# 9th Circuit denies individual right to own guns **URL:** \ **Category:** Great Debates\ **Created:** [December 6, 2002, 2:56pm UTC](https://boards.straightdope.com/t/9th-circuit-denies-individual-right-to-own-guns/140919 "2002-12-06T14:56:52Z")\ **Posts on this page:** 20\ **Page:** 11
**Author:** ![Realhoops](https://avatars.discourse-cdn.com/v4/letter/r/8dc957/32.png) [@Realhoops](https://boards.straightdope.com/u/Realhoops)\ **Post date:** [December 9, 2002, 9:21pm UTC](https://boards.straightdope.com/t/9th-circuit-denies-individual-right-to-own-guns/140919/201 "2002-12-09T21:21:18Z")
Thanks for your thoughts guys… err… people. ---
**Author:** ![minty\_green](https://avatars.discourse-cdn.com/v4/letter/m/f6c823/32.png) [@minty\_green](https://boards.straightdope.com/u/minty_green)\ **Post date:** [December 9, 2002, 9:33pm UTC](https://boards.straightdope.com/t/9th-circuit-denies-individual-right-to-own-guns/140919/202 "2002-12-09T21:33:06Z")
[Pete Townsend] I’m a boy, I’m a boy, but my mum won’t admit it. [/Pete Townsend] ---
**Author:** ![erislover](https://avatars.discourse-cdn.com/v4/letter/e/71e660/32.png) [@erislover](https://boards.straightdope.com/u/erislover)\ **Post date:** [December 9, 2002, 10:24pm UTC](https://boards.straightdope.com/t/9th-circuit-denies-individual-right-to-own-guns/140919/203 "2002-12-09T22:24:42Z")
Maybe this is totally tangential, and I doubt it can be settled by a question of law, but… > [@](#): > > The states can already do pretty much whatever they want with regard to firearms, under existing law. Nothing’s stopping them except democracy. In my opinion, if there is a law prohibiting a federal law about private gun ownership (the feds can’t make such a rule) but the states are allowed to run free, and then a 2/3 majority of states pass such a law, then something seems to be wrong here. That is, but for the fact that a federal law cannot be passed, all teh requirements for a federal law are met. Further, suppose such support translated into all fifty states, independently (ostensively), passing a law regarding firearms such that no individual citizen can own one. In what sense does this differ from a federal law outlawing individual possession? Totally silly question, I know, but I struggle to understand the implications of rights reserved to the states, or to the people, when the consequences would be the same. If we can all resolve to give up the right, then why say that there can be no federal law? ---
**Author:** ![minty\_green](https://avatars.discourse-cdn.com/v4/letter/m/f6c823/32.png) [@minty\_green](https://boards.straightdope.com/u/minty_green)\ **Post date:** [December 9, 2002, 10:45pm UTC](https://boards.straightdope.com/t/9th-circuit-denies-individual-right-to-own-guns/140919/204 "2002-12-09T22:45:11Z")
The difference would be pretty obvious if you lived in one of the states that still permitted private gun ownership, don’t you think? It’s simply a matter of our federal system of government. States are permitted to do all kinds of things that the federal government cannot, which permits the states a lot of flexibility in tailoring legislation for their local conditions. If the Second Amendment permits the states to do that with firearms (hey, who said Massachusetts has to have a militia at all?), and it ends up that two thirds of them decide against private gun ownership, that’s well within the states’ discretion to do so. ---
**Author:** ![SenorBeef](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/senorbeef/32/2220_2.png) [@SenorBeef](https://boards.straightdope.com/u/SenorBeef)\ **Post date:** [December 10, 2002, 4:35am UTC](https://boards.straightdope.com/t/9th-circuit-denies-individual-right-to-own-guns/140919/205 "2002-12-10T04:35:50Z")
> [@](#): > > \*Originally posted by minty green \* > \*\*Oh, THAT’s what you’re getting at. The answer is no. The statute as a whole would not be overturned merely because _some_ of its applications _may_ be unconstitutional. > \*\* I wasn’t originally “getting at” anything when I posed the question - once you explained further what the exactly trial was about in scope, that question was a natural one to ask. ---
