High Court Won't Review Ban on Assault Weapons [declared no individual constitutional right]

Findlaw ^ | Reuters

[tpaine]

High Court Won't Review Ban on Assault Weapons

WASHINGTON (Reuters) - The U.S. Supreme Court declined on Monday to review a ruling that upheld California's ban on assault weapons and declared there was no constitutional right for individuals to own a gun.

Without comment, the justices let stand the ruling by a U.S. appeals court in San Francisco that the U.S. Constitution's Second Amendment does not confer an individual right to own or possess arms.

The ruling differed from the position taken by the Justice Department under Attorney General John Ashcroft, who changed the government's long-standing policy, and by a federal appeals court in New Orleans that ruled that individuals have the right to keep and bear arms.

California enacted the nation's most sweeping assault weapons ban in 1999, amending legislation adopted 10 years earlier. The state legislature amended the law to ban assault weapons based on a host of features, instead of specific makes and models.

A group of individuals who own assault weapons or want to buy them challenged the law, saying it violated the Second Amendment and other constitutional rights.

A federal judge dismissed the constitutional claims, and the appeals court agreed in upholding the law.

The appeals court said the Second Amendment protected the gun rights of militias, not individuals. The Second Amendment 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." Gary Gorski, an attorney for those challenging the law, appealed to the U.S. Supreme Court, saying the Constitution protects the rights of individuals to keep and bear arms without the threat of state confiscation or compulsory registration.

The National Rifle Association supported the appeal.

[El Gato]

The original purpose of the amendment was to provide citizenship for former slaves and give them full civil rights.

That's true, but it did so by applying the protections of the Bill of Rights, and the protections contained in the main body of the Constitution, against the states.

You would like Cruikshank . It's a really good example of the Court taking a Constitutional provision and stripping it of any meaning at all. IIRC, the only post 14th amendment case it cited was the Slaughter-House case, which did not involve an enumerated right explicitly protected by the Federal Constitution. It only took latter more than a century to fufill the mandate of the 14th amendment, a task which is actually not yet complete.

The protection of the rights of the people by the federal courts, under the 14th amendment actually fits quite well with the Constitution's mandate that the Federal government guarantee to the states a republican form of government (Art IV, sec 4).

[El Gato]

The militia is defined as able-bodied men between the ages of 18 and 45.

That's the federal definition (actually it's 17+ and < 45 ) , and it's not clear where they have the power to define who is and who is not, in the militia. I guarantee that the Anti-federalists, and most Federalists as well, would have shied at that notion.

The states have their own definitions. In Texas it is essentially all able bodied persons (not males only) 18-60, save a few goverment officials.

BTH, federal law puts female members of the National Guard into the militia as well. A fairly recent change to a very old law. In fact the change went through two steps, first it was female Guard comissioned officers, then all female Guardsmen, in 1958 and 1993 respectively. That in itself is interesting, as Congress could easily, if they'd had a mind to, remove any mention of the "unorganized militia" if they'd wanted either of those times. So at least as of 1993, the Congress still thought most male citizens, and some female ones, where part of "The Militia". If the Second Amendment protected the right of the Militia, which it does not, then most adult males could own most any arms on that basis. But of course it protects the right of the people not the right of the Militia, or the power of the states.

[Freemeorkillme]

Time to stand up and state to your local rep:

From My Cold Dead Hands will you have the right to pre-empt the 2nd! Period.

[clee1]

That would be my hope as well... but I have to wonder if it has already gone too far.

I am prepared for whatever may come. I hope you are too.

[Maelstrom]

I just realized that your argument is a red herring.

First, the 2nd Amendment extends to all people, not the militia.

Second, even if the 2nd Amendment did NOT apply to state regulations that is not what the 9th Circuit was ruling upon. The 9th Circuit specifically forwarded an invalid definition of the 2nd Amendment that denied it's meaning by the Amendment's own wording.

Third, it indeed has an inescapable meaning, the current broken definitions people like you play upon were *introduced* after 1968 and relies upon poor grammar and a denial of consistency of certain words.

[JohnGalt]

Apparently, the Second Amendment is not that strong as the Supreme Court has allowed Federal regulation of firearms since Miller in the 1930s.

That's the point.

In the Old Republic, the Constitution did not recognize the (absurd and illegally ratified) position of the 14th Amendment which confuses so many people.

[robertpaulsen]

"Such a flagitious attempt could only be made under some general pretence by a state legislature. But if in any blind pursuit of inordinate power, either should attempt it, this amendment may be appealed to as a restraint on both."

The first sentence confirms what I have been saying all along.

The second sentence is what, no doubt, would happen as a result. IMO, unsuccessfully (See VICTOR D. QUILICI vs. VILLAGE OF MORTON GROVE ).

I'm not concerned with what the Georgia State Supreme Court says. They carry absolutely no weight when is comes to the other 49 states. Find a USSC ruling that says that and now we're talking.

[robertpaulsen]

"You would like Cruikshank"

It's not a matter of liking. It's a matter of citing a federal case to support my contention -- something only I seem to be doing.

