Court Upholds State Assault Weapons Ban

A federal appeals court upheld California’s assault weapons control act Thursday, ruling that there is no constitutional right for individuals to keep and bear arms.

The 3-0 decision, declaring that the 2nd Amendment protects only the right of states to organize and maintain militias, is flatly at odds with the position of the Bush administration and a decision last year by a federal appeals court in New Orleans.

California adopted the nation’s most sweeping assault weapons ban in 1999. It prohibits the manufacture, sale or import of weapons including grenade launchers, semiautomatic pistols with a capacity of more than 10 rounds, semiautomatic rifles that use detachable magazines and guns with barrels that can be fitted with silencers.

In February 2000, a month after the law took effect, a group of individuals who either own assault weapons or want to buy them challenged the law in U.S. District Court in Sacramento, contending that it violated the 2nd Amendment, the equal protection clause and other constitutional provisions.

U.S. District Judge William B. Shubb dismissed all of the plaintiffs’ claims last year. Thursday’s decision by the San Francisco-based U.S. 9th Circuit Court of Appeals upheld Shubb’s ruling on the 2nd Amendment and one granting an exemption to the law for off-duty police officers. The appellate court overruled Shubb on another point, declaring that there was no rational basis for retired police officers to be exempt from the law.

California Atty. Gen. Bill Lockyer, whose office defended the state law in court, applauded the decision, which was also praised by attorneys for gun control organizations and denounced by leading gun owner associations.

Several plaintiffs declined to return calls, and their attorney could not be reached for comment. The plaintiffs could ask the full 9th Circuit to rehear the case or could directly appeal to the U.S. Supreme Court, which has not ruled on the issue for more than 60 years.

The U.S. Justice Department, which under Atty. Gen. John Ashcroft has taken the position that individuals have a constitutional right to bear arms, had no immediate comment.

At issue is the meaning of the 2nd Amendment, which states: “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.”

Although the 9th Circuit ruling was unanimous, one judge on the panel, Frank J. Magill, said it was unnecessary for the court to have written a detailed opinion on the 2nd Amendment because of a similar ruling by the court six years ago.

In 1996, the 9th Circuit said there was no individual right to bear arms in a case in which a Los Angeles resident had challenged a decision by local authorities denying him a concealed-weapons permit.

Consequently, the appeals court could have simply cited that decision and affirmed Shubb’s ruling in this case.

However, Judge Stephen Reinhardt said that because there is considerable debate over the 2nd Amendment, it was advisable for the 9th Circuit to revisit the issue in detail.

Among the recent developments he cited were a 2001 decision by the U.S. 5th Circuit Court of Appeals in New Orleans holding that the 2nd Amendment gives individuals a constitutional right “to privately possess and bear their own firearms.” That was the first such decision taking that position, in contrast to previous federal court rulings on the issue.

Ashcroft sent a letter to U.S. attorneys, saying that he agreed with the New Orleans court’s interpretation. And in May, in two briefs filed in the U.S. Supreme Court, one of them in the New Orleans case, Solicitor Gen. Theodore B. Olson took the same position.

“The current position of the United States ... is that the 2nd Amendment more broadly protects the rights of individuals, including persons who are not members of any militia or engaged in active military service or training, to possess their own firearms, subject to reasonable restrictions designed to prevent possession by unfit persons or to restrict the possession of types of firearms that are particularly suited to criminal misuse,” Olson wrote.

The Supreme Court later declined to hear the New Orleans case, in which the appellate court upheld the federal Violence Against Women Act while also saying individuals do have a right to bear arms.

Besides citing the legal developments, Reinhardt noted that the Supreme Court has issued very few decisions on the 2nd Amendment.

The Supreme Court’s most detailed ruling on the issue came in U.S. vs. Miller in 1939.

In that case, a criminal defendant challenged a federal gun-control law that prohibited the transport of sawed-off shotguns in interstate commerce by contending that it violated the 2nd Amendment.

The high court rejected the challenge, saying there was no evidence that such weapons have a “reasonable relationship to the preservation or efficiency of a well-regulated militia.”

