In Nordyke v. King (2003), a panel of three circuit judges wrote that, “if we were writing on a blank slate, we may be inclined to follow the approach of the Fifth Circuit in Emerson.”8 One judge went even further, writing a special concurrence to emphasize his view that the Ninth Circuit had gotten its interpretation of the Second Amendment wrong, and that the court should now embrace an individual right view of the Amendment.9 Despite their disagreement with the earlier court decision, the judges acknowledged that they were bound by the precedent set in Hickman v. Block (1996)10 to hold that the Second Amendment protects a collective right of the people of the state. Other judges on the Ninth Circuit were not as sympathetic to Emerson; on May 6, 2003, the full Ninth Circuit declined the opportunity to reconsider Hickman by rehearing en banc arguments in Silveira v. Lockyer (2003) another Second Amendment case11 (the vote on rehearing came after the panel decision in Nordyke, which criticized Silveira, had been issued), but not without public dissent from several judges on the Second Amendment issue.12 The Ninth Circuit’s action leaves the Fifth Circuit alone—at least for the moment—among the federal appellate courts in maintaining an individual right view of the Second Amendment.

Growing support for an individual right interpretation of the Second Amendment has not been limited to the judicial branch of government. On May 17, 2001, United States Attorney General John Ashcroft wrote the executive director of the National Rifle Association’s (NRA) Institute for Legislative Action to express his view that “the text and the original intent of the Second Amendment clearly protect the right of individuals to keep and bear firearms.”13 The Department of Justice put the Attorney General’s words into action when it filed a brief in opposition to a grant of certiorari in Haney v. United States (2001).14 In that case, the Tenth Circuit had held that 18 U.S.C. § 922(o), which prohibits the possession of machine guns, did not violate the Second Amendment, as that constitutional provision was intended only to preserve the effectiveness of state militias.15 In its brief opposing Supreme Court review of the Tenth Circuit’s decision, the Justice


Nordyke v. King, 319 F.3d 1185, 1191 (9th Cir. 2003) (Alarcon, O’Scannlain, and Gould, JJ.).


Id. at 1192-93 (Gould, J., concurring).


81 F.3d 98 (9th Cir. 1996).


Silveira v. Lockyer, 328 F.3d 567, 568 (9th Cir. 2003).


See id. (Pregurson, J., dissenting); id. (Kozinski, J., dissenting); id. at 570 (Kleinfeld, J., dissenting); id. at 589 (Gould, J., dissenting).


Letter from John Ashcroft, Attorney General, United States Department of Justice, to James Jay Baker, Executive Director, National Rifle Association, Institute for Legislative Action (May 17, 2001) (on file with author).


264 F.3d 1161 (10th Cir. 2001); Brief for the United States in Opposition to Petition for Certiorari in United States v. Haney, No. 01-8272 (U.S., May 6, 2002).


Haney, 264 F.3d at 1165.

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