Americans soon could see a shoot-out at the Supreme Court corral. Two circuit courts have issued contradictory readings of the Second Amendment right to keep and bear arms. Such contradictions commonly have been a reason for the top court to attempt to bring consistency to judicial interpretations.
Last December, a three-judge panel of the 9th Circuit Court in San Francisco upheld a 1999 California law banning so-called “assault weapons.” In his majority opinion, Judge Stephen Reinhardt wrote the Second Amendment “was not adopted in order to afford rights to individuals with respect to private gun ownership or possession,” only to protect state militias. Judge Reinhardt become notorious last June for ruling that the Pledge of Allegiance is unconstitutional.
On Tuesday, the full 9th Circuit refused to overturn the case decided last December by the panel. “Gary Gorski, lawyer for a group of gun owners (in the California case) who challenged the assault weapons law, said he had already prepared his Supreme Court appeal,” reported the San Francisco Chronicle.
These two decisions run counter to the 5th Circuit Court in New Orleans, which in 2001 ruled, in its words, “the Second Amendment does protect individual rights.” And U.S. Attorney General John Ashcroft said he concurred.
Last June, the Supreme Court refused to hear the case, but allowed it to be implemented only within the 5th Circuit’s territory. So the issue remains unresolved.
The dissents in Tuesday’s opinion were especially vigorous. “The Second Amendment is a doomsday provision, one designed for those exceptionally rare circumstances where all other rights have failed,” wrote Judge Alex Kozinski, one of America’s more ardent defenders of the Bill of Rights. “The prospect of tyranny may not grab the headlines the way vivid stories of gun crime routinely do. But few saw the Third Reich coming until it was too late.” The Nazis enacted stiff gun controls in 1938.
Judge Andrew Kleinfeld said the 9th Circuit Court effectively was trying to repeal the Second Amendment, which “prohibits government from disarming the people.” He called the action “an odd deviation from the individualist philosophy of our founders.”
Most fundamentally, the purpose of the Bill of Rights being added to the U.S. Constitution was to assure protection of individual rights in the face of the potential for a powerful and forceful central government.
It’s also worth noting that the California assault weapons ban under review has had no affect at all on reducing crime, according to John Lott, the author of a new book, “The Bias Against Guns: Why Almost Everything You’ve Heard About Gun Control Is Wrong.”
On page 209, the book shows a chart of the effect on crime after a similar ban was enacted in 1990. “For murder, robbery and aggravated assaults, those crime rates were rising before the law and continued rising after it,” the book says.
Likewise, when the 1990 law was declared unconstitutional in 1998 and the guns became available again for a year, there was no increase in such crimes.
(The law currently under review was enacted in 1999 after the 1990 law was overturned in 1998.)
Finally, Lott pointed out that the banned “assault weapons” are not machine guns, but regular rifles that look mean.
Functionally they are no different from other rifles.
We hope the Supreme Court takes up this case and firmly upholds the Second Amendment’s individual right to keep and bear arms.