Metropolitan News-Enterprise


Wednesday, July 24, 2002


Page 1


Ninth Circuit Rejects Second Amendment Challenge to Federal Gun Law


By KENNETH OFGANG, Staff Writer/Appellate Courts


The federal statute barring possession of firearms by persons subject to domestic violence restraining orders does not violate the Second Amendment, the Ninth U.S. Circuit Court of Appeals ruled yesterday.

Ninth Circuit precedent holds that the constitutional right to bear arms belongs to the states collectively, and not to individuals, Judge Michael Daly Hawkins wrote for the panel. The jurists—Hawkins, Senior Judge Alfred T. Goodwin, and Judge Raymond C. Fisher—heard argument last month but did not take note of Attorney General John Ashcroft’s recent pronouncement that the amendment creates an individual right.

Attorneys for Antonio Hinostroza urged the judges to overturn his conviction and  33-month prison sentence for unlawfully possessing firearms while subject to a restraining order obtained by his ex-wife and for falsely stating that he was not under any such order on an application to purchase another gun.

Restraining Order

Hinostroza became the subject of a domestic restraining order in 1997 during what Hawkins described as “acrimonious” divorce proceedings. He sought to dissolve the order in August 1999, saying he wanted to possess guns solely for hunting and collecting purposes, but the motion was denied.

In the months following that denial, he twice obtained guns, declaring in applications that he was not under a restraining order. He was charged with violating the statute after a June 2000 police search resulted in the seizure of eight guns from his home and from a truck that Hinostroza drove, although it was registered to his fiancée, Carmen Torres.

Torres testified the guns were hers and that Hinostroza did not know they were in the house and the truck, but jurors found him guilty. At a sentencing hearing, he sought a finding that he possessed the guns only for sporting and collection purposes, which would have reduced the guidelines sentence to no more than a year in prison, as opposed to a possible 27 months without the finding. 

He testified that he did not know how the guns came to be at the places the police found them, including next to his bed. Chief U.S. District Judge William B. Shubb of the Eastern District of California found the testimony to lack credibility, denied the downward departure, and increased the sentence to 33 months based on a finding of obstruction of justice.

On appeal, the defense argued that Hinostroza has a constitutional right to bear arms. While the Justice Department now accepts the view that individuals have such a right, it has defended the statute under which Hinostroza was convicted—18 U.S.C. Sec. 922(g)(8)—and other existing gun laws as reasonable restrictions consistent with the Second Amendment.

Reasonableness Question

The Ninth Circuit panel did not reach the question of reasonableness, however. Hawkins noted that a 1996 decision rejected the individual-rights theory, and said only an en banc panel can overrule that precedent.

The judge also rejected Hinostroza’s challenge to the enhanced sentence. The defense argued that the obstruction-of-justice enhancement was improper because the testimony found to be false was not material to the issue before the court.

But Hawkins agreed with the government that the claim the defendant did not know how the guns came to be where they were found bore directly on the truth of his assertion that the guns were used only for hunting and collecting. The “patent falsity” of that testimony, Hawkins added, not only supported the denial of the sentence reduction, it precluded the appellate panel from finding the sentence enhancement to be plain error.

The case is United States v. Hinostroza, 01-10482.


Copyright 2002, Metropolitan News Company