . However, we have squarely held that the Second Amendment guarantees a collective right for the states to maintain an armed militia and offers no protection for the individual's right to bear arms. In Hickman v. Block, 81 F.3d 98, 102 (9th Cir. 1996), we held that "it is clear that the Second Amendment guarantees a collective rather than an individual right. Because the Second Amendment guarantees the right of the states to maintain armed militia, the states alone stand in the position to show legal injury when this right is infringed." (citations and internal quotation marks omitted).

[10] As a result, our holding in Hickman forecloses Nordyke's Second Amendment argument. We specifically held

there that individuals lack standing to raise a Second Amendment challenge to a law regulating firearms. Id. at 103. Because "Article III standing is a jurisdictional prerequisite," id. at 101, we have no jurisdiction to hear Nordyke's Second Amendment challenge to the Ordinance. See Ex parte McCardle, 74 U.S. (7 Wall.) 506, 514 (1868) ("Without jurisdiction the court cannot proceed at all in any cause. Jurisdiction is the power to declare the law, and when it ceases to exist, the only function remaining to the court is that of announcing the fact and dismissing the cause.").n4

n4 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,

For the foregoing reasons, the district court's denial of Nordyke's application for a preliminary injunction must be

AFFIRMED.

n1 This view is the current view of the United States. See Opposition to Petition for Certiorari in United States v. Emerson, No. 01-8780 at 19 n.3, available at http://www.usdoj.gov/osg/briefs/2001/0respon ses/20018780.resp.pdf ("The current position of the United States . . . is that the Second Amendment more broadly protects the rights of individuals, including persons who are not members of any militia or engaged in active military service or training, to possess and bear their own firearms, subject to reasonable restrictions. . . .").

n2 Emerson, 270 F.3d at 260. See also Memorandum from the Attorney General [John Ashcroft] to all United States Attorneys, Re: United States

requirements of the Second Amendment are incorporated into the Due Process Clause n3 of the Fourteenth Amendment. n4
(Text continued on page 2231)

v. Emerson, Nov. 9, 2001. ("The [Emerson] opinion also makes the important point that the existence of this individual right does not mean that reasonable restrictions cannot be imposed to prevent unfit persons from possessing firearms or to restrict possession of firearms particularly suited to criminal misuse.").

n3 Whether and to what extent the Bill of Rights should be incorporated into the Due Process Clause of the Fourteenth Amendment is a question that has intrigued many. See Felix Frankfurter, "Memorandum on 'Incorporation' of the Bill of Rights into the Due Process Clause of the Fourteenth Amendment," 78 Harv. L. Rev. 746 (1965); Hugo Lafayette Black, "A Constitutional Faith," at xvi-vii, 34-42 (1968); William J. Brennan Jr., "The Bill of Rights and the States," 36 N.Y.U. L. Rev. 761 (1961); William J. Brennan Jr., "The Bill of Rights and the States: The Revival of State Constitutions as Guardians of Individual Rights," 61 N.Y.U. L. Rev. 535 (1986); Duncan v. Louisiana, 391 U.S. 145, 171-193, 20 L.Ed. 2d 491, 88 S.Ct. 1444 (1968) (Harlan, J., dissenting); Erwin N. Griswold, "Due Process Problems Today in the United States," in The Fourteenth Amendment 161, 164 (Bernard Schwartz ed., 1970); Akhil Reed Amar, "The Bill of Rights and the Fourteenth Amendment", 101 Yale L. J. 1193 (1992).

