← Autodidact Archive · Original Dissent · Centinel
Thread ID: 3878 | Posts: 9 | Started: 2002-12-06
2002-12-06 08:41 | User Profile
From The Associated Press, available online at: [url=http://www.sacbee.com/state_wire/story/5472036p-6455930c.html]http://www.sacbee.com/state_wire/story/547...p-6455930c.html[/url]
Federal appeals court upholds Calif assault weapons ban
By DAVID KRAVETS, Associated Press Writer - (Published December 5, 2002)
SAN FRANCISCO (AP) - A federal appeals court has unanimously upheld California's ban on assault weapons, saying individuals have no right to bear arms under the Second Amendment.
"The historical record makes it equally plain that the amendment was not adopted in order to afford rights to individuals with respect to private gun ownership or possession," Judge Stephen Reinhardt wrote for the 9th U.S. Circuit Court of Appeals.
Weapons owners challenged 1999 amendments to the 1989 law that originally outlawed 75 high-powered weapons that have rapid-fire capabilities. The Legislature passed the nation's first law banning such weapons after a gunman, Patrick Purdy, fired a semiautomatic weapon into a Stockton school yard, killing five children and injuring 30.
Following California's lead, several states and the federal government passed similar or even stricter bans.
In 1999, the California Legislature redrafted the law to ban copycat weapons with similar features to the banned weapons. Lawmakers adopted a provision that bans assault weapons based on a host of features instead of makes and models - a move that made illegal hundreds of so-called copycat weapons not clearly defined in the law.
"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 in our state," said Bill Lockyer, California's attorney general.
The National Rifle Association said it was disappointed with the ruling.
"From an organizational standpoint, for 131 years we've been standing steadfastly to protect the freedoms of all law abiding Americans and stand steadfastly that the Second Amendment is an individual right and will continue to do so," said NRA spokesman Andrew Arulanandam.
He said "it was too early to tell" what ramification, if any, the court's decision would have and whether the decision would usher in calls for a fresh wave of gun control laws.
Attorneys for the suing gun owners did not return telephone calls seeking comment on whether they would appeal to the U.S. Supreme Court.
In its Thursday decision, the San Francisco-based appeals court ruled 3-0 that the purpose of the Second Amendment was to maintain effective state militias.
"The amendment's operating clause establishes that this objective was to be obtained by preserving the right of the people to 'bear arms' - to carry weapons in conjunction with their service in the militia," Reinhardt wrote.
The interpretation conflicts with U.S. Attorney General John Ashcroft, who told the National Rifle Association that the Second Amendment gives individuals the right to bear arms. Following the publication of Ashcroft's letter to the NRA and other Ashcroft statements, a flood of criminal defendants petitioned federal judges to vacate their weapons convictions.
Judges, however, balked at the petitions and upheld the laws prohibiting felons from possessing firearms and other gun prohibitions. Many of those cases are on appeal.
The appeals panel noted that the U.S. Supreme Court's guidance on whether the Second Amendment offers individuals the right to bear arms was "not entirely illuminating."
In 1939, the U.S. Supreme Court upheld a federal law prohibiting the interstate transport of sawed-off shotguns. The Supreme Court found that the weapon in question was not suitable for use in the militia and therefore not constitutionally protected.
The case is Silveira v. Lockyer, 01-15098.
2002-12-06 17:52 | User Profile
"The historical record makes it equally plain that the amendment was not adopted in order to afford rights to individuals with respect to private gun ownership or possession," Judge Stephen Reinhardt wrote for the 9th U.S. Circuit Court of Appeals.
**We established however some, although not all its [self-government] important principles . The constitutions of most of our States assert, that all power is inherent in the people; that they may exercise it by themselves, in all cases to which they think themselves competent, (as in electing their functionaries executive and legislative, and deciding by a jury of themselves, in all judiciary cases in which any fact is involved,) or they may act by representatives, freely and equally chosen; that it is their right and duty to be at all times armed; ---Thomas Jefferson to John Cartwright, 1824. Memorial Edition 16:45, Lipscomb and Bergh, editors. **
I wonder which of these two gentlemen fully understand the intent of the founders with respect to the 2nd?
