- SECOND AMENDMENT UPHELD BY NINTH CIRCUIT AS AGAINST A
DEGENERATE AND TYRANNICAL GOVERNMENT
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- http://caselaw.lp.findlaw.com/data2/circs/9th/0715763p.pdf
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- NORDYKE v. KING
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- FOR PUBLICATION
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- UNITED STATES COURT OF APPEALS
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- FOR THE NINTH CIRCUIT
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- Appeal from the United States District Court for the
Northern District of California
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- Martin J. Jenkins, District Judge, Presiding
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- Argued and Submitted
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- January 15, 2009-San Francisco, California
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- Filed April 20, 2009
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- GOULD, Circuit Judge, concurring:
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- 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."
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- 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 inan attack on any community before
more professional forces arrived.
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- 1 Second, the right to bear arms is a protection against
the possibility that even our own government could degenerate into tyranny,
and though this may seem unlikely, this possibility should be guarded against
with individual diligence.
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- 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.
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- All weapons are not "arms" within the meaning
of the Second Amendment, so, for example, no individual could sensibly
argue that the Second Amendment gives them a right to have nuclear weapons
or chemical weapons in their home for self-defense. Also, important governmental
interests will justify reasonable regulation of rifles and handguns, and
the problem for our courts will be to define, in the context of particular
regulation by the states and municipalities, what is reasonable and permissible
and what is unreasonable and offensive to the Second Amendment.
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- http://mail.google.com/a/wildblue.net/?ui=2&ik=6e2426b01f&view=
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