9th Circuit denies individual right to own guns

From the 9th Circuit Court, issued 12/5/2002, right of individual to own guns is NOT protected by the Second Amendment.

From Silviera v Lockyer

With a case in New Orleans affirming the individual right to own guns, the Supremes will be forced to make a ruling one way or the other on the second amendment.

Which way will they go?

UCLA Law Professor Eugene Volokh calls the 9th Circuit decision “disappointing.” He says they ignored [ul][]“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.”[]“the Supreme Court’s statement as to what [‘militia’] means”[]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]” []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.”[]leading constitutional commentators of the era, such as Sir William Blackstone – the leading English legal commentator of the late 1700s and Justice Story, the leading U.S. constitutional commentator of the early 1800s.[]the rights to bear arms in state Bills of Rights of the era. He makes the interesting point that, “whatever its purpose, the right can’t have belonged to the state, or to a force whose membership is selected and controlled by the state. The rights must be rights of individuals against the state, since that’s the function of state Bills of Rights. (The Bill of Rights in the federal constitution can at least theoretically secure the rights of states, but not the Bill of Rights in a state constitution.)”[/ul]

I love the Ninth Circuit. They’re the most often reversed by the Supreme Court, and they seem to have issued a ruling that guarantees review to clear a conflict in the circuits, and forced the Supremes to definitively declare what the Second Amendment means.

I believe the Second Amendment confers a federal, constitutional, individual right to own firearms, and is applicable to the states by way of the Fourteenth Amendment.

I hope the SCOTUS agrees with me.

  • Rick

Bricker - do you think that this was their motive?

Oh good god. Why on earth should anyone be surpised or outraged by a court following its own precedent? To wit, I give you Hickman v. Block, 81 F.3d 98 (9th Cir. 1996), wherein the court decided thusly:

Those bastards! How dare they apply their own firmly-established precedent and follow the vast weight of legal authority!
And as long as you’re getting outraged that the Second Amendment does not confer an individual right to bear arms, don’t forget to rend your garments over the following:

Gillespie v. City of Indianapolis, 185 F.3d 693 (7th Cir. 1999).

United States v. Wright, 117 F.3d 1265 (11th Cir. 1997).

Love v. Pepersack, 47 F.3d 120 (4th Cir. 1995), cert. denied 516 U.S. 813.

United States v. Hale, 978 F.2d 1016 (8th Cir. 1992).

United States v. Oakes, 564 F.2d 384 (10th Cir. 1977).

U.S. v. Warin, 530 F.2d 103 (6th Cir. 1976), cert. denied 426 U.S. 948.

Stevens v. U.S., 440 F.2d 144 (6th Cir. 1971).

Cases v. United States, 131 F.2d 916, 923 (1st Cir. 1942).

But see “84 pages of dicta” from the Fifth Circuit, cert. also denied.

The Supreme Court had a conflict with Emerson, Bricker, albeit a conflict in the form of dicta only. It didn’t review then, and it won’t review now.

I’ve asked this before, but here goes again.

Why doesn’t the US change the second amendment to something that everybody agrees on the meaning of ( if not the intention)

Ah, the good ol’ Ninth Circuit. Always good for a bit of morning entertainment while I munch my chocolate cream-cheese muffin. I agree with minty in that nothing will come of this, other than a good bout of mockery.


If an individual has no right to own a gun, why does he have a right to own anything else?

That would be a great idea, if everybody could actually agree on what it means.


He doesn’t. I assume you have a problem with that principle?

That’s a little hyperbolic, ain’t it minty? You are the only one I see in this thread expressing outrage or surprise at anything.

On the other hand, I would love for this Supreme Court to make a ruling regarding the intent of the 2nd amendment.

To beat Libby to the punch, if I don’t have a right to keep my gun, why should you have the right not to be shot with it?

Why on earth should anyone be surpised or outraged by a court following its own precedent?

Well, because its decision and its precedent are unconstitutionally stupid. And that’s just the best reason; I can think of others.

It seems to me that the OP was making the point that there are current decisions from the circuits that conflict, although there was no cite provided to the “New Orleans” case. Although there is likely no doubt the 9th Circuit is merely applying their own precedent, there’s also validity to the point that if another circuit is, or has recently, held to the contrary, SCOTUS may take the opportunity to address it.

In Printz v. US SCOTUS was able to avoid addressing the issue, but Justice Thomas noted in concurrence that the specific issue of whether the Second Amendment creates an individual right had not “recently” been before the Court and that perhaps the Court would, someday, have occasion to examine the issue.

As for the question posed by the OP, “Which way will they go,” I would be surprised if they concluded that the Second Amendment creates an individual substantive right to own firearms. Just MHO, of course.

I was responding to the professor that december cites, whose reaction is ridiculous in light of the 9th Circuit’s pre-existing precedent specifically rejecting his favored interpretation. Move along, Professor Volokh, there hasn’t been anything to see here since at least 1996.

Dude, you should turn that into a bumper sticker.

Oh, you mean you prefer a different interpretation of the Second Amendment? Alas, the law is what the law is, and it ain’t what you want it to be.

realhoops was on the money.

I threw this up rather quickly because by the time I get home, so many gun debates have devolved into “gunowners are evil vs anti-gun types are yellow-bellied cowards.”

I am at work, so haven’t had a chance to research 5th Court’s ruling or to really get in depth of 9th Court’s opinion, but it seems there is a conflict at the highest levels about what, exactly, the 2nd amendment allows regarding the right of an individual to own a gun. Wasn’t one of the first opinions issued by John Ashcroft addressing the administration’s feeling that the second amendment was an individual right?

As near as I can follow, there is no case law that directly addresses the second amendment in regards to whether it allows for restriction on the rights of an individual to own a weapon or to define what exactly is meant by “a well regulated militia”.

With the current make-up of the SCOTUS, would they want to address the issue at hand, does the right to keep and bear arms belong to the individual or only to those identified as part of the state militias? What could SCOTUS use, precedent-wise (sp?), outside of personal opinion, to make a decision?

For entertainment purposes only, no betting please, include your best guess as to which way each justice would vote and why.

What am I, invisible? I provided citations to nine separate United States Court of Appeals decisions holding that there is no individual right to bear arms. That’s a pretty good sized body of case law.

Of course, don’t forget that in 1998, a U.S. District court in Texas held that the 2nd Amendment’s Right to Keep and Bear Arms was an individual right, as stated in U.S. v. Emerson.


I see you minty, so I don’t think you’re invisible. I’m only guessing here, probably even WAG since I don’t know boxcar at all, but maybe he meant that as near as he can follow SCOTUS hasn’t issued any opinions directly on point but, rather, has usually found a way to avoid directly answering the issue?

As you point out, and as tracer notes, there is a veritable slew of circuit court cases on the issues, some saying there is no “personal” or “individual” right, and some saying there is.