2002-12-06 23:02 | User Profile
The text of th eopinion is here:
[url=http://news.findlaw.com/hdocs/docs/gunlawsuits/silvlckyr120502opn.pdf]http://news.findlaw.com/hdocs/docs/gunlaws...yr120502opn.pdf[/url]
The opinion is ludicrous, of course, but the plaintiffs' lawyers should have at least made an argument under the Ninth Amendment. It wouldn't have worked -- given the prejudices of the Ninth Circuit -- but it would at least have required them to think on their feet, as it were, instead of pulling out the canned "2nd Amendment guarantees a collective right" discussion.
The Ninth Amendment guarantees the right to life, its corollary the right to self-defense, and its corollary the right to keep and bear arms. Open-and-shut case, before an honest court.
2002-12-08 04:18 | User Profile
Usually those who adopt the "collective right to guns through state and federal militias, not an individual's right" theory of the Second Amendment cite as authority other sources which ultimately simply miscite United States v. Miller. In May, 2001 Attorney General Ashcroft issued an opinion that the amendment did protect an individual right to keep and bear arms. The New York Times editorial position followed the "collective right" fallacy, but The Washington Post described the case more accurately: "In the 1939 U.S. v. Miller decision, the U.S. Supreme Court ruled that there was no constitutional right to own a sawed-off shotgun because it had no 'reasonable relationship to the preservation or efficiency of a well-regulated militia.'" My comments in the old Sam Francis Forum (slightly edited) are set forth below.
There is nothing in United Staes v. Miller, 307 U. S. 174 (1939) to give aid and comfort to the gun grabbers. To the contrary, a close reading of the opinion reveals much that is damning to their cause. The opinion is not long and can be read on line at [url=http://www.2ndlawlib.org/court/fed/sc/307us174.html]http://www.2ndlawlib.org/court/fed/sc/307us174.html[/url]. The holding of the case is as follows:
"In the absence of any evidence tending to show that possession or use of a 'shotgun having a barrel of less than eighteen inches in length' at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep or bear such an instrument. Certainly it is not within judicial notice that this weapon is any part of the ordinary equipment or that its use could contribute to the common defense. Aymette v. State, 2 Humphreys (Tenn) 154, 158."
If the Court was of the opinion that the Second Amendment only applied to the right of the State to keep a militia it would not matter what kind of arm Miller possessed. The record did not identify Miller as being in actual service in the National Guard or State Militia and in fact he never was. If the Second Amendment did not protect the individual's right to keep and bear arms it would not matter whether or not a sawed off shotgun met the Court's test because he would not even have the right to possess a clearly military arm such as the 1903 Springfield rifle.
The Court did not even definitively rule that a "shotgun having a barrel of less than eighteen inches in length" failed to meet its test for Second Amendment protection. It referred to the absence of evidence or basis for judicial notice that it did. Note that no one appeared on brief or for oral argument for the appellee Miller to present such evidence. There is ample evidence of the military use of shotguns "having a barrel of less that eighteen inches in length." Blunderbusses were used in the colonies and on the frontier. Confederate cavalrymen, in addition to providing their own mounts, often took their shotguns to war. When the barrels were damaged they were simply cut down and found to be more handy when shortened. The Confederacy imported Le Mat revolvers from France which featured nine shot cylinders revolving around a pistol length shotgun barrel of about twenty guage. The LeMat revolver took its name from the New Orleans dentist who developed it. Among those who carried these "grapeshot revolvers" were Generals Beauregard and Jeb Stuart. In the First World War American troops carried twelve guage repeating shotguns with barrels precisely eighteen inches in length. These shotguns --- chiefly Winchester 97s --- were used with telling effect and prompted German protests that they were barbarous weapons. Lastly you will notice that Justice Douglas took no part in the decision. His subsequent rantings about the lack of individual rights to keep and bear arms are therefore entitled to no special weight.
2002-12-08 06:42 | User Profile
Are anti-Gunners then saying it protect the State's Right to have a militia so it can rebel from the Federal government by Force of Arms??? :D :lol: :P
That is basicly what the anti-Gunners are saying. Funny! Isn't it to see the "Liberal" anti-Gunners use a States Right's in order to pass laws banning Guns. :blink:
2002-12-08 07:23 | User Profile
If the "2nd Amendment guarantees a collective right." Does this mean these people think the States have the right of Armed rebellion against the Federal Government?
