California's Assault Weapons Ban does Indeed Violate the Constitution

http://www.sierratimes.com ^ | Tuesday December 31, 2002 | By Robert Greenslade

[ATOMIC_PUNK]

California's Assault Weapons Ban does Indeed Violate the Constitution
By Robert Greenslade
Published 12. 29. 02 at 19:16 Sierra Time

The recent decision by the Ninth Circuit Court of Appeals concerning California's assault weapons ban will undoubtedly fuel the debate concerning the Second Amendment. The appellants in this case asserted: "the California Assault Weapons Control Act and its 1999 revisions violated their Second Amendment rights." In their opinion, the Court rejected this assertion "[b]ecause the Second Amendment does not confer an individual right to own or possess arms." Instead, the Court ruled: "the Second Amendment affords only a collective right to own or possess guns or other firearms." Since it is impossible to analyze these statements in a single article, this commentary will focus on another constitutional provision that invalidates every general assault weapons ban.

During the debates in the Federal [Constitutional] Convention of 1787, there was an extensive debate concerning the militia. On August 23rd, a committee report was delivered to the Convention. The following clause was under consideration:

"To make laws for organizing, arming & disciplining the Militia, and for governing such part of them as may be employed in the service of the U.S. reserving to the States respectively, the appointment of the officers, and authority of training the militia according to the discipline prescribed"

"Mr KING, by way of explanation... the Committee meant... by arming, specifying the kind size & caliber of arms..."

"Mr MADISON observed that 'arming' as explained did not extend to furnishing arms..."

"Mr KING added, to his former explanation that arming meant not only to provide for uniformity of arms, but included authority to regulate the modes of fournishing, either by the Militia themselves, the State Governments, or the National Treasury..."

This provision, with a slight modification in verbiage, was adopted as Article 1, Section 8, Clause 16 of the Constitution for the United States.

Mr. King's statement concerning the intent of Clause 16 raises two interesting questions. How could citizens be constitutionally obligated to furnish their own military weapon, if called into federal service, unless there was an existing right to purchase and posses such a weapon? And how could the States furnish arms to their militias unless they already possessed the "collective right" to arm their militias? According to the Ninth Circuit, it took the so-called "collective right" Second Amendment, which was adopted 4 years after the Constitution was written, before the States and the members of their militias were "afforded" or "guaranteed" the right to keep and bear arms. As shown by Mr. King's statement, this assertion is patently false because these so-called rights existed prior to, and independent of, the Constitution or the Second Amendment.

In their decision, the Ninth Circuit acknowledged that the weapons California sought to regulate or ban are military type weapons. Since the word "arming" in Clause 16 includes individual citizens providing their own military weapon, no State can pass a general statute that negates or interferes with this constitutional provision.

This principle also applies to Congress. That body cannot pass any statute that alters or defeats a constitutional provision. A general federal assault weapons ban would constitute a revision of the Constitution because it would alter the arming provision enumerated in Clause 16. The Constitution can only be changed through the amendment process enumerated in Article V.

Not only does the California Assault Weapons Control Act violate Clause 16, but it also conflicts with Article VI of the Constitution. This provision, which is commonly called the "supremacy clause," states in part:

"This constitution, and the laws of the United States which shall be made in pursuance thereof;.shall be the supreme law of the land;.any thing in the constitution or laws of any state to the contrary notwithstanding."

Under this provision, the Constitution and all laws passed pursuant to that document are the supreme law of the land. This means the "arming" provision enumerated in Clause 16 is supreme and above the California Assault Weapons Control Act. When a state law conflicts with a power enumerated in the Constitution, it violates the supremacy clause and is unconstitutional on its face.

In the case before the Ninth Circuit, two of the plaintiffs were members of the California National Guard. For purposes of federal law, the composition and classes of the militia is defined in Title 10 of the United States Code, Section 311:

(a) The militia of the United States consists of all able-bodied males at least 17 years of age and, except as provided in section 313 of title 32, under 45 years of age who are, or who have made a declaration of intention to become, citizens of the United States and of female citizens of the United States who are members of the National Guard.

(b) The classes of the militia are-

(1) the organized militia, which consists of the National Guard and the Naval Militia; and

(2) the unorganized militia, which consists of the members of the militia who are not members of the National Guard or the Naval Militia.

