2nd AMENDMENT BINDS & LIMITS THE STATES

Welcome back David

How was Florida Omsig?
it must have been good because you look... well...... florid

your link gives me this.
The connection has timed out
The server at www.courts.wa.gov is taking too long to respond.

In The United States versus Cruikshank (1876) and Presser versus Illinois (1886), the Supreme Court held that the second amendment binds the Federal government, but does not bind the states. This has not been overturned by any rulings of the Court since those decisions. Who gives a rat's ass what a state Supreme Court rules in the matter? The current Court may at some point reverse that principle, but they recently had occasion to do so, and didn't.

Justices who find the state Supreme Court's reasoning persuasive. Court rulings needn't be legally binding to have influence.

I suspect the purpose of such a ruling is get a challenge, so that it will end up on the calendar of the Supremes, in the expectation that they will uphold the ruling of the state court.

Thank u, Seed.

Obviously, the citizens of that State care about their own individual rights
to defend their own lives & property + what Thomas said.
The Justices of the Supreme Court of Washington care about
having their analysis being cited favorably by the USSC in the forthcoming McDonald v. Chicago case.





David

Yeah, its always good to see my friends there.
On some mornings, it was cold, but not as bad as NY.

My apologies, Dp; here 's the decision itself.
I will high lite some of its nicest parts:




Docket Number: 82154-2
Title of Case: State v. Sieyes
File Date: 02/18/2010
Oral Argument Date: 06/30/2009


SOURCE OF APPEAL
----------------
Appeal from Kitsap County Superior Court
07-8-00353-7
Honorable Russell W Hartman


JUSTICES
--------
Barbara A. Madsen Signed Majority result only
Charles W. Johnson Signed Majority
Gerry L. Alexander Signed Majority
Richard B. Sanders Majority Author
Tom Chambers Signed Majority
Susan Owens Signed Majority
Mary E. Fairhurst Signed Concurrence
James M. Johnson Dissent in part Author
Debra L. Stephens Concurrence Author


COUNSEL OF RECORD
-----------------

Counsel for Appellant(s)
Thomas E. WeaverJr.
Attorney at Law
Po Box 1056
Bremerton, WA, 98337-0221

Counsel for Respondent(s)
Todd Layton Dowell
Kitsap County Prosecutors Office
Msc 35
614 Division St
Port Orchard, WA, 98366-4681

Amicus Curiae on behalf of Washington Association of Criminal Defense Lawyers
Neil Martin Fox
Law Office of Neil Fox, PLLC
2003 Western Ave Ste 330
Seattle, WA, 98121-2140


Sheryl Gordon Mccloud
Law Offices of Sheryl Gordon McCloud
710 Cherry St
Seattle, WA, 98104-1925






--------------------------------------------------------------------------------




IN THE SUPREME COURT OF THE STATE OF WASHINGTON

STATE OF WASHINGTON, )
)
Respondent, ) No. 82154-2
)
v. ) En Banc
)
CHRISTOPHER WILLIAM )
SIEYES, ) Filed February 18, 2010
)
Appellant. )

SANDERS, J. -- Law enforcement officers arrested 17-year-old Christopher

Sieyes for possessing a loaded .380 semiautomatic handgun.
The trial court found

Sieyes guilty of unlawful possession of a firearm under RCW 9.41.040(2)(a)(iii),1

which limits circumstances in which children under age 18 can lawfully possess

firearms. We must decide whether the Second Amendment to the United States

Constitution applies to the states and, if so, determine whether RCW

1 "A person, whether an adult or juvenile, is guilty of the crime of unlawful possession of
a firearm in the second degree, if the person does not qualify under subsection (1) of this
section for the crime of unlawful possession of a firearm in the first degree and the person
owns, has in his or her possession, or has in his or her control any firearm: . . . f the
person is under eighteen years of age, except as provided in RCW 9.41.042." RCW
9.41.042 enumerates nine exceptions which allow children under age 18 to possess
firearms.

No. 82154-2

9.41.040(2)(a)(iii) unconstitutionally infringes on the right to bear arms protected

by either the United States or Washington Constitutions. We hold the Second

Amendment applies to the states via the Fourteenth Amendment due process clause;

however, Sieyes fails to demonstrate on this record that RCW 9.41.040(2)(a)(iii)

infringes on his right to bear arms under either constitution.

FACTS

In April 2007 Kitsap County Deputy Sheriff Jon Vangesen stopped a car for

speeding. Vangesen observed front-seat passenger Christopher Sieyes, then 17 years

of age, make a "furtive movement" toward the front passenger floorboard. After

Sieyes stepped out of the car at Vangesen's instruction, the deputy sheriff found a

loaded Bursa .380 semiautomatic handgun under Sieyes's seat. He arrested Sieyes and

transported him to a juvenile detention facility. Vangesen later testified the handgun

was accessible to Sieyes but not other car passengers.

In October 2007 the trial court found Sieyes guilty of second degree firearms

possession because he constructively possessed a handgun and did not meet any

exception under RCW 9.41.042 permitting children to possess firearms. The court

sentenced Sieyes to 10 days' juvenile detention, 1 year of supervision, 30 hours of

community service, and a $100 fine.

Sieyes appealed to the Court of Appeals, Division Two arguing: (1) the

evidence was insufficient to convict him, (2) the trial court erred by not concluding his

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possession was "knowing," and (3) the State should have proved the statutory

exceptions allowing children to possess firearms did not apply to Sieyes.2 Sieyes also

mentioned RCW 9.41.040(2)(a)(iii) was "an absolute prohibition on firearm

possession by minors" and therefore violated his constitutional right to bear arms.

