Tuesday, December 17, 2002
Ninth Circuit Asked to Reconsider State’s Gun Laws, Second Amendment
From Staff and Wire Service Reports
The Ninth U.S. Circuit Court of Appeals was asked yesterday to reconsider its Dec. 6 ruling that individuals have no right to bear arms under the Second Amendment.
In ruling 2-1, the court upheld California’s ban on assault weapons. The ruling and the 70-page opinion by Judge Stephen Reinhardt was seen by many observers as a response to U.S. Attorney General John Ashcroft’s endorsement of a Fifth Circuit decision that went the other way.
Reinhardt said the Second Amendment never was meant to guarantee gun rights to individuals, but only to state-run militias like the national guard.
The U.S. Supreme Court has shied away from Second Amendment cases, and some gun advocates said a case that stems from a state’s gun laws would not be the right one to take to the high court even if the time for review was ripe.
But Gary Gorski, the Fair Oaks attorney who went to the Ninth Circuit to challenge state laws banning 75 high-powered weapons, said if the court rules against him again or declines to rehear the case, he would ask the U.S. Supreme Court to hear the challenge.
“I want this question answered once and for, whether it’s an individual right or not,” Gorski said in an interview.
In a brief to the appeals court, he said the Second Amendment allows individuals not associated with state militias to bear arms. He said the panel’s original decision was “rewriting the Second Amendment.”
The court has no timeline to act on Gorski’s request.
The 1989 Roberti-Roos Assault Weapons Control Act 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.
Exceptions for law enforcement officers, even when they are off duty, are valid under the Equal Protection Clause because public protection forms a rational basis for treating officers differently, Reinhardt said.
But the court rejected a provision that also provides an exception for retired law enforcement officers. Just because Congress incorporated the same exception into a 1994 federal law modeled on the California statute, the judge said, doesn’t mean there was a rational basis for the exemption in California.
“An unconstitutional statute adopted by a dozen jurisdictions is no less unconstitutional by virtue of its popularity,” Reinhardt said.
The court also rejected assertions that the special training officers had before they retired, or the fact that officers may have purchased their duty weapons on retirement, provided a rational basis for the exception.
At issue in the case, as in thousands of historical and legal treatises on the Second Amendment, is the meaning and possible limiting effect of a reference to a militia.
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.”
The case is Silveira v. Lockyer, 01-15098.
Copyright 2002, Metropolitan News Company