Right to Bear Arms - Not Constitutional?, Right to Bear Arms - Not Constitutional?

[kenshin]

http://www.latimes.com/news/local/la-me-assault6dec06.story

Court Upholds State Assault Weapons Ban
In a rebuff to the White House, U.S. appellate panel rules that the 2nd Amendment does not give individuals the right to keep and bear arms.
By Henry Weinstein
Times Staff Writer

December 6 2002

A federal appeals court upheld California's assault weapons control act Thursday, ruling that there is no constitutional right for individuals to keep and bear arms.

The 3-0 decision, declaring that the 2nd Amendment protects only the right of states to organize and maintain militias, is flatly at odds with the position of the Bush administration and a decision last year by a federal appeals court in New Orleans.

California adopted the nation's most sweeping assault weapons ban in 1999. It prohibits the manufacture, sale or import of weapons including grenade launchers, semiautomatic pistols with a capacity of more than 10 rounds, semiautomatic rifles that use detachable magazines and guns with barrels that can be fitted with silencers.

In February 2000, a month after the law took effect, a group of individuals who either own assault weapons or want to buy them challenged the law in U.S. District Court in Sacramento, contending that it violated the 2nd Amendment, the equal protection clause and other constitutional provisions.

U.S. District Judge William B. Shubb dismissed all of the plaintiffs' claims last year. Thursday's decision by the San Francisco-based U.S. 9th Circuit Court of Appeals upheld Shubb's ruling on the 2nd Amendment and one granting an exemption to the law for off-duty police officers. The appellate court overruled Shubb on another point, declaring that there was no rational basis for retired police officers to be exempt from the law.

California Atty. Gen. Bill Lockyer, whose office defended the state law in court, applauded the decision, which was also praised by attorneys for gun control organizations and denounced by leading gun owner associations.

Several plaintiffs declined to return calls, and their attorney could not be reached for comment. The plaintiffs could ask the full 9th Circuit to rehear the case or could directly appeal to the U.S. Supreme Court, which has not ruled on the issue for more than 60 years.

The U.S. Justice Department, which under Atty. Gen. John Ashcroft has taken the position that individuals have a constitutional right to bear arms, had no immediate comment.

At issue is the meaning of the 2nd Amendment, which states: "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."

Although the 9th Circuit ruling was unanimous, one judge on the panel, Frank J. Magill, said it was unnecessary for the court to have written a detailed opinion on the 2nd Amendment because of a similar ruling by the court six years ago.

In 1996, the 9th Circuit said there was no individual right to bear arms in a case in which a Los Angeles resident had challenged a decision by local authorities denying him a concealed-weapons permit.

Consequently, the appeals court could have simply cited that decision and affirmed Shubb's ruling in this case.

However, Judge Stephen Reinhardt said that because there is considerable debate over the 2nd Amendment, it was advisable for the 9th Circuit to revisit the issue in detail.

Among the recent developments he cited were a 2001 decision by the U.S. 5th Circuit Court of Appeals in New Orleans holding that the 2nd Amendment gives individuals a constitutional right "to privately possess and bear their own firearms." That was the first such decision taking that position, in contrast to previous federal court rulings on the issue.

Ashcroft sent a letter to U.S. attorneys, saying that he agreed with the New Orleans court's interpretation. And in May, in two briefs filed in the U.S. Supreme Court, one of them in the New Orleans case, Solicitor Gen. Theodore B. Olson took the same position.

"The current position of the United States ... is that the 2nd Amendment more broadly protects the rights of individuals, including persons who are not members of any militia or engaged in active military service or training, to possess their own firearms, subject to reasonable restrictions designed to prevent possession by unfit persons or to restrict the possession of types of firearms that are particularly suited to criminal misuse," Olson wrote.

The Supreme Court later declined to hear the New Orleans case, in which the appellate court upheld the federal Violence Against Women Act while also saying individuals do have a right to bear arms.

Besides citing the legal developments, Reinhardt noted that the Supreme Court has issued very few decisions on the 2nd Amendment.