Appellant's Suppl. Br. at 10 (Wash. Ct. App. No. 36799-8-II).

In July 2008 the Court of Appeals requested supplemental briefing on the

constitutionality of the statute and the effect of District of Columbia v. Heller,

___U.S.___, 128 S. Ct. 2783, 171 L. Ed. 2d 637 (2008), which held the Second

Amendment confers an individual right to keep and bear arms. We transferred the

instant matter to this court pursuant to RAP 4.4 solely on the issue of the statute's

constitutionality and the effect of Heller.3

ISSUES

2 The exceptions include: (1) hunting or firearms safety courses; (2) target shooting at an
authorized range; (3) organized competitions; (4) hunting with a valid license; (5) being
at least age 14 or under parent, guardian, or other adult supervision; (6) traveling with
unloaded firearm to engage in authorized activity; (7) being on parent, guardian, or
relative's real property and having permission to possess firearm; (8) being at his or her
residence and having parent or guardian's permission to possess firearm; or (9) when on
military duty. RCW 9.41.042.

3 While the order transferring this case did not explicitly limit our review, the Court of
Appeals certified only this issue. We therefore decide only whether RCW
9.41.040(2)(a)(iii) unconstitutionally infringes on the right to bear arms, and we remand
for further proceedings on the remaining issues, which include: (1) the trial court's
finding of fact regarding accessibility of the firearm, (2) evidence establishing Sieyes's
constructive possession of the gun, and (3) existence or absence of exceptions in RCW
9.41.042.

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No. 82154-2

We must determine whether the Second Amendment's right to bear arms

applies to the states as part of the process due under the Fourteenth Amendment and,

if so, whether RCW 9.41.040(2)(a)(iii) unconstitutionally infringes on that right. We

also independently examine whether the statute violates article I, section 24 of our

state constitution.

STANDARD OF REVIEW

We review issues of constitutionality de novo. State v. Chavez, 163 Wn.2d 262,

267, 180 P.3d 1250 (2008) (citing State v. Eckblad, 152 Wn.2d 515, 518, 98 P.3d

1184 (2004)).

ANALYSIS

I. The United States Constitution Safeguards an Individual Right To Bear Arms
and Applies to the States via the Fourteenth Amendment Due Process
Clause 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 United States Supreme Court had not clarified

whether the Second Amendment's right to keep and bear arms was an individual

entitlement until Heller, the Court's "first in-depth examination of the Second

Amendment." Heller, 128 S. Ct. at 2821. Heller unquestionably recognized an

individual right to bear arms and, in the process, rejected a collective right conditioned

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No. 82154-2

on militia service. "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. Of course the right was not

unlimited, just as the First Amendment's right of free speech was

not." Id. at 2799. We must answer whether the Second Amendment applies to the

states -- an issue Heller explicitly sidestepped. Id. at 2813 n.23.

Incorporation is "[t]he process of applying the provisions of the Bill of Rights

to the states by interpreting the 14th Amendment's Due Process Clause as

encompassing those provisions." Black's Law Dictionary 834 (9th ed. 2009). The

Fourteenth Amendment bars "any state [from] depriv[ing] any person of life, liberty,

or property, without due process of law." U.S. Const. amend. XIV, § 1. Under the

original constitutional architecture the federal Bill of Rights protected only

enumerated rights from federal interference. Barron v. Mayor of Baltimore, 32 U.S.

(7 Pet.) 243, 247-51, 8 L. Ed. 672 (1833) (Marshall, C.J.). Today, however, the

Supreme Court has applied nearly the entire Bill of Rights to the states through the due

process clause. Duncan v. Louisiana, 391 U.S. 145, 149, 88 S. Ct. 1444, 20 L. Ed. 2d

491 (1968). Since 1897 the Supreme Court has progressively concluded most liberties

protected by the Bill of Rights are incorporated. See, e.g., Chi., Burlington & Quincy

R.R. v. Chicago, 166 U.S. 226, 17 S. Ct. 581, 41 L. Ed. 979 (1897) (holding due

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process clause prevents states from taking property without just compensation);

Gitlow v. New York, 268 U.S. 652, 45 S. Ct. 625, 69 L. Ed. 1138 (1925) (incorporating

First Amendment protection of free speech); Cantwell v. Connecticut, 310 U.S. 296,

60 S. Ct. 900, 84 L. Ed. 1213 (1940) (incorporating First Amendment protection of

free exercise of religion).4 At this writing incorporation of the Bill of Rights to the

states through the Fourteenth Amendment is "virtually" complete. Pac. Mut. Life Ins.

Co. v. Haslip, 499 U.S. 1, 34, 111 S. Ct. 1032, 113 L. Ed. 2d 1 (1991) (Scalia, J.,

concurring).5

The early test for incorporation was whether the right was a "fundamental

principle of liberty and justice which adheres in the very idea of free government."

Twining v. New Jersey, 211 U.S. 78, 106, 29 S. Ct. 14, 53 L. Ed. 97 (1908), overruled

on other grounds by Malloy v. Hogan, 378 U.S. 1, 84 S. Ct. 1489, 12 L. Ed. 2d 653

4 As the Court incorporated additional provisions the justices debated whether the Bill of
Rights should apply en banc. Justice Black argued the Fourteenth Amendment
incorporated all provisions in the Bill of Rights and applied them to the states. Adamson
v. California, 332 U.S. 46, 68, 67 S. Ct. 1672, 91 L. Ed. 1903 (1947) (Black, J.,
dissenting), overruled on other grounds by Malloy v. Hogan, 378 U.S. 1, 84 S. Ct. 1489,
12 L. Ed. 2d 653 (1964). But Justice Frankfurter argued selective incorporation included
only rights necessary to assure a scheme of ordered liberty. Id. at 59 (Frankfurter, J.,
concurring). The debate continued for decades. See, e.g., Moore v. City of East
Cleveland, 431 U.S. 494, 541, 97 S. Ct. 1932, 52 L. Ed. 2d 531 (1977) (plurality) (White,
J., dissenting).

