State of California's Brief in Opposition to Certiorari

I didn't want to have to HTML format the entire document, but I got the intro. Check it out. To me the most interesting, and hilarious, part is the fact that the Attorney General, or one of his flunkies at least, didn't bother to read the "Miller" case. The state of California indicates it envolved the Supreme Court upholding a conviction for violation of the NFA. In reality, the US government had appealed the district court's overturning of the law on Second Amendment grounds, and the Supreme Court merely overruled that decision, sending the case back to the disctrict court for "further proceedings". Such proceedings were never held because by that time, or with a day or two one way or the other, Miller was lying dead in a ditch in the general vicinity of Tulsa OK, and Layton, the other defendent in the original case, had plea bargained to a lessor offense.

I wonder if the Supreme Court was or will be amused? :) Were I sitting on the bench, I would not be a bit amused. I sincerely hope at least 5 Justices are equally not ammused.

BANG

Our lives would be much better if this were resolved once and for all by SCOTUS. I hope the current make-up will make the right decision. I sometimes think it would be better if a few left and were replaced bu Bush appointees, but I doubt the dems will allow Bush to make any SCOTUS appointments. Ain't that a hoot, we allowed BJ Clinton to seat Ginsberg and Bush can't even get district appointments thru. Time to play hardball I say.

BTW, I wrote Diane Feinstein an email re; gun control. She responded with the usual B.S., but she based her entire authority on the Miller decision.

"but I doubt the dems will allow Bush to make any SCOTUS appointments."

Why is it, we have a party (GOP) who is willing to lay dead to the RATS? It is time for Pres. Bush to make ALL outstanding vacancies with "RECESS APPOINTMENTS".

A caller suggested: Fill these positions with true, responsible conservatives until the end of this Congress, with: Judge Bork, Speaker Gingrich, Bill Simon, and any other respectable conservative!

Load the bench, then put in the recommended list after the next election. Oh, no faith for a majority?

This would teach the RATS a lesson to tamper with our Constitution!! But, then, we are discussing Republicans...

Whether the Court of Appeals erred when it denied Petitioners’ standing to challenge a California state statute in federal court based upon the unincorporated Second Amendment to the United States Constitution?

2. Whether the Second and Fourteenth Amendments operate to deprive the states of the ability to take reasonable measures pursuant to the state legislatures’ police powers to protect their citizens from the ravages of rampant gun crimes?

LOL! The "questions presented" drip with agenda.

Question 1. states, as a fact, that the Second Amendment is unincorporated, and that, given this fact, can it be used to challenge a state-level law? Left unasked is whether the Second Amendment was actually incorporated or not, and if it wasn't, should it be?

Question 2. has enough buzzwords to be straight from the Brady book. Can states take reasonable measures to have the police protect the citizens from the ravages of gun crimes?

If something shall not be infringed, any infringement is unreasonable, and calling something reasonable doesn't make it so.
Police have no duty to protect anyone.
As for the "ravages of gun crimes:"
- There is no evidence that gun control laws such as the CA AWB reduces the ravages of crime
- ... or their number...
- ... and in fact, such laws not only create criminals ...
- but they take beat officers from the streets and make them push paperwork around, seeing if particular guns are registered or not, instead of acting to remove violent criminals from the streets - the alleged "ravagers" of the citizens in the first place.
- It is difficult to argue that paper criminals (who own unregistered "assault weapons") and those who peaceably own banned "assault weapons" are ravaging the citizens in the way that California wishes to be able to have its police "protect" its citizens from, by means of this ban.

So even if one were to grant that the things CA wished to do, it can't, isn't, and won't be able to accomplish them with its AWB.

I heard that Bork does not think the Second Amendment protects an individual RKBA.

BTW, I wrote Diane Feinstein an email re; gun control. She responded with the usual B.S., but she based her entire authority on the Miller decision.

That's a hoot when you consider that what Miller indicated was that private ownership of militarily usefull weapons was precisely what was protected by the second amendment. What it really said was that the lower court erred in ruling that a keeping and bearing a short barrelled shotgun was so protected without taking any evidence that such a weapon was or could be militarily usefull.

