California's AW Ban does Indeed Violate the Constitution

The recent decision by the Ninth Circuit Court of Appeals concerning California's assault weapons ban will undoubtedly fuel the debate concerning the Second Amendment. The appellants in this case asserted: "the California Assault Weapons Control Act and its 1999 revisions violated their Second Amendment rights." In their opinion, the Court rejected this assertion "[b]ecause the Second Amendment does not confer an individual right to own or possess arms." Instead, the Court ruled: "the Second Amendment affords only a collective right to own or possess guns or other firearms." Since it is impossible to analyze these statements in a single article, this commentary will focus on another constitutional provision that invalidates every general assault weapons ban.

During the debates in the Federal [Constitutional] Convention of 1787, there was an extensive debate concerning the militia. On August 23rd, a committee report was delivered to the Convention. The following clause was under consideration:

"To make laws for organizing, arming & disciplining the Militia, and for governing such part of them as may be employed in the service of the U.S. reserving to the States respectively, the appointment of the officers, and authority of training the militia according to the discipline prescribed"

"Mr KING, by way of explanation... the Committee meant... by arming, specifying the kind size & caliber of arms..."

"Mr MADISON observed that 'arming' as explained did not extend to furnishing arms..."

"Mr KING added, to his former explanation that arming meant not only to provide for uniformity of arms, but included authority to regulate the modes of fournishing, either by the Militia themselves, the State Governments, or the National Treasury..."

This provision, with a slight modification in verbiage, was adopted as Article 1, Section 8, Clause 16 of the Constitution for the United States.

Mr. King's statement concerning the intent of Clause 16 raises two interesting questions. How could citizens be constitutionally obligated to furnish their own military weapon, if called into federal service, unless there was an existing right to purchase and posses such a weapon? And how could the States furnish arms to their militias unless they already possessed the "collective right" to arm their militias? According to the Ninth Circuit, it took the so-called "collective right" Second Amendment, which was adopted 4 years after the Constitution was written, before the States and the members of their militias were "afforded" or "guaranteed" the right to keep and bear arms. As shown by Mr. King's statement, this assertion is patently false because these so-called rights existed prior to, and independent of, the Constitution or the Second Amendment.

In their decision, the Ninth Circuit acknowledged that the weapons California sought to regulate or ban are military type weapons. Since the word "arming" in Clause 16 includes individual citizens providing their own military weapon, no State can pass a general statute that negates or interferes with this constitutional provision.

This principle also applies to Congress. That body cannot pass any statute that alters or defeats a constitutional provision. A general federal assault weapons ban would constitute a revision of the Constitution because it would alter the arming provision enumerated in Clause 16. The Constitution can only be changed through the amendment process enumerated in Article V.

Not only does the California Assault Weapons Control Act violate Clause 16, but it also conflicts with Article VI of the Constitution. This provision, which is commonly called the "supremacy clause," states in part:

"This constitution, and the laws of the United States which shall be made in pursuance thereof;.shall be the supreme law of the land;.any thing in the constitution or laws of any state to the contrary notwithstanding."

Under this provision, the Constitution and all laws passed pursuant to that document are the supreme law of the land. This means the "arming" provision enumerated in Clause 16 is supreme and above the California Assault Weapons Control Act. When a state law conflicts with a power enumerated in the Constitution, it violates the supremacy clause and is unconstitutional on its face.

In the case before the Ninth Circuit, two of the plaintiffs were members of the California National Guard. For purposes of federal law, the composition and classes of the militia is defined in Title 10 of the United States Code, Section 311:

(a) The militia of the United States consists of all able-bodied males at least 17 years of age and, except as provided in section 313 of title 32, under 45 years of age who are, or who have made a declaration of intention to become, citizens of the United States and of female citizens of the United States who are members of the National Guard.

(1) the organized militia, which consists of the National Guard and the Naval Militia; and

(2) the unorganized militia, which consists of the members of the militia who are not members of the National Guard or the Naval Militia.

Since the California National Guard is a sub-component of the militia of the United States [i.e., State militias in the service of the government of the United States], and members of the militia can be required to provide their own military weapon pursuant to Clause 16, California's Assault Weapons Control Act cannot, under any circumstance, be applied to these two individuals.