5 As of 2006 the Court had explicitly applied 20 of 25 Bill of Rights provisions to the
states. Erwin Chemerinsky, Constitutional Law: Principles and Policies 503-05 (3d ed.
2006).

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(1964). Justice Cardozo later narrowed this test to incorporate rights only if it would

be "impossible" to maintain "a fair and enlightened system of justice" without them.

Palko v. Connecticut, 302 U.S. 319, 325, 58 S. Ct. 149, 82 L. Ed. 288 (1937),

overruled on other grounds by Benton v. Maryland, 395 U.S. 784, 794, 89 S. Ct. 2056,

23 L. Ed. 2d 707 (1969).6 Today's more-permissive standard incorporates rights

"fundamental to the American scheme of justice," Duncan, 391 U.S. at 149, that is,

"necessary to an Anglo-American regime of ordered liberty." Id. at 149 n.14. Duncan

weighs four factors to determine whether a Bill of Rights provision warrants

incorporation: (1) the right's historical underpinning; (2) states' initial regard for the

right, particularly in state constitutions; (3) recent trends and popular view regarding

the right; and (4) purpose served by the right. Id. at 149-58.

Although the Heller Court did not expressly consider incorporation of the right

to bear arms, "that need not stop the rest of us." Sanford Levinson, Comment, The

Embarrassing Second Amendment, 99 Yale L.J. 637, 653-54 (1989). Lower

courts need not wait for the Supreme Court to apply Duncan; the Constitution is the

rule of all courts -- both state and federal judiciaries wield power to strike down

unconstitutional government acts.7 U.S. Const. art. VI, cl. 2; Nelson Lund,

6 Palko also established the Court's selective incorporation theory.

7 On September 30, 2009 the United States Supreme Court granted certiorari in
McDonald v. Chicago, a case directly examining incorporation of the Second
Amendment via the Fourteenth Amendment. Cert. granted, 130 S. Ct. 48 (Sept. 30,
2009) (No. 08-1521).

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Anticipating Second Amendment Incorporation: The Role of Inferior Courts, 59

Syracuse L. Rev. 185 (2008). We must ourselves determine whether the Second

Amendment is incorporated.

The first Duncan factor demands historical analysis of the right to bear arms,

with special attention to fundamental rights "'deeply rooted in this Nation's history

and tradition.'" Washington v. Glucksberg, 521 U.S. 702, 720-21, 117 S. Ct. 2258,

138 L. Ed. 2d 772 (1997) (quoting Moore v. City of East Cleveland, 431 U.S. 494,

503, 97 S. Ct. 1932, 52 L. Ed. 531 (1977) (plurality)).
Gun ownership is an inexorable birthright of American tradition.
"Americans who participated in the Revolution of

1776 and adopted the Bill of Rights held the individual right to have and use arms

against tyranny to be fundamental."8 Stephen P. Halbrook, That Every Man Be

Armed: The Evolution of a Constitutional Right 55 (1984). Moreover gun ownership

was a universal legal duty of American colonists. Joyce Lee Malcolm, The Right of

the People to Keep and Bear Arms: The Common Law Tradition, 10 Hastings Const.

L. Q. 285, 290-95 (1983).

Heller analyzed the Second Amendment from preratification to the end of the

8 The English settled America with the understanding they would possess "all the rights
of natural subjects" including gun ownership. Joyce Lee Malcolm, To Keep and Bear
Arms: The Origins of an Anglo-American Right 137-40 (1994) (internal quotation marks
omitted) (citing Samuel Eliot Morison, The Oxford History of the American People
(1972)). "[T]his country was founded by religious nuts with guns." P. J. O'Rourke, Age
and Guile Beat Youth, Innocence, and a Bad Haircut 228 (1995).

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19th Century, concluding the right to bear arms is an individual right. The Court

began by noting the 1689 Declaration of Rights included the right to bear arms.

Heller, 128 S. Ct. at 2798. The Court added Blackstone, "'the preeminent authority on

English law for the founding generation,'" id. at 2798 (quoting Alden v. Maine, 527

U.S. 706, 715, 119 S. Ct. 2240, 144 L. Ed. 2d 636 (1999)), considered the right to

bear arms "a public allowance, under due restrictions, of the natural right of resistance

and self-preservation," William Blackstone, 1 Commentaries 144 (2d ed. 1766).

The right to bear arms therefore flows from the "absolute rights" of "personal security,

personal liberty, and private property." Id. at 140-41. The Federalist No. 46

describes "the advantage of being armed, which the Americans possess over the

people of almost every other nation" from the viewpoint of a fundamental right to self-

defense. The Federalist No. 46, at 296 (James Madison) (Clinton Rossiter ed., 2003).

"By the time of the founding, the right to have arms had become fundamental for

English subjects." Heller, 128 S. Ct. at 2798.
Heller severed the right to bear arms

from service in a militia, foreclosing the only plausible argument against finding the

right to be individual. 128 S. Ct. 2783.

