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Calif. ruling called gun-control landmark
Washington Times ^ | Published 12/6/2002 | (Reported by Hil Anderson in Los Angeles)

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 ...


TOPICS: Constitution/Conservatism; Crime/Corruption; Culture/Society; Editorial; Government; Politics/Elections
KEYWORDS: amendment; bullet; circuit; court; gun; judge; liberal; ninth; second; supreme
Let's face the fact, the ninth circuit ruled against the "Preamble to the Bill of Rights". This will probably be upheld as the Supreme Curt is Loath to take on any second amendment issues.
1 posted on 12/09/2002 2:54:16 PM PST by vannrox
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To: vannrox

Metropolitan News-Enterprise

 

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


2 posted on 12/09/2002 2:55:35 PM PST by vannrox
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To: vannrox
If this is upheld, then the Constitution is officially suspended. That makes it open season on lots of things. Lock and load.
3 posted on 12/09/2002 2:57:54 PM PST by ApesForEvolution
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To: vannrox
“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.


Gee. Thanks for telling us what you believe we should not have in our homes, this week.

Now, what about next week?
4 posted on 12/09/2002 2:58:05 PM PST by Bluntpoint
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To: ApesForEvolution

The Preamble to the Bill of Rights





Effective December 15, 1791
Articles in addition to, and Amendment of the Constitution of the United States of America, proposed by Congress, and ratified by the Legislatures of the several States, pursuant to the fifth Article of the original Constitution.

PREAMBLE
The conventions of a number of the States having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added: And as extending the ground of public confidence in the Government, will best insure the beneficent ends of its institution.





5 posted on 12/09/2002 2:58:53 PM PST by vannrox
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To: vannrox
Thank God for AG John Ashcroft! He's our only hope. For victory & freedom!!!
6 posted on 12/09/2002 2:59:20 PM PST by Saundra Duffy
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To: vannrox
The 9th Circuit ruling is crap.

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.

7 posted on 12/09/2002 3:02:00 PM PST by xm177e2
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To: vannrox
From the article: "California Attorney General Bill Lockyer said the state had no desire to take away the rights of people to hunt..."

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.

8 posted on 12/09/2002 3:12:39 PM PST by William Tell
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To: vannrox
This further ruling just in from the 9th Circuit:

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.

9 posted on 12/09/2002 3:12:49 PM PST by Argus
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To: vannrox
California Attorney General Bill Lockyer said the state had no desire to take away the rights of people to hunt or to protect themselves and their homes, however the state was intent on keeping high-powered weapons off the streets.

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? :)

10 posted on 12/09/2002 3:15:35 PM PST by Frohickey
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To: vannrox
Ashcroft himself declared that the 2nd Ammend applied to the individual...and was not a "collective" (what a great leftie term) right...

The 1st ammendment does not apply to the collective right to free speech...any more than the second applies to the collective right of firearm ownership

Of course the "Violence Policy Center" is more involved with "violence" against the helpless...disarming rape victims whose attackers are still at large or out of the reach of the law..seems to be one of their goals..

As is the disarming of the most helpless of americans ..the disabled..the elderly..sing moms...knowing full well that the police cannot be held responsible for stopping crime before it happens..the courts have already laid this burden on the individual potential victim..or repeat victim..

Criminals of course will always be armed and pay no attention to laws..(thats what makes them criminals)...the violent and the the theif...the rapist and murderer have bad souls and brutish minds..

The only thing that will stop or deter them is if their victim is armed..as in nature..the animals with claws and fangs the unwilling or difficult victims survive...

The easy ones are called lunch..
11 posted on 12/09/2002 3:47:47 PM PST by joesnuffy
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To: joesnuffy

The 2nd ammendment does not apply to the collective right to firearms ownership..any more than the 1st applies to the collective right to freedom of speech....
12 posted on 12/09/2002 3:49:54 PM PST by joesnuffy
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To: Bluntpoint
Lockyer sounds a little scared; he wants to run for governor after Dufus Davis' two terms. If he is put into the position of having to enforce a confiscation law put in place by the commie Cal legislature over this decision, then he will really be in a bind. Such a move would be very high profile and cause lots of media attention, especially if dozens if not hundreds of citizens decide not to cooperate.

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.

13 posted on 12/09/2002 4:01:46 PM PST by 45Auto
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To: vannrox
This is a"landmark" only in terms of audacity emanating from the corruption on the bench. These idiot reporters should not be so quick to celebrate; if the 2nd goes, so goes the whole f'ing Bill of Rights, including the right of the so-called "free press". Can journalism licenses be far behind? What's that you got there, son? A word processor? Got a license for that?
14 posted on 12/09/2002 4:04:45 PM PST by 45Auto
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To: 45Auto
If you haven't done so already, get on the mailing list of the Thermopylae Group. We are working once again to amend the California constitution to link the right to defend life and liberty with the right to keep and bear arms. Click to the Volunteer page and enter your information.
15 posted on 12/09/2002 4:20:14 PM PST by mvpel
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To: vannrox
“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.

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?

