California Assault Rifle Case May Move To USSC. (A rather well thought out legal analysis)

UPI ^ | MICHAEL KIRKLAND (UPI Lawyer)

[MindBender26]

WASHINGTON, Aug. 14 (UPI) -- The debate over the right to bear arms is about to enter a higher-caliber arena.

California gun-rights advocates, seeking to legally possess assault weapons, have filed an ambitious petition asking the Supreme Court of the United States to rule once and for all that the Constitution's Second Amendment guarantees an individual right to bear arms.

But the petition has some high hurdles to clear -- perhaps too high.

The Second Amendment, in its entirety, says, "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 National Rifle Association and other gun-rights organizations contend that the wording of the amendment means an individual right to bear arms.

However, for 64 years the prevailing Supreme Court precedent has been United States vs. Miller et al. In essence, the 1939 high court decision says the Second Amendment guarantees a "collective," not individual, right to bear arms.

Still, there are several odd things about United States vs. Miller.

In that decades-old case, Jack Miller and Frank Lawton were charged with transporting an illegal sawed-off 12-gauge shotgun from Oklahoma to Arkansas. But at their trial, a federal judge ruled that the Second Amendment recognized an individual right to bear arms, and quashed the indictment.

The federal government brought the case to the Supreme Court on "direct appeal." However, no lawyer appeared for Miller and Lawton, and the high court made its ruling without hearing an argument.

The opinion in Miller was written and delivered by Justice James Clark McReynolds on behalf of the whole court, except for Justice William O. Douglas, who had just been appointed by President Franklin D. Roosevelt.

There were no dissents. The decision established certain principles, reversed the trial judge and sent the case back down for a new trial.

Almost from the beginning, gun-rights advocates attacked McReynolds's opinion as "ambiguous." They also argue that since the case was "remanded" -- sent back to the lower court for a new trial -- and since that trial never took place, the issue remains in limbo.

The trial never took place because Miller was murdered and Lawton reached a plea deal. However, the principles established in the Miller opinion were far from ambiguous, and they remain the law to this day.

"In the absence of any evidence tending to show that possession or use of a 'shotgun having a barrel of less than 18 inches in length' at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument," McReynolds said for the entire court. "Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment or that its use could contribute to the common defense."

The opinion points out that Congress originally was granted the power in the Constitution to raise and arm state militias, though the states appointed their officers. "With obvious purpose to assure the continuation and render possible the effectiveness of such forces the declaration and guarantee of the Second Amendment were made," McReynolds said. "It must be interpreted and applied with that end in view."

The "people" were to bear arms only because men were obligated to appear for militia service bearing weapons they supplied themselves.

In other words, the "right to bear arms" in the Second Amendment is a collective right, not an individual one.

The California gun-rights activists are asking the modern-day Supreme Court to reverse Miller.

Before that can happen, however, the case must get on the docket for the upcoming Supreme Court term. To do that, the California gun-rights activists, through their petition and subsequent briefs, must first convince at least four of the nine justices that the case requires a high court decision -- only four votes are required to accept a case at the Supreme Court.

That's a higher hurdle than it appears. Between 1 percent and 2 percent of the 7,000 cases brought to the U.S. Supreme Court each term are actually decided there. The rest are rejected, and the lower-court rulings are allowed to stand.

Still, the Californians have a few aces in the whole.

One is the Justice Department, which for the first time in modern history is supporting an interpretation of the Second Amendment that guarantees an individual, rather than a collective, right to bear arms.

Attorney General John Ashcroft announced the new position in a letter to the NRA a couple of years ago.

A Texas case -- arguing the individual right to bear arms -- was rejected by the Supreme Court last term. The Justice Department filed a brief in that Texas case supporting the individual right, but asking the high court not to review an adverse lower-court decision.

The Bush administration appears to be wary of pushing the issue to far, especially before an election year, and it is unlikely that the department would urge the justices to accept the California case.

Still, the department is now on record as supporting the same position as the California gun-rights advocates, and that could have an affect on whether their case is accepted for argument at the Supreme Court.

The Californians also have mustered some rather unusual arguments to get the justices' attention.

In their petition, they argue that they have "standing" -- the right -- to bring the case because they are "seriously affected" by the California ban on assault weapons.

They cite the Second Amendment, of course, but also point to the equal protection guarantee of the 14th Amendment. They blast McReynolds's opinion in Miller as "heavily criticized and ambiguous," and ask for a "comprehensive opinion" from the modern court overruling it.

