Posted on 12/09/2002 2:54:16 PM PST by vannrox
Edited on 07/12/2004 3:59:34 PM PDT by Jim Robinson. [history]
SAN FRANCISCO, Dec. 6 (UPI) -- A federal appeals court ruling upholding California's ban on assault rifles was being portrayed Friday as a landmark in the constitutional debate over the right to bear arms.
In a 72-page ruling issued Thursday, the Ninth Circuit Court of Appeals said the Second Amendment only guarantees the rights of states to organize a militia, and doesn't say anything about citizens being allowed to own semi-automatic weapons or any other firearms.
(Excerpt) Read more at asp.washtimes.com ...
Friday, December 6, 2002
Page 1
Ninth Circuit Upholds State Assault Weapons Ban
By ROBERT GREENE, Staff Writer
The Second Amendment never was meant to guarantee an individual’s right to own a gun, the Ninth U.S. Circuit Court of Appeals said yesterday in a ruling upholding California’s tight restrictions on assault weapons.
The 1989 Roberti-Roos Assault Weapons Control Act, enacted after the schoolyard killing of five Stockton children by gunman Patrick Purdy, doesn’t violate the Bill of Rights because the Second Amendment was meant only to affirm the power of official state militias to organize and to arm their troopers, Judge Stephen Reinhardt wrote for the three-judge panel.
The law bars anyone from making certain semi-automatic weapons in California or importing them into the state. Anyone who already owned guns that were put on the list of banned weapons by the state attorney general must register them, make them inoperable, take them out of the state or give them up.
Exceptions for law enforcement officers, even when they are off duty, are valid under the Equal Protection Clause because public protection forms a rational basis for treating officers differently, Reinhardt said.
But the court rejected a provision that also provides an exception for retired law enforcement officers. Just because Congress incorporated the same exception into a 1994 federal law modeled on the California statute, the judge said, doesn’t mean there was a rational basis for the exemption in California.
“An unconstitutional statute adopted by a dozen jurisdictions is no less unconstitutional by virtue of its popularity,” Reinhardt said.
The court also rejected assertions that the special training officers had before they retired, or the fact that officers may have purchased their duty weapons on retirement, provided a rational basis for the exception.
The Second Amendment reads, “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.”
The opinion was not the first in which the Ninth Circuit has cited the “well-regulated militia” clause to support its position that the Second Amendment does not apply to personal gun ownership. That position—that the prefatory clause modifies the following clause, usually known as the “collective rights model”—is widely accepted by gun control advocates, and Reinhardt said it was the accepted interpretation in the nation for most of its history.
The competing “traditional individual rights model” is of more recent vintage, he said.
But the Fifth Circuit has ruled that the Second Amendment guarantees personal gun ownership rights, and Attorney General John Ashcroft has adopted that position.
Reinhardt’s opinion was unusual in that most of its 70 pages, a length generally reserved for law review articles, was devoted to an analysis of the two approaches to interpreting the clause.
Second Amendment scholar David Kopel, research director of the Colorado-based Independence Institution and a staunch defender of the individualist rights approach, said the opinion could not be taken seriously because Reinhardt’s analysis relied in part on a law review article by someone Kopel called a proven fraud.
“When footnote 1 is a book that has been exposed as a hoax, there is no reason to believe anything else in it,” Kopel said.
Reinhardt cited “Gun Control: A Historical Overview” by Michael A. Bellesiles, 28 Crime & Just. 137. Bellesiles is the author of “Arming America: The Origins of a National Gun Culture,” a 2000 book that asserts among other things that guns were rare in early America. Bellesiles resigned from the faculty of Emory University, effective the end of this year, after assertions that he fabricated research data led to a special academic inquiry.
The committee concluded that Bellesiles failed to abide by proper research standards.
Although the circuits are split on the meaning of the Second Amendment, the Supreme Court has not taken review of cases that deal with the issue directly. Kopel said the justices were not likely to take this case either, but would wait for one that dealt with a federal gun control law—or would continue to pass on the issue.
