This just gets better the more I think about it.
GOULD, Circuit Judge, concurring:
I concur in Judge OScannlains opinion but write to elaborate my view of the policies underlying the selective incorporation decision.
First, as Judge OScannlain has aptly explained, the rights secured by the Second Amendment are deeply rooted in this Nations 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.
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.
Third, while the Second Amendment thus stands as a protection against both external threat and internal tyranny, the recognition of the individuals 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. 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.
I tend to agree with Judge Gould on both his first and second reasons for concurring with judge O'Scannlains opinion. After all, who can argue that having an armed population of citizens is not a good defense against both foreign and domestic enemies. It is his third reason that bothers me.
Being of the independent type, I have to question how any possible important governmental interests could ever trump "Shall Not be Infringed".