The American Militia

Gaining Some Ground

You are aware of the US Supreme Court decision in Washington DC Vs Heller, affirming (the obvious) that the Second Amendment enumerates a natural or fundamental right. They concluded, based on the issue at trial, that firearms must be allowed to be kept and at the ready for self defense in the home. No other issue was questioned in this very narrow ruling. The issue of application of Second Amendment protection in States or other jurisdiction was never at issue, this was only a case regarding federal restrictions in the Federal City, Washington DC.

Now that process has taken a large step to Second Amendment protection in States and local jurisdictions by way of the Nordyke Vs Alameda (California) decision in the 9th Circuit court of appeals. The Ninth circuit, which covers most of the western states, is usually a very liberal court and has handed down many anti-gun opinions in the past and is the most overturned of all the appeals courts. This time, however, because of the Heller decision, the Ninth was forced to REVERSE its previous position that the Second Amendment was a collective restriction (protecting the collective group, or the militia) and instead affirm that the Second Amendment was an INDIVIDUAL right, and a very important fundamental right at that. Because of that they have stated that it IS INCORPORATED against the states. I’ll let some of the opinion spell out the high points.

From 9th circuit decision, DC No. CV-99-04389-MJJ - at page 4496 [emphasis added]

[12] We therefore conclude that the right to keep and bear arms is “deeply rooted in this Nation’s history and tradition.” Colonial revolutionaries, the Founders, and a host of commentators and lawmakers living during the first one hundred years of the Republic all insisted on the fundamental nature of the right. It has long been regarded as the “true palladium of liberty.” Colonists relied on it to assert and to win their independence, and the victorious Union sought to prevent a recalcitrant South from abridging it less than a century later. The crucial role this deeply rooted right has played in our birth and history compels us to recognize that it is indeed fundamental, that it is necessary to the Anglo-American conception of ordered liberty that we have inherited. 17 We are therefore persuaded that the Due Process Clause of the Fourteenth Amendment incorporates the Second Amendment and applies it against the states and local governments.18

17 By speaking of the two parts of the incorporation inquiry separately— “deeply rooted in this Nation’s history and tradition” and “necessary to an Anglo-American regime of ordered liberty”—we do not mean to imply a distinct two-pronged test. The incorporation cases and the substantive due process cases both treat these two phrases as aspects of a holistic inquiry.

18 The County and its amici point out that, however universal its earlier support, the right to keep and bear arms has now become controversial. See generally Sanford Levinson, The Embarrassing Second Amendment, 99 Yale L.J. 637 (1989). But we do not measure the protection the Constitution affords a right by the values of our own times. If contemporary desuetude sufficed to read rights out of the Constitution, then there would be little benefit to a written statement of them. Some may disagree with the decision of the Founders to enshrine a given right in the Constitution. If so, then the people can amend the document. But such amendments are not for the courts to ordain.

Now, the above text has some very important points in it, but generally such reading is very dry and difficult for the non-legally inclined mind. It takes a bit of knowledge and interpretation to understand just what is going on. Below is part of an article that provides just that. The link to the full article is included and I encourage you to read it and visit some of the many hyper-linked sites included in it for more detailed discussion. Here, however is the main point.


Life After Heller - More lawyers, more guns, some nunchuks, and the 14th Amendment Brian Doherty, May 5, 2009 –

The line of reasoning by Judge Diarmuid F. O’Scannlain in Nordyke has proved particularly interesting as it has attempted to follow the 14th Amendment’s call that “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law.”

Elements of the federal Bill of Rights might be said to apply to states and localities in at least two ways, and most of the Bill of Rights has already been thus applied. But until Nordyke, the Second Amendment had been glaringly left out. For non-lawyers, the way the 14th Amendment ended up being parsed in Nordyke, and most other cases, might seem peculiar, but here’s how it went.

O’Scannlain declared that the Second Amendment is not one of the “privileges or immunities of citizens of the United States,” precisely because the right is one of “those general civil rights independent of the Republic’s existence,” and not a peculiar possession of Americans as Americans. Peculiarly, it is too important to be imposed on the states via the 14th Amendment by the "privileges or immunities" clause.

Luckily, there is another way. Though you might think “due process” refers merely to the ways or procedures by which government deals with our rights, courts have come to believe in something called “substantive due process.” The Due Process Clause “guarantees more than fair process, and the ‘liberty’ it protects includes more than the absence of physical restraint,” as explained in 1997’s Washington v. Glucksberg.

Thus, as O’Scannlain wrote in Nordyke, if the Second Amendment right is “fundamental, meaning ‘necessary to an Anglo-American regime of ordered liberty’…then the Fourteenth Amendment incorporates it.” And using reasoning analogous to how trial by jury was incorporated on states and localities in the 1968 Duncan decision, he held that the Second Amendment also must be incorporated.