Heller also found universal support for an individual right to bear arms in pre-

Civil War case law and commentary. Id. at 2808 (citing Aldridge v. Commonwealth, 4

Va. (2 Va. Cas.) 447, 449 (1824)). The most important early American editor of

Blackstone's Commentaries called the right to bear arms the "true palladium of

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liberty." William Blackstone, 1 Commentaries ed.'s app. note D at *300 ("Of the

Constitution of the United States") (St. George Tucker ed. 1803). Thirteen of the 23

states admitted to the Union had Second Amendment analogues by 1820. Heller, 128

S. Ct. at 2802-03.9

The Heller Court also analyzed post-Civil War case law and commentary to

conclude a key purpose of the Fourteenth Amendment was to ensure freed blacks had

the right to keep and bear arms. Id. at 2810-11; see generally Stephen P. Halbrook,

Freedmen, the Fourteenth Amendment, and the Right to Bear Arms, 1866-1876

(1998). The Fourteenth Amendment "transcended race and region, it challenged legal

discrimination throughout the nation and changed and broadened the meaning of

freedom for all Americans." Eric Foner, RECONSTRUCTION: America's

Unfinished Revolution, 1863-1877, at 257-58 (1988); see also Akhil Reed Amar,

America's Constitution: A Biography 390-91 (2005).

Indeed reconstruction Republicans sought to empower black freedmen to resist

oppression at the hands of resurgent white supremacists in the South. Heller, 128 S.

Ct. at 2810 (citing congressional findings as reported in The Local Georgian, a weekly

newspaper, that "'[a]ll men, without distinction of color, have the right to keep and

bear arms to defend their homes, families or themselves'" (alteration in original)).

9 Today 44 states have constitutional rights to bear arms. Eugene Volokh, State
Constitutional Rights to Keep and Bear Arms, 11 Tex. Rev. L. & Pol. 191, 192 (2006).

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"'The right to bear arms has always been the distinctive privilege of freemen. Aside

from any necessity of self-protection to the person, it represents among all nations

power coupled with the exercise of a certain jurisdiction.'" Heller, 128 S. Ct. at 2812

(quoting John Ordronaux, Constitutional Legislation in the United States 241 (1891)).

Accordingly we regard the history, lineage, and pedigree of the Second

Amendment right to bear arms necessary to an Anglo-American regime of ordered

liberty and fundamental to the American scheme of justice. It is deeply rooted in this

Nation's history and tradition.

The second Duncan factor calls for states' historical consideration of the right

to bear arms. 391 U.S. at 153-54. Certainly our state constitution, like many others,

guarantees an individual right to bear arms. Article I, section 24 of the Washington

Constitution declares: "RIGHT TO BEAR ARMS. The right of the individual

citizen to bear arms in defense of himself, or the state, shall not be impaired, but

nothing in this section shall be construed as authorizing individuals or corporations to

organize, maintain or employ an armed body of men." Heller confirms the right to

bear arms is an individual right. While textually different from the Second

Amendment, many state analogs nonetheless reveal a similar sentiment -- as ours

certainly does.

Forty-four state constitutions explicitly recognize the right to keep and bear

arms and "[n]early all secure (at least in part) an individual right to keep some kinds of

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guns for self-defense." Eugene Volokh, State Constitutional Rights to Keep and Bear

Arms, 11 Tex. Rev. L. & Pol. 191, 192 (2006); see also Clayton E. Cramer, For the

Defense of Themselves and the State: The Original Intent and Judicial Interpretation

of the Right to Keep and Bear Arms 221-67 (1994). The right was considered

essential in the colonies and by the original states. Joyce Lee Malcolm, To Keep and

Bear Arms: The Origins of an Anglo-American Right 139 (1994). "Despite a diversity

of colonial settings, each with its 'richly textured pattern of legal institutions and

activity,' the approach to private arms ownership and the employment of an armed

citizenry was remarkably uniform from colony to colony." Id. at 138-39 (quoting

Kermit L. Hall, The Magic Mirror: Law in American History 14 (1989)). "The

dangers all the colonies faced . . . were so great that not only militia members but all

householders were ordered to be armed." Id. at 139.

Third under Duncan, whether the right "continues to receive strong support"

today focuses on whether recent precedent forecloses incorporation. Duncan, 391

U.S. at 154. In United States v. Cruikshank, 92 U.S. (2 Otto) 542, 23 L. Ed. 588

(1875) and Presser v. Illinois, 116 U.S. 252, 6 S. Ct. 580, 20 L. Ed. 615 (1886), the

United States Supreme Court declined to apply the Second Amendment to the states

because the Slaughter-House Cases, 83 U.S. (16 Wall) 36, 21 L. Ed. 394 (1872),

precluded the application of the Bill of Rights to the states via the privileges and
immunities clause, not the due process clause.1 Moreover these precedents did not

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foreclose incorporation because each predated selective incorporation, first articulated

in 1897. See Chi., Burlington & Quincy R.R., 166 U.S. 226. Thus we decline to rely

on these cases for the proposition that the Second Amendment is not an expression of

part of the process due every person by state government.

The first "incorporation decision," Chicago, B. & Q. R. Co. v.
Chicago, was not delivered until eleven years after Presser; one therefore
cannot know if the judges in Cruikshank and Presser were willing to
concede that any of the amendments comprising the Bill of Rights were
anything more than limitations on congressional or other national power.