Since the California National Guard is a sub-component of the militia of the United States [i.e., State militias in the service of the government of the United States], and members of the militia can be required to provide their own military weapon pursuant to Clause 16, California's Assault Weapons Control Act cannot, under any circumstance, be applied to these two individuals.

The Court's ruling on the Second Amendment also immunizes these individuals from the ban. If the Amendment only "affords" a collective right to keep and bears, as the Court claims, then these individuals have standing to assert a Second Amendment challenge as members of the militia.

In addition, every individual between the ages of 17 to 44 who meets the qualifications referenced above, and is not a member of the National Guard or the Naval Militia, is a member of the unorganized militia of the United States. This means everyone from the 19-year-old college student to the 43-year-old doctor is subject to the "arming" requirement enumerated in Clause 16. Thus, there must be a general right to purchase and possess a military firearm or this provision would be an absurdity. Even if California could pass a general assault weapons ban, it could not prevent individuals between the ages of 17 and 44 from possessing this type of weapon because they could be required to report for federal service with that weapon in hand at any moment.

It is also important to note that Clause 16 helps disprove some of the misconceptions being advanced concerning the Second Amendment. In their decision, the Ninth Circuit stated:

"Our review of the debates during the Constitutional Convention, the state ratifying conventions, and the First Congress, as well as the other historical materials we have discussed, confirmed what the text strongly suggested: that the amendment was adopted in order to protect the people from the threat of federal tyranny by preserving the right of the states to arm their militias."

Preserve the "right" from what? The federal government is a government of limited enumerated powers. It can only exercise those delegated powers granted to it by the Constitution. The Ninth Circuit would have us believe that the States, when they sent their delegates to the Federal Convention to revise the Articles of Confederation, authorized their representatives to grant the federal government the power to disarm their militias, and the States wrote and adopted the Second Amendment to prevent the federal government from exercising this constitutional power over their militias. If the Ninth Circuit had conducted the comprehensive review of the historical materials surrounding the adoption of the Constitution as it claimed, it would have found there is not a single fact that supports this ridiculous assertion.

The only powers granted to the federal government concerning the State militias, other than the power to call them into the service of the United States, are found in Clause 16. There is not a single provision in this clause than grants the federal government the power to disarm the State militias. In fact, Clause 16 specifically requires the States to maintain armed militias, independent of the federal government, because Congress can call them into the service of the United States at any moment and require them to be armed.

Irrespective of the pronouncements by the Ninth Circuit concerning the Second Amendment, the right of citizens to possess a military type weapon exists independent of the Constitution and is embedded in the "arming" provision of Clause 16. Therefore, the right exists independent of the Second Amendment or any interpretation of the Amendment.

The California Assault Weapons Control Act is an unconstitutional encroachment on the exclusive power of Congress to prescribe the mode of arming the State militias pursuant to Clause 16 of the Constitution for the United States.

Note: Gary Gorski, the attorney for the plaintiffs, is a 40 year-old assault weapons owner. Are the wheels starting to turn? Yes he is a member of the militia and subject to the arming requirement of Clause 16.

[Joe Brower]

[mvpel]

The courts have opened the door for the legislature of California to send any manner of gun ban they wish to our proudly anti-gun governor. See http://www.CApropRKBA.org/ for our effort to avert this fate.

[YOMO]

the Court rejected this assertion "[b]ecause the Second Amendment does not confer an individual right to own or possess arms." Instead, the Court ruled: "the Second Amendment affords only a collective right to own or possess guns or other firearms." .............

Does that mean all you have to do is buy the weapons in the name of more than one user or Militia? Collective to me means more than one. Let the Control Freaks figure out what happens when there is 20 or better names on a purchase application.

[unixfox]

What do these amendments have in common?

1st ...The right of the people peaceably to assemble...

2nd ...The right of the people to keep and bear arms shall not be infringed.

3rd ...The right of the people to be secure in their persons...

I see a lot of things in the constitution that say "The People" What part do they not understand?

[unixfox]

3rd should be 4th, my bad

[2timothy3.16]

bump

[archy]

Wouldn't it be ironic if it works out so that it's the Ninth Court's ruling that gets the entire snakepit of gun control laws overturned by the supremes?

Or, alternatively, if they rule against the American people, who then find the entire constitutional contract between government and the governed to be null and void, with no more continuation of the legitimate authority for either a federal court system, or and federal government at all.

If the Second Amendment goes, so does Article II of the Constitution...and Article III.