Thus the Miller precident would indicate that Select Fire M-16s and AK-47s would be protected, let alone semi-neutered clones of them. It's really too bad Miller and Layton were dirt poor. Otherwise they might have had a Thompson or better yet a BAR. Not even the hughly incompent Reynolds could say that taking "judicial notice" that those were militarily useful would require evidentury proceedings. Hah! Of course even if there had just been some advocate for the former defendents in the case, the case would probably have been a slam dunk against the government's position, because the advocated would have pointed out that BARs and Thompsons were affected by the law.

For more Miller information than one generally sees go to:

http://www-2.cs.cmu.edu/afs/cs.cmu.edu/user/wbardwel/public/nfalist/miller_compilation.html

For lots of other "gun law" cases on this site go to:

http://www-2.cs.cmu.edu/afs/cs.cmu.edu/user/wbardwel/public/nfalist/

the hughly incompent Reynolds

Oops, make that the hughly incompent McReynolds. That's what this hughly incompent FReeper gets for relying on his failing memory.

hughly incompent McReynolds

One of the reasons that he was hughly incompent, may have been that fact that he was born 1862, making him over 77 years old when the Miller was argued and the decision written Now 77 is pretty old, even today, my mother will turn 77 in a week, but n 1939 it was ancient. He retired in '41, and died in '46. Too bad he didn't retire about 3 year sooner.

Bump for later. Thanks for the post!

kaboom!

The gist of the questions presented is: "Can a state ban and confiscate any and all arms it wants from all its civilian residents without violating the 2nd Amendment?"

Here's another dishonest quote from the document:

"Finally, even if petitioners were to prevail before this Court, they will still not be free from regulation of their assault weapons. Petitioners will still be subject to virtually identical federal assault weapons restrictions under 18 USC s. 921(a)(30)..."

Never mind that the federal law allows all rifles in existence in 1994 to be owned and used, while the California law criminalizes the posession of multitudes of rifles lawfully purchased by their owners. And that the Federal law is a temporary measure.

Much of the state's document seems devoted to smearing the petitioners and their brief as irrational hotheads, insinuating that there is something legally suspect about the individuals.

Scanned without proofing:

OPINION OR JUDGMENT BELOW

The opinion of the Court of Appeals (Pet. App., pp.
40A-109A) is reported at 312 F.3d 1052. The statement
(Pet. App., pp. 1A-40A) issued by the panel upon denial of
rehearing en banc is reported at 328 F.3d 567.

STATEMENT OF JURISDICTION

The amended judgment of the Court of Appeals was
entered on January 27, 2003. A petition for rehearing en
banc was denied on May 6, 2003. The petition for a writ of
certiorari was filed on July 3, 2003. The jurisdiction of this
Court is invoked under 28 U.S.C. § 1254(1).

INTRODUCTION

Petitioners are a group of self-described "model"
citizens from the State of California who seek an advisory
opinion concerning their abstract right under the Second
Amendment to possess assault weapons free from state
regulation. Petition, p. 2 n. 3. Petitioners' complaint below
(included with this Brief in Opposition as an Appendix)
presents a sweeping and vague "shotgun" approach to
attacking a variety of California's gun control statutes.
Among other things, petitioners attack the assault weap-
ons laws and concealed-carry laws for handguns; complain
about laws regulating " 'Saturday Night Special' ('Junk
Guns')" handguns, and "cop-killer" bullet laws; and raise
nebulous due process "takings" claims.
The Ninth Circuit Court of Appeals denied petitioners
their desired advisory opinion for lack of standing, on the
ground that the Second Amendment does not create an
individual right to possess firearms for personal use. The
opinion's elaborate analysis was, therefore, patently
unnecessary; the court's holding was a foregone conclusion
in view of its earlier decision in Hickman v. Block, 81 F.3d
101-102 (9th Cir. 1996), cert. denied, 519 U.S. 912 (1996).
See Pet. App., p. 59A n. 15. Although the panel's analysis
was different from others', nevertheless the result -
refUsing to entertain a challenge to state regulation of
assault weapons based on an asserted individual right to
possess them - was consistent with this Court's own
precedent and with the decisions of all other circuit courts
that have considered the question.
.
STATEMENT OF THE CASE
At issue in this case is a State's regulation of the
possession and sale of assault weapons, rapid-fire rifles
and pistols that have been used on California's school
grounds to kill children. Pet. App., p. 42A. This case is not
about militias, nor even about collective defense. Petition-
ers have never contended for the need to possess their
assault weapons in the interest of collective defense. This
case is about petitioners' asserted right to possess these
extremely lethal weapons for personal use - free from
state regulation.

