cuchulainn
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From the Rocky Mountain News
http://www.insidedenver.com/drmn/opinion/article/0,1299,DRMN_38_1634575,00.html
http://www.insidedenver.com/drmn/opinion/article/0,1299,DRMN_38_1634575,00.html
Gun-rights case sets up conflict
December 29, 2002
In Colorado, the right to keep and bear arms is indisputably an individual right. The state constitution says, "The right of no person to keep and bear arms in defense of his home, person and property, or in aid of the civil power when thereto legally summoned, shall be called in question."
Emphasis ours. [There was no emphasis in the version linked]
We believe the Second Amendment to the U.S. Constitution was historically intended to have the same meaning. But its slightly different wording, "the right of the people . . ." and its reference to a "well-regulated militia" has encouraged those who want to limit or prohibit the private ownership of guns to argue that the right is a collective right, belonging only to those who are enrolled in a formal state militia.
Justice Stephen Reinhardt of the 9th U.S. Circuit Court of Appeals in San Francisco jumped into the argument earlier this month, on the collective- rights side, in a decision upholding California's ban on assault-style weapons. His opinion in Silveira v. Lock- yer is unlikely to rank among the most influential of its day, given the many flaws in its arguments already pointed out by Second Amendment scholars, but it is useful nonetheless because it sets up a clear conflict among the nation's appeals courts.
The 5th Circuit in New Orleans endorsed the individual-rights position in a 2001 case, United States v. Emerson. Such conflicts often prompt the U.S. Supreme Court to take a case in order to resolve the conflict.
Many people believe there is no conflict to resolve, and that the Supreme Court has already said there is no individual right to own a firearm. That belief rests on a 1939 case, United States v. Miller, which ruled that there was no Second Amendment right to carry a sawed-off shotgun, on the grounds that it was a weapon not suitable for militia use.
That argument certainly suggests that the sawed-off shotgun was an exception to an otherwise broad rule allowing people to have weapons that were suited to militia use, but people can and do read it to mean that ownership of firearms is limited to those serving in a state militia.
However, there's no doubt about the meaning of "militia" as the Supreme Court in 1939 understood it. At the time the Bill of Rights was adopted, the court said, "the Militia comprised all males physically capable of acting in concert for the common defense." And Reinhardt's opinion neglects to mention that relevant part of Miller, constitutional-law professor Eugene Volokh says, along with much of the rest of the pertinent historical record.
Reinhardt's opinion also claimed that the individual-rights position "had never been adopted by any court" until the 5th Circuit decision.
That claim is preposterous, unless Reinhardt was simply dismissing state Supreme Court decisions. Independent scholar Clayton Cramer promptly provided an extensive list online, from Georgia in 1846 to Illinois in 1950, supporting his claim that "Reinhardt's view is actually modern and rare."
The Supreme Court does not necessarily take the first opportunity to rule on an issue that has drawn conflicting circuit-court decisions, because sometimes the particulars of a single case don't lend themselves to grand constitutional statements. But it usually does pay attention eventually, and we can expect it will be better informed than Reinhardt about the history of Second Amendment rights as recognized in state constitutions.
2002 © The E.W. Scripps Co.