Yes indeed, now it would almost seem that the USSC will have to examine the pesky amendment at some point. I can only hope they don't wimp out and rather look at the matter from a fresh perspective, disregarding "decades of court precedent" about a certain sawed-off shotgun in 1939.
Worse, its Reinhardt in the 9th circuit. He's the Pledge of Allegiance is unconstitutional judge.
I understand Reinhardt has been heard to say that he knows he's making up new law, but the Supreme Court will only be able to overturn a limited number of his decisions.
The opinion cites Bellesiles in the first footnote! (Regarding the enactment of the NFA '34)
The footnote also discusses the capability of "spray fire" by semi-auto "assault weapons" (what I call "Sport Utility Rifles" or Homeland Defense Rifles".)
A quote from p. 14: "In Miller, the Supreme Court decided that because a weapon was not suitable for use in the militia, its possession was not protected by the Second Amendment. As a result of its phrasing of its holding in the negative, however, the Miller court's opinion stands only for the proposition that the possession of certain weapons is not protected, and offers little guiidance as to what rights the Second Amendment does protect... What Miller does strongly imply, however, is that the Supreme Court rejects the traditional individual rights view."
On page 33, they hold that the phrase "keep and bear" "does NOT protect the right to 'possess' or 'own' firearms." Instead, they hold that this phrase has a military connotation. (They may even be right, but the point is that one needs to own and possess arms so that one can be prepared to engage in military action against a tyrannical government to preserve "the security of a FREE state.")
The judges struck down the portion of the law that allowed an exemption for retired police officers to own "assault" weapons.
Does anyone know if W scrapped his agreement with Chi Fi and Boxer to let them have a say in 9th Circuit picks?
"Because the Second Amendment does not confer an individual right to own or possess arms, we affirm the dismissal of all claims brought pursuant to that constitutional provision."
They've left themselves wide open here - when the Supreme Court comes down with a strongly worded individual rights interpretation in concurrance with the Fifth Circuit, their entire basis for upholding the AW ban falls apart.
http://www.claytoncramer.com/weblog/2002_12_01_archive.html#85556032
The Ninth Circus Court of Appeals Once Again Demonstrates Its Scholarship
SILVEIRA v. LOCKYER, in which a suit against California's assault weapons law asserted that the Second Amendment protected an individual right. Judge Reinhardt's opinion is one that only a gun control advocate could have written.
Despite the increased attention by commentators and political interest groups to the question of what exactly the Second Amendment protects, with the sole exception of the Fifth Circuit’s Emerson decision there exists no thorough judicial examination of the amendment’s meaning.
Except, of course, that this is incorrect. There is an extensive set of decisions which examine the meaning of the Second Amendment, some in considerable detail, but these decisions have been overwhelmingly in state supreme courts.
The following is a list of state supreme court decisions that have, when an individual appealed to the Second Amendment's protections, the court, rather than deny an individual right was protected, did one of the following:
1. Struck down a gun control law;
2. Claimed that the Second Amendment was only was a limitation on the federal government with respect to individual rights, but did not restrict state laws;
3. Claimed the Second Amendment only restricted the federal government, but struck down a law based on a state RKBA provision;
4. Found some other basis for upholding a law, without denying the claim that the Second Amendment protected an individual right;
5. Found that the Second Amendment protected an individual right, but found some method to harmonize a gun control law based on the idea that this was "reasonable regulation," or that the weapons regulated were not protected.
In short, these decisions refused to make this silly claim that the Second Amendment doesn't protect an individual right.
NOTE BENE: I do NOT claim that every decision on the list below found an absolute right to keep and bear arms, or an unlimited right. In some of the decisions, the court has clearly found a way to avoid directly striking down a law by one of the items listed 2-5 above.
I have also excluded a number of appellate court decisions -- but about as many from all three lists below. I also haven't included any of the federal decisions, most of which acknowledge explicitly or implicitly that the Second Amendment protects an individual right.