The Supreme Court's most detailed ruling on the issue came in U.S. vs. Miller in 1939.

In that case, a criminal defendant challenged a federal gun-control law that prohibited the transport of sawed-off shotguns in interstate commerce by contending that it violated the 2nd Amendment.

The high court rejected the challenge, saying there was no evidence that such weapons have a "reasonable relationship to the preservation or efficiency of a well-regulated militia."

Thursday's ruling quotes at length from the debates on the adoption of the 2nd Amendment, including statements from James Madison and other founding fathers.

The right to "keep and bear arms," concluded Reinhardt, is different from owning or possessing them.

He also said the 2nd Amendment was adopted at the urging of people who were concerned about the federal government having too much power under the new nation's Constitution.

"We believe that the most plausible construction of the 2nd Amendment is that it seeks to ensure the existence of effective state militias in which the people may exercise their right to bear arms, and forbids the federal government to interfere with such exercise," Reinhardt wrote.

In addition, he emphasized that the 2nd Amendment referred to a well-regulated militia and that the amendment was enacted soon after the uprising of farmers in western Massachusetts known as Shay's rebellion, which lasted from August 1786 to February 1787.

"What the drafters of the amendment thought 'necessary to the security of a free state' was not an 'unregulated' mob of armed individuals such as Shay's band of farmers, the modern-day privately organized Michigan Militia, the type of extremist 'militia' associated with Timothy McVeigh and other militants with similar anti-government views, groups of white supremacists or other racial or religious bigots, or indeed any other private collection of individuals," Reinhardt wrote. "To the contrary, 'well-regulated' confirms that 'militia' can only reasonably be construed as referring to a military force established and controlled by a governmental entity."

The judge acknowledged that it might be difficult for some people to understand this given that states no longer have militias like those in the 18th century that fought in the Revolutionary War — before the federal government created a standing army.

Reinhardt also emphasized that New Hampshire was the only one of the original 13 states that proposed an amendment to the U.S. Constitution explicitly establishing a personal right to possess arms.

"The historical record makes it plain that the [2nd] Amendment was not adopted in order to afford rights to individuals with respect to private gun ownership or possession," he wrote.

Judge Raymond Fisher joined the opinion. Magill said he agreed with the conclusion but that it was unnecessary to go into so much detail.

USC law professor Erwin Chemerinsky and Columbia law professor Michael Dorf, each of whom applauded the ruling, said they thought Reinhardt would not have written such an extensive opinion but for last year's 5th Circuit ruling and the Justice Department's recent change of stance.

"Judge Reinhardt saw that if he" simply affirmed Shubb's ruling by merely citing the 9th Circuit's 1996 decision, the 5th Circuit decision going the other way "would have gone unanswered," said Dorf, who has written about the 2nd Amendment.

Chemerinsky said Reinhardt's argument "was the most thorough opinion rejecting the review that the 2nd Amendment protects the rights of individuals to possess guns."

Atty. Gen. Lockyer said that although he respects "the rights of Californians to pursue hunting and sports shooting, and of law-abiding citizens to protect their homes and businesses, there is no need for these military-style weapons to be on the streets of our state."

He expressed disappointment only about the portion of the decision overturning the exception for retired officers. An aide to Lockyer said there are no available statistics on the number of weapons confiscated under the 1999 law.

Matthew Nosanchuk, senior litigation counsel for the Violence Policy Center in Washington, said Reinhardt's 86-page ruling "is a very important contribution that should drive a stake through the heart of the individual-rights position."

John Loewi, an attorney with the Brady Center to Prevent Gun Violence, said the timing of the decision was particularly important because of speculation that last year's decision in New Orleans might be a sign that federal courts were about to change the prevailing view on the issue.

"It is a confirmation that that decision was an aberration and [it is] a rebuke to the Ashcroft position," Loewi said.

Two of the nation's major gun owner associations criticized the ruling.

"I don't think the court gets it at all," said Larry Pratt, executive director of Gun Owners of America. "The court neglected to mention self-defense when discussing legitimate uses of guns."

