CA Attorney General Thumbs Nose at Second Amendment

US Attorney General John Ashcroft has stated "the text and the original intent of the Second Amendment clearly protect the right of individuals to keep and bear firearms." Mr. Ashcroft is joined in this position by a special senate committee, by the vast majority of respected Constitutional scholars, and most recently by 18 state attorneys general, who signed a letter initiated by Alabama AG Bill Pryor. These opinions confirm a ruling by the 5th Circuit Court of Appeals in US v Emerson, which stated the Second Amendment guarantees the right of a private citizen to keep and bear arms, "regardless of whether the particular individual is then actually a member of the militia."

I wrote to Randy Rossi, head of the California Department of Justice Firearms Division, to ask if these opinions had caused his department to rethink their stated opinion that the Second Amendment does not guarantee an individual right, most recently expressed by CA governor Gray Davis in the lawsuit Bird v Davis, in which Gov. Davis states:

"That is, Plaintiff [Mr. Bird, or any American citizen living in California] has no legally recognized right to bear arms under the Second Amendment of the United States Constitution."

"...the Second Amendment does not protect the possession of a weapon by a private citizen."

Mr. Rossi replied: "The Attorney General felt that your request warranted a response directly from him."

Attorney General Bill Lockyer's complete position on the Second Amendment appears at the end of this article. It includes these statements:

1. "Although I am sworn to uphold the law, the responsibilities of my office do not permit me to independently interpret the state and federal Constitutions or the statutes written pursuant to those Constitutions. In the system of separation of powers established by our forefathers, that role is properly performed by the state and federal Courts."

2. "The federal and state courts interpreting the scope and meaning of the Second Amendment in California's jurisdiction, however, have consistently reached two conclusions, both of which are clear and unambiguous:

1) The Second Amendment limits only the powers of the federal government, not those of the states; and,

(3) Likewise, the California Supreme Court has determined that laws passed by the state legislature which address gun control can be valid. "No mention is made in [the California Constitution] of a right to bear arms. (See In re Ramirez (1924) 193 Cal. 633, 651 [226 P. 914, 34 A.L.R. 51][`The constitution of this state contains no provision on the subject.'].)

Some of Mr. Lockyer's assertions are so outrageous they demand an immediate response.

His contention that "[t]he Second Amendment limits only the powers of the federal government, not those of the states…" is refutable based on (1) Article VI of the U.S Constitution, which says that the Constitution is supreme over any state constitution or law; (2) the California's Constitution's acknowledgement of this supremacy; (3) the Fourteenth Amendment, which affirms that the Bill of Rights applies to the states (called "incorporation"); and (4) the fact that it would nullify the federal government's Constitutional power to call forth the militia, since the states could then entirely eliminate the militia (California's "assault weapon ban" is effectively doing this right now).

But the most damning refutation comes from William Rawle. Rawle was the man to whom George Washington offered the appointment as the first U.S. Attorney General, and the man who wrote View of the Constitution, the standard constitutional law text at Harvard until 1845 and at Dartmouth until 1860.

As writer and Citizens of America president Brian Puckett observes in his essay "The Founders Intended for the Bill of Rights to Apply to the States":

"In his book View of the Constitution, published in 1829, Rawle wrote about the Second Amendment: 'No clause in the Constitution could by any rule of construction be conceived to give the Congress a power to disarm the people. Such a flagitious attempt could only be made under a general pretence by a state legislature. But if in any pursuit of an inordinate power either should attempt it, this [Second] amendment may be appealed to as a restraint on both.' (My italics).

"In other words, Rawle says that the Second Amendment may be used as a legal argument to quash an attempt by either Congress or a state legislature to disarm the people. It cannot be any clearer that Rawle…understood that the Second Amendment (and by extension the entire Bill of Rights) applied to the state governments as well as to the federal government."

Lockyer is flat wrong in claiming that United States v. Miller resulted in a ruling that "the Second Amendment is not an individual right to possess firearms, but a collective right of the States to keep and maintain a 'well-regulated militia'". As Brannon P. Denning tells us in his Cumberland Law Review article CAN THE SIMPLE CITE BE TRUSTED?: LOWER COURT INTERPRETATIONS OF UNITED STATES V. MILLER AND THE SECOND AMENDMENT:

"[I]t is clear from the opinion that the Court did not buy wholesale the government's 'collective rights' argument. Had the Court accepted the government's interpretation of the Second Amendment…the Court could have found that Jack Miller had no standing to invoke the Second Amendment in the district court…More significantly, the actual holding of Miller is a far cry from the proposition for which it is cited by many groups: that the Second Amendment does not protect an individual, enforceable right. On the contrary, the Court's opinion acknowledges that historical sources 'show plainly enough that the Militia comprised all males physically capable of acting in concert for the common defense .... And further, ... these men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time.'"

