- The 9th U.S. Circuit Court of Appeals on Thursday ruled
that there is no individual right to gun possession, holding that only
state-run militias have a constitutional right to bear arms.
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- Weaving together historical arcana, legal opinions both
obscure and well-known, and scores of scholarly articles, the court issued
a 69-page magnum opus interpreting the 27 words of the Second Amendment
in a way that contradicts a recent federal appellate court decision and
the opinion of the attorney general of the United States.
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- "The debates of the founding era demonstrate that
the second of the first 10 amendments to the Constitution was included
in order to preserve the efficacy of the state militias for the people's
defense -- not to ensure an individual right to possess weapons,"
Judge Stephen Reinhardt wrote.
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- Oddly, the panel acknowledged that they were bound by
the court's own precedent, but discussed the issue at length because they
weren't satisfied with that case's reasoning.
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- "In light of the United States government's recent
change in position on the meaning of the amendment, the resultant flood
of Second Amendment challenges in the district courts, the Fifth Circuit's
extensive study and analysis of the amendment and its conclusion that Miller
does not mean what we and other courts have assumed it to mean, the proliferation
of gun control statutes both state and federal, and the active scholarly
debate that is being waged across this nation, we believe it prudent to
explore appellants' Second Amendment arguments in some depth," Reinhardt
wrote.
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- With that, Reinhardt, Judge Raymond Fisher and 8th Circuit
Senior Judge Frank Magill, sitting by designation, plunged headlong into
a national debate spurred by Attorney General John Ashcroft's position
that the Second Amendment promises an individual, rather than a collective,
right to bear arms.
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- They also cast themselves into an ideological conflict
with the 5th Circuit's decision in United States v. Emerson, 270 F.3d 203,
which engaged in a similarly exhaustive analysis but came to a different
conclusion.
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- The debate is not just academic. Defense attorneys, including
those in the Northern District of California, seized upon Emerson and Ashcroft's
position, using the change in an attempt to free felons charged with possession
of a gun, among other things.
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- Judges in the Northern District have rejected those arguments,
however, often citing a 1996 9th Circuit case Thursday's panel said it
was bound to follow, Hickman v. Block, 91 F.3d 98. Northern District Chief
Judge Marilyn Hall Patel went so far as to threaten to withhold Criminal
Justice Act funding from attorneys who argue that the government's position
means a felon's right to own a gun is subject to strict scrutiny.
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- Silveira v. Lockyer, 02 C.D.O.S. 11711, is a challenge
to California's 1989 Assault Weapons Control Act, amended in 1999, which
strengthened restrictions on semi-automatic assault rifles following a
schoolyard shooting in Stockton, Calif.
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- The court held that without an individual right, the
plaintiffs had no standing to challenge the AWCA. It struck down a 1999
amendment allowing retired police officers to possess automatic weapons
as irrational.
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- "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 of our state," California Attorney General Bill
Lockyer said in a statement.
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- Magill wrote separately to point out that the expansive
analysis of the Second Amendment was unnecessary under Hickman. So why
issue an opinion if the court didn't have to?
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- "My guess is that Judge Reinhardt thought -- and
to his credit -- that past circuit court opinions have not seriously considered
the argument," said UCLA law professor Eugene Volokh, an advocate
of an individual's right to bear arms.
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- "It's a value to the bench and the bar to have a
thorough opinion expressing the states' rights view, just like in Emerson
you have a thorough opinion expressing the individual rights view,"
Volokh said.
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- Indeed, many have criticized the federal courts' hands-off
treatment of the Second Amendment. Even in 1939's United States v. Miller,
307 U.S. 174, the court merely held that there was no right to carry a
weapon that had no legitimate use in a militia. Reinhardt called the Miller
court's discussion of the amendment "somewhat cryptic."
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- In a footnote, the 9th Circuit addressed Emerson directly.
"While it is unclear precisely what types of arms the Fifth Circuit
would deem included or excluded, Emerson's conclusion that the Second Amendment
protects private gun ownership so long as the weapons have 'legitimate
use in the hands of private individuals' ? represents a far different approach
from that stated in Miller. In our view, the Fifth Circuit's decision is
incompatible with the Supreme Court ruling."
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- San Jose, Calif., solo Donald Kilmer Jr., who has a Second
Amendment case before the 9th Circuit, said the decision brings a Supreme
Court case closer.
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- "It just means that we're that much closer to getting
the issue before the U.S. Supreme Court," said Kilmer, who represents
gun show promoters. "Now we have a clear split in the circuit with
opinions that have a lot of analysis."
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- Reinhardt's historical discussion is wide-ranging and
the opinion packed with footnotes, including one where the liberal Reinhardt
takes a thinly veiled swipe at the conservative Federalist Society.
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- "For some inexplicable reason," Reinhardt wrote,
"the term 'Federalist' is currently used to refer to those who favor
devolving national functions upon the individual states, rather than to
those who favor granting the national government the powers necessary to
operate effectively and to promote the social compact that underlies American
democracy."
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- News of the decision spread fast across the Internet.
Several pro-individual rights scholars immediately jumped on Reinhardt
for including an article by Michael Bellesiles in his first footnote.
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- Bellesiles is an Emory University professor whose book
"Arming America," alleging that gun ownership was not widespread
prior to the Civil War, was the subject of criticism calling into question
the truthfulness of his scholarship.
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- Following an academic inquiry, Bellesiles resigned.
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- http://biz.yahoo.com/law/021206/3ed08842ddbbe119def8437bda059fbc_1.html<
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- Comment
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- From Dennis Litwin
- truthstands@hotmail.com>
- 12-7-2
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- This little punk judge thinks he's going to rule away
the right to bear arms against evil government. But when the 2nd Amendment
refers to the "people" who do you think it means? You and me,
sisters and brothers.
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- Let's just see what the Supreme Court does with it.
If they try to nullify the 2nd Amendment, there will be a revolution.
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- They're just thumbing their noses at US.
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