Levinson, supra, at 653 (footnote omitted); William Van Alstyne, The Second

Amendment and the Personal Right to Arms, 43 Duke L.J. 1236, 1239 n.10 (1994);

accord Heller, 128 S. Ct. at 2813 n.23 (noting, "Cruikshank . . . did not engage in the

sort of Fourteenth Amendment inquiry required by our later cases"). Moreover

Cruikshank merely held the federal Constitution does not apply to private individuals:

"The only obligation resting upon the United States is to see that the states do not deny

the right. This the [Fourteenth] amendment guarantees, but no more. The power of

the national government is limited to the enforcement of this guaranty." 92 U.S. at

554-55. Courts that rely on this precedent misunderstand its holding.11 Because

1 The Court also addressed Second Amendment incorporation very briefly in Miller v.
Texas, 153 U.S. 535, 538, 14 S. Ct. 874, 38 L. Ed. 812 (1894), but dismissed the case on
procedural grounds without showing its incorporation hand.

11 Lower courts have generally upheld state and local gun control laws by citing the
obsolete reasoning in Presser and Cruikshank for the proposition that the Second
Amendment does not apply to the states. See Michael Anthony Lawrence, Second
Amendment Incorporation through the Fourteenth Amendment Privileges or Immunities

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Cruikshank and Presser predate the Supreme Court's process of selectively applying

the Bill of Rights to the states under Duncan, they cannot impede the current

incorporation doctrine.

Nevertheless in early 2009 the Second Circuit puzzlingly and reluctantly relied

on Presser to reject incorporation. Maloney v. Cuomo, 554 F.3d 56 (2d Cir. 2009).12

In a per curiam opinion the court stated it was forced to follow Presser because "'the

Court of Appeals should follow the case which directly controls, leaving to the

Supreme Court the prerogative of overruling its own decisions.'" Id. at 59 (quoting

Bach v. Pataki, 408 F.3d 75, 86 (2dCir. 2005)). Again Presser predates the

incorporation doctrine and "said nothing about the Second Amendment's meaning or

scope, beyond the fact that it does not prevent the prohibition of private paramilitary

organizations." Heller, 128 S. Ct. at 2813. Presser cannot directly control when the

issue is the very reach of incorporation under the due process clause -- a doctrine it

never addressed. Moreover Maloney upheld New York's ban on martial-arts

"nunchaku"13 based on "rational basis" review, a standard specifically rejected by the

and Due Process Clauses, 72 Mo. L. Rev. 1, 57 (2007).

12 James Maloney filed for certiorari to the United States Supreme Court on June 26,
2009 (petition for cert. filed, 78 U.S.L.W. 3015 (U.S. June 26, 2009) (No. 08-1592)). As
of this writing the Court has not acted on the petition.

13 "[A]ny device designed primarily as a weapon, consisting of two or more lengths
of a rigid material joined together by a thong, rope or chain in such a manner as to
allow free movement of a portion of the device while held in the hand and capable
of being rotated in such a manner as to inflict serious injury upon a person by

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Supreme Court in Heller. Id. at 2817 n.27; cf. Maloney, 554 F.3d at 59.

The Seventh Circuit Court of Appeals recently labeled Cruikshank, Presser, and

Miller v. Texas, 153 U.S. 535, 14 S. Ct. 874, 38 L. Ed. 812 (1894), "obsolete" and

"defunct." Nat'l Rifle Ass'n of Am., Inc. v. City of Chicago, 567 F.3d 856, 857-58 (7th

Cir.), cert. granted, 130 S. Ct. 48 (2009). Nevertheless the court followed Maloney to

not apply the Second Amendment to the states through the Fourteenth Amendment

privileges and immunities clause. The Seventh Circuit felt its hands tied by Supreme

Court holdings "even if the reasoning in later opinions has undermined their

rationale." Id. at 857.

On the other hand a three-judge panel of the Ninth Circuit recently abandoned

Cruikshank, Presser, and Miller v. Texas as obsolete. Nordyke v. King, 563 F.3d 439

(9th Cir. 2009). But on July 29, 2009 the court voted to rehear the matter en banc.

Although it cannot be cited as precedent "by or to any court of the Ninth Circuit,"

Nordyke v. King, 575 F.3d 890, 891 (9th Cir. 2009) (Nordyke II), the panel decision

persuasively applied the Second Amendment to the states via the due process clause.

"The crucial role this deeply rooted right [to keep and bear arms] 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

striking or choking."
Maloney, 554 F.3d at 58 (quoting N.Y. Penal Law § 265.00(14)).

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inherited." Nordyke, 563 F.3d at 457.14 While Nordyke enjoys no precedential value,

it nonetheless contributes to Duncan's third prong by signaling courts' current

interpretation of the Second Amendment.

Notwithstanding Heller the United States Supreme Court's most recent in-depth

examination of the Second Amendment occurred in United States v. Miller, 307 U.S.

174, 59 S. Ct. 816, 83 L. Ed. 1206 (1939). Like Presser and Cruikshank we question

the relevance of United States v. Miller to the instant matter, albeit for different

reasons. Miller concerned the constitutionality of a federal regulation barring

interstate transport of, for example, an unregistered sawed-off shotgun. The Court

upheld the federal regulation stating, "n the absence of any evidence tending to

show that possession or use of a 'shotgun having a barrel of less than eighteen inches

in length' at this time has some reasonable relationship to the preservation or

efficiency of a well regulated militia, we cannot say that the Second Amendment

guarantees the right to keep and bear such an instrument." Id. at 178. Miller's

holding stands for the proposition -- and little more -- that certain types of weapons are

not linked to militia service. See Heller, 128 S. Ct. at 2814; Brian L. Frye, The

Peculiar Story of United States v. Miller, 3 N.Y.U. J.L. & Liberty 48, 75-77 (2008).

Accordingly United States v. Miller does not touch the instant matter.

14 In the same vein recent trends and popular views among state attorneys general favor
incorporation. At least 34 state attorneys general have signed amicus briefs in McDonald
v. City of Chicago supporting incorporation. See 2009 WL 1631802.

