Preacherman
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From Clayton Cramer's Blog (http://www.claytoncramer.com/weblog/blogger.html), Friday, March 26, 2004:
Tenth Circuit Decision On The Second Amendment
U.S. v. Parker (10th Cir. 2004) is out. Some of this won't be surprising; some of it has some twists that I haven't seen before. Once again, we are reminded that most federal judges need to be replaced.
What makes this case especially interesting is that the defendant was prosecuted under federal law for violating a Utah gun control law. I don't know when this federal law was passed, but something called "Assimilative Crimes Act (ACA), 18 U.S.C. § 13" makes it a federal crime to violate a state gun control law on a federal military reservation--even though that military reservation (in this case, Dugway Proving Grounds in Utah) is not actually part of the state of Utah. In this case, defendant Parker drove into Dugway Proving Grounds with a loaded revolver under the seat of his truck. A random search of his truck (not surprising, post-9/11) found the revolver. He claimed to have forgotten that it was there--a plausible claim. Parker was convicted in federal court.
On appeal, Parker argued that the federal law violates both the Second Amendment (right to keep and bear arms) and Tenth Amendment (reserving to the states authority to regulate gun ownership). The Court of Appeals decided that the Second Amendment does not protect an individual right, based on both previous Tenth Circuit precedents that have taken (wrongly) U.S. v. Miller (1939) as the authoritative statement, and based on the preponderance of other circuits that have taken this view. They decided that the Fifth Circuit's decision in USA v. Emerson (5th Cir. 2001) really shouldn't be followed.
One could still make a case that U.S. v. Miller (1939) doesn't allow such a prosecution:
Miller has been interpreted by this court and other courts to hold that the Second Amendment does not guarantee an individual the right to keep and transport a firearm where there is no evidence that possession of that firearm was related to the preservation or efficiency of a well-regulated militia.
The decision goes to make the highly arguable statement:
Third, putting aside the fact that Miller requires that a party have some connection to a state-run militia, even the Fifth Circuit’s most narrow interpretation of Miller does not support Parker’s claim. To the extent Miller only stands for the rule that a sawed-off shotgun is not a military firearm and therefore not covered by the Second Amendment, Parker has presented no evidence that his revolver would come within the category of arms used by the military. To the contrary, at trial, Officer Michael Palhegyi, who was part of the military police unit that took Parker into custody, testified that Parker’s firearm was “not considered a military grade weapon†and, instead, more commonly was used for personal defense or target practice.
Whoops! It was not that many years ago that the United States Air Force commonly issued .38 revolvers to flight crews, and at one time, even USAF security details used them.
Judge Kelly wrote a dissenting opinion in which he agreed with everything the majority said--except concerning the Second Amendment:
Concerning the Second Amendment, I would affirm the conviction by simply noting that the obvious purpose of this prosecution–restricting concealed weapons on a military base to identified military personnel–is a reasonable restriction and thus does not contravene the Second Amendment. I write separately because I disagree with the analysis in the court’s opinion and because neither Supreme Court nor Tenth Circuit precedent relied upon by the this court adequately addresses the question asked and answered: “Whether a federal prosecution pursuant to the ACA [Assimilative Crimes Act] for violating a state gun control statute violates an individual’s Second Amendment rights.â€
...
Although the Supreme Court has twice stated that the Second Amendment does not apply to States because it is solely a limitation on national power, Presser v. Illinois, 116 U.S. 252, 265 (1886); United States v. Cruikshank, 92 U.S. 542, 553 (1875); 2 Ronald D. Rotunda & John E. Nowak, Treatise on Constitutional Law–Substance and Procedure § 14.2 at 520 n.4 (3d ed. 1999); see also State v. Vlacil, 645 P.2d 677, 680 (Utah 1982) & id. at 681 n.1 (Oaks, J., concurring), the State provision in this case is being enforced on a federal enclave by the federal government. See Lewis v. United States, 523 U.S. 155, 160, 162 (1998) (discussing function and application of Assimilative Crimes Act).
After pointing out that the Emerson decision had raised some significant and legitimate questions--without denying that reasonable restrictions (such as the one involved in this case) could be imposed without insisting on a "collective rights" theory, Judge Kelly observed:
Like this court, the Fifth Circuit recognized reasonable restrictions on the Second Amendment right are constitutional. This case also can be decided on that narrow basis–there is no need to dilute prematurely what many consider to be one of the most important amendments to the United States Constitution.