Faust (and others),
You might find this excerpt from Joseph Sobran's foreward to The Anti-Federalists: Selected Writings and Speeches interesting:
"Hamilton, the most ardent champion of a stronger central government, even argued (in No. 28) that state militias would be able to control such usurpations; in other words, he envisioned civil war as a remedy for abuses of power! Such rebellion against the 'general' government would merely be an exercise of 'that original right of self-defense, which is paramount to all positive forms of government'--a right Americans had recently invoked against English rule. (This view of the militias underlies the widely misunderstood Second Amendment, which was designed to prevent the national government from obtaining a monopoly of weaponry. Today, of course, it is absurd to imigaine the state militias opposing the military might of the national government.)"
If you are at all familiar with Sobran's writings, he makes it abundantly clear that the republic as envisioned by the founding fathers was largely usurped by the federal government after the Civil War...ie that was the last time that state governments defied the the central government by force of arms.
2002-12-09 00:43 | User Profile
"The widely misunderstood Second Amendment, which was designed to prevent the national government from obtaining a monopoly of weaponry" is not inconsistent with the individual right to keep and bear arms. The Second Amendment, like the First, was modelled after guarantees appearing in preexisting State Constitutions. Virginia's Constitutional provision guaranteeing the right to keep and bear arms is essentially the same as Virginia's revolutionary era Declaration of Rights. Virginia's Constitutional provisions should be accorded special weight in construing these matters since Virginian James Madison is considered the Father of the Constitution and Virginian George Mason, the Father of the Bill of Rights.
Constitution of Virginia Article I - Bill of Rights
Section 13. Militia; standing armies; military subordinate to civil power.
That a well regulated militia, composed of the body of the people, trained to arms, is the proper, natural, and safe defense of a free state, therefore, the right of the people to keep and bear arms shall not be infringed; that standing armies, in time of peace, should be avoided as dangerous to liberty; and that in all cases the military should be under strict subordination to, and governed by, the civil power.
Note that a "well regulated militia" is "composed of the body of the people, trained to arms," and for that reason "the right of the people to keep and bear arms shall not be infringed." It contains all the provisions in the text of the Second Amendment and hardly limits those guaranteed the right to keep and bear arms to what what we term the National Guard today. State laws then, as now, defined an "Unorganized Militia" independent of what we now consider the National Guard as all able-bodied males (currently females as well) between certain ages. Virginia Delegate Richard Henry Lee considered the National Guard equivalent of his day a standing army. Indeed, the Federal Law also provides for a national "Unorganized Militia."
The nineteenth century Supreme Court cases held the Second Amendment to constrain only Congress and not the States. But then, they construed the other Amendments in the Bill of Rights the same way. However, the Court in the 20th century has construed the First, Fourth, Fifth and Sixth Amendments as applicable to the States under the guarantees of the bastard Fouteenth Amenment. It could not logically refuse to hold them to the Second Amendment.
2002-12-09 01:26 | User Profile
**Note that a "well regulated militia" is "composed of the body of the people, trained to arms," and for that reason "the right of the people to keep and bear arms shall not be infringed." It contains all the provisions in the text of the Second Amendment and hardly limits those guaranteed the right to keep and bear arms to what what we term the National Guard today. **
Put simply, a colonial-era militiaman was expected to have well-maintained, state-of-the-art weaponry and ammunition, and be skilled at arms for any immediate call to duty. Citizens should legally be able to own whatever modern weaponry the central government's armed forces have, such as automatic weapons and mortars. Indeed, in Switzerland this is exactly the case.
2002-12-09 04:10 | User Profile
Fliegende Hollander,
Great Post! "The widely misunderstood Second Amendment, which was designed to prevent the national government from obtaining a monopoly of weaponry" is not inconsistent with the individual right to keep and bear arms.
Centinel,
Well it was like that. Citizens should legally be able to own whatever modern weaponry the central government's armed forces have, such as automatic weapons and mortars. Indeed, in Switzerland this is exactly the case.
The "Liberals" have removed both "Free Speech" and "the Right to keep arms" from Switzerland's Constitution! So Switzerland now has "Hate" Speech Laws and Gun Control. And I understand Switzerland is now joining the UN. Sad just so Sad!