| TCS |
Posted on 12/13/2002 5:41:17 AM PST by SJackson
Blogs 1, Reinhardt 0
| By Pejman Yousefzadeh | 12/12/2002 |
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This past week, the Ninth Circuit Court of Appeals—which enjoys the dubious reputation of having had more of its decisions reversed by the United States Supreme Court than any other circuit—unburdened itself of a 69-page magnum opus written by Circuit Judge Stephen Reinhardt, arguing that Second Amendment rights are collective and not individual in nature. As such, the Ninth Circuit set up a conflict with the Fifth Circuit, which concluded in United States v. Emerson that the Second Amendment does confer an individual right to bear arms.
With its decision, the Ninth Circuit makes it likely that the United States Supreme Court will seek to resolve the conflict in circuits. Here is hoping that the High Court takes a more intellectually honest and rigorous look at the question. If it does, it should conclude that the Fifth Circuit, not the Ninth, got the question right.
Judge Reinhardt relies in large part on the Supreme Court's 1939 decision in United States v. Miller to make his argument that Second Amendment rights are collective. Although he concedes that the decision in Miller was "cryptic," Judge Reinhardt cites the following passage to indicate that "what Miller does strongly imply, however, is that the Supreme Court rejects the traditional individual rights view:
In the absence of any evidence tending to show that possession or use of a 'shotgun having a barrel of less than eighteen inches in length' at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument. Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment or that its use could contribute to the common defense.
The problem with Judge Reinhardt's analysis is that the Miller Court's discussion clearly centered on whether a particular shotgun with specific dimensions (a sawed-off shotgun) had a relationship to the preservation of a well-regulated militia, with the answer being no. This is an exceedingly narrow ruling, and did not constitute a declaration by the Court that Second Amendment rights are collective.
Judge Reinhardt then goes on to cite footnote 8 in Lewis v. United States, which states that "[T]he Second Amendment guarantees no right to keep and bear a firearm that does not have 'some reasonable relationship to the preservation or efficiency of a well-regulated militia.'"
However, Judge Reinhardt completely misses the historical meaning of the term "militia," as law professor and Second Amendment expert Eugene Volokh points out in a passage that is worth quoting at length:
The Ninth Circuit repeatedly stresses that the right relates to "a military force established and controlled by a government entity," "not some amorphous body of the people as a whole" (p. 32). But nowhere does the Ninth Circuit acknowledge that this militia was essentially the adult white male able-bodied citizenry. Not a National Guard, not a small group of people chosen by the state, but pretty much everyone who mattered at the time (yes, I know it was limited to white males, but that was the 1790s for you), subject only to an 18-to-45 age restriction (which I suspect covered the great majority of people). Much more consistent with a right of the people—you and me—than if "militia" simply meant a National Guard.
You'd think that in a discussion of what "militia" means in the Second Amendment, the Ninth Circuit would quote the Supreme Court's statement as to what this means: "The signification attributed to the term Militia appears from the debates in the Convention, the history and legislation of Colonies and States, and the writings of approved commentators. These show plainly enough that the Militia comprised all males physically capable of acting in concert for the common defense." United States v. Miller (1939).
You'd think that the Ninth Circuit would quote the Militia Act of 1792 (enacted by Congress three years after Congress proposed the Second Amendment), which defined "militia" to include "each and every free able-bodied white male citizen of the respective states, resident therein, who is or shall be of the age of eighteen years, and under the age of forty-five years [subject to some narrow exceptions]"—and curiously the definition remains pretty much the same today.
You'd think that it would quote the four state ratifying conventions' calls for a right to bear arms, which all speak of a "well regulated Militia composed of the body of the people trained to arms" or "capable of bearing arms."
But you'd be mistaken in so thinking, because the Ninth Court never quotes these sources.
The failure to quote Volokh's apt sources does not speak well to the scholarship or the intellectual rigor of the opinion. And that is another problem with Judge Reinhardt's opinion—it gets a number of quotations and historical arguments cited in support of the opinion blatantly wrong.
For example, in arguing that some of the founders "explicitly disparaged the idea of creating an individual right to personal arms," Judge Reinhardt cites precisely one quote from the Founders to make his argument:
For instance, in a highly influential treatise, John Adams ridiculed the concept of such a right, asserting that the general availability of arms would "demolish every constitution, and lay the laws prostrate, so that liberty can be enjoyed by no man; it is a dissolution of the government."