Andrew Arulanandam, a spokesman for the National Rifle Assn., said the group has taken the position since its founding in 1871 that the 2nd Amendment gives individuals a right to possess guns.

"We will continue to maintain that position as long as we are around," he added.

[Whistler]

In reply to:

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"the right of the people to keep and bear arms shall not be infringed." (emphasis mine- W)

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So "the people" now means "the state"? I do not own any guns, nor am I happy with how easy it is to obtain an easily concealed handgun, but this ruling appears to take more twists and turns of logic than a great twisty turny thing. I understand the difference between a milita and a mob, but there seems to be no proviso or caution in the second amendment that those who keep and bear the arms must be sanctioned by the state as part of a militia. The judges need to put down their medicinal marijuana.

[BBC]

I generally support gun rights. But lets be pratical. Nobody needs an AK 47 or granade launcher. If the time ever came where a state needed to make a malitia from it people, it would be some serious shit that I doubt semi-automatic or hunting rifles would help much.

[Whistler]

No, no one does need one. But the impression I got is that the judges are going beyond assault weapons and saying there is nothing in the 2nd amendment that supports the rights of an individual not associated with a sanctioned state milita to own any firearm. I am concerned about the slippery slope effect.

[BBC]

Yes that is true. They seem to take a higher position above what the case was realy about. But what to you expect, its Cali. I would expect nothing less from the 9th Federal circuit. Remember, they hate the pledge.

[Destroyer42]

In theory, I agree, but there are a bunch of different scenarios that require a little more thought. First of all, regarding actual assault weapons (AK 47, M16) nobody really needs those to protect themselves, handguns, rifles and shotguns should be able to do the job if the situation were to come around.
Regarding the 2nd Amendment itself: Our constitution was written 230 years ago for a society and a world specific to that period in history. Some of the Amendments and other snippets here and there are no longer quite as useful to us as they once were. The 2nd Amendment is one of those. We now have 100's of millions of people in the country, rather than maybe a million. Arms are now more accurate and much easier to use than at any time before. The restrictions put on them by the government, for the moment, are, in my opinion, valid, though slowly getting out of control. The people who don't understand how guns can be used for recreation as well as for the armed forces and police try to ban guns in general, not realizing what today's society, as well as human nature is comprised of.
I'm not saying that I'm against guns at all, between my father and I we own a small arsenal, but we're responsible about it. Responsibility is the entire issue, and its because of those irresponsible individuals that can't control themselves or have other problems that the entire issue with the 2nd Amendment came up.

I'll go on after my next class...

[tirephus]

[rant]

I saw we nuke the site from orbit..... it's the only way to be sure

Can't we kick those assholes out of the union or something?

The state of rolling blackouts (but imports power from elsewhere), then boo-hoos about how enviromentally damaging it is. I love listening to NPR when they are having a a telethon, then will bash capitalism on the other end of thier microphones. It's fun to hear them beg for thier money, damn hypocrites

Why don't these judges go into the right parts of LA and try to take the assault weapons from some of thier holders? LOL - bet that'll go well. CA is just so far out of touch with reality, it's scary. I'll never understand how Regan thrived over there.

[/rant]

[1337 b4k4]

A few points:

1) This ruling comes from the 9th circuit court district, and not even the full one at that. Just about everything that has come out of the 9th curcuit recently had been regarded as a joke.

2) As someone already pointed out, the second ammendment refers to the people, not the state. There is a very seperate and distanct difference here. In fact the constitution uses "government" "state" and "people" as 3 different entities, therefore implying that people and state are 2 different powers.

3) The actual text of the ammendment says:

In reply to:

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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.

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IANAL, but I read that as saying "A well regulated militia is nessesary to ensure the security of a free state, and therefore the right of a person to keep and bear arms shall not be infringed"

You can't have a millitia, which was designed to protect the people from a corrupt government, if the people don't have access to guns, because it's controlled by the government.