Aymette v. State, 2 Hump. (21 Tenn.) 154 (1840)
State v. Newsom, 5 Iredell 181, 27 N.C. 250 (1844)
Nunn v. State, 1 Ga. 243 (1846)
State v. Chandler, 5 La. An. 489 (1850)
Smith v. State, 11 La. An. 633 (1856)
State v. Jumel, 13 La. An. 399 (1858)
Cockrum v. State, 24 Tex. 394 (1859)
Andrews v. State, 3 Heisk. (50 Tenn.) 165 (1871)
Fife v. State, 31 Ark. 455, 25 Am. Rep. 556 (1876)
English v. State, 35 Tex. 473 (1872)
State v. Duke, 42 Tex. 455 (1875)
State v. Hill, 53 Ga. 472 (1874)
State v. Wilforth, 74 Mo. 528 (1881)
State v. Workman, 35 W.Va. 367 (1891)
In Re Brickey, 8 Ida. 597, 70 Pac. 609, 101 Am. St. Rep. 215 (1902)
Strickland v. State, 137 Ga. 1, 72 S.E. 260 (1911)
People v. Persce, 204 N.Y. 397 (1912)
State v. Keet, 269 Mo. 206, 190 S.W. 573 (1916)
State v. Kerner, 181 N.C. 574, 107 S.E. 222 (1921)
State v. Nieto, 101 Ohio St. 409, 130 N.E. 663 (1920)
State v. Woodward, 58 Ida. 385, 74 P.2d 92 (1937)
State v. Hart, 66 Ida. 217, 157 P.2d 72 (1945)
Watson V. Stone, 4 So.2d 700 (Fla. 1941)
People v. Liss, 406 Ill. 419, 94 N.E.2d 320 (1950)
State v. Nickerson, 126 Mont. 157 (1952)
In re Rameriz, 193 Cal. 633, 226 P. 914 (1924)
Application of Grauling, 17 Misc.2d 215, 183 N.Y.S.2d 654 (1959)
Burton v. Sills, 99 N.J.Super. 459 (1968)
Grimm v. City of New York, 56 Misc.2d 525, 289 N.Y.S.2d 358 (1968)
Guida v. Dier, 84 Misc.2d 110, 375 N.Y.S.2d 826 (1975)
Rinzler v. Carson, 262 So.2d 661 (Fla. 1972)
Mosher v. City of Dayton, 48 Ohio St.2d 243, 358 N.E.2d 540 (1976)
Kellogg v. City of Gary, 462 N.E.2d 685 (Ind. 1990)
State v. Kessler, 289 Or. 359 (1980)
City Of Princeton v. Buckner, 377 S.E.2d 139, 142, 143 (W.Va. 1988)
The following decisions strongly implied that an individual right was
protected by the Second Amendment:
State v. Angelo, 3 N.J.Misc. 1014, 130 A. 458 (1925)
State v. Sanne, 116 N.H. 583, 364 A.2d 630 (1976)
Rabbitt v. Leonard, 36 Conn. Sup. 108 (1979)
The following state supreme court decisons have denied the Second
Amendment protects an individual right:
State v. Buzzard, 4 Ark. 18 (1842)
Harris v. State, 432 P.2d 929 (Nev. 1967)
State v. Vlacil, 645 P.2d 677 (Utah 1982) (but see Justice Oaks' concurring opinion)
Commonwealth v. Davis, 343 N.E.2d 847 (Mass. 1976)
Application of Atkinson, 291 N.W.2d 396 (Minn. 1980)
Unsurprisingly, Reinhardt quotes at length from the one-sided Chicago-Kent Law Review symposium issue published two years ago in which only those opposed to the individual rights view were invited--and paid for their articles. (This is almost unheard in scholarly publications.) Of course, Reinhardt cites the well-known soon-to-be former Professor Michael Bellesiles for support for the collective rights view, apparently unaware or unconcerned about Bellesiles's scholarly integrity problem.
This is the sort of decision I expect from the Ninth Circus Court of Appeals: long on verbal sleight of hand, short on examination of original sources, very trusting of gun control advocate opinions.
posted by Clayton at 1:10 PM