As for Hickman v Block, the "Notorious Ninth" Circuit Court of Appeals (the most overruled U.S. circuit court) showed stunning ignorance in their footnote claiming "the Second Amendment is not incorporated into the Bill of Rights." What a bunch of dopes. While the Supreme Court hasn't yet specifically ruled on the obvious fact that the Second Amendment applies to the states, any home-schooled second grader knows that it's part of the Bill of Rights!

Less than a week after Hickman, the "Notorious Ninth" went on to display judicial schizophrenia when it stated in U.S. v Gomez that "[t]he Second Amendment embodies the right to defend oneself and one's home against physical attack… ('[I]t seems tendentious to reject out of hand the argument that one purpose of the [Second] Amendment was to recognize an individual's right to engage in armed self-defense against criminal conduct.')… At that point, the Second Amendment might trump a statute prohibiting the ownership and possession of weapons..."

In other words, this same court now says the Second Amendment may indeed affirm the people's right to own guns for self-defense, and it may indeed supercede any state law that bans guns!

Lockyer's citation of Fresno Rifle Club v. Van de Kamp is obnoxiously anti-Black, since Fresno's legal "logic" depends, like Hickman, on the anti-incorporation view of US v Cruikshank. Cruikshank is one of the more racist US Supreme Court decisions. After freed former slaves in Louisiana were disarmed and murdered in the "Colfax Massacre," a federal prosecutor charged Klansmen with conspiracy to prevent blacks from exercising their civil rights. But in Cruikshank, the court declared that the federal government had no power to guarantee blacks equal protection, no power to protect the First Amendment right of Blacks to peaceably assemble, nor could it protect their Second Amendment right to keep and bear arms. It said that power belonged only to the states. Thus it appears that Lockyer believes, via Cruikshank, that civil rights can be denied to California minorities, and that the federal government can't do a thing about it. Interestingly, Cruikshank actually contradicts Lockyer's larger claim about the Second Amendment because Cruikshank recognizes that the Second Amendment supports an individual right!

Cruikshank was an attempt by the Supreme Court to undermine the Fourteenth Amendment, and to keep the federal government from forcing the states to apply the Bill of Rights to their own laws and citizens. Fortunately, evidence that this amendment was intended to protect these rights for all Americans is overwhelming.

As for Lockyer's citation of "In re Ramirez", this racist decision by the California Supreme Court sent a Latino man with no prior criminal record to prison for five years for violating a law that banned LEGAL aliens from keeping and bearing handguns, and said his sentence should be the same as for a US citizen with a felony record. But here's the most outrageous part of Lockyer's citation: this decision was REVERSED in People vs. Rappard 28 Cal.App.3d 302 (Calif. Appellate Court, 1972). The court found that both the law and the decision were designed to discriminate based on ethnic origin.

It is shameful that California's Attorney General, a member of the political party that bills itself ad nauseum as the champion of civil rights for minorities, uses discredited racist rulings to deny us our natural, civil, and Constitutional right to keep and bear arms.

Why would he do this? Are California's disarmament statutes as racist now as they were previously? California gun rights activist Jim March has compiled hard statistical evidence that they are.

The foundations of Bill Lockyer's position are historically and legally unsound, not to mention despotic and terrifying. When Lockyer tells us he will "defend the laws our representatives have enacted," he is telling us in no uncertain terms that if he catches us defying those unconstitutional edicts, he will use the state's almost limitless financial and legal resources to punish us -even if it destroys our lives.

Clearly, two conflicting legal opinions cannot be correct. Mr. Lockyer's position is unsupported by scholarly works, by legal precedent, and by the indisputable intent of our nation's Founders that "no free man shall be debarred the use of arms." So it now falls on Mr. Ashcroft to do his sworn duty and enforce the Second Amendment, just as surely as he would were Mr. Lockyer to deny Californians (and visiting citizens from other states) any of their other inalienable, Constitutionally-guaranteed natural and civil rights. Just as we have demanded he do in our Petition for Enforcement of the Second Amendment to the Constitution of the United States. And if Mr. Ashcroft fails to do this, it will be up to each of us: Obey Lockyer or defy him, surrender to his dictates or resist them.