4) You're right. People don't need grenade launchers, AKs and M-16s. Likewise, people don't need high horsepower cars, cars that go faster than 80 MPH, a computer more capable than a 500 Mhtz Pentium and most certainly don't need a radio transmitter more powerful than the KB toy walkie talkies. The thing is, people like bigger better and more. And if a person can demontstrate that they can safely use such weapons, and do indeed safely use such weapons, there is no reason why they shouldn't be allowed to own them.

[MrDarius]

Think about it Tirephus, Reagan, in California. It shouldn't be a surprise why he thrived here. Since we are all in our own little reality it would stand to follow that so would someone who thrived here be. And, yes, we ARE in our own little world out here. But then again we have earned a little bit of oddness in our state. C'mon, fifth largest economy in the world? How many sports teams have won their respective championships in the past couple of years? Thats okay though it takes a special kind of mental patient to be a Californian.

[Emily-deWired]

I merely skimmed the posts, so, if I sound like an idiot, I already know it.

Maybe we shouldn't need guns anymore, look how many people are killed each year by guns, in accidents.
Just the other day, a kid up the block killed his best friend when they started fooling around with his fathers handgun. Believe you me, he'll never get over the fact that, beacuse of him, his best friend is dead.

I vote that the US change to be a little more like Japan: No more guns.
They don't have huge bouts of school killings, little children don't kill eachother when they play with their parents stuff, and, all in all, they are a little more orginized than us.
Not to mention that they have cooler tech stuff.

But, as cool as Japan is, they can keep their school system to themselves, I prefer the five day school week, even if I do get less education!

[ChillyManMkII]

Feh, I hate it everytime someone brings out example of how accidental handgun death as reason why guns should be banned. Look closely, in all those cases, stupidity are what caused the death, not guns. I'm sure those idiots would be doing something equally stupid to remove their gene from the gene pool if guns are banned.

[Rsim]

stupidity... and easy access to guns.

[Whistler]

In reply to:

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Maybe we shouldn't need guns anymore, look how many people are killed each year by guns, in accidents

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Accidents with cars kill more. By your logic we should get rid of cars first.

[ChillyManMkII]

They be imitating WWF instead of cowboys and idians if there's no gun and be equally dead. No point in trying to go after people's gun because of a few idiots.

[Rsim]

Explain that...
The WWF, while admittedly stupid, has only had that single harness related death in recent years. It seems to me that kids involved in stupid wrestling would end up less dead than kids involved in stupid gunplay, in many cases.

edit:harness + death

[Manual]

Being in the Army, and having possession of a weapon many gun fanatics would absolutly LOVE to have there hands on(m249, a belt fed fully automatic version of the M16), I'm somewhat hesitant to post here. But my supervising NCO threatened me with an insane amount of pushups(650) if I didnt post here, so, here goes....
One of the interpretations Ive heard of the 2nd is that it was created to help prevent federal goverment from using the armed forces to supress the states and individual people. Today, that is simply not feasible. From my standpoint, the U.S. military forces could easily roll over any mob or militia formed by civilians in the US if the military had that kind of resolve. They dont, and if something like that were to happen, those who ordered it would be dragged into the street and shot on the spot.
TO get back to the topic, no, weapons should not be banned. Instead, they should make it incredibly difficult for someone to get a weapon. Higher standards for recieving the needed paperwork to get a weapon would help to keep them out of the stupid people's hands(nothing is perfect). The process is way to simple now, and I feel thats a large part of the problem.

[La0Zi]

Although I'm a Canadian and I personally don't like firearms. I'm more inclined to agree that (in the US) making it difficult to obtain weapons (for example psycological tests at the purchasers expense - that would have the added benefit of possible criminal liability on the part of the doctor.) is much better than removing them from your culture. There are many ideas about guns that are rather strongly culturally entrenched which would make removal difficult independent of the sociological benefit or detrement.

[sqUisHeR]

I believe that we won't have too much to worry about, the last few ridiculus rulings from the 9th district have been overturned.