The Village of Morton Grove is yet another case that makes good reading. An interesting item is, in the dissent, Judge Coffey makes a "right of privacy" argument (along with a second amendment appeal).

This was 1982. I wonder if the Texas sodomy case might now apply to the RKBA.

Very strange that we have what appears to be a clear Constitutional Amendment proclaiming a RKBA, yet a Circuit Court Judge looks to a "right to privacy" emanation in a penumbra to allow it.

[Dead Corpse]

Absurd and illegally ratified? Are you another one of those ones that wants Ol' Nigger Jim back out plowing your north forty?

Was it unusual? Possibly. Having just fought a War over States Rights, an oxymoron as States have "powers" and not Rights, a mechanism needed to be put in place to ensure a baseline of Rights were protected and that they applied to everyone. Why else bother to have a Federal Government at all? This needed to be done because their were asshats that would strip us all over our basic human Rights at the State level if they couldn't do it at the Federal Level.

The Constitution is not a suicide pact. Neither is every State its own little dictatorship.

[robertpaulsen]

"Robert, the second amendment guarantees a right to individuals."

I agree. But the RKBA is not an inalienable right -- it may be regulated.

[robertpaulsen]

A baseline? Oh, I think we've gone well beyond a baseline of protected rights (unless you think sodomy and abortion are fundamental, inalienable, and constitutionally protected natural rights).

And a display of the Ten Commandments is not. And freedom of association is not.

[Dead Corpse]

Banning some arbitrary classification of weapons as "assault weapons" is not regulation. That is infringement.

Not firing them between dusk and dawn in a semi-rural area is an example of "regulation."

[Dead Corpse]

Sodomy is about as private a privacy issue as you can get. Abortion, as I seem to be repeating an aweful lot lately, is a State issue as it realtes in part to murder which is prosecuted at the State level. The US Constutition is silent on reproductive Rights as it is on the Marriage question.

Public places are just that, public. They should be representitive of the beliefs of the public. Excising all mention of religion from public life violates the First Amendment.

However, this isn't the logic you are using in regards to the Second Amendment. Quite the opposite in fact.

[JohnGalt]

You left libertarians complain like little girls when you don't get your way and expect us rightwing libertarians to take you seriously.

[JohnGalt]

The Supreme Court believes that liberal values are protected by the courts in every spot of the United States, but conservative values are not too be protected by the courts.

That is the nature of have the culture dictate the law with no regard for the Old Republic's view on federalism.

[Dead Corpse]

Left Libertarian? Really? That'd be news to everyone I've ever known.

Sounds like you are the one pitching the hissy 'cause someone wants the freedom to exercize their Rights with no government interference.

Face it, you are just another little tin-pot dictator wanna-be. I have YET to see you advocate ONE libertarian position on any of the threads I've seen you on.

[JohnGalt]

That because you are a Robespierre French liberaltarian, not an American libertarian.

I do not believe in abstract rights like the French liberals; you believe in a large state to protect your rights and then cry when the large state does not give you those rights.

Its embarrassing.

[tpaine]

the RKBA is not an inalienable right -- it may be regulated.
250 robertpaulsen

A baseline? Oh, I think we've gone well beyond a baseline of protected rights (unless you think sodomy and abortion are fundamental, inalienable, and constitutionally protected natural rights).

And a display of the Ten Commandments is not. And freedom of association is not.
251

---

All of our rights are inalienable in the sense that they exist, - regardless of how they are violated by irrational 'regulations'.

As to 'regulating' rights, Justice Harlan said it best:

  "[T]he full scope of the liberty guaranteed by the Due Process Clause `cannot be found in or limited by the precise terms of the specific guarantees elsewhere provided in the Constitution.
This `liberty´ is not a series of isolated points pricked out in terms of the taking of property;
the freedom of speech, press, and religion;
the right to keep and bear arms;
the freedom from unreasonable searches and seizures; and so on. 

It is a rational continuum which, broadly speaking, includes a freedom from all substantial arbitrary impositions and purposeless restraints, .
. . and which also recognizes, what a reasonable and sensitive judgment must, that certain interests require particularly careful scrutiny of the state needs asserted to justify their abridgment."

______________________________________

But of course, speaking to 'states rightist' FReakers of rational continuums is an exercise in futility.

[JohnGalt]

You can go on hoping this culture will suddenly recognize these abstract rights of yours in the face of all reality, but the rest of us will go on looking for a solution to the problem that afflicts us, a rampantly corrupt, alien, and anti-patriotic DC-tax regime, and no doubt a rampantly corrupt and alien California gubmint.

Fix your own states, and don't wine about how the federalis won't come save you.

The 1814 Society

[Dead Corpse]

I do not believe in abstract rights like the French liberals; you believe in a large state to protect your rights and then cry when the large state does not give you those rights.

Actually dumbass, the smallest government allows the most Rights. No government best of all as adults should be able to behave like adults. You'd understand that if you actually WERE a libertarian.

Just keep up the whiny mewling I hear coming from your direction about the big, bad, FedGov not allowing you to restrict your fellow Americans Rights at the State level.

You SHOULD be embarrassed.