**Author:** ![SenorBeef](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/senorbeef/32/2220_2.png) [@SenorBeef](https://boards.straightdope.com/u/SenorBeef)\ **Post date:** [December 10, 2002, 4:58am UTC](https://boards.straightdope.com/t/9th-circuit-denies-individual-right-to-own-guns/140919/206 "2002-12-10T04:58:04Z")
> [@](#): > > \*Originally posted by David Simmons \* > \*\*Even the preamble is subject to differences of opinion. I’m not at all sure that letting individuals carry semi automatic rifles that will put a bullet through an engine block at 300 yards does much to promote the _general_ welfare. Nor, I think, does it contribute significantly to the _common_ defense. And it seems to be questionable as to securing the blessings of _my_ liberty. \*\* No need to get hyperbolic now. What semiautomatic rifles are you concerned about punching through an engine block at 300 yards? ---
**Author:** ![SenorBeef](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/senorbeef/32/2220_2.png) [@SenorBeef](https://boards.straightdope.com/u/SenorBeef)\ **Post date:** [December 10, 2002, 5:02am UTC](https://boards.straightdope.com/t/9th-circuit-denies-individual-right-to-own-guns/140919/207 "2002-12-10T05:02:00Z")
> [@](#): > > \*Originally posted by minty green \* > \*\*\*\*In practice, seeing as how all the states have decided to go with National Guard units, and seeing as how National Guard members are armed by the state and federal governments without need to resort to Grandpa’s old deer rifle, the feds can constitutionally do whatever they want with privately-held weapons. > \*\* The National Guard is ultimately under the control of the US army. They prosecute under federal laws on their bases, and are armed from federal sources. You can’t seriously assert that these are State militias, created for the purpose of guarding against federal power, can you? ---
**Author:** ![minty\_green](https://avatars.discourse-cdn.com/v4/letter/m/f6c823/32.png) [@minty\_green](https://boards.straightdope.com/u/minty_green)\ **Post date:** [December 10, 2002, 5:11am UTC](https://boards.straightdope.com/t/9th-circuit-denies-individual-right-to-own-guns/140919/208 "2002-12-10T05:11:32Z")
The way you’d phrased it earlier, I thought you were just asking me to repeat what I’d already said. Still, your latest post reveals the same misconception about the court system. A trial is a procedure whereby the courts determine (usually via a jury) what the facts of a case are. Did the defendant shoot the victim? Did Soda Pop Corp. tell Beer, Inc. that it would sell it 5,000,000 gallons of spring water for $.02 per gallon? Trials do _not_ determine what the law is. Facts. Law. Two separate things. Legislatures determine what the law is. Courts determine what the law is. Juries do not determine what the law is. And, most important for our present purposes, appellate courts (including the Supreme Court) do not determine what the _facts_ are.\* Thus, the Supreme Court could not and did not determine the facts that that would show whether Mr. Miller’s shotgun was within the scope of the Second Amendment. The Court could and did, however, determine what the scope of the Second Amendment was with regards to the Mr. Miller’s shotgun, the burden of proof on the issue of a weapon’s constitutional states, etc. Namely, the defendant hadn’t bothered to show any facts capable of demonstrating that the shotgun bore a reasonable relation to a well regulated militia, so there was no constitutional protection from his conviction for Second Degree Charlton Heston. It’s actually quite interesting that the Court put the burden on the defendant to show the weapon is within the scope (i.e., reasonable relation to well regulated militia) of the 2A–it essentially makes the amendment an affirmative defense. Since _Miller_ did not resolve the individual/collective issue, it’s unclear whether a defendant would also have to prove that she/he is someone within the scope of the amendment, whatever that scope may be, legally speaking. > [@](#): > > You can’t seriously assert that these are State militias, created for the purpose of guarding against federal power, can you? Maybe, maybe not. The states are certainly entitled to abidicate their authority to the feds if they wish. If the the state national guard isn’t within the Second Amendment’s “well regulated Militia” ain’t , then it sure ain’t anybody else, because the states haven’t told anybody to show up on the town common for drill instruction anytime in the last century and a half. [sub]\*Okay, in very rare instances, the Supreme Court determines what the facts are, particularly in litigation where two states are suing each other. This is because the Constitution says so, is exceedingly rare, and has no application at all to the current discussion.[/sub] ---