Petitioners challenge the 1999 amendments to Cali-
fornia's Roberti-Roos Assault Weapons Control Act. The
original assault weapons control laws were passed four-
teen years ago, in 1989. Cal. Penal Code sec. 12276 et seq.
Enactment of the 1989 law followed years of extensive
public discussion and legislative debate regarding the
propriety of gun control laws in California. In section
12275.5 of the Roberti-Roos Assault Weapons Control Act,
California Penal Code section 12275.5, the Legislature
memorialized its reasons for regulating assault weapons:

The Legislature hereby finds and declares that
the proliferation and use of assault weapons
poses a threat to the health, safety and security
of all citizens of this state. The Legislature has
restricted the assault weapons specified in sec-
tion 12276 based upon finding that each firearm
has such a high rate of fire and capacity for fire-
power that its function as a legitimate sports or
recreational firearm is substantially outweighed
by the danger that it can be used to kill and in-
jure human beings. It is the intent of the Legisla-
ture in enacting this chapter to place restrictions
on the use of assault weapons and to establish a
registration and permit procedure for their law-
ful sale and possession. It is not, however, the in-
tent of the Legislature by this chapter to place
restrictions on the use of those weapons which
are primarily designed and intended for hunting,
target practice, or other legitimate sports or rec-
reational activities.

The Roberti-Roos Assault Weapons Control Act of
1989 withstood federal constitutional scrutiny, including
an attack made pursuant to the Second Amendment, in
Fresno Rifle and Pistol Club v. Van de Kamp, 965 F.2d 723
(9th Cir. 1992). In that case, the Ninth Circuit also found
the plaintiffs did not have standing to challenge pursuant
to the Second Amendment.
In 1999 the California Legislature made additions to
the 1989 assault weapons laws, modeled on federal law, 18
U.S.C. §§ 921(a)(30) and 922(v)(1). The amendments were
designed to expand the definition of assault weapons and
to place restrictions on the manufacture, sale, possession,
and use of the firearms that have the specified character-
istics. The amendments also banned the sale, but not the
possession, of large-capacity magazines, which were
defined as "any ammunition feeding device" capable of
holding more than ten rounds of ammunition. See Cal.
Pen. Code § 12276.1(d)(1), (2).

The 1999 amendments became effective on January 1,
2000. Members of the public who, on or before December
31, 1999, lawfully possessed assault weapons as defined in
California Penal Code section 12276.1, had until December
31, 2000, to register their assault weapons with the
California Department of Justice, or remove the character-
istics which make the firearm an assault weapon. Pursu-
ant to California Penal Code section 12286, individuals
may obtain, upon a showing of good cause, a permit from
the California Department of Justice to purchase, sell, or
possess an assault weapon.

Petitioners are residents of California, apparently not
otherwise prohibited by law from possessing firearms, who
allegedly own or wish to acquire assault weapons. They
include an engineer, an insurance agent, a law enforce-
ment officer, members of the California National Guard
and veterans of the United States Armed Forces. Petition-
ers moved the district court to invalidate the 1999 amend-
ments. The district court dismissed the petitioners' action
and the Ninth Circuit Court of Appeals affirmed.