Whether or not the states have the right to regulate the type of weapons available to its citizens is a rather fuzzy area, licensing (for weapons), etc. is usually in the hands of the state government, so it would seem to follow that the regulation of what is available to the people living in that state is also under the jurisdiction of the state. On that logic the argument posed by the people who wanted to buy "assault" weapons should have been thrown out and the entire issue of whether or not the 2nd Amendment actually allows people to own guns should never have arisen.

"Assault weapon" - a made-up term to refer to weapons that politicians and activists feel are somehow more dangerous than non-"assault-weapons" in order to give then a negative connotation so that "assault-weapons" bans would be easier to slip past the people

I do agree that some weapons are capable of more destruction than others, however those are usually prohibitively expensive, and others of them don't even (to me anyway) classify as a firearm in the first place (grenades, high explosives, etc.).

I'm of the mindset, like Manual, that if a person is responsible he/she poses no danger if they have guns. The problem is there are many irresponsible people who have access to weapons (not just guns) and most of the problems arise from that.

For a non-political analysis of the 2nd amendment, look here. It is a linguistic analysis of the working of the amendment in question and it's literal meaning.
Second Amendment Sisters - 2nd amendment (unabridged)

[LFP6]

Here's the official schpeal from Our Bill of Rights:

Amendment II
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.

Admittedly, the damn thing's vague and not properly written...BUT that does not say 'Ignore this part of the Amendment to the US Constitution'.

Does it also say, "Every American should have an M-! tank in the garage, and an M-16 in their rooms" ?
No.
Firearms should be regulated, but not to the point where you risk banning them.

[Cyn]

I've made the arguement against gun control more times than I care to remember. If your interested in my points of view, I suggest searching the board archives from July and August of 2001.

In commenting on the issue at hand, once again the 9th Circuit Court of Appeals has handed down another drug-induced ruling in a further attempt to wave their little flag. These judges need to pass on or retire so someone with a modicum of sense and understanding of the Constitution can be appointed in their place. God save us from fools.

[Voyager]

Well, I was running some numbers, in a previous firearms argument, on a different board, and found that if aproximatly 40% of all US citizens of an apropriate fighting age have acces to firearms, and assuming that about 1/3 of the population will be willing to actively fight, the US army would be facing about 10 to 1 odds, and that's discounting women combatants, and combatants of unappropriate age.

Once the satuation drops below 20%, though, it become much easier to stage a military takeover.

If anyone wnats I can post my sources, and the numbers used. It might take a while though. It was a while ago, so I don't happen to have the data handy.

Linguistically, "A well-regulated militia being necessary to the security of a free state" is a dependent clause, having no effect on the meaning of the sentance.

The 2nd Amendment can be written as "the right of the people to keep and bear arms shall not be infringed, because a well-regulated militia is necessary to the security of a free state." without altering its meaning.

Harry Voyager

[Darksword]

Assault = "any threat, real or percieved"

The only difference between a standard hunting rifle and an "assault weapon" is that the assault rifle is designed to LOOK menacing. A jet-black polymer pistol-grip stock, bayonet lug (with attached bayonet) and a 45 round magazine on an AKS-74 is one MEAN looking "dont fuck with me if you value your life" weapon.

they banned the weapons on basis of cosmetic effect. I live in kansas and own a few classified assault weapons, including a 37mm grenade launcher (bird busters )

My Mini-14 can split a canteloupe in two with one shot, while my .30 cal "legal" Winchester will blast it into vapor.

Assault weapons ban = teh st00pid

[3r1k]

As sad as accidental deaths like that are, if guns are made illegal only criminals will have them. Even if its made more difficult to obtain guns, the people that no one wants to have one, will still get one. Its a losing battle from almost any perspective; and as this forum has made obvious, there are many perspectives.

[tirephus]

If memory serves, pools and buckets of water kill more people too...

[AmbientNightmare]

I'm in a Constitutional law class here at my university, and am going to law school next fall, and can virtually guarantee that this will get Struck Down with the Almighty U.S Supreme Court Bitch Slap. The 9th circuit has more rulings overturned on a regular basis than any other court in the nation. Also, most west coast lawyers and judges are apparently idiots who have not read the constitution.