**Author:** ![Max\_Torque](https://avatars.discourse-cdn.com/v4/letter/m/e9bcb4/32.png) [@Max\_Torque](https://boards.straightdope.com/u/Max_Torque)\ **Post date:** [December 10, 2002, 6:33pm UTC](https://boards.straightdope.com/t/9th-circuit-denies-individual-right-to-own-guns/140919/209 "2002-12-10T18:33:48Z")
> [@](#): > > \*Originally posted by minty green \* > **Thus, the Supreme Court could not and did not determine the facts that that would show whether Mr. Miller’s shotgun was within the scope of the Second Amendment. The Court could and did, however, determine what the scope of the Second Amendment was with regards to the Mr. Miller’s shotgun, the burden of proof on the issue of a weapon’s constitutional states, etc. Namely, the defendant hadn’t bothered to show any facts capable of demonstrating that the shotgun bore a reasonable relation to a well regulated militia, so there was no constitutional protection from his conviction for Second Degree Charlton Heston.** Hardly surprising, since there never was a “trial”. The original “case”, if you can call it that, was nothing more than the district court judge quoting the second amendment, declaring the statute unconstitutional, and dismissing the indictment against Miller (and his partner Layton). The case was then kicked up to the Supremes, but Miller was murdered before arguments. So, it’s not very honest to say that “the defendant hadn’t bothered to show any facts”, since he never had the opportunity to do so. Unless you think his estate was required to keep paying his lawyer to keep his corpse out of jail… ---
**Author:** ![minty\_green](https://avatars.discourse-cdn.com/v4/letter/m/f6c823/32.png) [@minty\_green](https://boards.straightdope.com/u/minty_green)\ **Post date:** [December 10, 2002, 6:58pm UTC](https://boards.straightdope.com/t/9th-circuit-denies-individual-right-to-own-guns/140919/210 "2002-12-10T18:58:53Z")
The case is what the case is, Max. If they’d known Miller was dead instead of just hiding out, it wouldn’t have gone forward in the S. Ct. They didn’t know, it went forward, and the principles were established. ---
**Author:** ![porkchop\_d\_clown](https://avatars.discourse-cdn.com/v4/letter/p/3bc359/32.png) [@porkchop\_d\_clown](https://boards.straightdope.com/u/porkchop_d_clown)\ **Post date:** [December 11, 2002, 5:02pm UTC](https://boards.straightdope.com/t/9th-circuit-denies-individual-right-to-own-guns/140919/211 "2002-12-11T17:02:57Z")
> [@](#): > > \*Originally posted by SenorBeef \* > \*\*The National Guard is ultimately under the control of the US army. They prosecute under federal laws on their bases, and are armed from federal sources. > > You can’t seriously assert that these are State militias, created for the purpose of guarding against federal power, can you? \*\* Unless I’m wrong (and I am never wrong! 😛 ) the SCOTUS has ruled that the National Guard is, in fact, the modern militia. The guard was formed out of various state militias and is still nominally under the control of the governers, not the President. But I agree that that was hardly the framers’ intent - they never imagined a world where weapons were so expensive that it was impossible for each locality to provide their own troops. (Can you imagine Podunk, Pa having to foot the bill for a squadron of fighters?) ---