The Court's ruling on the Second Amendment also immunizes these individuals from the ban. If the Amendment only "affords" a collective right to keep and bears, as the Court claims, then these individuals have standing to assert a Second Amendment challenge as members of the militia.

In addition, every individual between the ages of 17 to 44 who meets the qualifications referenced above, and is not a member of the National Guard or the Naval Militia, is a member of the unorganized militia of the United States. This means everyone from the 19-year-old college student to the 43-year-old doctor is subject to the "arming" requirement enumerated in Clause 16. Thus, there must be a general right to purchase and possess a military firearm or this provision would be an absurdity. Even if California could pass a general assault weapons ban, it could not prevent individuals between the ages of 17 and 44 from possessing this type of weapon because they could be required to report for federal service with that weapon in hand at any moment.

It is also important to note that Clause 16 helps disprove some of the misconceptions being advanced concerning the Second Amendment. In their decision, the Ninth Circuit stated:

"Our review of the debates during the Constitutional Convention, the state ratifying conventions, and the First Congress, as well as the other historical materials we have discussed, confirmed what the text strongly suggested: that the amendment was adopted in order to protect the people from the threat of federal tyranny by preserving the right of the states to arm their militias."

Preserve the "right" from what? The federal government is a government of limited enumerated powers. It can only exercise those delegated powers granted to it by the Constitution. The Ninth Circuit would have us believe that the States, when they sent their delegates to the Federal Convention to revise the Articles of Confederation, authorized their representatives to grant the federal government the power to disarm their militias, and the States wrote and adopted the Second Amendment to prevent the federal government from exercising this constitutional power over their militias. If the Ninth Circuit had conducted the comprehensive review of the historical materials surrounding the adoption of the Constitution as it claimed, it would have found there is not a single fact that supports this ridiculous assertion.

The only powers granted to the federal government concerning the State militias, other than the power to call them into the service of the United States, are found in Clause 16. There is not a single provision in this clause than grants the federal government the power to disarm the State militias. In fact, Clause 16 specifically requires the States to maintain armed militias, independent of the federal government, because Congress can call them into the service of the United States at any moment and require them to be armed.

Irrespective of the pronouncements by the Ninth Circuit concerning the Second Amendment, the right of citizens to possess a military type weapon exists independent of the Constitution and is embedded in the "arming" provision of Clause 16. Therefore, the right exists independent of the Second Amendment or any interpretation of the Amendment.

The California Assault Weapons Control Act is an unconstitutional encroachment on the exclusive power of Congress to prescribe the mode of arming the State militias pursuant to Clause 16 of the Constitution for the United States.

Note: Gary Gorski, the attorney for the plaintiffs, is a 40 year-old assault weapons owner. Are the wheels starting to turn? Yes he is a member of the militia and subject to the arming requirement of Clause 16.

Thursday, December 05, 2002

[Eugene Volokh, 6:47 PM]
THINGS THE NINTH CIRCUIT'S SECOND AMENDMENT OPINION DOESN'T
DISCUSS:

1.The Ninth Circuit repeatedly stresses that the right relates to "a military force established
and controlled by a government entity," "not some amorphous body of the people as a
whole" (p. 32). But nowhere does the Ninth Circuit acknowledge that this militia was
essentially the adult white male able-bodied citizenry. Not a National Guard, not a
small group of people chosen by the state, but pretty much everyone who mattered at
the time (yes, I know it was limited to white males, but that was the 1790s for you),
subject only to an 18-to-45 age restriction (which I suspect covered the great majority of
people). Much more consistent with a right of the people -- you and me -- than if "militia"
simply meant a National Guard.

You'd think that in a discussion of what "militia" means in the Second Amendment,
the Ninth Circuit would quote the Supreme Court's statement as to what this means:
"The signification attributed to the term Militia appears from the debates in the
Convention, the history and legislation of Colonies and States, and the writings of
approved commentators. These show plainly enough that the Militia comprised all males
physically capable of acting in concert for the common defense." United States v.
Miller (1939).

