| 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.
Do you think SCOTUS is going to have to take a case now to resolve the conflict between the 5th and the 9th circuit?
Copperud gets most of it right, but in his haste he blew one badly. Copperud is undoubtedly an authority on *modern* language usage, but his error was in making a presumption about *archaic* terminology without researching it.
This is the part at issue:
[Schulman: (5) Which of the following does the phrase "well-regulated militia" mean: "well-equipped," "well-organized," "well-drilled," "well-educated," or "subject to regulations of a superior authority"?]This is quite simply wrong.[Copperud:] (5) The phrase means "subject to regulations of a superior authority"; this accords with the desire of the writers for civilian control over the military.
The best modern phrase equivalent for the now obsolete term "well-regulated" would be "properly functioning" or "effective".
This is obvious from examining two sources -- dictionaries which still define "well-regulated" (most don't), and actual in-context usage examples of "well-regulated" from around the time the Second Amendment was drafted.
Dictionary:
*Neither* definition has anything to do with "subject to regulations of a superior authority". And in context, we will see that a "well-regulated militia" is one which is "what a militia should be", i.e. an effective one, one which is able to perform its function (as opposed to an unarmed, incompetent mob).
Contemporary usage (from the Oxford English Dictionary):
These examples span a range from 1709 to 1894 (the Second Amendment was ratified in 1791). And again, *none* of them have anything to do with "subject to regulations of a superior authority". They are all examples of "properly functioning" or "effective".
Additionally, the Framers took the entire phrase "well-regulated militia" from "A Discourse of Government With Relation to Militias", by Scottish writer Andrew Fletcher of Saltoun. Fletcher's "well-regulated militia" was one that was well-equipped and disciplined, and Fletcher specifically stated that a well-regulated militia was one that was *not* under the command of the state or chief executive, it was accountable only to its local community. The Framers of the US Constitution were familiar with Fletcher's works, and used his term in drafting the Bill of Rights.
If anyone doubts whether Fletcher believed in individual gun ownership, check out:
"The possession of arms is the distinction between a freeman and a slave. He, who has nothing, and who himself belongs to another, must be defended by him, whose property he is, and needs no arms. But he, who thinks he is his own master, and has what he can call his own, ought to have arms to defend himself and what he possesses; else he lives precariously, and at discretion."Finally, a quote from Alexander Hamilton makes clear that the Framers understood Fletcher's meaning of the term:
--Andrew Fletcher (1655-1716), quoted by James Burgh (1714-1775), in "Political Disquisitions: Or, an Enquiry into Public Errors, Defects, and Abuses," (London, 1774-1775)
"The project of disciplining all the militia of the United States is as futile as it would be injurious, if it were capable of being carried into execution. A tolerable expertness in military movements is a business that requires time and practice. It is not a day, or even a week, that will suffice for the attainment of it. To oblige the great body of the yeomanry, and of the other classes of the citizens, to be under arms for the purpose of going through military exercises and evolutions, as often as might be necessary to acquire the degree of perfection which would entitle them to the character of a well-regulated militia, would be a real grievance to the people, and a serious public inconvenience and loss. [...] Little more can reasonably be aimed at, with respect to the people at large, than to have them properly armed and equipped; and in order to see that this be not neglected, it will be necessary to assemble them once or twice in the course of a year.Note that Hamilton specifically states that what makes the militia (the armed citizenry) a "well regulated" one is their "degree of perfection" in military skills and abilities, *NOT* the degree to which it was controlled by the government. Note further that while he'd like them to be regularly trained and drilled, he considers that impractical, and at a minimum he thinks they should be "properly armed and equipped" -- i.e., keep and bear arms.
--Alexander Hamilton, writing as "Publius," in the_Daily Advertiser,_ January 9, 1788
What's especially amusing is that his very last line is enough to give Sarah Brady a stroke -- he suggests that the government should regularly inspect the citizenry to make sure that they *are* properly armed.
I would hope so. But they had a perfect opportunity when _Emerson_ was appealed to them last year, and that already conflicted with earlier circuit court decisions. And yet, they chose to decline to hear the case. So lord knows whether they'll drop the ball again next time or show some guts and tackle it.
The Supreme Court never gives their reasons for declining to hear a case, so we can only speculate. We can always hope that they're waiting for a few liberal Justices to retire and be replaced by Bush before they hear a Second Amendment case, so that they can knock it out of the ballpark.