-archy-/-

[IronJack]

Good to see ya back, big guy.

[Reeses]

Here's a profile of American patriot Gary Gorski: www.sfgate.com

I wonder if he's a Freeper. If there's any help I can give him I will.

[A CA Guy]

I see no problems with semi-automatic weapons or a big old pump action shot guns, bows and arrows, hand guns and so on, but does not having what is called an assault weapon a real big deal?

Is it the issue of liberals not wanting anything in the public hands at all or perhaps not having things that surpass the police that want to go home at the end of the day?

Or is there an additional issue that they might try to classify "everything" as an assault weapon to get guns out of the public's hands?

I'm really asking and don't understand the whole issue and would like to hear thoughts out there from all sides to find out more information on the issue.

[ConservativeMan55]

In my opinion Liberals will never be "done" with gun control until they completely ban owning guns. Such as is the case in England.

[Sender]

"Assault weapons" are merely a term used by anti-gun forces to describe anything they want to make illegal...originally, this mainly consisted of semi-automatic rifles and pistols that commonly accepted high-capacity magazines of 20, 30 or more rounds. They anti-gunners waited for a criminal shooting which used the type of gun they wanted to ban, then struck hard in Congress with their difficult to resist emotional hype.

Gun manufacturers soon skirted the description of "assault weapons" to produce stripped-down guns that still can accept hi-cap magazines, and the antis are trying hard (and winning in CA and NJ among other places) to ban these too.

Soon, the term "assault weapon" may refer to anything that holds more than one or two low-powered rounds. The objective is to ban them all. Really.

So, in answer to your question, yes, I mind very much not being able to own an "assault weapon", and I will not comply.

[NormsRevenge]

BUMP

[jonascord]

All shotguns are "street sweepers", all firearms with optical sights are "sniper rifles" , all handguns are "Saturday Night Specials". All firearms with a bayonet lug and a detachable magazine are "Assault Rifles". All toy guns, and bee-bee guns are "Threats".

Have I left any out? Are you worthy to be trusted with so much power? The State of Cali doesn't think so...

[Pintobean]

You asked some good questions.

I believe that anti-gunners aka liberals do want our guns outlawed and confiscated, eventually. In their view, an armed society is dangerous. They see gun owners as vigilanties.

Not all semiautos are big and scary... That was essentially the basis of the Brady Act, that these firearms are big, scary and hold many rounds in which someone can "spray" bullets at crowds of people. Liberals also coined the phrase "assault weapon".

"I see no problems with semi-automatic weapons or a big old pump action shot guns, bows and arrows, hand guns and so on, but does not having what is called an assault weapon a real big deal?"

This question shows that you do not know what makes an "assault weapon"...MOST semiautos = assault weapon....25 "junk gun" = assault weapon...ANYTHING with the capacity to hold more than X amount of rounds (from .22 rifles on up) = assault weapon..Most pistols = assault weapon...Doesn't leave us much, does it?

It is not just about banning certain guns, it is the eventual goal that the citizenry will be disarmed aka DEFENSELESS, if anti-gunners have their way.

The second ammendant is a RIGHT not a privilege.

i hope this information helps you. God Bless.

[INSENSITIVE GUY]

The constitution does not say"you may own this gun but not that gun".All guns fire bullits,black powder,six shooter,semi-auto and yes,machine guns.If certain people have a fear of guns that's just too bad.Life is a risk anyway and those who foolishly believe they can eliminate all risks are crazy!All persons who want gun control are either"fright freaks or unpatriotics wanting to disarm this country.

[Fee]

One must understand the mindset of an active judicialist. Even if the plaintiff can assemble the legal arguement to prove their point. If the point is contrary to the judge's ideological viewpoint, the judge can ignore the legal argument by pointing out that there is a more important social issue that can supercede the legal argument. Example - In NJ political parties have up to 51 days to change their candidates. Failure to do so means they can not change the ballot. The NJ Supreme Court heard the case and acknowledged the law, but they felt the need to provide a political choice for the people of NJ was more important than the strict legal interpretation of the rules to the election, thus the Democrats can change the candidate from Torricelli to Lautenberg if the party was willing to cover the cost of the ballot change. Imagine if I missed the 15 April tax date and I argue that rules and regs don't count because I had a superceding social reason for ignoring! Will the IRS give me a break or will they take everything I own just to make an example of me. What do you think??