You'd think that the Ninth Circuit would quote the Militia Act of 1792 (enacted by
Congress three years after Congress proposed the Second Amendment), which defined
"militia" to include "each and every free able-bodied white male citizen of the
respective states, resident therein, who is or shall be of the age of eighteen
years, and under the age of forty-five years [subject to some narrow exceptions]" --
and curiously the definition remains pretty much the same today.

You'd think that it would quote the four state ratifying conventions' calls for a
right to bear arms, which all speak of a "well regulated Militia composed of the body
of the people trained to arms" or "capable of bearing arms."

But you'd be mistaken in so thinking, because the Ninth Court never quotes these
sources.

2.What about leading constitutional commentators of the era? The Second Amendment
was clearly a broader version of the right to have arms in the English Bill of Rights of
1689, and fortunately Sir William Blackstone -- the leading English legal commentator
of the late 1700s, and apparently a profound influence on the Framers -- discussed the
right at length. The right clearly wasn't a right of states; there were no states or other
quasi-sovereign political subdivisions in England; Blackstone called it a "right of the
subject", clearly an individual right. The name Blackstone does not appear once in the
Ninth Circuit opinion.

What about Justice Story, the leading U.S. constitutional commentator of the early
1800s, who got his legal education in the decade following the enactment of the Second
Amendment? He referred to the right not as a right of states, or of the militia, but as a
"right of the citizens". This item is nowhere quoted in the Ninth Circuit opinion (the
only reference to Story is in a quote from Justice Thomas's opinion in Printz v. United
States, a quote that does not include the assertion that the right to bear arms is a right of
the citizens.) Other leading commentators of the 19th century, such as St. George
Tucker (1803) or Thomas Cooley (1880) are likewise never mentioned.

3.What about the rights to bear arms in state Bills of Rights of the era:
"Every citizen has a right to bear arms in defense of himself and the state"
(Connecticut, 1818, the first Connecticut bill of rights).
"[T]he right of the citizens to bear arms in defense of themselves and the State
shall not be questioned" (Kentucky, 1792).
"The people have a right to keep and to bear arms for the common defence"
(Massachusetts, 1780).
"[T]he people have a right to bear arms, for the defence of the State" (North
Carolina, 1776).
"[T]he people have a right to bear arms for the defence of themselves and the
state" (Pennsylvania, 1776).
"The right of the citizens to bear arms in defence of themselves and the State
shall not be questioned (Pennsylvania, 1790).
"[T]he freemen of this State have a right to keep and bear arms for their common
defence" (Tennessee, 1796).
"[T]he people have a right to bear arms for the defence of themselves and the
State" (Vermont, 1777).
Some of these speak in terms of the common defense, and some also in terms of
self-defense, and they do show, I think, that the purpose of the right was in large part
related to societal defense (including defense against domestic tyrants). But it seems to
me clear that, whatever its purpose, the right can't have belonged to the state, or to a
force whose membership is selected and controlled by the state. The rights must be
rights of individuals against the state, since that's the function of state Bills of Rights.
(The Bill of Rights in the federal constitution can at least theoretically secure the rights
of states, but not the Bill of Rights in a state constitution.)

I suppose it's possible for the "right of the people to bear arms" in state constitutions
to mean a right of individuals against the government, and for the same phrase in the
contemporaneously enacted federal constitution to mean a right of states against the
federal government. But it should be worth discussing, no, especially given the Court's
view that contemporaneous state constitutional provisions are quite relevant when trying
to interpret the federal provision. See, e.g., Harmelin v. Michigan, 501 U.S. 957, 966
(1991) (examining Eighth Amendment in light of contemporaneous state constitutional
provisions on punishment); Taylor v. Illinois, 484 U.S. 400, 407 & n.13 (1988)
(interpreting Sixth Amendment's Compulsory Process Clause in light of
contemporaneous state constitutional provisions on criminal defendant's right to establish
elements of his case); Marshall v. Barlow's, Inc., 436 U.S. 307, 311 (1978) (using
Virginia Bill of Rights as aid in interpreting Fourth Amendment's Warrant Clause). And
yet the Ninth Circuit opinion nowhere mentions them.

Disappointing.

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