Court Limits Second Amendment Gun Rights

The Second Amendment to the U.S. Constitution 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.”

As Supreme Court Justice Story observed, this Amendment “has justly been considered, as the palladium of the liberties of a republic.” The people and not government are the ultimate protectors of freedom. Citizens are not the enemy; they are the real defenders of liberty.

But gun control advocates insist the Amendment merely confers a collective right for state government, rather than an individual right by citizens. They claim that only soldiers in an army or analogous government militia have the right to keep and bear arms. They are undeterred by the grammar of the Amendment, which makes clear that the first clause about the militia imposes no limitation on the second clause establishing the right to bear arms.

Gun controllers launched their latest assault on the Second Amendment in California. It arose in a legal challenge to a sweeping California law limiting the right to keep and bear arms.

As always, the gun control was born of tragedy. The California legislature convened an emergency session in 1989, in response to the killing of five children at recess by a gunman using an AK-47 semi-automatic weapon.

California then passed legislation banning the manufacture, sale or importation of military-looking, semi-automatic weapons. Entitled the Roberti-Roos Assault Weapons Control Act (“AWCA”), it inspired a similar federal ban in 1994. It also required registration by those already owning such weapons and imposed sharp restrictions on their possession and transport, though it did exempt off-duty uses by law enforcement officers.

Two California National Guardsmen, a San Francisco police officer, an insurance agent, a chemical engineer, a California correctional officer and others challenged a 1999 broadening of the restrictions imposed by this law. They lost in district court, and then appealed to the Ninth Circuit.

They had the bad luck of drawing Judge Stephen Reinhardt, married to a director of an ACLU director, as part of the three-judge appellate panel. He is one of the most frequently reversed appellate judges, and he continued his judicial activism here. Silveira v. Lockyer, 2002 U.S. App. LEXIS 24612 (9th Cir. Dec. 5, 2002).

He held that “governments have the full authority to enact prohibitions and restrictions on the use and possession of firearms.” He repeated a quote of former Chief Justice Warren Burger in Parade magazine, where he criticized the individual rights interpretation as “one of the greatest pieces of fraud, I repeat the word ‘fraud,’ on the American public by special interest groups that I’ve ever seen in my lifetime.”

Judge Reinhardt declared that “the Second Amendment right to ‘bear arms’ guarantees the right of the people to maintain effective state militias, but does not provide any type of individual right to own or possess weapons.” By “state militias,” Judge Reinhardt apparently means unheard of state armies, a position contrary to that of the U.S. Department of Justice under Attorney General John Ashcroft.

Judge Reinhardt also rejected a recent decision by the Fifth Circuit, United States v. Emerson, 270 F.3d 203 (5th Cir. 2001). The Emerson court held that the Second Amendment does protect an individual right to bear arms independent of any militias.

The basis of Judge Reinhardt’s decision was not Supreme Court precedent, which he found inconclusive. Instead, he cited decisions like an antebellum Tennessee Supreme Court opinion construing the term “bear arms” to refer to military service.

He also held that the preamble referencing “well regulated Militias” limited the scope to state entities. He stated that “that the clause declares the importance of state militias to the security of the various free states within the confines of their newly structured constitutional relationship.”

The flaw in Judge Reinhardt’s opinion is his failure to the address Congress’ own definition of a “militia” at the time the Second Amendment passed: “each and every free able-bodied white male citizen of the respective states, resident therein, who is or shall be of the age of eighteen years, and under the age of forty-five years (except as is herein after excepted) shall severally and respectively be enrolled in the militia” (Militia Act of 1792, effective until 1903). Updated to today’s context, “militia” must include nearly all law-abiding adults, and the Amendment protects their gun rights.

But based on its narrow interpretation of the Amendment, the Ninth Circuit extended gun control further by invalidating a statutory exception for peace officers to purchase certain guns at their retirement. However, this appellate decision is far from the last word on the Second Amendment, as the Supreme Court will surely have opinions of its own.

Whether the High Court will accept this case for review remains to be seen. The Bush Administration has defended an individual right to bear arms, but it is doubtful that it will aggressively seek reversal of this decision. The facts here involved merely a facial challenge to legislation, without any clear and demonstrative injury to the plaintiffs. Both sides to the debate will probably prefer awaiting a future case that entails demonstrable harm by gun control to a specific plaintiff.