Metropolitan News-Enterprise


Tuesday, December 2, 2003


Page 1


Supreme Court Declines to Review Ninth Circuit Ruling That Upheld California’s Ban on Assault Weapons


From Staff and Wire Service Reports


The U.S. Supreme Court yesterday declined to review a Ninth U.S. Circuit Court of Appeals ruling from last December that the Second Amendment affords Americans no personal right to own firearms.

Several individuals and groups promoting gun ownership had urged the high court to hear a challenge to California’s law banning certain assault weapons, after the Ninth Circuit declined to take the case en banc.

The three-judge panel ruled 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.

The case “changed nothing,” San Pedro attorney Chuck Michel, who represents the California Pistol and Rifle Association, said.

“We assume that, sooner or later, the United States Supreme Court will acknowledge the Second Amendment creates an individual right,” the attorney commented. “What we need to be careful about is where the line needs to be drawn on government regulation: Somewhere between semiautomatic weapons shipped to your door and a complete ban.”

But Sue Ann Schiff, executive director of Legal Community Against Violence, a group formed in 1993 after the killings of nine people by an assault-rifle-wielding man at the Pettit & Martin law offices in San Francisco, said she was “not surprised” the court had once again passed up an opportunity to define the precise scope of the constitutional right.

“Since [U.S. v.] Miller [a 1939 case rejecting a Second Amendment challenge to a federal law dealing with machine guns] lower courts have considered Second Amendment challenges in hundreds of cases, not one of which has struck down a gun law on the basis of the Amendment,” Schiff said in a statement. “The Supreme Court has had many opportunities to review these decisions and has consistently refused to do so.”

California adopted the Roberti-Roos Assault Weapons Control Act in 1989, partially in response to 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 state, under former Attorney General Dan Lungren and current Attorney General Bill Lockyer, has now turned back six separate challenges to the law in state and federal courts. The latest case is Silveira v. Lockyer (9th Cir. 2002) 312 F.3d 1052.

Six judges—Alex Kozinski, Ronald Gould, Diarmuid F. O’Scannlain, Andrew Kleinfeld, Harry Pregerson, and Thomas G. Nelson, who has since taken senior status—dissented from the denial of en banc rehearing.

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 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.

The dissenting Ninth Circuit judges took various approaches.

Pregerson, normally an ally of Reinhardt on the court’s liberal wing, endorsed the individual rights model, while Kozinzki said the court should treat the right to keep and bear arms with the same reverence it affords to other individual rights.

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.

Gould, joined by Kozinzki, called the collective-rights view “inconsistent with the Second Amendment’s language, structure, and purposes”  and said it “weakens our Nation against recurrent internal and external threats that may undermine individual liberty.”


Copyright 2003, Metropolitan News Company