Wednesday, May 7, 2003
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Ninth Circuit Denies En Banc Review of Assault Weapons Ruling
Dissenters Reject Panel’s ‘Collective Rights’ View as Challengers’ Lawyer Says He Will Seek Review In Supreme Court
By KENNETH OFGANG , Staff Writer/Appellate Courts
A divided Ninth U.S. Circuit Court of Appeals yesterday declined to order en banc review of its December ruling that the Second Amendment affords Americans no personal right to own firearms.
The panel decision in Silveira v. Lockyer, 01-15098 upheld California’s law banning certain assault weapons. The judges said that individual citizens cannot challenge gun laws under the Second Amendment, citing a 1996 Ninth Circuit ruling that the amendment only protects the right of the state to maintain an organized militia.
Six judges—Alex Kozinski, Ronald Gould, Diarmuid F. O’Scannlain, Andrew Kleinfeld, Harry Pregerson, and Thomas G. Nelson—dissented from the denial of en banc rehearing.
Gould and O’Scannlain were on the panel in February when the court held in Nordyke v. King. 99-17551, that the operators of gun shows lacked standing to challenge local bans on possession of guns on government property. But they said they would have ruled differently had they not been bound by circuit precedent.
The attorney for the Silveira plaintiffs said he would ask the U.S. Supreme Court to overturn the ruling.
“I’ll have this filed by the end of the week, it’s already drafted,” Gary Gorski told the Associated Press. Gorski’s clients challenged California’s ban on 75 high-powered, rapid-fire weapons.
Shooting Aftermath
The panel ruling upholds the 1989 Roberti-Roos Assault Weapons Control Act, enacted after the schoolyard killing of five Stockton children by gunman Patrick Purdy. The law 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.
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.”
In its 1996 opinion in Hickman v. Block, 81 F.3d 98 (9th Cir. 1996), the Ninth Circuit 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 Fifth Circuit, however, in United States v. Emerson, 270 F.3d 203 (5th Cir. 2001) held that the Second Amendment guarantees personal gun ownership rights, and Attorney General John Ashcroft has adopted that position.
The impact of Emerson, cited yesterday by some of the dissenters, has been dismissed by some because the court, while endorsing the individual rights model, upheld the challenged federal statute—a ban on possession of firearms by persons subject to domestic violence restraining orders—as a reasonable exercise of government power.
Dissenting Opinions
The dissenters yesterday laid out their case in four separate opinions.
Pregerson, normally an ally of Reinhardt on the court’s liberal wing, endorsed the individual rights model, with little elaboration. Kozinzki said the court should treat the right to keep and bear arms with the same reverence it affords to other individual rights.
“It is wrong to use some constitutional provisions as springboards for major social change while treating others like senile relatives to be cooped up in a nursing home until they quit annoying us,” Kozinski wrote.
Kleinfeld, joined by Kozinski, O’Scannlain, and Nelson, called the collective rights theory “an odd deviation from the individualist philosophy of our founders” and attacked Reinhardt’s historical analysis of gun laws in America.
The founders, he said, recognized the need for an “unorganized militia,” meaning “an amorphous body of the people as a whole,” with the right to have guns “for personal defense as well as resistance to tyranny.”
Gould, joined by Kozinzki, reiterated his Nordyke concurrence. “As I there explained, restricting the Second Amendment to a ‘collective rights’ view and ignoring the individual right of the people to keep and bear arms is inconsistent with the Second Amendment’s language, structure, and purposes, and weakens our Nation against recurrent internal and external threats that may undermine individual liberty.”
Reinhardt’s analysis for the panel 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 last 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.
In seeking rehearing before the panel, Gorski attacked its reliance on Bellesiles’ work. Reinhardt responded by removing all references to Bellesiles and his research from the opinion, but offered no change in subtance.
Copyright 2003, Metropolitan News Company