Tenth Circuit Decision On The Second Amendment
U.S. v. Parker (10th Cir. 2004) is out. Some of this won't be surprising; some of it has some twists that I haven't seen before. Once again, we are reminded that most federal judges need to be replaced.
What makes this case especially interesting is that the defendant was prosecuted under federal law for violating a Utah gun control law. I don't know when this federal law was passed, but something called "Assimilative Crimes Act (ACA), 18 U.S.C. § 13" makes it a federal crime to violate a state gun control law on a federal military reservation--even though that military reservation (in this case, Dugway Proving Grounds in Utah) is not actually part of the state of Utah. In this case, defendant Parker drove into Dugway Proving Grounds with a loaded revolver under the seat of his truck. A random search of his truck (not surprising, post-9/11) found the revolver. He claimed to have forgotten that it was there--a plausible claim. Parker was convicted in federal court.
On appeal, Parker argued that the federal law violates both the Second Amendment (right to keep and bear arms) and Tenth Amendment (reserving to the states authority to regulate gun ownership). The Court of Appeals decided that the Second Amendment does not protect an individual right, based on both previous Tenth Circuit precedents that have taken (wrongly) U.S. v. Miller (1939) as the authoritative statement, and based on the preponderance of other circuits that have taken this view. They decided that the Fifth Circuit's decision in USA v. Emerson (5th Cir. 2001) really shouldn't be followed.
One could still make a case that U.S. v. Miller (1939) doesn't allow such a prosecution:
Miller has been interpreted by this court and other courts to hold that the Second Amendment does not guarantee an individual the right to keep and transport a firearm where there is no evidence that possession of that firearm was related to the preservation or efficiency of a well-regulated militia.
The decision goes to make the highly arguable statement:
Third, putting aside the fact that Miller requires that a party have some connection to a state-run militia, even the Fifth Circuit’s most narrow interpretation of Miller does not support Parker’s claim. To the extent Miller only stands for the rule that a sawed-off shotgun is not a military firearm and therefore not covered by the Second Amendment, Parker has presented no evidence that his revolver would come within the category of arms used by the military. To the contrary, at trial, Officer Michael Palhegyi, who was part of the military police unit that took Parker into custody, testified that Parker’s firearm was “not considered a military grade weapon†and, instead, more commonly was used for personal defense or target practice.
Whoops! It was not that many years ago that the United States Air Force commonly issued .38 revolvers to flight crews, and at one time, even USAF security details used them.
Judge Kelly wrote a dissenting opinion in which he agreed with everything the majority said--except concerning the Second Amendment:
Concerning the Second Amendment, I would affirm the conviction by simply noting that the obvious purpose of this prosecution–restricting concealed weapons on a military base to identified military personnel–is a reasonable restriction and thus does not contravene the Second Amendment. I write separately because I disagree with the analysis in the court’s opinion and because neither Supreme Court nor Tenth Circuit precedent relied upon by the this court adequately addresses the question asked and answered: “Whether a federal prosecution pursuant to the ACA [Assimilative Crimes Act] for violating a state gun control statute violates an individual’s Second Amendment rights.â€
...
Although the Supreme Court has twice stated that the Second Amendment does not apply to States because it is solely a limitation on national power, Presser v. Illinois, 116 U.S. 252, 265 (1886); United States v. Cruikshank, 92 U.S. 542, 553 (1875); 2 Ronald D. Rotunda & John E. Nowak, Treatise on Constitutional Law–Substance and Procedure § 14.2 at 520 n.4 (3d ed. 1999); see also State v. Vlacil, 645 P.2d 677, 680 (Utah 1982) & id. at 681 n.1 (Oaks, J., concurring), the State provision in this case is being enforced on a federal enclave by the federal government. See Lewis v. United States, 523 U.S. 155, 160, 162 (1998) (discussing function and application of Assimilative Crimes Act).
After pointing out that the Emerson decision had raised some significant and legitimate questions--without denying that reasonable restrictions (such as the one involved in this case) could be imposed without insisting on a "collective rights" theory, Judge Kelly observed:
Like this court, the Fifth Circuit recognized reasonable restrictions on the Second Amendment right are constitutional. This case also can be decided on that narrow basis–there is no need to dilute prematurely what many consider to be one of the most important amendments to the United States Constitution.
You get in trouble for not having a "protected militia weapon", but you try having one of those "military grade weapons" and you go to jail for violating the law. Only military weapons (M249, M4, etc) are protected by the 2nd Amendment, but owning them is against the law. How the #%$& does that one work? Damned if you do, damned if you don't... 
:banghead: 