When first filed in February 2000, a federal judge in Sacramento dismissed the Californians' case at the trial level, and a three-judge appeals court panel in San Francisco affirmed, or upheld, the judge, saying the right to bear arms is a collective, not individual guarantee.

Though the full U.S. Court of Appeals for the 9th Circuit refused to hear the case "en banc" -- with all its members sitting -- six of the 26 circuit judges filed dissents, saying the case should be reheard and supporting, in one form or another, the individual right to bear arms.

The Californians cite those dissents in asking that the Supreme Court hear the case.

No one can say the gun-rights advocates didn't pull out all the stops in an attempt to get high court review. Most unusually, they even inject a racial element into the constitutional argument.

The Californians say that a "heightened standard of review" should be applied by the courts to a state law "that specifically impacts fundamental rights expressly protected by the Second Amendment and incorporated into the 14th (Amendment) for the additional reasons of family, home, business and community defense that further emerged after the Civil War with the forced disarming of the freedmen and oppression of their families and entire communities based upon race, as in the Colfax (La.) and New Orleans massacres."

Whites massacred unarmed blacks seeking the right to vote shortly after the Civil War in Colfax and a few years later in New Orleans.

Whether all this will be enough to convince the justices to accept the case is doubtful -- but the Supreme Court has delivered surprises before.

The case also has an interesting list of supporters.

Besides the NRA, organizations filing friend-of-the-court briefs supporting the Californians include the Virginia-based Second Amendment Sisters, which claims chapters in all 50 states; the Utah-based Women Against Gun Control; Jews for the Preservation of Firearms Ownership, a Wisconsin-based group claiming 5,000 members; and the Pink Pistols, "an unincorporated association established in 2000 to advocate for the interests of gay, lesbian, bisexual and transgendered ... firearms owners" that says it has 37 chapters in 28 states.

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[MindBender26]

Thank God we have the support of the Pink Pistols!!! :~)

[Feiny]

There will be a test next Thursday....

[I got the rope]

It is almost surreal how Marxists and Clintonistas are hijacking the plain meaning of the Constitution. Why are we allowing morons to interpret the constitution?

Maybe the USSC should read this

[Congressman Billybob]

John, I'm sure this thread will come to your attention. This a a very clear and relatively unbiased account of a Supreme Court case, compared to how the lamestream media usually report on Supreme Court cases. I hope the Court takes this case. And shortly thereafter, I hope to hear from you.

Congressman Billybob

Latest column, "Nuts and Bolts in California" posted on FR, also published in San Francisco and on the UPI wire.

[Iscool]

Forget the Supreme Court...This was already taken care of in the Federalist Papers...There's not a single signatory of the Constitution and Bill of Rights who didn't understand that it was not only an individual right, but a duty to bear arms...And the best, most effective one the individual could get his hands on...

[I got the rope]

Founding Father's version:

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

Translated in Modern day English:

Because a well-regulated militia is necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed

[MonroeDNA]

I thought that the NRA was against this?

[Liberal Classic]

Between 1 percent and 2 percent of the 7,000 cases brought to the U.S. Supreme Court each term are actually decided there. The rest are rejected, and the lower-court rulings are allowed to stand.

Interesting. There's more of this legislating from the bench going on than I thought.

[CHICAGOFARMER]

nope

they filed a brief of support before the deadline.

www.keepandbeararms.com

[CHICAGOFARMER]

sorry guys and gals http://www.keepandbeararms.com/

Link to Keep and Bear Arms

[Redcloak]

However, for 64 years the prevailing Supreme Court precedent has been United States vs. Miller et al. In essence, the 1939 high court decision says the Second Amendment guarantees a "collective," not individual, right to bear arms.

The author's a lawyer?!? Get out! Miller didn't say any such thing. In fact, Miller supports the right of the individual to keep and bear arms. It's been misreadings of Miller that have been morphed into the "Collective right" argument.

[harpseal]

In the absence of any evidence tending to show that possession or use of a 'shotgun having a barrel of less than 18 inches in length' at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument," McReynolds said for the entire court. "Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment or that its use could contribute to the common defense."

The opinion points out that Congress originally was granted the power in the Constitution to raise and arm state militias, though the states appointed their officers. "With obvious purpose to assure the continuation and render possible the effectiveness of such forces the declaration and guarantee of the Second Amendment were made," McReynolds said. "It must be interpreted and applied with that end in view."

Since collective right is never once mentioned in the opinion and since no collective right may be clearly inferred from these statements the autors obvious bias must be pointed out. I read the Miller decision and the key point is contained in the first quote which refers to the absence of evidence and the remand to the lower court for trial to hear evidence on this point. The clear evidence is taht if a connecttion could be made between military utility it such a shotgun would be legal.

