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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[xm177e2]

The LA Times gets everything wrong! They're pathetic:

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.

California Atty Gen'l Firearms Laws

semiautomatic pistols with a capacity of more than 10 rounds
Wrong: the magazines with capacities of over 10 rounds are banned from being sold/imported/manufactured/transferred to another person in California. But the handguns themselves are NOT banned, unless they have FIXED MAGAZINES, which are extremely rare.

semiautomatic rifles that use detachable magazines
Wrong: semi-auto rifles with detachable mags are only banned if they have any ONE of the following features: (A) A pistol grip that protrudes conspicuously beneath the action of the weapon. (B) A thumbhole stock. (C) A folding or telescoping stock. (D) A grenade launcher or flare launcher. (E) A flash suppressor. (F) A forward pistol grip.

guns with barrels that can be fitted with silencers
Wrong: Only handguns with detachable magazines and threaded barrels are banned. Rifles and handguns without detachable magazines are allowed to have threaded barrels.

[Atlas Sneezed]

My question for dicussion:

If the USSC overturns this 9th circuit decision, by finding that the 2nd is a right of individuals, can they rule in a manner that narrowly restores the rights of Californians without also overruling the various import bans, the 1986 law that halted production of civilian-ownable machine guns, and even the NFA of 1934?

Or is there a way that the supremes could overrule the 9th without going this far?

[Joe Brower]

My humble opinion is that the courts could bat this one around any way they wish, pro or con. I'm hoping for maximum damage on the gun-grabbers side.

[The KG9 Kid]

"... Or is there a way that the supremes could overrule the 9th without going this far?"

I'm counting on our illustrious SCOTUS to do not a damned thing.

[Boot Hill]

jlogajan asks:   "Where are the "state's rights" crowd on this one???"

What state's rights are involved here, logajan? Go read the Tenth Amendment again. It says that state's rights do not include those rights denied to the state by the Constitution. And in that regard, the fundamental prohibition against infringement in the Second Amendment is not limited to infringement only by Congress, it prohibits any infringement whatsoever. Therefore, gun control is not a power reserved to the states by the Tenth Amendment and is, in fact, prohibited to it by the Second Amendment.

Go peddle your libertarian claptrap somewhere else. This is an issue for honest conservatives.

--Boot Hill

[msuMD]

I actually see this ruling as good news. First it will be overturned. Secondly, it will cause an explosion of new NRA memberships (sort of a free advertisment if you will). So in the end, it will be overturned and there will be thousands more NRA members. Win-win.

[jlogajan]

Go read the Tenth Amendment again. It says that state's rights do not include those rights denied to the state by the Constitution.

You seem to need a little history lesson in how this whole issue has played out the last 200 years. It was originally held that the US Constitution only limited federal authority, not state authority. After the 14th amendment, the Supreme Court grudgingly started applying US Constitutional limits on state governments as well. Even to this day there is nonuniform application of US Constitutional restrictions on state governments versus the federal government.

The issue is not nearly as neatly settled even today as you seem to think, and there exists real division on the question even in conservative factions.

[Mat_Helm]

I do not care how you color the picture on this but the simple truth is that a branch of government has gone beyond interpreting the constitution and is now on a dangerous course. Anyone that trys to subvert the second ammendment to take away the individual right to arms has crossed the line. If the SCOTUS does not square this situation away promptly and definetivly than the elite idiots in government are begging for trouble that goes beyond passive resistance.

[Boot Hill]

jlogajan asserts:   "It was originally held that the US Constitution only limited federal authority, not state authority."

That is patently false. It has never been held that the US Constitution only limited federal authority, not state authority. There are numerous articles, sections and clauses of the Constitution that explicitly limit state authority including, most prominently, Art. 1, Sec. 10, entitled "Powers Prohibited to the States". That is why the phrase, "...nor prohibited by it to the states...", was included in the Tenth Amendment.

jlogajan condescends:   "You seem to need a little history lesson..."

Before you sanctimoniously set yourself up any kind of teacher, you should at least learn the basics about what the Constitution, does in fact, say. Your demonstrably false assertion that the Constitution does not limit state authority, is a case in point.

--Boot Hill

[tpaine]

"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." -DG-


Chief Justice Marshall argued just that point in 1803, quite logically, in Marbury v Madison.
-- In essence he made the point that our original Constitution/Bill of Rights were based on fundamental individual liberties, and that if acts were passed repugnant to those basic principles, they would be null & void, having violated the spirit of the social contract, the constitution itself.
Thus, an amendment nullifying the 2nd would void the entire basis of our republic.