The decision in Nordyke, much like Heller, laid out in convincing detail that the right of self-defense through weapons protected in the Second Amendment is indeed “deeply rooted in this Nation’s history and tradition....The crucial role this deeply rooted right has played in our birth and history compels us to recognize that it is indeed fundamental, that it is necessary to the Anglo-American conception of ordered liberty."

[End Quote]

So, if I can rephrase this, the Second Amendment encompasses so fundamental a right that it can NOT be one of the privileges and immunities spoken of in the 14th Amendment, the right is a natural right, not granted (or revokable) by any act of law. But then, we knew that all along, as you have read in previous American Militia essays. Fortunately, it can be incorporated under the “due process” section of the 14th Amendment.

Now on to the 9th and 10th Amendments.

While the Second Amendment has been getting some well deserved recognition in Heller and Nordyke, the Ninth and Tenth Amendments, the “states rights” issues, have also been gaining momentum. The Federal laws and regulation all hang on the Constitutional General Powers and the issue of “Interstate Commerce” addressed in the Constitution. The federal government is tasked with regulating the commerce between the states. You can read this in Article I - Section 8 of the constitution where it is mentioned and alluded to at several points. This general power has been slowly bent out of all reasonable shape and suffered from massive “Mission Creep” over the last Century and more. Today, it is assumed and asserted by the Federal Government that any item or thing or act has General Power or “interstate commerce” entanglements and thus can be regulated by them. This extra-constitutional power has been challenge in the past and today is getting some more very serious challenge. For example, there are numerous state 9th and 10th amendment actions. Here is one.

Montana HB 0246, Voted and Signed into law, Effective date is October 1, 2009


The following text, from an on line source regarding the Montana law, should help explain. (Edited for brevity).


Montana Governor Signs Revolutionary New Gun Law
by Ernest Hancock Freedom's Phoenix May 4, 2009

Executive Summary - The USA state of Montana has signed into power a revolutionary gun law. I mean REVOLUTIONARY.

The State of Montana has defied the federal government and their gun laws. This will prompt a showdown between the federal government and the State of Montana. The federal government fears citizens owning guns. They try to curtail what types of guns they can own. The gun control laws all have one common goal - confiscation of privately owned firearms.

Montana has gone beyond drawing a line in the sand. They have challenged the Federal Government. ... Gotta love it.


Silencers made in Montana and sold in Montana would be fully legal and not registered.


There would be no firearm registration, serial numbers, criminal records check, waiting periods or paperwork required. So in a short period of time there would be millions and millions of unregistered untraceable guns in Montana. Way to go Montana.

Discussion - Let us see what Obama does. If he hits Montana hard they will probably vote to secede from the USA ... The governor of Texas has already been refusing Federal money because he does not want to agree to the conditions that go with it and he has been saying secession is a right they have as sort of a threat. Things are no longer the same with the USA. Do not be deceived by Obama acting as if all is the same, it is not.

[End Quote]

There you have it, the Montana “line in the Rockies” (not much sand out there). The whole issue in Montana, AND all the other states that are going this route too, is quite interesting and encouraging. They are of course challenging the vast over application of the interstate commerce clause of the Constitution. That law has been applied so that if ANY PART or RAW MATERIAL of your product moved in interstate commerce, then the whole product can be regulated under Federal rules. Even if these state challenges appear to be dead ends, at least the law is being tested and illustrated how it has become oppressive over the years. Just think of Heller and Nordyke, they had little chance but turned out quite good.

Now here is an interesting point suggested by others. Enforce state law to all parties to require all persons to obtain CCW permits if they want to carry concealed in a state, FEDS Included. Require compliance with all other state laws too. You may think of a few that should be applied.

Montana is not alone with its Firearm Freedom Act, Tennessee is right behind and here is the proposed Alaska act;

HOUSE BILL NO. 186(FIN) am -IN THE LEGISLATURE OF THE STATE OF ALASKA FOR AN ACT ENTITLED – "An Act declaring that certain firearms and accessories are exempt from federal regulation."

And then there is Texas and others proposing the same or similar “state sovereignty 9th and 10th amendment bills”. To research this issue just do a Google Search for that phrase. Contemporary actions are taking shape in; Georgia, Oklahoma, Idaho, Washington, Oregon, South Dakota, New Mexico, Michigan, Utah, Kentucky, etc.

It looks like the Second Amendment is gaining some ground. It is defeating barriers and amassing public, legal and scholarly attention. Perhaps Citizens will come to understand the importance of that brief bit of text. The American Militia does.

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