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9th Circuit: Gun Ownership Not a Personal Right

The 9th U.S. Circuit Court of Appeals on Thursday ruled that there is no individual right to gun possession, holding that only state-run militias have a constitutional right to bear arms. Weaving together historical arcana, legal opinions both obscure and well-known, and scores of scholarly articles, the ruling on the Second Amendment contradicts a recent 5th Circuit decision and the opinion of the U.S. attorney general.

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The 9th U.S. Circuit Court of Appeals on Thursday ruled that there is no individual right to gun possession, holding that only state-run militias have a constitutional right to bear arms. Weaving together historical arcana, legal opinions both obscure and well-known, and scores of scholarly articles, the court issued a 69-page magnum opus interpreting the 27 words of the Second Amendment in a way that contradicts a recent federal appellate court decision and the opinion of the attorney general of the United States. “The debates of the founding era demonstrate that the second of the first 10 amendments to the Constitution was included in order to preserve the efficacy of the state militias for the people’s defense — not to ensure an individual right to possess weapons,” Judge Stephen Reinhardt wrote. Oddly, the panel acknowledged that they were bound by the court’s own precedent, but discussed the issue at length because they weren’t satisfied with that case’s reasoning. “In light of the United States government’s recent change in position on the meaning of the amendment, the resultant flood of Second Amendment challenges in the district courts, the Fifth Circuit’s extensive study and analysis of the amendment and its conclusion that Miller does not mean what we and other courts have assumed it to mean, the proliferation of gun control statutes both state and federal, and the active scholarly debate that is being waged across this nation, we believe it prudent to explore appellants’ Second Amendment arguments in some depth,” Reinhardt wrote. With that, Reinhardt, Judge Raymond Fisher and 8th Circuit Senior Judge Frank Magill, sitting by designation, plunged headlong into a national debate spurred by Attorney General John Ashcroft’s position that the Second Amendment promises an individual, rather than a collective, right to bear arms. They also cast themselves into an ideological conflict with the 5th Circuit’s decision in United States v. Emerson, 270 F.3d 203, which engaged in a similarly exhaustive analysis but came to a different conclusion. The debate is not just academic. Defense attorneys, including those in the Northern District of California, seized upon Emerson and Ashcroft’s position, using the change in an attempt to free felons charged with possession of a gun, among other things. Judges in the Northern District have rejected those arguments, however, often citing a 1996 9th Circuit case Thursday’s panel said it was bound to follow, Hickman v. Block, 91 F.3d 98. Northern District Chief Judge Marilyn Hall Patel went so far as to threaten to withhold Criminal Justice Act funding from attorneys who argue that the government’s position means a felon’s right to own a gun is subject to strict scrutiny. Silveira v. Lockyer, 02 C.D.O.S. 11711, is a challenge to California’s 1989 Assault Weapons Control Act, amended in 1999, which strengthened restrictions on semi-automatic assault rifles following a schoolyard shooting in Stockton, Calif. The court held that without an individual right, the plaintiffs had no standing to challenge the AWCA. It struck down a 1999 amendment allowing retired police officers to possess automatic weapons as irrational. “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,” California Attorney General Bill Lockyer said in a statement. Magill wrote separately to point out that the expansive analysis of the Second Amendment was unnecessary under Hickman. So why issue an opinion if the court didn’t have to? “My guess is that Judge Reinhardt thought — and to his credit — that past circuit court opinions have not seriously considered the argument,” said UCLA law professor Eugene Volokh, an advocate of an individual’s right to bear arms. “It’s a value to the bench and the bar to have a thorough opinion expressing the states’ rights view, just like in Emerson you have a thorough opinion expressing the individual rights view,” Volokh said. Indeed, many have criticized the federal courts’ hands-off treatment of the Second Amendment. Even in 1939′s United States v. Miller, 307 U.S. 174, the court merely held that there was no right to carry a weapon that had no legitimate use in a militia. Reinhardt called the Miller court’s discussion of the amendment “somewhat cryptic.” In a footnote, the 9th Circuit addressed Emerson directly. “While it is unclear precisely what types of arms the Fifth Circuit would deem included or excluded, Emerson‘s conclusion that the Second Amendment protects private gun ownership so long as the weapons have ‘legitimate use in the hands of private individuals’ � represents a far different approach from that stated in Miller. In our view, the Fifth Circuit’s decision is incompatible with the Supreme Court ruling.” San Jose, Calif., solo Donald Kilmer Jr., who has a Second Amendment case before the 9th Circuit, said the decision brings a Supreme Court case closer. “It just means that we’re that much closer to getting the issue before the U.S. Supreme Court,” said Kilmer, who represents gun show promoters. “Now we have a clear split in the circuit with opinions that have a lot of analysis.” Reinhardt’s historical discussion is wide-ranging and the opinion packed with footnotes, including one where the liberal Reinhardt takes a thinly veiled swipe at the conservative Federalist Society. “For some inexplicable reason,” Reinhardt wrote, “the term ‘Federalist’ is currently used to refer to those who favor devolving national functions upon the individual states, rather than to those who favor granting the national government the powers necessary to operate effectively and to promote the social compact that underlies American democracy.” News of the decision spread fast across the Internet. Several pro-individual rights scholars immediately jumped on Reinhardt for including an article by Michael Bellesiles in his first footnote. Bellesiles is an Emory University professor whose book “Arming America,” alleging that gun ownership was not widespread prior to the Civil War, was the subject of criticism calling into question the truthfulness of his scholarship. Following an academic inquiry, Bellesiles resigned.

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