“The Supreme Court has finite political capital and spends it as it wants to,” Kopel said.
In 1939, the high court upheld a federal law prohibiting the interstate transport of sawed-off shotguns, finding the weapon unsuitable for use in the militia and not constitutionally protected. The court has since rarely delved into Second Amendment issues.
The California assault weapons ban restricts guns that reload automatically after the trigger is pulled and use large ammunition magazines to allow continuous shooting without reloading.
In 1999, the Legislature redrafted the law to ban copycat weapons with similar features. The law permits the state attorney general to add guns to the list of banned weapons.
“While I respect 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 in our state,” Attorney General Bill Lockyer said in a statement.
The National Rifle Association said it was disappointed with the ruling.
“From an organizational standpoint, for 131 years we’ve been standing steadfastly to protect the freedoms of all law abiding Americans and stand steadfastly that the Second Amendment is an individual right and will continue to do so,” NRA spokesman Andrew Arulanandam said.
The case is Silveira v. Lockyer, 01-15098.
Copyright 2002, Metropolitan News Company
Clayton Cramer and the Volokh Conspiracy expose the lies and poor reasoning behind the decision. The pig-molesting jurists even had the nerve to quote Michael Bellesiles as part of their argument against gun rights.
Which amendment is that one? Is Lockyer hoping to continue to lull hunters into thinking that they are not the target of the gun-grabbers? What passes for thinking in goverment circles in Kalifornia is not even an approximation to the real thing.
Amendment I
Congress The Ninth Circuit Court of Appeals shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or deciding whether or not to grant the right of the people peaceably to assemble, and to petition the government for a redress of grievances.
Kalifornia Attorney General Bill Lockyer should talk to some Korean merchants protecting their homes and businesses during the LA Riots. I wonder what they were using? :)
A goon squad kicking down a few doors does not cause much of a media flap; but kicking down thousands of doors might even stir the rotten bastards at the ACLU to protest, not the infringement on the 2nd, but the encroachment on the 4th and 5th.
Then what was it those law abiding Korean-Americans were doing on the roofs of their businesses with AR-15s during the "Rodney King" riots a few years back? They sure as heck weren't trying to take over the 'hood. The rioters should actually be glad they were using the rather underpowered .223 and short ranged shotguns. Imagine if they had had a bunch of M-1As or FN/FALs up there, or even a few Remington 700s with .308 (or more powerfull) hunting rounds?
This decision, and many others, handed down by the 9th Circuit is a textbook example of legislating from the Bench. Imagine, if you will, a Supreme Court as left as the 9th Circuit. The Congress would need to change Amendments as to the specific language in the Amendment. Then there would need to ratifications from the States, etc. That's almost impossible in today's political environment. A Supreme Court like the 9th Circuit would set off the 2nd American Civil War.
The left makes the full frontal assault on the second Amendment to the Constitution of these here United States, why do you suppose that they would do that? Answer: they know they could get this done in the courts because they also know that they can't get it done in the legislative process. That will give them time to take our weapons. This is their first priority. First, they disarm us, then they can get the rest of the plan done without armed insurrection. If they can get the courts to over ride one Amendment in the Bill of Rights, the rest is easy.
If we don't take back the Courts we are doomed to slavery to the State, and that means slavery to the elite. I'm not willing to do that! Our majority in the Senate must be used for good, and the preservation of the Constitution of these here United States. Justices such as are on the 9th Circuit are traitors, pure and simple. They have never read the Federalist Papers, or, if they have they lost the point or ignored it altogher. The founding fathers knew how dangerous a Judiciary could be to the liberty of the People. They made the law of this land to be specific and structured. That language should have been enough to assure the liberty of the People, and freedom from government control. The left wants, desparately, to contol our lives from the bench, knowing that they will win in the short term, and require a long time and huge legislative change to overrule those court decisions. Their fight to gain control of government by the courts is now obvious and blatant. Their last bastion of power over us is the courts. We have the power to purge that power and preserve the Constitution of these here United States. LET'S ROLL!!
Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.