Supreme Court Urged to Take on Gun Rights

The Associated Press ^ | 7/3/03 | Gina Holland

[LdSentinal]

WASHINGTON - The Supreme Court is being asked to overturn an appeals court ruling that said the Constitution does not guarantee people a personal right to own a gun.

The court's past rulings on Second Amendment gun rights — many in the 1800s — are a mess that should be straightened out when the justices return from their summer break, an appeal being filed Thursday at the court said.

The appeal relates to one of two closely watched cases from the liberal-leaning 9th U.S. Circuit Court of Appeals in San Francisco. The high court will also decide later this year whether to review a 9th Circuit ruling that banned teacher-led reciting of the Pledge of Allegiance in public schools because of the phrase "under God."

The gun case includes an unlikely group of challengers — not the National Rifle Association or other organized groups, but some rugby teammates and friends. They include a police SWAT officer, a Purple Heart recipient, a former Marine sniper, a parole officer, a stockbroker and others with varied political views. They had sued the state over laws banning high-powered weapons.

"Citizens need the Second Amendment for protection of their families, homes and businesses," their attorney and rugby teammate, Gary Gorski of Fair Oaks, Calif., wrote in the appeal of a ruling that upheld California's assault weapons ban.

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."

The 9th Circuit panel said the amendment's intent was to protect gun rights of militias, not individuals. A more conservative appeals court in New Orleans has ruled that individuals have a constitutional right to guns.

Eugene Volokh, a constitutional law professor at the University of California, Los Angeles, said the Supreme Court's record on the Second Amendment is thin and odds are against the justices taking the case.

"The court hasn't jumped into it since 1939," he said. "At some point the Supreme Court will want to make sure it is interpreted consistently throughout the nation."

The case brings a politically charged issue to the court just before the presidential election. If justices agree to hear the case, it will be scheduled for argument next year.

Last year, gun-control advocates were dismayed by the Bush administration's endorsement of individual gun-ownership rights, in a filing at the Supreme Court that effectively reversed long-standing federal government policy on interpreting the Second Amendment.

The administration could weigh in now in this case. Mathew Nosanchuk, litigation director for the pro-gun control Violence Policy Center, said it's better strategy for the White House to steer clear of the issue. The California case involves a state assault weapons ban, and there is controversy over whether Congress should renew a federal assault weapons ban next year.

President Bush has said he supports extending the federal ban, but sentiment is strong in the GOP-controlled Congress to let the ban expire and Bush has not put much energy into efforts to extend it.

Some advocates on both sides probably want the justices to decline to review the 9th Circuit ruling, said gun rights attorney Stephen Halbrook. "It's a wild card. You really can't read where they'll go."

He also said the case is complicated because it involves questions about state authority to undercut gun rights and whether the challengers had standing to sue the state.

[rontorr]

actually, if you really believe in the intent of the writers of the second amendment, the right to keep and bear arms is for the men, who at that time were private citizens, who would come forth in times of emergency, and it was necessary for them to keep military weapons on hand for such times. Which means we should all be REQUIRED to keep assault weapons and automatic weapons on hand, "just in case", it is a sign of the times.

[Orangedog]

Given recent rulings handed down by the Nine, I'm not certain that I want them to hear any gun rights cases.

[ExSoldier]

This is very bad timing. After the rulings recently, it's obvious this court is a lot more liberal than we thought. If we lose a case like this, we're dead meat. The Republic rests upon three boxes: The ballot box, the jury box and the cartridge box. If we are to avoid using the third one, we need to make maximum use of the first two. Timing is everything. We need to put another Scalia or two on the high court, then I will feel a bit safer.

[BCrago66]

I googled the name of "gun right attorney Stephen Halbrook" and found one hell of a resume.

[El Gato]

if you really believe in the intent of the writers of the second amendment, the right to keep and bear arms is for the men, who at that time were private citizens, who would come forth in times of emergency, and it was necessary for them to keep military weapons on hand for such times. Which means we should all be REQUIRED to keep assault weapons and automatic weapons on hand, "just in case", it is a sign of the times.

No, that was already covered in the militia clauses of the original body of the Constitution. Congress was given the power to provide for arming the militia and for providing "discipline" (which meant the drill manuals and such). They were also given the power to make the rules for governing that part of the militia called into actual federal service. The President is commander in chief of that portion of the militia called in to actual service, and the Supreme Court has jurisdicition over matters involving the militia, when in actual federal service.

The Second Amendment was to ensure that the militia could be armed, even if Congress and/or the States failled to arm them. In the "pre-amble" of the second amendment, "A well regulated militia being necessary to the security of a FREE state" (emphasis added). the operative word is "FREE". (by state they did not only mean one of the several States, but a government in general.)