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Lastly, the purpose served by the right to bear arms supports incorporation.

Heller made plain the Second Amendment's grammatical structure; its text is

comprised of prefatory and operative clauses. Heller, 128 S. Ct. at 2789. "The former

does not limit the latter grammatically, but rather announces a purpose." Id.

(emphasis added). Namely, the amendment's purpose is "'the security of a free

State.'" Id. (quoting U.S. Const. amend. II). This broad concept encompasses at least

two prongs: (1) protection against governmental or military tyranny and (2) self-

protection. See, e.g., William C. Plouffe, Jr., A Federal Court Holds the Second

Amendment is an Individual Right: Jeffersonian Utopia or Apocalypse Now, 30 U.

Mem. L. Rev. 55, 87-89 (1999); Scott Bursor, Note, Toward a Functional Framework

for Interpreting the Second Amendment, 74 Tex. L. Rev. 1125, 1134-37 (1996). While

the latter arguably finds more relevance today, both underlie the Second Amendment

and support its application to the states.

Pursuant to Duncan the Second Amendment protects an individual right to bear

arms from state interference through the due process clause of the Fourteenth

Amendment. This right is necessary to an Anglo-American regime of ordered liberty

and fundamental to the American scheme of justice.

II. Article I, Section 24 of the Washington Constitution Also Secures the
Individual Right To Keep and Bear Arms
Article I, section 2415 plainly guarantees an individual right to bear arms.

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"[T]here is quite explicit language about the 'right of the individual citizen to

bear arms in defense of himself.' This means what it says. From time to time,

people in the West had to use their weapons to defend themselves and were

not interested in being disarmed." Hugh Spitzer, Bearing Arms in Washington

State 9 (Proceedings of the Spring Conference, Washington State Association of

Municipal Attorneys (Apr. 24, 1997)).

We have noted the individual right to bear arms under article I, section 24 may

be broader than the Second Amendment but had not yet determined our provision's

distant reaches when the Court decided Heller. See City of Seattle v. Montana, 129

Wn.2d 583, 594, 919 P.2d 1218 (1996) (plurality); State v. Rupe, 101 Wn.2d 664, 706,

683 P.2d 571 (1984).16 Supreme Court application of the United States Constitution

establishes a floor below which state courts cannot go to protect individual rights. But

states of course can raise the ceiling to afford greater protections under their own

constitutions. Washington retains the "'sovereign right to adopt in its own

Constitution individual liberties more expansive than those conferred by the Federal

Constitution.'" State v. Gunwall, 106 Wn.2d 54, 59, 720 P.2d 808 (1986) (quoting

15 RIGHT TO BEAR ARMS. The right of the individual citizen to bear
arms in defense of himself, or the state, shall not be impaired, but nothing in
this section shall be construed as authorizing individuals or corporations to
organize, maintain or employ an armed body of men.

16 In Rupe we suggested article I, section 24 "is facially broader than the Second
Amendment, which restricts its reference to 'a well regulated militia.'" Rupe, 101 Wn.2d
at 706.

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PruneYard Shopping Ctr. v. Robins, 447 U.S. 74, 81, 100 S. Ct. 2035, 64 L. Ed. 2d

741 (1980)).

Two textual exceptions qualify the scope of the right to keep and bear arms in

the Washington Constitution. First, the right exists only in the context of an

individual's "defense of himself, or the state." Const. art. I, § 24. Second, the right

does not authorize "individuals or corporations to organize, maintain or employ an

armed body of men." Id.

In Washington the police power is subject to all the rights specified in our

Declaration of Rights, including the constitutional right of the individual citizen to

keep and bear arms. We are not at liberty to disregard this text: "The provisions of

this Constitution are mandatory, unless by express words they are declared to be

otherwise." Const. art. I, § 29. Moreover, the mandatory provision in article I, section

24 is strengthened by its two textual exceptions to the otherwise textually absolute

right to keep and bear arms. Robert F. Utter, Freedom and Diversity in a Federal

System: Perspectives on State Constitutions and the Washington Declaration of

Rights, 7 U. Puget Sound L. Rev. 491, 509-10 (1984) (explaining "the express mention

of one thing in a constitution implies the exclusion of things not mentioned").

Under Gunwall this court has analyzed various factors to determine whether the

state constitution bears differently upon an issue than its federal counterpart.17 106

17 Gunwall recommends six "nonexclusive neutral criteria" for determining when and

19

No. 82154-2

Wn.2d at 61-62. Attorneys arguing cases with a United States Constitution analog

are strongly encouraged to brief relevant factors. City of Woodinville v. Northshore

United Church of Christ, 166 Wn.2d 633, 642, 211 P.3d 406 (2009). Here neither

party has adequately briefed Gunwall factors. Moreover neither party makes any

argument that the state constitution bars firearm regulation of 17-year-olds.

Accordingly, we decline to decide whether the state constitution provides greater

protection in this context. For the purposes of this case, it is enough that the state

constitutional right to bear arms is clearly an individual one.

III.The Parties Do Not Present Adequate Argument Why Washington's Statutory
Restrictions on Child Gun Possession Violate the Right To Bear Arms

Having determined the Second Amendment protects individual rights against

state interference, we turn to RCW 9.41.040(2)(a)(iii) to determine whether

Washington's restrictions on children possessing firearms unconstitutionally infringe

on a minor's right to bear arms.