REASONS FOR DENYING THE PETITION

I. THE OPINION OF THE COURT OF APPEALS
IN THE PRESENT CASE DOES NOT CONFLICT
WITH ANY PRECEDENT OF THIS COURT.

For more than 120 years, this Court has repeatedly
held that the Second Amendment does not apply to state
laws. See United States v. Cruikshank, 92 U.S. 542, 553
(1875) ("The second amendment declares that it shall not
be infringed; but this, as has been seen, means no more
than that it shall not be infringed by Congress."); Presser
u. Illinois, 116 U.S. 252, 264-265 (1886) ("But a conclusive
answer to the contention that this [Second] amendment
prohibits the [state] legislation in question lies in the fact
that the amendment is a limitation only upon the power of
Congress and the N ational government and not upon the
States."). Indeed, since the Second Amendment was
designed to ensure the States' ability to thwart invasion
and protect against federal encroachment, it would be
especially ironic to include it among the provisions selec-
tively incorporated against state power.

More than 60 years ago, the Court in United States u.
Miller, 307 U.S. 174 (1939), again addressed the scope of
the Second Amendment in a challenge to the National
Firearms Act of 1934. The Court reasoned that, in order to
sustain the challenge, the firearm at issue must have
"some reasonable relationship to the preservation or
efficiency of a well regulated militia," and without such
evidence there existed no Second Amendment "right to
keep and bear" a sawed-off, or short-barrel shotgun.
Miller, 307 U.S. at 178. The Court determined the purpose
of the Second Amendment was "to assure the continuation
and render possible the effectiveness" of militia forces and
emphasized the Second Amendment must "be interpreted
and applied" in a manner that focuses on the militia. Ibid.

The Court has never deviated from these precedents
recognizing the essential connection between the Second
Amendment and collective defense by state militias. For
example, in Lewis u. United States, 445 U.S. 55, 65, n. 8
( 1980), the Court cited Miller favorably in determining
that legislative firearm restrictions "are neither based
upon constitutionally suspect criteria, nor do they trench
upon any constitutionally protected liberties." See also,
e.g., Adams u. Williams, 407 U.S. 143, 150-151 (1972)
(Douglas, J. dissenting) (quoting Miller for the proposition
that the Second Amendment "must 'be interpreted and
applied' with the view of maintaining a militia"). Moreover,
the Court has reviewed firearm regulations without
addressing the Second Amendment at all. See e.g., United
States u. Bean, 537 U.S. 71 (2002); United States v. Lopez,
514 U.S. 549 (1995). Furthermore, this Court has denied
review in numerous cases raising individual-right chal-
lenges under the Second Amendment. See Robert J .
Spitzer, The Second Amendment "Right to Bear Arms" and
United States u. Emerson, 77 St. John's L. Rev. 1, 14
(2003).

II. THERE IS NO CIRCUIT CONFLICT WITH RE-
SPECT TO THE QUESTION WHETHER A STATE-
LAW REGULATION OF ASSAULT WEAPONS IM-
PLICATES AN INDMDUAL RIGHT UNDER THE
SECOND AMENDMENT.