Following receipt of Mr. Lockyer's opinion, I wrote to his challenger in the upcoming election, State Senator Dick Ackerman, to see if he endorsed Mr. Ashcroft's opinion or that of his opponent. I also asked if he would, upon election, add his name to the letter signed by the 18 state attorneys general agreeing with the individual rights interpretation. After all, if he expects the support of gun owners, we, in turn, should expect his support for the Second Amendment. Sen. Ackerman's response, or his lack of one, will be publicized on KeepAndBearArms.com in time to inform California voters if he is willing to go on the record as being more respectful of their rights than the man he hopes to replace.

Attorney General's Position on the Second Amendment to the United States Constitution:

I am deeply committed to the preservation and protection of the system of government our founding fathers established for our country more than two hundred years ago, including the Bill of Rights. I am also honored that the people of California elected me to a position sworn to uphold and protect both the California and United States Constitutions as the chief law officer of our state. (California Constitution, article V, section 13 and California Government Code, section 12511.)

The Second Amendment to the United States Constitution provides, in its entirety:

"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 I am sworn to uphold the law, the responsibilities of my office do not permit me to independently interpret the state and federal Constitutions or the statutes written pursuant to those Constitutions. In the system of separation of powers established by our forefathers, that role is properly performed by the state and federal Courts.

"In the last few decades, courts and commentators have offered what may fairly be characterized as three different basic interpretations of the Second Amendment. The first is that the Second Amendment does not apply to individuals; rather, it merely recognizes the right of a state to arm its militia. . . . [the second perspective is that] the `individual' right to bear arms can only be exercised by members of a functioning, organized state militia who bear the arms while and as a part of actively participating in the organized militia's activities. . . .The third model is simply that the Second Amendment recognizes the right of individuals to keep and bear arms." United States v. Emerson (2001) 270 F.3d 203, 218-220. Although the only federal circuit court of appeals to adopt the third model has been the Fifth Circuit Court of Appeals, "the individual rights view has enjoyed considerable academic endorsement, especially in the last two decades." (Id at 220).

The federal and state courts interpreting the scope and meaning of the Second Amendment in California's jurisdiction, however, have consistently reached two conclusions, both of which are clear and unambiguous:

1) The Second Amendment limits only the powers of the federal government, not those of the states; and,

2) The "right to keep and bear arms" under the Second Amendment is not an individual right to possess firearms, but a collective right of the States to keep and maintain a "well-regulated militia." (United States v. Miller, 307 U.S. 174, 178 (1939); Hickman v. Block, 81 F.3d 98, 101?102 (9th Cir. 1995); Fresno Rifle Club v. Van de Kamp, 965 F.2d 723, 729?731 (9th Cir. 1992); see also cases listed in "Federal Constitutional Right to Bear Arms" 37 A.L.R.Fed. 696 and Supp (1978); and see Galvan v. Superior Court, 70 Cal.2d 851, 866 (1969)["The claim that legislation regulating weapons violates the Second Amendment has been rejected by every court which has ruled on the question."]. The Second Amendment also permits federal regulation of firearms, as long as such regulation does not encroach upon the preservation or efficiency of a well regulated militia. (United States v. Miller, 307 U.S. 174 (1939); see also, Gun Control Act of 1968, Title 18 United States Code, section 921, et seq.)

Likewise, the California Supreme Court has determined that laws passed by the state legislature which address gun control can be valid. "No mention is made in [the California Constitution] of a right to bear arms. (See In re Ramirez (1924) 193 Cal. 633, 651 [226 P. 914, 34 A.L.R. 51][`The constitution of this state contains no provision on the subject.'].) Moreover, `it is long since settled in this state that regulation of firearms is a proper police function.' (Galvan v. Superior Court, (1969) 70 Cal.2d 851, 866 [76 Cal.Rptr. 642, 452 P.2d 930].)" Kasler v. Lockyer, (2000) 23 Cal.4th 472, 481.

I am duty bound and constitutionally obligated to defend and enforce the law as written by our state legislature and explained by our courts. And, while I am personally convinced that the Second Amendment was indeed intended to provide some measure of entitlement for individuals to own firearms, the degree of that entitlement, and the extent to which it must be balanced with the state's right and responsibility to protect public health and safety, is still being interpreted by our nation's courts. And I believe that the interpretation of most courts, which holds that the states have the power to regulate firearms possession and usage within their boundaries, is both wise and correct. As a legislator, I supported reasonable measures to regulate firearms over the years. As California's Attorney General, I strongly support the system of government which we enjoy, and which I am sworn to preserve and protect, and I will continue to keep my promise to the people of California to fairly and fully enforce our laws, and to defend the laws our representatives have enacted.