The Silveira majority states that United States v. Cruikshank, 92 U.S. 542, 23 L.Ed. 588 (1876), and Presser v. Illinois, 116 U.S. 252, 29 L.Ed. 615, 6 S.Ct. 580 (1886), cases holding that the Second Amendment is not applicable to the states, "were decided before the Supreme Court held that the Bill of Rights is incorporated by the Fourteenth Amendment's Due Process Clause." Silveira, 312 F. 3d at 1066 n.17. These remarks of Silveira on incorporation are overbroad and inaccurate. Many Amendments of the Bill of Rights have been incorporated against the states. See, e.g., Duncan v. Louisiana, 391 U.S. 145 (1968) (right to criminal jury); Malloy v. Hogan, 378 U.S. 1 (1964) (privilege against compelled self-incrimination; .New York Times Co. v. Sullivan, 376 U.S. 254, 11 L.Ed. 2d 686, 84 S.Ct. 710 (1964) (freedom of speech and press)); Abington Sch. Dist. v. Schempp, 374 U.S. 203, 10 L.Ed. 2d 844, 83 S.Ct. 1560 (1963) (nonestablishment of religion); Gideon v. Wainwright, 372 U.S. 335 (1963) (right to counsel); Mapp v. Ohio, 367 U.S. 643 (1961) (exclusion of evidence obtained by unreasonable search and seizure). However, the entire Bill of Rights has not been incorporated into the Fourteenth Amendment's Due Process Clause. See John E. Nowak & Ronald D. Rotunda, Constitutional Law 332-334 (4th ed. 1991).

We have held that the Second Amendment is not incorporated and does not apply to the states. Fresno Rifle and Pistol Club, Inc. v. Van de Kamp, 965 F.2d 723 (9th Cir. 1992). If Fresno controls, then the Second Amendment cannot be considered to apply to state and local regulation. Fresno in turn is grounded on Cruikshank and Presser. Silveira urges that Cruikshank and Presser have been undermined, asserting that Barron v. Baltimore, 32 U.S. 243 (1833) (holding that the Bill of Rights does not apply to the states), on which Cruikshank and Presser relied, is "now-rejected." Silveira, 312 F.3d at 1066 n.17.

Although the Supreme Court has incorporated many clauses of the Bill

of Rights into the Due Process Clause of the Fourteenth Amendment, the Supreme Court has never explicitly overruled Barron. More importantly, the Supreme Court has never explicitly overruled Cruikshank and Presser. If reconsideration of Fresno is nonetheless permissible, we must ask whether the liberty guaranteed by the Second Amendment is protected by the Due Process Clause of the Fourteenth Amendment. The Due Process Clause of the Fourteenth Amendment protects those liberties which are "deeply rooted in this Nation's history and tradition, and implicit in the concept of ordered liberty, such that neither liberty nor justice would exist if they were sacrificed." Washington v. Glucksberg, 521 U.S. 702, 721 (1997) (internal quotation marks and citations omitted). To the extent that the Second Amendment was aimed at maintaining an armed citizenry and local power as a check against the possibility of federal tyranny, that purpose is not directly applicable to the states, and a Second Amendment restraint on the states in this sense is not implicit to the concept of ordered liberty. No single state could foreclose liberty of its citizens when faced with the collective power of the federal government and other states. On the other hand, as Presser recognized, the vitality of the Second Amendment's protection for national defense and for preservation of freedom depends on the premise that the states cannot disarm the citizenry. Presser, 116 U.S. at 264-266 ("It is undoubtedly true that all citizens capable of bearing arms constitute the reserved military force or reserve militia of the United States as well as of the states, and, in view of this prerogative of the general government, as well as of its general powers, the states cannot, even laying the constitutional provision in question out of view, prohibit the people from keeping and bearing arms, so as to deprive the United States of their rightful resource for maintaining the public security, and disable the people from performing their duty to the general government.") In this respect, maintenance of an armed citizenry might be argued to be implicit in the concept of ordered liberty and protected by the Due Process Clause of the Fourteenth Amendment.

n4 Another potential avenue for incorporation is via the Privileges and Immunities Clause of the Fourteenth Amendment which also may convey restrictions of the Second Amendment on the states. See Akhil Reed Amar, "The Second Amendment: A Case Study in Constitutional Interpretation," 2001 Utah. L. Rev. 889, 898-899. See also Laurence H. Tribe, "Taking Text and Structure Seriously: Reflections on Free-Form Method in Constitutional Interpretation," 108 Harv. L. Rev. 1221, 1297 n.247 (1995) (advocating use of the Privileges and Immunities Clause and calling for Slaughter-House Cases, 83 U.S. 36 (1872), to be overruled in order to accomplish this goal). I express no view on this theory.