The opinion of the Ninth Circuit panel below was a
gratuitous elaboration of theory to support a holding that
was, in any event, dictated by the same court's precedent
some seven years earlier. See Pet. App., pp. 108A-109A
(Magill, J., concurring); Hickman v. Block, 81 F.3d 101-102
(9th Cir. 1996), cert. denied 519 U.S. 912 (1996). Indeed
Congress, the Courts of Appeals, and state legislatures
have all heavily relied upon the fact that this Court has
never upheld an individual's Second Amendment challenge
on any grounds. Federal courts interpreting the scope and
meaning of the Second Amendment to the United States
Constitution have, with the sole exception of the Fifth
Circuit in dicta (see discussion infra p. 9), have consis-
tently concluded that the Second Amendment does not
create an individual, personal right to keep and bear arms,
but rather the right of the States to maintain a "well
regulated militia." United States v. Miller, 307 U.S. at 178
(1939); Cases v. United States, 131 F.2d 916, 923 (lst Cir.
1942) (Second Amendment not violated since there was no
evidence the defendant "was or ever had been a member of
any military organization or that his use of the weapon. . .
was in preparation for a military career" and he was "on a
frolic of his own and without any thought or intention of
contributing to the efficiency of the well regulated mili-
tia."); United States v. Rybar, 103 F.3d 273, 286 (3rd Cir.
1996) (Second Amendment not implicated as defendant's
possession of a machine gun was not connected with
militia activity); Love v. Pepersack, 47 F.3d 120, 122-124
(4th Cir. 1995) ("[T]he Second Amendment does not apply
to the states," and "the Second Amendment preserves a
collective, rather than individual, right."); United States v.
Warin, 530 F.2d 103, 106 (6th Cir. 1976) (" 'since the
Second Amendment right "to keep and bear arms" applies
only to the right of the State to maintain a militia and not
to the individual's right to bear arms, there can be no
serious claim to any express constitutional right of an
individual to possess a firearm' "), quoting Stevens v.
United States, 440 F.2d 144, 149 (6th Cir. 1971); Gillespie
v. City of. Indianapolis, 185 F.3d 693, 710 (7th Cir. 1999)
(Second Amendment right "inures not to the individual but
to the people collectively, its reach extending so far as is
necessary to protect their common interest in protection by
a militia"); United States v. Hale, 978 F.2d 1016, 1019 (8th
Cir. 1992) ("[C]onsidering this history, we cannot conclude
that the Second Amendment protects the individual
possession of military weapons."); Hickman v. Block, 81
F.3d at 101-102 (9th Cir. 1996), cert. denied 519 U.S. 912
( 1996) ("We follow our sister circuits in holding that the
Second Amendment is a right held by the states, and does
not protect the possession of a weapon by a private citizen.
We conclude that Hickman can show no legal injury, and
therefore lacks standing."); Fresno Rifle Club v. Van de
Kamp, 965 F.2d 723, at 729-731 (9th Cir. 1992); United
States v. Oakes, 564 F.2d 384 (loth Cir. 1977) (rejecting
individual rights view and rejecting defendant's claim that
his possession of a machine gun was protected by the
Second Amendment); United States v. Wright, 117 F.3d
1265 ( 11 th Cir. 1997) (Second Amendment provided no
individual protection for defendant who unlawfully pos-
sessed machine guns); see also cases listed in "Federal
Constitutional Right to Bear Arms," 37 A.L.R.Fed. 696 and
Supp. (1978); Galvan v. Superior Court of the City and
County of. San Francisco, 70 Cal.2d 851, 866 (1969) ("The
claim that legislation regulating weapons violates the
Second Amendment has been rejected by every court
which has ruled on the question.").

Nor is there any genuine conflict between the Ninth
Circuit's decision below and the decision of the Fifth
Circuit in United States v. Emerson, 270 F.3d 203 (5th Cir.
2001), cert denied, 536 U.S. 907 (2002). In Emerson, the
court upheld the constitutionality of a challenged federal
gun control statute. Dr. Emerson had been the subject of a
Texas state trial court restraining order which forbade him
from threatening his wife or children (domestic violence
restraining order). Emerson, 270 F.3d at 211-12. Dr.
Emerson was found in possession of a Beretta 9mm pistol
and indicted by a federal grand jury pursuant to 18 U.S.C.
§ 922(g)(8). Ibid. Dr. Emerson moved to dismiss the in-
dictment, asserting that the statute, facially and as
applied to him, violated his individual, personal right to
keep and bear arms as guaranteed by the Second Amend-
ment. Although the court of appeals reached the conclu-
sion that the Second Amendment is an individual right, it
did so in dicta: "[B]ecause of our holding that section
922(g)(8), as applied to Emerson, does not infringe his
individual rights under the Second Amendment we will
not now further elaborate as to the exact scope of all
Second Amendment rights." Emerson, 270 F.3d at 260.