[Boot Hill]

It seems quite a leap to go from this quote:

John Marshall:   "...an act of the legislature, repugnant to the constitution, is void."

to this assertion:

tpaine:   "Thus, an amendment nullifying the 2nd would void the entire basis of our republic."

Do you mean that such an amendment to the Constitution would be "unconstitutional"? Since Chief Justice Marshall limited his holding to "acts" of the legislature and not "amendments" to the Constitution, how do you justify such a leap based on his actual words? Or do you mean to say that such an amendment would void the entire Constitution itself?

--Boot Hill

[Dog Gone]

We have to have a Constitution because not all of the principles are undeniable truths which are not subject to interpretation or debate. Essentially, it's a contract between the states, and as such it can be amended.

Can it be amended to take away some or all of fundamental individual liberties? Sure, if it gathers the necessary support to meet the hurdle required.

I think I would argue that the Founding Fathers would say that if it reaches that point, the people are entitled, and maybe even morally required, to overthrow the tyrants that caused that to happen. But it wouldn't be because an amendment was "unconstitutional." It would be because the Constitution no longer protects liberty.

[tpaine]

It was originally held that the US "Constitution only limited federal authority, not state authority.
After the 14th amendment, the Supreme Court grudgingly started applying US Constitutional limits on state governments as well. Even to this day there is nonuniform application of US Constitutional restrictions on state governments versus the federal government." -jlogajan-


Barron v Baltimore in 1833 was the erronious decision that claimed states were not limited by the BOR's.
- The 14th was ratified, in part, to correct this decision and to clarify that rights to life, liberty and property could not be infringed upon by state or local governments.
-- Correcting gun rights violations by southern states on freed slaves were an important part of the ratification debates of 1868, and played a major role in getting the amendment passed. Thus, the 2nd does not need to be 'incorporated'. - It has always applied to state/local government.

[supercat]

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.

An amendment which made the number of Senators from each state variable (based on population, GNP, number of movie stars in residence, or any other basis) would clearly be void from its inception unless either (1) it was ratified unanimously, or (2) every state which did not ratify it would have at least 1/(number of states) of the Senators unless or until such time as they ratified it.

The existing Seventeenth Amendment is perhaps questionable for much the same reason, since there are IIRC three states that were present at its ratification but have not ratified it themselves (any state that ratified the Seventeenth presumably consented to it; likewise any state that joined the Union after the Seventeenth was in force). Of course, even if the legislatures of those three states were found to have the power to appoint Senators themselves independent of the popular vote, I doubt any of them would want to do so.

[tpaine]

Read his actual words.
They are what I 'justify' my opinon upon.

[tubebender]

The local radio news today reported a "shipment" of SKS "automatic" rifles were stolen from a local gun dealer before he could document them and said they they are illegal to own. I own guns but I am not up to date on the nitty gritty of what you can and what you can't in these type of weapons.

[Boot Hill]

tpaine says:   "Read his actual words."

I have, that is what prompted my question to you in the first place. Could you clarify your meaning: Do you mean to say that such an amendment would void the entire Constitution itself?

--Boot Hill

[Dog Gone]

Although I would like to agree with you, I don't.

The Constitution specifically sets out how it may be amended, and it doesn't require unanimous vote. Once the original parties agreed to that voting mechanism (which they did by ratifying the Constitution), that's what is in effect, and it's legally and constitutionally binding.

[supercat]

Although I would like to agree with you, I don't.

The Constitution specifically sets out how it may be amended, and it doesn't require unanimous vote. Once the original parties agreed to that voting mechanism (which they did by ratifying the Constitution), that's what is in effect, and it's legally and constitutionally binding.

The Constitution, while generally allowing for amendments, expressly forbids any amendment which would deny any state equal representation in the Senate.

[tpaine]

We have to have a Constitution because not all of the principles are undeniable truths which are not subject to interpretation or debate.

Which of its principles do you wish to claim are not 'undeniable truths'?

Essentially, it's a contract between the states, and as such it can be amended.

It's a permanent contract between the people & government, and can be amended within constitutional bounds. Fundamental rights cannot be violated in such amendments, imo.

Can it be amended to take away some or all of fundamental individual liberties? Sure, if it gathers the necessary support to meet the hurdle required.

Why would you, [or anyone] support such a violation of liberty?

I think I would argue that the Founding Fathers would say that if it reaches that point, the people are entitled, and maybe even morally required, to overthrow the tyrants that caused that to happen. But it wouldn't be because an amendment was "unconstitutional." It would be because the Constitution no longer protects liberty.

Exactly Marshalls point, without your reservation: -- "it wouldn't be because an amendment was "unconstitutional." -- I can't 'get' your reasoning about that.