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. n5

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. n6

n5 The Supreme Court's Second Amendment cases have displayed limited analysis of the structure and meaning of the Second Amendment. See generally 1 Laurence H. Tribe, American Constitutional Law 894-902 (3d ed. 2000). The Supreme Court in any appropriate case, however, may decide to review and clarify Second Amendment theory and application, and, as Justice Thomas has remarked, "determine whether Justice Story was correct when he wrote that the right to bear arms 'has justly been considered, as the palladium of the liberties of a republic. ' " Printz v. United States, 521 U.S. 898, 938-939 (1997) (Thomas, J., concurring) (quoting 3 Joseph Story,Commentaries § 1890, p. 746 (1833)).

n6 In addition to the Fifth Circuit, see Emerson, 270 F.3d at 264, many scholars have reached this conclusion. See, e. g., Don B. Kates, Jr., "Handgun Prohibition and the Original Meaning of the Second Amendment", 82 Mich. L. Rev. 204, 211-43 (1983) (advocating the individual rights view); Sanford Levinson, "The Embarrassing Second Amendment," 99 Yale L. J. 637, 642 (1989) (same); Robert E. Shalhope, "The Ideological Origins of the Second Amendment," 69 J. Am. Hist. 599 (1982) (same); William Van Alstyne, "The Second Amendment and the Personal Right to Arms," 43 Duke L. J. 1236, 1253 (1994) (same); but see Michael C. Dorf, "What Does the Second Amendment Mean Today," 76 Chi.-Kent L. Rev. 291, 294

The Second Amendment provides: "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed." U.S. Const. amend. II. Because the "collective rights" view of Hickman and Silveira relies on the Second Amendment's introductory clause, it denigrates the right "of the people" and seeks to limit that right to participation in militia activity. The first eight Amendments of the Bill of Rights protect personal rights of the people. The introductory clause of the Second Amendment provides one justification, not the sole one, for the personal right that is granted. The introductory clause cannot properly be read to eliminate the substantive protection of "the right of the people." Limiting the Second Amendment's protection to collective rights of militias affronts the most basic protections of the Second Amendment. The subject of the Second Amendment is the right of the people to keep and bear arms; the text of the Second Amendment protects that right from infringement.

Also, the "collective rights" view of the Silveira majority gives too little weight to the Second Amendment's protection of a right to "keep" arms. The Silveira majority seeks to enhance collective rights theory by contending that to "bear" arms has a military meaning. Silveira, 312 F.3d at 1072. But the Second Amendment's literal terms are conjunctive. The Silveira majority urges that "keep and bear" should be read together. Id. at 1074. Though the terms are related, the distinct

(2000) (advocating a collective rights view); Jack N. Rakove, "The Second Amendment: The Highest Stage of Originalism," 76 Chi-Kent L. Rev. 103, 124 (2000) (same); David Yassky, "The Second Amendment: Structure, History and Constitutional Change," 99 Mich. L. Rev., 597 (2000) (arguing that "the Founders' overriding concern was to ensure that the new nation's military force would be composed of state militias instead of, or at least in addition to, a federal standing army").

right to "keep" arms is individual and a helpful antecedent to bearing arms in a militia.

The Silveira majority also urges that the word "keep" has no independent content because the Second Amendment does not protect a right to "own" or a right to "possess" arms. Id. at 1072 ("We consider it highly significant, however, that the second clause does not purport to protect the right to 'possess' or 'own', but rather to 'keep and bear' arms."). This argument is not valid. First, ownership is irrelevant. One can keep arms that belong to a friend or relative, and a bailee of arms can protect a homestead or serve in a militia. Second, as for the argument that the Second Amendment doesn't say "possess" arms, consider the American Heritage dictionary's first definition of "keep": "to retain possession of." American Heritage Dictionary 3d ed. 1974); see also Thomas Sheridan, Complete Dictionary of the English Language6th ed. 1796) (defining "to keep" as "[t]o retain; to have in custody"); Samuel Johnson, Dictionary of the English Language (7th ed. 1785) (defining "to keep" as "to retain; not to lose" and also "[t]o have in custody."). Because literally a right to "keep" arms means a right to possess arms, Silveira's argument, to the extent that it rests on a distinction between "keep" and "possess," is not persuasive. Third, Silveira's argument that a right to "keep" arms is subordinate to a right to "bear" arms sidesteps the literal conjunctive language of the Amendment and misconstrues the nature of a militia in which ordinary citizens contribute their personal arms to, and risk their lives for, the Nation's defense.