Miller was not represented in the Supreme Court, but cost was not the reason. Miller was a bootlegger arrested with a sawed-off shotgun. The trial judge held the National Firearms Act unconstitutional and let him go. When he heard the Government was going to appeal, he skipped to Canada.
Uh, no. First of all, the emphasis is on "the right of the People to keep and bear arms shall not be infringed." The first clause is entirely dependent on the second. However, I will indulge you and argue about "well regulated."
The term "well-regulated" has nothing to do with getting the approval of 10,000 constipated bureaucrats who are having trouble getting over their hangovers. Read it in the language it was written - American English of the 1790's. In those days, well-regulated meant well-trained or synchronized. The term is still in use today - if you have a double-barreled shotgun, the barrels have to be regulated (i.e. synchronized with each other) in order to put shot on the same target at some particular range.
Think of not only the language of the time, but the times themselves. Most of those who voted on the language in the 2nd Amendment fought in the Revolutionary War. Without the unlimited availability of firearms in 1776, we'd have lost, badly. As it is, we won, badly. Also, they were generally afraid of the power of a central government, many of them having lost family, friends and fortune fighting against a powerful central government. That's why the power of the Fedgov was purposely designed to be limited, that the limited power was itself divided among 3 competing branches, and certain actions deemed harmful to liberty were specifically banned by the Bill of Rights. Do you honestly think that these same people, living with their collective (boy, I hate to use that word, especially in a post about guns) experiences, would even THINK of limiting the right to keep and bear arms? Hell, no. In fact, the very reason for the 2nd Amendment was to serve as a backstop, a safety net, a fail-safe option in case the very limited government that they had so carefully designed became perverted by the power-hungry leaders of the future (gee, does this remind you of any group - the Democrapic Party - in particular?). The 2nd Amendment was designed specifically to make certain that the Fedgov would be kept in awe of the power of the citizenry, so much so that it would not become a tyranny, and if it did, so that the citizens would have the tools necessary to overthrow the corrupt government and start over - just like the Founding Fathers themselves had started to do only 15 years before the 2nd Amendment was ratified.
The history of the Revolutionary War era, the philosophy of the Founding Fathers, the structure of our government, and the reasoning behind the 2nd Amendment itself don't tolerate ANY limits on the small arms owned by the citizens. But it goes beyond even that. Read the Constitution. It speaks of Congress granting Letters of Marque. What are those? Basically, permission to be a pirate. Why? Because the fedgov didn't have the biggest, baddest Navy in the world, like we've had for the better part of a century. Nope, we were weak. But certain wealthy individuals owned ships equal to the Naval vessels of the time and cannon to match. Fast forward to today. That means that Bill Gates, if he wanted to, should be able to order and outfit a nuclear carrier battle group. To employ it in a war, he'd need Letters of Marque - but a rational reading of the Constitution and Bill of Rights, together with the writings of the Founding Fathers and knowledge of the times DEMANDS the conclusion that he has the right to do so if he can pay for it. We also have that right (though all of Freeperdom combined probably couldn't afford it).
The people of this country created the fedgov. The Constitution is like an employment contract. All of the fedgov's powers come from the people (the employer) - you, me, Freepers, soccer moms, Rosie O'Fatso, Rush Limbaugh, i.e. us - individuals. How then can "we the people" have our rights denied by the fedgov, our employee?
GET IT???
Also, I think it is VERY dangerous to wait for better more conservative judges. We can easily get hit with more stealth libs like Souter.
I thought Miller was found dead after his case was decided (shot to death, with a loaded gun in his hand which had just fired some bullets other than what killed him). Perhaps he'd still have been alive if he'd had his trenchgun.
Unfortunately, the lower court never bothered. Or if they did, their decision has become lost over the decades.
About 99.44% right. Two clarifications:
What would have been different, however, is that Miller and Layton would have been able to present evidence at trial court that their weapons would have been suitable for militia-related functions, and jury instructions would have indicated that such suitability would be grounds for acquittal.
Stay Safe !
With the 9th ruling against the individual Right to keep and bear arms, and the 5th ruling for it, I guess the Supreme Court will eventually have to make a ruling.
That ruling will play in role in just how quickly (and if) certain 'irreconcilable differences' come to a head.
Stay well - Stay safe - Stay armed - Yorktown
If the Fifth District ruled in favor of the RKBA, why is Mr. Emerson still in prison?
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