Over several vigorous dissents, the federal appeals court in San Francisco on Tuesday reaffirmed its ruling that there is no constitutional right for individuals to keep and bear arms, setting the stage for possible review by the U.S. Supreme Court.
The U.S. 9th Circuit Court of Appeals denied a request for a rehearing of last December’s decision upholding California’s Assault Weapons Control Act.
That decision, declaring that the 2nd Amendment protects only the right of states to organize and maintain militias, is directly at odds with the Bush administration and a ruling by the U.S. 5th Circuit Court of Appeals in New Orleans.
It takes a majority vote of the 9th Circuit’s 25 judges to grant a rehearing. The court never makes public its vote, but six judges issued dissents.
The dissenters accused the original three-judge majority of ignoring history and of rendering a stingy interpretation 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.”
“It is wrong to use some constitutional provisions as springboards for major social change, while treating others like senile relatives to be cooped up in a nursing home until they quit annoying us,” Judge Alex Kozinski wrote in dissent. “The majority falls prey to the delusion -- popular in some circles -- that ordinary people are too careless and stupid to own guns, and we would be far better off leaving all weapons in the hands of professionals on the government payroll.
“But the simple truth -- born of experience -- is that tyranny thrives best where government need not fear the wrath of an armed people,” Kozinski wrote.
Kozinski and three other dissenters -- Andrew Kleinfeld, Diarmuid O’Scannlain and T.G. Nelson -- were appointed by Republican presidents. They were joined by Ronald Gould, an appointee of President Clinton, and Harry Pregerson, an appointee of Jimmy Carter and one of the court’s most liberal jurists.
“I agree with the panel’s decision to uphold California’s Assault Weapons Control Act,” Pregerson said, referring to the 1999 law that prohibits the manufacture, sale or importation of weapons including grenade launchers, semiautomatic pistols with a capacity of 10 or more rounds, semiautomatic rifles that use detachable magazines and guns with barrels that can be fitted with silencers.
“The right to keep and bear arms is in no way absolute; it is subject to reasonable restrictions such as those embedded in the statute the California Legislature enacted. However, the panel misses the mark by interpreting the 2nd Amendment right to keep and bear arms as a collective, rather than an individual right,” Pregerson said.
Although the 2nd Amendment is among the mostly hotly debated of the Bill of Rights, the Supreme Court has not ruled on its meaning since 1939.
In his majority opinion last December, Judge Stephen Reinhardt said, “The historical record makes it plain that the amendment was not adopted in order to afford rights to individuals with respect to private gun ownership or possession.” He said 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.
In his dissent Tuesday, Gould said the majority’s view -- restricting the 2nd Amendment to a “collective rights” view -- is inconsistent with the amendment’s “language, structure and purposes, and weakens our Nation against internal and external threats that may undermine individual liberty.”
Kleinfeld wrote the lengthiest dissent, presenting a detailed history of the adoption of the 2nd Amendment in 1791 and the Militia Act of 1792, which was enacted to implement it.
“The most important phrase for determining the scope of the operative words of the 2nd Amendment (and the most troublesome to the panel) is ‘the right of the people,’ ” Kleinfeld wrote. “The operative words of the amendment syntactically protect the right of ‘the people,’ not the ‘militia’ to keep and bear arms.” The majority’s conclusions that the 2nd Amendment “creates no individual rights whatsoever, only a ‘collective right’ apparently not enforceable by anyone, requires that this clause establishing a ‘right of the people’ be read as though it were ‘without effect,’ ” Kleinfeld said.
The California attorney general’s office, which defended the state law in court, issued a statement emphasizing that the court in New Orleans is the only federal appellate court to date that has endorsed an individual right to keep and bear arms.
The statement said that the office is pleased that the 9th Circuit “has upheld this important California law regulating assault weapons. It was enacted after years of reasoned discussion and debate by the Legislature, which found that the proliferation and use of these military-style, rapid-fire assault weapons poses a threat to the health, safety and security of Californians,” the statement said.
Gary W. Gorski, a Sacramento lawyer who represented nine individuals challenging the law, said he already has prepared a brief asking the U.S. Supreme Court to review the case, which he plans to file within the next few weeks.
“I don’t understand how the 9th Circuit can expand constitutional rights to their outer limits on the 1st Amendment [freedom of speech and religion] and the 4th Amendment [limits on search and seizure] and cut them off” on the 2nd Amendment, Gorski said.