Furthermore, both the Fifth and the Ninth Circuits
have, despite their differing analytical approaches, refused
to disturb reasonable gun-control measures. Despite its
reasoning that the right to keep and bear arms is an
individual right, the Emerson court agreed that even such
a right is subject to legitimate public safety and police
power considerations. It is well settled by this Court that
regulation of firearms is a proper police function that does
not violate Second Amendment axioms. Lewis v. United
States, 445 U.S. 55, 65-66 (1980) (gun law prompted by
Congress' concern for the easy availability of firearms and
threat to community peace); Robertson v. Baldwin, 165
U.S. 275, 281-282 (1897) (the right to keep and bear arms
"is not infringed by laws prohibiting the carrying of
concealed weapons").

Accordingly, the purported conflict between the Ninth
and the Fifth Circuits posed by Emerson is, in fact, illu-
sory. As the Solicitor General pointed out in his brief in
Opposition to the Petition for Certiorari in Emerson:
"Petitioner identifies no case, and the government is
aware of none, in which a court of appeals has found
Section 922(g)(8) - or for that matter, any other federal
statutory restriction on private gun possession - to be
violative of the Second Amendment. . . But while the
courts of appeals are in disagreement concerning the
abstract question whether the [Second] Amendment
protects an individual right to bear arms for reasons
unrelated to militia service, no circuit conflict exists on the
constitutionality of any firearms prohibition contained
within 18 U.S.C. 922." Brief for the United States in
Opposition, Emerson v. United States, No.01-8780, pp. 19-
20. Nor is their any circuit conflict on the constitutionality
of a state-law regulation of assault weapon possession and
sale.

This case involves state efforts to regulate assault
weapons. In the absence of any circuit conflict over the
rights of states to do so, prudence dictates that this Court
stay its hand.

III. PETITIONERS SEEK AN ADVISORY OPINION
FROM THE COURT, AND THE PRESENT CASE
DOES NOT PRESENT ISSUES THAT ARE SUF -
FICIENTLY DEVELOPED FOR CONSIDERA.
TION BY THE COURT. AND THOSE ISSUES,
EVEN IF RESOLVED, WILL NOT PROVIDE A
MEANINGFUL REMEDY FOR PETITIONERS.
Petitioners candidly admit in their petition for certio-
rari that they are only seeking an advisory opinion from
the Court and that the present case presents only an
abstract question:

The nature, extent, and constitutional defi-
ciencies of any specific restrictions on the right to
keep and bear arms in this case should first be
argued in depth and determined at trial on re-
mand after guidance from this Court, and full
expert and lay testimony. This petition does not
present specific questions on the details of those
complex Second Amendment issues. It squarely
raises only the core Second/Fourteenth Amend-
ment right to keep and bear arms issues, as well
as the important need for a heightened standard
of review of any infringements on this express
fundamental right.

Petition, p. 2 n. 3 (italics in original).

It is unclear from the petition and the complaint
whether or not it is necessary to reach the constitutional
questions, since petitioners have only vaguely referenced
the weapons at issue and the firearms statutes being
challenged. This Court has long recognized "[t]he salutary
principle that the essential facts should be determined
before passing upon grave constitutional questions." Polk
Co. v. Glover, 305 U.S. 5, 10 (1938). "[B]efore . . . questions
of constitutional law, both novel and of far-reaching
importance, [are] passed upon by this Court, 'the facts
essential to their decision should be definitely found by the
lower courts upon adequate evidence.' " Borden's Farm
Prods. Co. v. Baldwin, 293 U.S. 194, 212 (1934) (quoting
Cit.y of. Hammond v. Schappi Bus Line, Inc., 275 U.S. 164,
171-172 (1927) (Brandeis, J.)).

In petitioners' first amended complaint, they state
"Plaintiffs would like to exercise their rights to possess,
carry and conceal firearms, subject to reasonable restric-
tions, such as mandatory background checks and appro-
priate classes demonstrating proficiency in the safe use of
firearms for protection and sport." See Resp. App., p. 10,
'!I 32 (emphasis in original). It is evident that petitioners
concede that some public and peace-officer safety concerns
are legitimate in the context of the Second Amendment.
While petitioners evidently object to registration of fire-
arms, they are, somewhat inconsistently, willing to submit
to a background check - which uses a registry to deter-
mine one's eligibility to possess firearms. See Resp. App.,
p. 10, '!I 32; p. 5, '!I 9; p. 26, 'JI'JI 125-26.

