Ninth Circuit Upholds State Assault Weapons Ban

Friday, December 6, 2002

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Ninth Circuit Upholds State Assault Weapons Ban

By ROBERT GREENE, Staff Writer

The Second Amendment never was meant to guarantee an individual’s right to own a gun, the Ninth U.S. Circuit Court of Appeals said yesterday in a ruling upholding California’s tight restrictions on assault weapons.

The 1989 Roberti-Roos Assault Weapons Control Act, enacted after the schoolyard killing of five Stockton children by gunman Patrick Purdy, doesn’t violate the Bill of Rights because the Second Amendment was meant only to affirm the power of official state militias to organize and to arm their troopers, Judge Stephen Reinhardt wrote for the three-judge panel.

The law 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.

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 opinion was not the first in which the Ninth Circuit has cited the “well-regulated militia” clause to support its position that the Second Amendment does not apply to personal gun ownership. That position—that the prefatory clause modifies the following clause, usually known as the “collective rights model”—is widely accepted by gun control advocates, and Reinhardt said it was the accepted interpretation in the nation for most of its history.

The competing “traditional individual rights model” is of more recent vintage, he said.

But the Fifth Circuit has ruled that the Second Amendment guarantees personal gun ownership rights, and Attorney General John Ashcroft has adopted that position.

Reinhardt’s opinion was unusual in that most of its 70 pages, a length generally reserved for law review articles, was devoted to an analysis of the two approaches to interpreting the clause.

Second Amendment scholar David Kopel, research director of the Colorado-based Independence Institution and a staunch defender of the individualist rights approach, said the opinion could not be taken seriously because Reinhardt’s analysis relied in part on a law review article by someone Kopel called a proven fraud.

“When footnote 1 is a book that has been exposed as a hoax, there is no reason to believe anything else in it,” Kopel said.

Reinhardt cited “Gun Control: A Historical Overview” by Michael A. Bellesiles, 28 Crime & Just. 137. Bellesiles is the author of “Arming America: The Origins of a National Gun Culture,” a 2000 book that asserts among other things that guns were rare in early America. Bellesiles resigned from the faculty of Emory University, effective the end of this year, after assertions that he fabricated research data led to a special academic inquiry.

The committee concluded that Bellesiles failed to abide by proper research standards.

Although the circuits are split on the meaning of the Second Amendment, the Supreme Court has not taken review of cases that deal with the issue directly. Kopel said the justices were not likely to take this case either, but would wait for one that dealt with a federal gun control law—or would continue to pass on the issue.

“The Supreme Court has finite political capital and spends it as it wants to,” Kopel said.

In 1939, the high court upheld a federal law prohibiting the interstate transport of sawed-off shotguns, finding the weapon unsuitable for use in the militia and not constitutionally protected. The court has since rarely delved into Second Amendment issues.

The California assault weapons ban restricts guns that reload automatically after the trigger is pulled and use large ammunition magazines to allow continuous shooting without reloading.

In 1999, the Legislature redrafted the law to ban copycat weapons with similar features. The law permits the state attorney general to add guns to the list of banned weapons.

“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,” Attorney General Bill Lockyer said in a statement.

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,” NRA spokesman Andrew Arulanandam said.

The case is Silveira v. Lockyer, 01-15098.