Furthermore they not only wanted to ensure that the militia would be armed "Just in case" of insurrection or foreign invasion, but to prevent the government from disarming the milita for it's own, that is the government's, "security", should it overstep its Constitutional bounds.

[SteveH]

California gun grabber law and Supreme Court *bang

[ExSoldier]

"one hell of a resume."

I know Halbrook's credentials are superior. Trouble is, I think the deck is already stacked against him by the leftists and "centrists" (same as a leftie) on the High Court. They will find there is a compelling societal interest in control of firearms over the historical meanings given to the Amendment by a bunch of old dead white guys two centuries ago. They have proven this time after time.

[Ken H]

"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 Constitution enumerates an individual Right to keep and bear arms.

States do not have God given Rights.

To argue that the Second Amendment only applies to the Federal governent and that State governments may infringe on that Right is sophistry.

[Bommer]

If these b@sards rule against the 2nd admendment like they have on everything else, it'll be the beginning of the next civil war! From my cold dead hands!

[Ken H]

Furthermore, whenever anyone uses the term States Rights, we should be on them like ugly on an ape.

The Tenth Amendment grants broad, unenumerated powers to States.

Powers, enumerated or otherwise, do not trump a God given Right.

[Roscoe]

"But it is universally understood, it is a part of the history of the day, that the great revolution which established the constitution of the United States, was not effected without immense opposition. Serious fears were extensively entertained that those powers which the patriot statesmen, who then watched over the interests of our country, deemed essential to union, and to the attainment of those invaluable objects for which union was sought, might be exercised in a manner dangerous to liberty. In almost every convention by which the constitution was adopted, amendments to guard against the abuse of power were recommended. These amendments demanded security against the apprehended encroachments of the general government--not against those of the local governments." -- US Supreme Court, Barron v. Baltimore, 7 Pet. 243 (1833)

"The Second Amendment declares that it shall not be infringed, but this, as has been seen, means no more than that it shall not be infringed by Congress." -- US Supreme Court, U.S. v. Cruikshank, 92 U.S. 542 (1875), Presser v. State of Illinois, 116 U.S. 252 (1886)

[Ken H]

"The Second Amendment declares that it shall not be infringed, but this, as has been seen, means no more than that it shall not be infringed by Congress." -- US Supreme Court, U.S. v. Cruikshank, 92 U.S. 542 (1875), Presser v. State of Illinois, 116 U.S. 252 (1886)

Do you agree or disagree with this decision?

[FractalSphere]

>The 9th Circuit panel said the amendment's intent was to protect gun rights of >militias, not individuals

Correct me if I'm wrong, but if a group of people actually tried to form a "militia" and asserted their rights to own and defend their homes with guns wouldn't they, in this crazy political climate, all be hauled away tossed in the can?

Wouldn't they also be most probably hooked up in some way to terrorist or subversive activities and held without benifit of habeas corpus? In other words, not specifically charged with a crime, just held in jail??

[Frohickey]

For those of you who have not been following this case, here is the recap.

The lawsuit is Lockyer vs Silviera (Lockyer is CA Attorney General, Silviera is one of the plaintiffs). Gary Gorski is the lawyer arguing for Silviera that California's Assault Weapon Ban is unconstitutional.

Stephen Halbrook is a NRA attorney, who doesn't think Gorski's case is a good one. The NRA thinks that a better case would be the Cato Institute vs Washington DC case, since its more direct (doesn't affect the states) case.

Trouble is, the Cato Institute case was not brought forth by the NRA. There was an attempt to enjoin the Cato case with one the NRA is bringing forth against Ashcroft (US Attorney General). The CATO boys don't think its a good idea since it makes their case much more difficult because now, the behemoth Department of Justice gets involved instead of the puffcake Washington DC.

NRA wants a guaranteed 2nd Amendment case that rules in favor of an individual rights interpretation, or no case at all (status quo). Its the guaranteed part that is important. The Gorski case is not guaranteed, but if its lost, it could ripple down to the states Neither is the Cato case, but if its lost, it doesn't ripple down to the states.

[dhuffman@awod.com]

The 'law' is what the Supremes say it is and our fate is what it is. Better to find out that we are subjects now than to leave it to our children to start over. They're probably too weak and stupid to grasp the nettle.

[Maelstrom]

"liberal leaning 9th Court of Appeals" ?

The author is some sort of joker, right?

It's left of Stalin!!

[Maelstrom]

Yes.

Forming a militia is illegal in most of the Northeast, at the very least.

[teeman8r]

paraphrasing the good general patton...

let us take the constitution back from THEIR cold dead hands...

[coloradan]

Typcial bias, the VPC is quoted but no gun rights groups are.