The scope of the questions any jury would be asked to
determine is ambiguous, at best. Petitioners make vague
reference that, "[a]s a direct and proximate result of the
herein [unspecified] acts, omissions, and systematic
deficiencies, policies and customs of all and/or part of
Defendants, Plaintiffs have been harmed according to
proof." See Resp. App., p. 14, 'JI 53. On the record as it
currently stands, it would be a Herculean undertaking for
a jury to determine "the harm" to petitioners, given the
breadth and ambiguity of the allegations in the complaint.

Petitioners have never stated what, if any, assault
weapons they own, nor have they explained why they
could not register their weapons. They have not alleged
that they attempted to obtain a permit to purchase, sell, or
possess an assault weapon, and were rejected a permit for
some reason which violates federal constitutional princi-
ples. Petitioners have not explained why they simply
cannot remove the characteristics from their assault
weapons, if indeed they possess the inappropriate fire-
arms.

Furthermore, petitioners' complaint challenges broadly
a wide variety of California's firearms control statutes.
According to the petition and the complaint, at trial the
jury would be expected to review each and everyone of
these statutes in light of this Court's advisory opinion. In
addition to the previously discussed amendments to the
Roberti-Roos assault weapons law, petitioners attack
California's "Saturday Night Special" law, Resp. App., p. 6,
'!1'!114-15; "Safe Handgun" law, id., p. 16. 'JI 61; "large
capacity magazine" law, id. p. 17, 'JI 68; and "Concealed
Carry" law, id. pp. 24-26, 'JI'JI 109-22. Petitioners also
demand jury trial on issues that the aforementioned laws
infringe their "Right to Privacy," Resp. App., pp. 26-27,
'!1'!1 124-30; right to "Freedom of Association," id. , pp. 27 -28,
'!1'!1131-36; "Due Process" rights, id. pp. 19-20, 'JI'JI 82-89;
"Liberty Interests," id. pp.20-22, 'JI'JI 90-100; "Equal Protec-
tion Rights," id. pp. 22-23, 'JI'JI 101-07; and rights assertedly
guaranteed by the "9th and 14th Amendments," id.,
pp. 28-29, 'JI'JI 137-43.

Finally, even if petitioners were to prevail before this
Court, they will still not be free from regulation of their
assault weapons. Petitioners will still be subject to virtu-
ally identical federal assault weapons restrictions under
18 U.S.C. §§ 921(a)(30), 922 Appendix, as enforced through
18 U.S.C. § 922(v)(1). Indeed, a far more effective chal-
lenge for the purpose of determining the parameters of
any government's ability to limit petitioners' asserted
individual Second Amendment rights would be a challenge
to the federal assault weapons control laws.

This Court has emphasized that it "will not reach
constitutional questions in advance of the necessity of
deciding them." Three Affiliated 1}ibes v. Wold Eng'g, P. C. ,
467 U.S. 138, 157 (1984); Parker v. County of Los Angeles,
338 U.S. 327, 333 (1949); Ashwander v. Tennessee Valley
Auth. , 297 U.S. 288, 346-348 (1936) (Brandeis, J., concur-
ring). Such a premature circumstance is presented here.

CONCLUSION
For the foregoing reasons, the petition for a writ of
certiorari should be denied.
Dated: October 20, 2003

Respectfully submitted,

BILL LOCKYER
Attorney General of the State
of California

MANUEL M. MEDEIROS
State Solicitor

ANDREA LYNN HOCH
Chief Assistant Attorney General

PAUL DOBSON
Senior Assistant Attorney General

TIMOTHY L. RIEGER
Deputy Attorney General
Counsel of Record

1300 I Street
P. O. Box 944255
Sacramento, CA 94244-2550
Telephone: (916) 263-0802
Fax: (916)263-0676

Counsel for Respondents