But as blogger and TCS contributor Stuart Buck points out, Judge Reinhardt did not provide the full quote from Adams, which is as follows:
To suppose arms in the hands of citizens, to be used at individual discretion, except in private self-defense, or by partial orders of towns, countries or districts of a state, is to demolish every constitution, and lay the laws prostrate, so that liberty can be enjoyed by no man; it is a dissolution of the government. The fundamental law of the militia is, that it be created, directed and commanded by the laws, and ever for the support of the laws.
Buck then goes on to explain that when Adams' words are properly considered in their full context, their meaning is decidedly different than what Judge Reinhardt maintains:
In other words, Adams was not arguing against an individual right to have arms. In fact, as the highlighted text above shows, he supported allowing private citizens, at their individual discretion, to use arms in "private self-defense." What he was writing about here was the necessity of legal control over the militia—in other words, he didn't want to have a bunch of vigilantes running around purporting to be a military.
This is not the only instance in which Judge Reinhardt gets the facts wrong. Blogger Clayton Cramer notices yet another mistake by Judge Reinhardt—this one having to do with representations made in footnote 37 of the Ninth Circuit's opinion. The footnote in Judge Reinhardt's opinion reads as follows:
. . . both George Washington and Henry Knox, who was to become the nation's first Secretary of War in the Washington Administration, urged the creation of a standing national military force, to no avail. . . .Washington in particular felt that the need was acute; in 1783 he wrote a document entitled Sentiments On A Peace Establishment, in which he recommended establishing a national militia that would exist along with those maintained by the individual states. Subsequently, he wrote to John Adams in the wake of Shays's Rebellion that because of the lack of a unified national military force, "[w]e are fast verging to anarchy and confusion!"
Unfortunately, it appears that Judge Reinhardt misrepresented Washington's opinion on the issue. After quoting Washington's letter in full, Cramer points out the following:
Now, Washington certainly mentions the Shays's Rebellion in this letter—after discussing "anarchy and confusion!" But there isn't any discussion of "because of the lack of a unified national military force." One might at least as fairly assume that Washington was referring to the problems of finances and the previous inability of Congress to vote for a "paper emission." Washington was definitely a supporter of a standing army, having found militias to be a "weak reed" upon which to rely. But this letter is quite a bit more ambiguous than either Bellesiles's representation of it, or Reinhardt's representation of Bellesiles.
Thus, once again, it appears that Judge Reinhardt did not allow the historical facts so important to a correct ruling on the Second Amendment to get in the way of his zeal to argue that the Second Amendment confers a collective, not an individual right.
In writing about the ruling, Professor Volokh stated that he found it "disappointing." Considering how many aspects of Second Amendment law and scholarship Judge Reinhardt got wrong, characterizing the opinion as "disappointing" would perhaps constitute a monumental understatement.
In a word, it is US. Using judicial rulings to expand this to the same level as those used to allow women in the military, it'd include them as well.
Excuse the first posting of this. Fumble Fingers
Liberals don't give a damn about grammar, just propaganda value.
Hmm... does this mean that Congress doesn't even have to beef up the US Border Patrol? All they have to do is issue these Letters of Marque and Reprisal and we can stop the illegal aliens on their side of the border!!!
That was just "one" explaination I have heard-read over the years. I stand ready to learn if anyone has a better explaination of the phrase. This explaination of "well regulated" is what I use when socialist seditionial clintonista types claim that of all of the bill of rights this is the only one that doesn't refer to the individual just the goobermint.......yeah right.
Stay Safe !
So that is it all along... Public officials are not the militia, and so, they are prohibited from owning arms. Its all about gun-envy. "If I can't have guns, neither can you!" :)
I have added that to my RKBA tool box. Thanks !
Stay Safe !
Are you sure? The story that I heard was that Jack Miller was already dead when the case went in front of the Supreme Court. Jack Miller had left the scene after the initial trial where the case was dropped by the lower court. By the time it went to the SCOTUS, Jack Miller has already been killed by a 'competitor'.
I've heard conflicting accounts.
Part of the confusion may be that although Miller's name is on the case, there were actually *two* people involved in the original arrest, Jack Miller *and* Frank Layton.
