Court Upholds State Assault Weapons Ban

Los Angeles Times ^ | 12/6/2002 | Henry Weinstein

[Joe Brower]

Court Upholds State Assault Weapons Ban
In a rebuff to the White House, U.S. appellate panel rules that the 2nd Amendment does not give individuals the right to keep and bear arms.br> By Henry Weinstein, Times Staff Writer
Los Angeles Times

December 6, 2002

A federal appeals court upheld California's assault weapons control act Thursday, ruling that there is no constitutional right for individuals to keep and bear arms.

The 3-0 decision, declaring that the 2nd Amendment protects only the right of states to organize and maintain militias, is flatly at odds with the position of the Bush administration and a decision last year by a federal appeals court in New Orleans.

California adopted the nation's most sweeping assault weapons ban in 1999. It prohibits the manufacture, sale or import of weapons including grenade launchers, semiautomatic pistols with a capacity of more than 10 rounds, semiautomatic rifles that use detachable magazines and guns with barrels that can be fitted with silencers.

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[Eala]

You already have those rights and others, it just lists some of them for the benefit of those who would take are taking them away.

[coloradan]

True.

[jlogajan]

The Bill Of Rights doesn't give any rights at all. It merely expresses pre-existing rights. You already have those rights and others, it just lists some of them for the benefit of those who would take them away.

That's actually a Libertarian sentiment (and some other "conservative" philosophies as well) but it isn't at all compatible with "state's rights" philosophies which insist that each state can decide any and all questions including state religions, slavery, segregation, bedroom privileges, etc.

Libertarians (and as I say some others) believe that rights pre-exist any government whereas Constitutionalists believe whatever the Constitution says, however amended. That's precisely why Libertarians aren't strict Constitutionalists -- since an amended or interpreted Constitution could take away your right to bear arms. Libertarians believe you have an innate right of the means of self-defense, including those tools that can accomplish that goal, such as handguns -- and therefore no government, no Constitution, no anything can rightly infringe that right.

We Libertarians are often called scoff-laws for such principled stands -- as anti-societarian, etc.

[Gary Boldwater]

Absolutely! The government exists to protect those rights. We are citizens, not subjects.

[Dog Gone]

I urge everyone to read the actual decision by the 9th Circuit. Essentially, the court rewrote the Second Amendment.

It now reads:

The Federal Government shall not prevent the states from forming state militias and arming them, but no individual has a right to possess or own weapons.

[laotzu]

"We Libertarians are often called scoff-laws for such principled stands"

With principle falling out of favor, and even bringing scorn; it is admirable to see there remain some who appreciate it's critical importance.

Thanks.

[general_re]

The problem is, in terms of the 2'nd Amendment being binding on the states, that's a perfectly valid and supportable interpretation. The courts have never found the 2'nd to apply to the states, and the only way they can do so is to incorporate it via the 14'th. But to accept the results of that is to implicitly accept the 14'th as valid and proper.

[Dog Gone]

Constitutional amendments are intrinsicly valid and proper. It is impossible for an amendment to be unconstitutional, and I've never understood the logic in arguing otherwise.

[chuckles]

Can Bush "fix" the 9th ckt? Surely there are some openings.

[ApesForEvolution]

Some day those of us that love California will have to take it back by force, it appears.

[general_re]

Dude, don't ask me. Love it or hate it, the 14'th is here to stay. ;)

[Dog Gone]

Can Bush "fix" the 9th ckt? Surely there are some openings.

There are four vacancies, and Bush has named two nominees so far. However, there are a total of 28 slots, so it's going to take quite a few years to fix it.

[jlogajan]

Constitutional amendments are intrinsicly valid and proper. It is impossible for an amendment to be unconstitutional, and I've never understood the logic in arguing otherwise.

The same can be said of Supreme Court decisions -- since none of the other divisions of power (president, congress, people) assert majoritarianly that the Supreme Court can't interpret the Constitution. I know many individuals and philosophies argue that it isn't even up to the Supreme Court to interpret the Constitution, but that's not the majoritarian view of the branches of government/people. So while they can continue to advocate that position -- it is illogical to say the Court itself is acting in an unconstitutional manner.

Again, that's why Libertarians hinge their principles on something more objective than the Constitution -- as useful as a good Constitution can be.

[Dog Gone]

You're absolutely right about the Supreme Court. It's the one huge flaw in our Constitution. There is no arbiter of how it is to be applied.

We have attempted to address that flaw by abdicating that responsibility to the Supreme Court, but in doing so, we lose the right to decide for ourselves what it means.

[general_re]

Again, that's why Libertarians hinge their principles on something more objective than the Constitution -- as useful as a good Constitution can be.

Well, yes and no. You can claim any right you like, and even assert its objective existence, but the trick is getting the rest of society to recognize and respect that right. Otherwise, objective rights are objectively useless - what good is a "right" that nobody else accepts as valid? And that's where the Constitution comes into play. Appeal to objective rights or natural law or whatever all you want, but at the end of the day, it's what's actually in the contract itself that matters.

[RogueIsland]

since an amended or interpreted Constitution could take away your right to bear arms.

No, it could not. The BOR largely derives from the Classical Liberal notion of the Natural Rights of Man. It may be entertaining to some on this thread to deny the notion of pre-existing rights, but that's exactly the notion that the Framers attempted to enshrine in the Constitution, and anyone who has read the political philosophers who inspired the Founders understands this. The Constitution could be technically changed to be in violation of Natural Rights, but that would not eliminate the right in the abstract. It obviously would provide the State with the mechanism to deny the people with the physical ability to exercise Natural Right, but it in no way makes the right itself "disappear".

[jlogajan]

"Again, that's why Libertarians hinge their principles on something more objective than the Constitution -- as useful as a good Constitution can be."

Well, yes and no. You can claim any right you like, and even assert its objective existence, but the trick is getting the rest of society to recognize and respect that right. Otherwise, objective rights are objectively useless - what good is a "right" that nobody else accepts as valid? And that's where the Constitution comes into play. Appeal to objective rights or natural law or whatever all you want, but at the end of the day, it's what's actually in the contract itself that matters.

Well, I sort of agree. You identify rights in the abstract, but you enable them by mutual agreement. A Constitution or other mutual defense agreement ENABLES the protection of abstractly identified rights.

I'm not opposed to Constitutions -- they certainly have some longetivity. What I am saying is that rights are determined in some other way than whatever the Constitution says.

[Doomonyou]

Edward Abbey: "The tank, the B-52, the fighter-bomber, the state controlled police and the military are the weapons of dictatorship. The rifle is the weapon of democracy... If guns are outlawed, only the government will have guns. Only the police, the secret police, the military, the hired servants of our rulers. Only the government - and a few outlaws. I intend to be among the outlaws."

There are not enough JBT's to go door to door and confiscate all the fire arms in this country.

Thomas Jefferson [A quote from Thomas Jefferson in a letter to William S. Smith in 1787. Taken from Jefferson, On Democracy 20, S. Padover ed., 1939]: "And what country can preserve its liberties, if its rulers are not warned from time to time that this people preserve the spirit of resistance? Let them take arms....The tree of liberty must be refreshed from time to time, with the blood of patriots and tyrants"

Amen.

[berserker]

For those so interested, here is the court's opinion in pdf format.

[general_re]

I'm not opposed to Constitutions -- they certainly have some longetivity. What I am saying is that rights are determined in some other way than whatever the Constitution says.

Fair enough. Although the Constitution doesn't really speak to where rights are derived from, or how they are determined. The Declaration of Independence does, but IIRC, you probably don't agree with that formulation of where rights come from ;)