[CHICAGOFARMER]

The author's a lawyer?!? Get out! Miller didn't say any such thing. In fact, Miller supports the right of the individual to keep and bear arms. It's been misreadings of Miller that have been morphed into the "Collective right" argument.

xxxxxxxxxxxxxxxxxxx


Of course the anti gunners started the misreadings of the Miller case. you and the guy below your post have it right.

[yhwhsman]

That's how I understand it too. Not only do we have a right to bear arms, we are each responsible to be armed.



Yhwhsman

[MindBender26]

Problem with the example stated is "electorate" is clearly group of individuals. Is "Militia" especially a "well-regualted Militia" a set of people or is it singularity, an entity comprised of people?

Will keep the lawyers busy for years.

[Feiny]

I guess they changed their mind. They did not support it at first and tried to discourage the case from proceeding. Their objection was because they thought the case addressed too many issues at once.

[17th Miss Regt]

The "people" were to bear arms only because men were obligated to appear for militia service bearing weapons they supplied themselves.

What rubbish! The purpose of the second amendment was and is to ensure that the people have access to arms to defend themselves against a tyrannical government. Too many people believe that it will never happen in our country. Attitudes like that will lead to it happening here!

[kAcknor]

Note please: The *bang_list is a collection of articles pertaining to the Second Amendment and related Civil Rights, Firearms, and Firearm Related Subjects in general. It is not a ping list. Please do not ask me to include you. There is no one to notify you of new posts. The *bang_list, like others, is a collection of like-subject articles placed by anyone who believes an article belongs and can be read anytime. You can read the list here. You can bookmark the list on your FR homepage here. You can add an article to the list by posting a reply and sending it to *bang_list as in this post.

[The_Macallan]

US CONSTITUTION:

1) We the People of the United States...

2) The House of Representatives shall be composed of Members chosen every second Year by the People of the several States...

3) ...the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

4) 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.

5) The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated...

6) The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

7) The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

8) The Senate of the United States shall be composed of two Senators from each State, elected by the people thereof, for six years;

9) ...the legislature of any State may empower the executive thereof to make temporary appointments until the people fill the vacancies by election as the legislature may direct.


Nine times the words "the people" are used in the Constitution.

Nine times.

And in EACH and EVERY occurance, the words "the people" mean exactly what they appear to mean... "THE - PEOPLE".

Only willful ignorance would lead someone to conclude that when the framers of the Constitution wrote the words "the people" - they meant "the people" each and every time EXCEPT for one time when they decided to use the words "the people" to mean something entirely different - such as "the militia" or "the state" - especially in a sentence that already contains the words "Militia" and "State".

If they meant to say "right of the Militia to keep and bear arms" they would have said "right of the Militia to keep and bear arms".

But they didn't.

Besides, it doesn't even make any SENSE to imply that "the right of the militia to keep and bear arms shall not be infringed".

The "militia" has no rights because only PEOPLE have rights!!!

Even the 9th Amendment makes that PERFECTLY clear to all but those who refuse to accept plain English.

---

It's Not Just A Gun...

It's My "HOMELAND DEFENSE RIFLE"!!

[SteveH]

The word "collective" which the author-lawyer quotes does not appear in the 1939 Supreme Court decision written by McReynolds. The author, presumeably, is quoting interpretations of the decision, not the decision itself, when he refers to the Second Amendment as a "collective" right. So the author is being deliberately deceptive. Par for the course from a lawyer-journalist these days.

Also, the plaintiffs are not "injecting" a racist element into the case. The racist element is already there. Gun control laws disproportionately serve to hinder legal posession of guns by minorities, ever since Jim Crow.

One is the Justice Department, which for the first time in modern history is supporting an interpretation of the Second Amendment that guarantees an individual, rather than a collective, right to bear arms.

That would be since AG Katzenbach went on record in testimony to Congress in 1965 in support of the collective right interpretation of the Second Amendment. So 1965 is the "modern" era, by this author's implicit definition, and anything before 1965 must be "pre-modern", or maybe archaic? I guess it would be a little too much to point out the obvious discrepancy between this date and 1939 when the Miller decision was given; but then, the author would have exposed the need to explain why the Supreme Court interpreted the RKBA in a collective fashion while the rest of the government still interpreted it as an individual right. Maybe everyone just fell asleep for 26 years? A worm hole?

This author is obviously a gun grabber journalist posing as a lawyer. Here is hoping he wears his chains lightly...