So perhaps one died and the other failed to appear, and people keep getting confused as to which was which. The ultimate fate of either is hard to track down, since they were small-time guys in a less documentation-obsessed era involved in a (at the time) not obviously significant court fight.
Maybe the plaintiffs should file a motion for reconsideration with the panel on the basis of recent news about Bellesiles. Reinhardt won't back down, but the two other members of the panel may at least be embarrassed enough to remove the references to Bellesiles from the opinion.
Reinhardt was being stupid, he was being in your face. Now, the two other members of the panel may well have been being stupid.
Sigh. This is a very common misconception, even on the pro-gun side which usually gets most of _Miller_ right.
The Supreme Court did *not* make a ruling on whether or not the sawed-off shotgun was suitable for militia use. They did *not* say, "no it isn't".
Let's look at their language again:
In the absence of any evidence tending to show that possession or use of a 'shotgun having a barrel of less than eighteen inches in length' at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument. Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment or that its use could contribute to the common defense.Legal language (when done right -- and the Supreme Court generally knows what it's doing) is very precise.
Let's take the highlighted portions one at a time:
1. "In the absence of any evidence". The Court admits that no evidence had been presented. Not that they had seen evidence against it and none for, but in fact they saw *no* evidence either way, neither side had thought to present any (because they hadn't been able to predict that that's the issue the Court would home in on and make the key to their decision).
2. "...we cannot say..." This is not legal slang for "we have decided it isn't". If they had actually ruled that it was not, they would have said so using direct and clear language. They're being quite literal here -- they CAN NOT SAY, either way. They were unable to make a ruling on that matter. Why? See point #3.
3. "...is not within judicial notice...". "Judicial Notice" is legalese for something that is so obvious and indisputable that judges can decide the matter simply by decree without having to have the issue argued by the prosecution/defense and having evidence produced in court. For example, "the sky is blue" is beyond dispute, it need not be argued in court, no evidence needs to be presented on the matter. For most types of issues, however, judges are required to let the matter be argued pro-and-con, they're not allowed to just presume the truth of most issues without hearing evidence on the matter. So when the Supreme Court wrote that the issue of the firearm's militia suitability "is not within judicial notice", they were declaring it to be something that was *not* an obvious enough matter that it could be decided "from the bench" in the absence of evidence.
Taken altogether, the Supreme Court was saying, "because this is a controversial enough issue that we can't just make a decision without evidence, we really are unable to make a ruling on that matter".
The Justices in the _Miller_ ruling specifically remanded the case back to the lower circuit court for a later determination of that matter, at which time the attorneys would have had time to gather and present evidence about whether a sawed-off shotgun was or was not suitable for militia use.
Unfortunately, the lower court never bothered. Or if they did, their decision has become lost over the decades.
Some pro-gun folks like to call this "Goldilocks gun control". To the anti-gunners, some guns are too hot, some guns are too cold, and no gun is "just right".
For example, from Goldilocks Gun Control, by Edgar Suter, MD:
Some guns are ``too big'' (``assault weapons''); some guns are ``too small'' (handguns). Some ammunition penetrates ``too much'' (armor piercing ammo); some ammunition penetrates ``too little'' (``hyperdestructive'' hollow point ammo). Some guns are ``too inaccurate'' (``Saturday Night Specials''); some guns are ``too accurate'' (scoped hunting rifles or ``sniper rifles'' that don't give Bambi ``a chance'') -- or so the Goldilocks gun banners say.
With regards to the still up-in-the-air question about sawed-off shotguns in particular, yeah.
But the _Miller_ decision did make clear that a) Mr. Miller's status as a private citizen (not part of any formal militia) was no impediment to his Second Amendment standing (if it had been, the justices would have just pointed that out and knocked off early for lunch), and b) the only real key issue when a private citizen claims Second Amendment protection for his firearm is whether the type of firearm would be suitable for militia use.
Part (b) is why the folks on this thread who have claimed that the "militia" clause doesn't really mean a damned thing are wrong. It does mean something -- it means that the purpose of the right to keep and bear arms is to preserve the effectiveness of a citizen militia. The _Miller_ decision says, in effect, that militia-suitable arms are thus the relevant ones to consider, and not such things as starter's pistols, BB-guns, cap pistols, squirt guns, etc.
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