The conclusion that the Second Amendment's language supports an individual right to "keep and bear arms" is strengthened when we consider the nature and meaning of the term "Militia." The Second Amendment's language indicates that the "Militia" rests upon the shoulders of the people. As Professor Akhil Amar has explained, "the militia were the people and the people were the militia." Akhil Reed Amar, "The Second Amendment: A Case Study in Constitutional

Interpretation," 2001 Utah. L. Rev. 889, 892. He further explained that an earlier draft of the Amendment recited that the militia would be "composed of the body of the people." Id. (citing The Complete Bill of Rights 170-173) (Neil H. Cogan, ed., 1997).

Perhaps most importantly, the Second Amendment's purposes strongly support the theory of an individual right to "keep and bear" arms. The Second Amendment serves at least the following two key purposes: (1) to protect against external threats of invasion; and (2) to guard against the internal threat that our republic could degenerate to tyranny. n7 The purpose of militia to oppose external threat and preserve the national security is apparent from the face of the Second Amendment. The purpose of militia to check potential tyranny of a national government is implicit and is documented by contemporaneous parallel provisions of state constitutions. n8

n7 On the general problem of risks that a democratic republic may not endure, a classic work, first published in 1885 by nineteenth-century legal scholar Sir Henry Sumner Maine, is Popular Government (Liberty Classics 1976).

n8 A few examples from state constitutions illustrate the point:

"[T]he people have a right to bear arms, for the defence of the State; and, as standing armies, in time of peace, are dangerous to liberty, they ought not be kept up; and that the military should be kept under strict subordination to, and governed by, the civil power." N. C. Declaration of Rights, § XVII (1776)

"[T]he people have a right to bear arms for the defence of themselves and the state; and as standing armies in the time of peace are dangerous to liberty, they ought not to be kept up; And . . . the military should be kept under strict subordination, to, and governed by, the civil power." Penn. Const. Declaration of Rights, cl. XIII (1776)

"[T]he people have a right to bear arms for the defence of themselves and the State -- and as standing armies in time of peace are dangerous to liberty, they ought not to be kept up; and . . . the military should be kept under strict subordination to and governed by the civil power." Vt. Const. ch. I., art. 16 (1777)

This view is also reinforced by English and colonial history. English history 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). In the colonies, not only soldiers, but also farmers, merchants, and statesmen typically owned weapons, and there can be no doubt that militia played important roles in defending the colonies in the seventeenth and eighteenth centuries and during the revolutionary break with Great Britain.

Those who debated and framed the Bill of Rights were educated in practical political concepts and doubtless recognized that an opening gambit for tyrants is to disarm the public. n9 If the Second Amendment is held to protect only a state-regulated militia, then there would be no constitutional bar to a federal government outlawing possession of all arms by hunters and those with legitimate needs for protection. A general confiscation of guns could become the order of the day. I believe that result is foreclosed by the salient purpose of the

"[A] well regulated militia, composed of the body of the people, trained to arms, is the proper, natural, and safe defense of a free state; . . . standing armies, in time of peace, should be avoided as dangerous to liberty; and . . . in all cases the military should be under strict subordination to, and governed by, the civil power." Va. Const. art. I., § 13 (1776).

Second Amendment to guard against tyranny, and that an individual right to keep and bear arms must be recognized.

It does not follow that such a right is absolute. The Bill of Rights, though robust, must be interpreted in light of societal needs. For example, even the broad protections of free speech in the First Amendment do not protect a person who "falsely shout[s] fire in a theatre and caus[es] a panic." Schenck v. U.S., 249 U.S. 47, 52 Ohio L. Rep. 149 (1919) (Holmes, J.). Similarly, the Fourth Amendment's general requirement of a warrant for a search permits exceptions for exigent circumstances. See Payton v. New York, 445 U.S. 573 (1980). And though recognizing an individual right to keep and bear arms, government can within due bounds regulate ownership or use of weapons for the public good. We would make progress if the Supreme Court were to establish a doctrine of an individual Second Amendment right subject to reasonable government regulation. The decisional chips would thereafter fall where they may on the basis of particular cases and the delicate balance of their precise facts, aided by the complementary efforts of lawyers, scholars and judges. n10 The law would best put aside extreme positions and adopt an assessment of reasonableness of gun regulation, for this would place us on the right track. n11