16 posted on 12/09/2002 4:39:27 PM PST by El Gato
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To: Saundra Duffy
You know, the leftys/commies/socialists really lose all control when they are out of power. They own the 9th Circuit, and they know it, but their 'ownership' is going to be fixed very soon.

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!!

17 posted on 12/09/2002 5:14:49 PM PST by timydnuc
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To: Bluntpoint
“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. In addition, AG Lockyear stated, "We have finalized the collection sites in the numerous counties and we expect full cooperation from all California criminals to turn in these faux assault weapons. We would expecially like to thank the Crypts and the Bloods for their assistance in this effort."
18 posted on 12/09/2002 5:53:22 PM PST by A Navy Vet
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To: ApesForEvolution
Lock and load it is! This Reinhardt asshole should be removed from the bench and charged with sedition against the United States. What he did is advocate the overthrow of the United States! This asshole needs to leave the bench immediately. Enough is enough!
19 posted on 12/09/2002 7:33:08 PM PST by goldilucky
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To: joesnuffy
Bump! The 2nd amendment is an individual right...not a collective one.
20 posted on 12/09/2002 7:34:48 PM PST by goldilucky
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To: Saundra Duffy
We the armed citizens are our only hope.

Blackrobes are outnumbered, even when in the company of the other fascists of the politburo. AlGore threatened us with his, "You ain't seen nothin' yet!" This 3 judge panel has declared war as domestic enemies of our constitutional Republic. This "living" interpretation is D.O.A.

Disarm? I say disrobe.
21 posted on 12/09/2002 7:49:42 PM PST by SevenDaysInMay
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To: goldilucky
Senate Document 2807, entitled "The Right to Keep and Bear Arms", is a report of the Senate Judiciary Committee's subcommittee on the constitution. The purpose of the committee was to determine the Founders' original intent in creating the Second Amendment to the Constitution of the United States. The study was completed in 1982.

All patriots should be familiar with this document. It has not been distributed in the media in this country for reasons which will become obvious to you upon reading it. I have only linked to the report because of its length. However, there is a short introduction and summary written by Senator Orrin Hatch at the beginning.The following is a direct quotation of part of Senator Hatch's introduction to the report:

"Immediately upon assuming chairmanship of the Subcommittee on the Constitution, I sponsored the report which follows as an effort to study, rather than ignore, the history of the controversy over the right to keep and bear arms. Utilizing the research capabilities of the Subcommittee on the Constitution, the resources of the Library of Congress, and the assistance of constitutional scholars such as Mary Kaaren Jolly, Steven Halbrook, and David T. Hardy, the subcommittee has managed to uncover information on the right to keep and bear arms which documents quite clearly its status as a major individual right of American citizens. We did not guess at the purpose of the British 1689 Declaration of Rights; we located the Journals of the House of Commons and private notes of the Declaration's sponsors, now dead for two centuries. We did not make suppositions as to colonial interpretations of that Declaration's right to keep arms; we examined colonial newspapers which discussed it. We did not speculate as to the intent of the framers of the second amendment; we examined James Madison's drafts for it, his handwritten outlines of speeches upon the Bill of Rights, and discussions of the second amendment by early scholars who were personal friends of Madison, Jefferson, and Washington while these still lived. What the Subcommittee on the Constitution uncovered was clear--and long lost--proof that the second amendment to our Constitution was intended as an individual right of the American citizen to keep and carry arms in a peaceful manner, for protection of himself, his family, and his freedoms. The summary of our research and findings form the first portion of this report."

Where is mention and discussion of this study and its conclusion?

The Right to Keep and Bear Arms

22 posted on 12/09/2002 8:05:50 PM PST by nygoose
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To: nygoose
Many thanks for the quote and link for this Senate report, which I was not familiar with. I am printing the report for reading at leisure and intend to pass it on to a friend who insists the intent of the 2nd Amendment was not an individual right.
23 posted on 12/09/2002 8:35:04 PM PST by GOPrincess
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To: GOPrincess
Thanks for the reply and the interest. It is an important document, IMHO.

The Right to Keep and Bear Arms

24 posted on 12/10/2002 2:35:20 AM PST by nygoose
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To: nygoose
That was a pretty good piece of information. Of course, this will never be circulated around as those like Reinhardt would love to disarm us all. Of course, he probably has armed guards to protect his sorry behind but that is beside the point. The purpose of the individual right was very clear in that it would enable us to protect ourselves against those like Reinhardt, Gore and others whose loyalty and oath stands to those of the Communist Chinese. And when those commmunist take over....they will even finish those like Gore. One must never underestimate their enemies. Never!
25 posted on 12/10/2002 5:55:07 PM PST by goldilucky
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To: vannrox
Clear legal thinking!

Rolling On The Floor, Laughing My Ass Off!

26 posted on 12/10/2002 6:00:23 PM PST by rockfish59
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To: vannrox
"With the federal assault weapons ban scheduled to sunset next Congress, the California law stands as one example of how to more effectively infringe on the rights of citizens to keep and bear arms." said Matt Nosanchuk, legislative counsel for the Violence Policy Center.

Bump.

27 posted on 12/10/2002 6:11:41 PM PST by copycat
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