Sieyes asks us to subject RCW 9.41.040(2)(a)(iii) to strict scrutiny, which

would require determining whether the statute is narrowly tailored to achieve a

compelling governmental interest.18 Although the Supreme Court has held regulations

how the Washington Constitution provides different protection than the United
States Constitution, including (1) the texts, (2) significant differences in parallel
provisions, (3) state constitutional and common law history, (4) preexisting state law, (5)
structural differences between the federal and state constitutions, and (6) matters of
particular state interest. 106 Wn.2d at 61-62.

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infringing on fundamental rights to strict scrutiny, Heller explicitly "declin[es] to

establish a level of scrutiny for evaluating Second Amendment restrictions," 128 S.

Ct. at 2821. "Under any of the standards of scrutiny that we have applied to

enumerated constitutional rights, banning from the home 'the most preferred firearm

in the nation to "keep" and use for protection of one's home and family,' would fail

constitutional muster." Id. at 2817-18 (footnote and citation omitted) (quoting Parker

v. District of Columbia, 375 U.S. App. D.C. 140, 478 F.3d 370, 400 (2007). Moreover

the Court specifically rejected a "rational basis scrutiny" as too low a standard to
protect the right to bear arms.19 Id. at 2818 n.27. The Court also rejected any "interest-

balancing" approach, reasoning by way of analogy: "The First Amendment contains

the freedom-of-speech guarantee that the people ratified, which included exceptions

for obscenity, libel, and disclosure of state secrets, but not for the expression of

18 Under the minimal level of review -- the "rational basis" test -- a law will be upheld if it
is rationally related to a legitimate government purpose. See, e.g., N.Y. City Transit Auth.
v. Beazer, 440 U.S. 568, 99 S. Ct. 1355, 59 L. Ed. 2d 587 (1979). Under middle level, or
"intermediate scrutiny" analysis, a law is upheld if substantially related to an important
government purpose. See, e.g., United States v. Virginia, 518 U.S. 515, 116 S. Ct. 2264,
135 L. Ed. 2d 735 (1996). A law will pass the most intensive level of scrutiny, "strict
scrutiny," if necessary to achieve a compelling government purpose -- proof the law is the
least restrictive means of achieving the purpose. See, e.g., Johnson v. California, 543
U.S. 499, 125 S. Ct. 1141, 160 L. Ed. 2d 949 (2005).

19 The Court also noted, "If all that was required to overcome the right to keep and bear
arms was a rational basis, the Second Amendment would be redundant with the separate
constitutional prohibitions on irrational laws, and would have no effect." Id. at 2817
n.27.

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extremely unpopular and wrong-headed views. The Second Amendment is no

different." Id. at 2821. Instead Heller held "[c]onstitutional rights are enshrined with

the scope they were understood to have when the people adopted them, whether or not

future legislatures or (yes) even future judges think that scope too broad." Id.
We follow Heller in declining to analyze RCW 9.41.040(2)(a)(iii) under any

level of scrutiny.2 Instead we look to the Second Amendment's original meaning, the

traditional understanding of the right, and the burden imposed on children by

upholding the statute. See generally Eugene Volokh, Implementing the Right to Keep

and Bear Arms for Self-Defense: An Analytical Framework and a Research Agenda,

56 UCLA L. Rev. 1443, 1449 (2009).

Tellingly Sieyes fails to provide convincing authority supporting an original

meaning of the Second Amendment, which would grant all children an unfettered right

to bear arms. In fact during oral argument Sieyes's counsel conceded the opposite.

Furthermore Sieyes makes no adequate argument specific to the facts of this case that

a 17-year-old's Second Amendment right to keep and bear arms has been violated by

this statute.21 Similarly Sieyes mentions the statute restricting children from

2 Despite this court's occasional rhetoric about "reasonable regulation" of firearms, we
have never settled on levels-of-scrutiny analysis for firearms regulations. Montana, 129
Wn.2d at 590 n.1 (plurality); see id. at 599 (Durham, C.J., concurring) (noting it "unwise
to speculate about the boundaries of the 'reasonable regulation' limit on the constitutional
right to bear arms in self-defense"). Our decision not to employ levels-of-scrutiny
analysis is consistent with our precedents.

21 Sieyes claims anecdotes in Heller should persuade us "the Second Amendment forbids

22

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possessing firearms violates his right to bear arms under article I, section 24,

but cites no authority and makes no argument for this proposition.22 Sieyes's objection

may be that he was 17 years old at the time of his arrest, and his right to bear arms

should be equal to that of an 18-year-old's, but his arguments fail to challenge the

statutory age limit set by this statute. In sum appellant offers no convincing authority

supporting his argument that Washington's limit on childhood firearm possession

violates the United States or Washington Constitutions. Accordingly we keep our

powder dry on this issue for another day.23

CONCLUSION

The Second Amendment right to bear arms applies to the states through the due

process clause of the Fourteenth Amendment. We remain unconvinced, however, that

RCW 9.41.040(2)(a)(iii) violates either state or federal constitutional right to bear

arms on the sparse record before us. We remand to the Court of Appeals for further

absolute prohibitions on firearm possession by minors." Appellant's Suppl. Br. at 9
(Wash. Ct. App. No. 36799-8-II). This broadsided argument against absolute
prohibitions on gun possession by minors misses the mark because RCW
9.41.040(2)(a)(iii) is not an absolute prohibition (note the nine exceptions in RCW
9.41.042).

22 Appellant could have made this argument by analyzing the issue under Gunwall. For
example he might have provided evidence of a historical tradition in Washington of 17-
year-olds possessing or using firearms for defense of themselves or the state, or of
background legal principles to that effect.

23 The argument put forth by the dissent is no substitute for an argument briefed by
opposing parties.

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proceedings on the remaining issues.