n10 The law develops through interdependent actions of academics advancing theories, advocates championing them in litigation, and Judges making decisions that clarify doctrine. The process is ongoing, for after decisions, academics will critique and offer suggested improvements, advocates will bring cases arguing what Judges said as refined by academic feedback, and more refined decisions result from this process. See Hon.Wade H. McCree, Jr., "The Annual John Randolph Tucker Lecture, Partners in a Process: The Academy and the Courts," 37 Wash. & Lee. L. Rev. 811, 1041 (1981).

n11 In my view it is an error, though understandable one, to view the Second Amendment exclusively or primarily with the issue in mind of whether it constrains gun control. That controversial issue, as important as it may be, can be a distorting lens through which to view the Amendment if it clouds judgment and prevents understanding of the basic purposes of the Second Amendment. Instead, the Second Amendment should be con-

Restricting the Second Amendment to "collective rights" of militias and ignoring individual rights of the people betray a key protection against the recurrent tyranny that may in each generation threaten individual liberty. n12 The Silveira majority takes the position that the Framers' concerns to check the possibility of a Federal government tyranny are sufficiently answered by reading the Second Amendment merely to ensure that the states could not be barred from funding state-organized militia. Silveira, 312 F.3d at 1085. I disagree. The Second Amendment cannot properly be interpreted to entrust the freedom of the people to the premise that state governments would arm a self-reliant people and protect the people against a federal tyranny. The practical concept of militia contemplates an armed citizenry capable of rising up, with what arms they hold or can find, to defeat, resist or at minimum delay an invader until more organized power can be marshalled. The likelihood of broad resistance from an armed citi-

sidered in light of its core purposes of protecting the nation's safety from external threat or internal tyranny. However, recognition of individual right in the Second Amendment, to protect national security, is not inconsistent with reasonable regulation, which may be permissible under several theories: (1) all weapons are not "arms" within the meaning of the Second Amendment; (2) "arms" protected may be limited to those consistent with use by an organized military force, as suggested in Miller; and (3) important government interests may justify reasonable regulation.

n12 We should instead heed the observations of President John F. Kennedy on the Second Amendment, which have remaining vitality:

"By calling attention to 'a well regulated militia,' the 'security' of the nation, and the right of each citizen 'to keep and bear arms,' our founding fathers recognized the essentially civilian nature of our economy. Although it is extremely unlikely that the fears of governmental tyranny which gave rise to the Second Amendment will ever be a major danger to our nation, the Amendment still remains an important declaration of our basic civilian-military relationships, in which every citizen must be ready to participate in the defense of his country. For that reason I believe the Second Amendment will always be important."

zenry is a deterrent to any would be invader. Equally important, the practical concept of militia, embracing an armed citizenry, stands to deter risk of government degradation to tyranny. This concept is weakened by Silveira's premise that the citizens could rely on their states to be an arsenal and repository for arms, and otherwise have no right.

The Second Amendment protects not the rights of militias but the rights "of the people." It protects their right not only to "bear arms," which may have a military connotation, but to "keep arms," which has an individual one. By giving inadequate weight to the individual right to keep arms, the Silveira majority does not do justice to the language of the Second Amendment and disregards the lesson of history that an armed citizenry can deter external aggression and can help avoid the internal danger that a representative government may degenerate to tyranny. The right to "keep and bear arms" is a fundamental liberty upon which the safety of our Nation depends, and it requires for its efficacy that an individual right be recognized and honored.

I reach this conclusion despite a recognition that many may think that these ideas are outmoded, that there is no risk in modern times of our government becoming a tyranny, and that there is little threat that others would invade our shores or attack our heartland. However, the Second Amendment was designed by the Framers of our Constitution to safeguard our Nation not only in times of good government, such as we have enjoyed for generations, but also in the event, however unlikely, that our government or leaders would go bad. And it was designed to provide national security not only when our country is strong but also if it were to become weakened or otherwise subject to attack. As the people bear the risk of loss of their freedom and the pain of any attack, our Constitution provides that the people have a right to participate in defense of the Nation. The Second Amendment protects that fundamental right.