Court disputes right to bear arms - 9th Circuit judges uphold assault weapons ban, rule Second Amendment only protects militias

Henry Weinstein
Los Angeles Times
published in The Spokesman Review


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

The 3-0 decision, declaring that the Second 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 can use detachable magazines and guns with barrels that can be fitted with silencers.

In February 2000, just 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 federal district court in Sacramento, Calif., contending that it violated the Second Amendment, the Equal Protection Clause and a host of 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 9th U.S. Circuit Court of Appeals upheld Shubb's ruling on the Second 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 Attorney General Bill Lockyer, whose office defended the state law in court, applauded the decision, which also was praised by attorneys for gun control organizations.

"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 of our state," Lockyer said. He expressed disappointment only about the portion of the decision overturning the exception for retired officers.

Matthew Nosanchuk, senior litigation counsel for the Violence Policy Center in Washington, said Judge Stephen Reinhardt's 86-page ruling was one of the most comprehensive ever written on the Second Amendment. "This is a very important contribution that should drive a stake through the heart of the individual rights position," Nosanchuk said.

Several plaintiffs declined to return calls and their attorney could not be reached for comment.

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

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

"I don't think the court gets it all," said Larry Pratt, executive director of the 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 Association, said the group has taken the position since its founding in 1871 that the Second Amendment gives individuals a right to possess guns. "We will continue to maintain that position as long as we are around," he added.

While 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 Second Amendment because of a similar earlier ruling by the court six years ago.

In 1996, the 9th Circuit said there was no individual right to bear arms in a case where 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, Reinhardt said that because there is considerable debate over the Second 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 5th U.S. Circuit Court of Appeals in New Orleans holding that the Second 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 offices, saying he agreed with the New Orleans court's interpretation. And last May, in two brief filed in the U.S. Supreme Court, Solicitor General Theodore B. Olson took the same position.

"The current position of the United States ... is that the Second Amendment more broadly protects the rights of individuals, including persons who are not members of any militia or engaged in active military service service of 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's most detailed ruling on the issue came in U.S. v. 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 it violated the Second Amendment.

The Supreme Court rejected the challenge, saying there was no evidence 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 Second Amendment, including statements from James Madison and other founding fathers.

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

Reinhardt also said that the Second Amendment was adopted at the urging of individuals who were concerned about the federal government having too much power under the new nation's constitution.

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 (Second) amendment was not adopted in order to afford rights to individuals with respect to private gun ownership or possession," Reinhardt 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.


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