I live in California. From my cold dead hands...

Problem is... that point is too far down the road. That statements like those in the article could even be made says we are so far down the road already that it's a long climb back. Take a look:

"THEY THOUGHT THEY WERE FREE: THE GERMANS, 1933-45"
by Milton Mayer
The University of Chicago Press

From the chapter, "But then it was too late" pages 169 to 172, 1966 edition.

"You see," my colleague went on, "one doesn't see exactly where or how to move. Believe me, this is true. Each act, each occasion, is worse than the last, but only a little worse. You wait for the next and the next. You wait for one great shocking occasion, thinking that others, when such a shock comes, will join with you in resisting somehow. You don't want to act, or even talk, alone; you don't want to 'go out of your way to make trouble.' Why not?---well, you are not in the habit of doing it. And it is not just fear, fear of standing alone, that restrains you; it is also genuine uncertainty."

"Uncertainty is a very important factor, and, instead of decreasing as time goes on, it grows. Outside, in the streets, in the general community, 'everyone' is happy. One hears no protest, and certainly sees none. You know, in France or Italy there would be slogans against the government painted on walls and fences; in Germany, outside the great cities, perhaps, there is not even this. In the university community, in your own community, you speak privately to your colleagues, some of whom certainly feel as you do; but what do they say? They say, 'It's not so bad' or 'You're seeing things' or 'You're an alarmist.'

"And you ARE an alarmist. You are saying that this must lead to this, and you can't prove it. These are the beginnings, yes; but how do you know for sure when you don't know the end, and how do you know, or even surmise, the end? On the one hand, your enemies, the law, the regime, the Party, intimidate you. On the other, your colleagues pooh- pooh you as pessimistic or even neurotic. You are left with your close friends, who are, naturally, people who have always thought as you have."

"But your friends are fewer now. Some have drifted off somewhere or submerged themselves in their work. You no longer see as many as you did at meetings or gatherings. Informal groups become smaller; attendance drops off in little organizations, and the organizations themselves wither. Now, in small gatherings of your oldest friends, you feel that you are talking to yourselves, that you are isolated from the reality of things. This weakens your confidence still further and serves as a further deterrent to---to what? It is clearer all the time that, if you are going to do anything, you must make an occasion to do it, and then you are obviously a troublemaker. So you wait, and you wait."

"But the one great shocking occasion, when tens or hundreds or thousands will join with you, never comes. That's the difficulty. If the last and worse act of the whole regime had come immediately after the first and smallest, thousands, yes, millions would have been sufficiently shocked---if, let us say, the gassing of the Jews in '43 had come immediately after the 'German Firm' stickers on the windows of non-Jewish shops in '33. But of course this isn't the way it happens. In between come all the hundreds of little steps, some of them imperceptible, each of them preparing you not to be shocked by the next. Step C is not so much worse than Step B, and, if you did not make a stand at Step B, why should you at Step C? And so on to Step D."

"And one day, too late, your principles, if you were ever sensible of them, all rush in upon you. The burden of self-deception has grown too heavy, and some minor incident, in my case my little boy, hardly more than a baby, saying 'Jew swine,' collapses it all at once, and you see that everything, everything, has changed and changed completely under your nose. The world you live in---your nation, your people--- is not the world you were born in at all. The forms are all there, all untouched, all reassuring, the houses, the shops, the jobs, the mealtimes, the visits, the concerts, the cinema, the holidays. But the spirit, which you never noticed because you made the lifelong mistake of identifying it with the forms, is changed. Now you live in a world of hate and fear, and the people who hate and fear do not even know it themselves; when everyone is transformed, no one is transformed. Now you live in a system which rules without responsibilty even to God. The system itself could not have intended this in the beginning, but in order to sustain itself it was compelled to go all the way."

"You have gone almost all the way yourself. Life is a continuing process, a flow, not a succesion of acts and events at all. It has flowed to a new level, carrying you with it, without any effort on your part. On this new level you live, you have been living more comfortably everyday, with new morals, new principles. You have accepted things you would not have accepted five years ago, a year ago, things that your father, even in Germany could not have imagined."

"Suddenly it all comes down, all at once. You see what you are, what you have done, or, more accurately, what you haven't done, (for that was all that was required of most of us: that we do nothing). You remember those early meetings of your department in the University when, if one had stood, others would have stood, perhaps, but no one stood. A small matter, a matter of hiring this man or that, and you hired this one rather than that. You remember everything now, and your heart breaks. Too late. You are compromised beyond repair."

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