AUTHOR:
Justice Richard B. Sanders

WE CONCUR:
Chief Justice Barbara A. Madsen, Justice Susan Owens
result only
Justice Charles W. Johnson

Justice Gerry L. Alexander

Justice Tom Chambers

24

[all emfasis has been added by David]

*bangs head against wall

*Don 't abuse that wall.

Good news David.

When is the USSC going to review the Chicago case? I'm waiting to move there until the case is decided.

Yes; there is more good news:
as we write, Arizona 's legislature is preparing to follow in the
footsteps of Alaska and repealing all of its anti-gun laws;
more good news, Wyoming is doing the same thing.
Its a WONDERFUL, libertarian trend. The freedom upon which America was built is returning.

If I remember accurately, oral arguments are on March 2nd, 2010, eleven days from now.
We expect a decision before next July, but it seems to me
that the USSC already told us in HELLER what that decision will be.

Here is a beautiful case, Nunn v. State, to which the USSC has lovingly
cited with approval in D.C. v. HELLER.

The following is quoted from the USSC in HELLER:

In Nunn v. State, 1 Ga. 243, 251 (1846), the Georgia Supreme Court
construed the Second Amendment as
protecting the “natural right of self-defence” and therefore
struck down a ban on carrying pistols openly.

Its opinion perfectly captured the way in which the operative clause
[i.e.: "the right of the people to keep and bear arms shall not be infringed"]
of the Second Amendment furthers the purpose announced in
the prefatory clause, [i.e., the militia clause]
in continuity with the English right:

“The right of the whole people,
old and young, men, women and boys, and not militia only,
to keep and bear arms of every description,
and not such merely as are used by the militia,
shall not be infringed, curtailed, or broken in upon,
in the smallest degree;
and all this for the important end to be attained:
the rearing up and qualifying a well-regulated militia,
so vitally necessary to the security of a free State.

Our opinion is, that any law, State or Federal, is repugnant
to the Constitution, and void, which contravenes this right,
originally belonging to our forefathers,
trampled under foot by Charles I. and his two wicked
sons and successors, re-established by the revolution
of 1688, conveyed to this land of liberty by the colonists,
and finally incorporated conspicuously in our own Magna Charta!”
[all emphasis joyfully added by David]


Elsewhere in HELLER, the USSC sets forth that:
As we said in United States v. Verdugo-Urquidez, 494 U. S. 259, 265 (1990):
“ ‘[T]he people’ seems to have been a term of art employed in select parts of the Constitution... .
[Its uses] sugges[t] that
‘the people' protected by the
Fourth Amendment, and by the First and Second
Amendments, and to whom rights and powers are reserved
in the Ninth and Tenth Amendments, refers to
a class of persons who are part of a national community
or who have otherwise developed sufficient connection
with this country to be considered part of that community.”


"We start therefore with a strong presumption that
the Second Amendment right is exercised individually
and belongs to all Americans."
[all emfasis has been exultantly added by David]




HELLER also sets forth:
"Just as the First Amendment
protects modern forms of communications, ...
and the Fourth Amendment applies to modern forms of search,
the Second Amendment extends, prima facie, to all instruments
that constitute bearable arms, even those that were not
in existence at the time of the founding.
We think that JUSTICE GINSBURG accurately captured
the natural meaning of “bear arms.” Although the phrase
implies that the carrying of the weapon is for the purpose
of “offensive or defensive action,” . . . .

Putting all of these textual elements together,
we find that they guarantee the individual right
to possess and carry weapons in case of confrontation.
[All emfasis has been gleefully added by David]







I love Chicago: good food.
I 've ususallly gone there at least once a year for a convention: HalloweeM, @ the end of October.





David

In GIDEON v. WAINWRIGHT 372 US 335 (1963) the US Supreme Court held that:
"this Court has looked to the FUNDAMENTAL nature of original Bill of Rights guarantees
to decide whether the Fourteenth Amendment makes them obligatory on the States." [emphasis added]

In HELLER, the USSC held that:
"By the time of the founding, the right to have arms
had become fundamental for English subjects. See Malcolm 122"134.
Blackstone, whose works, we have said, “constituted the preeminent authority on English law
for the founding generation,” Alden v. Maine, 527 U. S. 706, 715 (1999),
cited the arms provision of the Bill of Rights as one of the fundamental rights of Englishmen."


According to the definition set forth in GIDEON v. WAINWRIGHT,
the right to keep and bear arms is a fundamental right
set forth in the US Bill of Rights, and therefore it curtails the
power of the States; i.e., it is already incorporated against the jurisdiction of the States.
[All emfasis has been added by David.]

In any case, McDonald v. Chicago will be along presently.
I have not heard any leftists denying that the 2 A will be incorporated.
The most interesting issue is whether it will be done by
the privileges or immunities clause of the 14th Amendment.





David

Except for the quiche though. And, the natives think it's pizza!

Thay have a good Russian restaurant:
Russian Tea Time on Adams St.
I love its food and vodkas.

There used to be a fantastic restaurant
in Chicago 's Ritz Carlton Hotel, but its chef escaped.



David

Russian Tea Time? Isn't that the one just around the corner from Symphony Hall? I'm in love with that restaurant! (I'm also in love with the Chicago Symphony.)

It is; u have good taste.
I like to go there directly from the airport.
Good menu; I 'm fond of its Beef Stroganoff.





David

Personally I'm a partisan of their sauteed Chicken Liver. They chop them and fry them with wine, onions, and coriander. Delicious!

PS: Since you live near New York City (correct?), you may want to check out Uncle Wanya in Midtown. It's almost as good.

Thanx, Thomas; I 'll try it.
Its centrally located.





David