Thursday’s ruling quotes at length from the debates on the adoption of the 2nd Amendment, including statements from James Madison and other founding fathers.

The right to “keep and bear arms,” concluded Reinhardt, is different from owning or possessing them.

He also said the 2nd Amendment was adopted at the urging of people who were concerned about the federal government having too much power under the new nation’s Constitution.

“We believe that the most plausible construction of the 2nd Amendment is that it seeks to ensure the existence of effective state militias in which the people may exercise their right to bear arms, and forbids the federal government to interfere with such exercise,” Reinhardt wrote.

In addition, he emphasized that the 2nd Amendment referred to a well-regulated militia and that the amendment was enacted soon after the uprising of farmers in western Massachusetts known as Shay’s rebellion, which lasted from August 1786 to February 1787.

“What the drafters of the amendment thought ‘necessary to the security of a free state’ was not an ‘unregulated’ mob of armed individuals such as Shay’s band of farmers, the modern-day privately organized Michigan Militia, the type of extremist ‘militia’ associated with Timothy McVeigh and other militants with similar anti-government views, groups of white supremacists or other racial or religious bigots, or indeed any other private collection of individuals,” Reinhardt wrote. “To the contrary, ‘well-regulated’ confirms that ‘militia’ can only reasonably be construed as referring to a military force established and controlled by a governmental entity.”

The judge acknowledged that it might be difficult for some people to understand this given that states no longer have militias like those in the 18th century that fought in the Revolutionary War -- before the federal government created a standing army.

Reinhardt also emphasized that New Hampshire was the only one of the original 13 states that proposed an amendment to the U.S. Constitution explicitly establishing a personal right to possess arms.

“The historical record makes it plain that the [2nd] Amendment was not adopted in order to afford rights to individuals with respect to private gun ownership or possession,” he wrote.

Judge Raymond Fisher joined the opinion. Magill said he agreed with the conclusion but that it was unnecessary to go into so much detail.

USC law professor Erwin Chemerinsky and Columbia law professor Michael Dorf, each of whom applauded the ruling, said they thought Reinhardt would not have written such an extensive opinion but for last year’s 5th Circuit ruling and the Justice Department’s recent change of stance.

“Judge Reinhardt saw that if he” simply affirmed Shubb’s ruling by merely citing the 9th Circuit’s 1996 decision, the 5th Circuit decision going the other way “would have gone unanswered,” said Dorf, who has written about the 2nd Amendment.

Chemerinsky said Reinhardt’s argument “was the most thorough opinion rejecting the review that the 2nd Amendment protects the rights of individuals to possess guns.”

Atty. Gen. Lockyer said that although he respects “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.”

He expressed disappointment only about the portion of the decision overturning the exception for retired officers. An aide to Lockyer said there are no available statistics on the number of weapons confiscated under the 1999 law.

Matthew Nosanchuk, senior litigation counsel for the Violence Policy Center in Washington, said Reinhardt’s 86-page ruling “is a very important contribution that should drive a stake through the heart of the individual-rights position.”

John Loewi, an attorney with the Brady Center to Prevent Gun Violence, said the timing of the decision was particularly important because of speculation that last year’s decision in New Orleans might be a sign that federal courts were about to change the prevailing view on the issue.

“It is a confirmation that that decision was an aberration and [it is] a rebuke to the Ashcroft position,” Loewi said.

Two of the nation’s major gun owner associations criticized the ruling.

“I don’t think the court gets it at all,” said Larry Pratt, executive director of Gun Owners of America. “The court neglected to mention self-defense when discussing legitimate uses of guns.”

Andrew Arulanandam, a spokesman for the National Rifle Assn., said the group has taken the position since its founding in 1871 that the 2nd Amendment gives individuals a right to possess guns.

“We will continue to maintain that position as long as we are around,” he added.

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Definition of restricted weapons

California’s assault weapons control act, adopted in 1999, prohibits the manufacture, sale or import of the following types of weapons and features:

Source: Times research

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