**Author:** ![Realhoops](https://avatars.discourse-cdn.com/v4/letter/r/8dc957/32.png) [@Realhoops](https://boards.straightdope.com/u/Realhoops)\ **Post date:** [December 11, 2002, 6:13pm UTC](https://boards.straightdope.com/t/9th-circuit-denies-individual-right-to-own-guns/140919/212 "2002-12-11T18:13:12Z")
> [@](#): > > \*Originally posted by porkchop\_d\_clown \* > \*\*Unless I’m wrong (and I am never wrong! 😛 ) the SCOTUS has ruled that the National Guard is, in fact, the modern militia. > \*\* Although I don’t have time to fully read the case, I believe such a holding can be found in [Maryland v. United States, 381 U.S. 41, 85 S.Ct. 1293 (1965)](http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=case&court=us&vol=381&page=41): > [@](#): > > [3] The National Guard is the modern Militia reserved to the States by Art. I, s 8, cl. 15, 16, of the Constitution. [FN8] It has only been in recent years that the National Guard has been an organized force, capable of being assimilated with ease into the regular military establishment of the United States. From the days of the Minutemen of Lexington and Concord until just before World War I, the various militias embodied the concept of a citizen army, but lacked the equipment and training necessary for their use as an integral part of the reserve force of the United States Armed Forces. [FN9] The passage of the National Defense Act of 1916 [FN10] materially altered the status of the militias by constituting them as the National Guard. Pursuant to power vested in Congress by the Constitution (see n. 8), the Guard was to be \*47 uniformed, equipped, and trained in much the same way as the regular army, subject to federal standards and capable of being ‘federalized’ by units, rather than by drafting individual soldiers. [FN11] In return, Congress authorized the allocation of federal equipment to the Guard, and provided federal compensation for members of the Guard, supplementing any state emoluments. The Governor, however, remained in charge of the National Guard in each State except when the Guard was called into active federal service; in most instances the Governor administered the Guard through the State Adjutant General, [FN12] who was required by the Act to report periodically to the National Guard Bureau, a federal organization, on the guard’s reserve status. [FN13] The basic structure of the 1916 Act has been preserved to the present day. ---
**Author:** ![Joe\_Cool](https://avatars.discourse-cdn.com/v4/letter/j/ecb155/32.png) [@Joe\_Cool](https://boards.straightdope.com/u/Joe_Cool)\ **Post date:** [December 11, 2002, 8:38pm UTC](https://boards.straightdope.com/t/9th-circuit-denies-individual-right-to-own-guns/140919/213 "2002-12-11T20:38:13Z")
However, [Perpich v. Department of Defense (1990)](http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=search&linkurl=%253C%25LINKURL%25%253E&graphurl=%253C%25GRAPHURL%25%253E&court=US&case=/us/496/334.html) says that Guard members lose their state militia status when called to active duty by the federal government and become a part of the federal armed forces exclusively. In fact, the Guard appears to be under federal jurisdiction and seems to be basically on loan to the states only as long as it’s expedient for the Fed. > [@](#): > > Held: > > Article I’s plain language, read as a whole, establishes that Congress may authorize members of the National Guard of the United States to be ordered to active federal duty for purposes of training outside the United States without either the consent of a State Governor or the declaration of a national emergency. Pp. 347-355. > > ``` > (a) The unchallenged validity of the dual enlistment system means that Guard members lose their state status when called to active federal duty, and, if that duty is a training mission, the training is performed by the Army. During such periods, the second Militia Clause [of Art. I Sec 8] is no longer applicable. Pp. 347-349. > > (b) This view of the constitutional issue was presupposed by the Selective Draft Law Cases, 245 U.S. 366, 375 , 377, 381-384, which held that the Militia Clauses do not constrain Congress' Article I, 8, powers to provide for the common defense, raise and support armies, make rules for the governance of the Armed Forces, and enact necessary and proper laws for such purposes, but in fact provide additional grants of power to Congress. Pp. 349-351. > > (c) This interpretation merely recognizes the supremacy of federal power in the military affairs area and does not significantly affect either the State's basic training responsibility or its ability to rely on its own Guard in state emergency situations. Pp. 351-352. > > (d) In light of the exclusivity of federal power over many aspects of military affairs, see Tarble's Case, 13 Wall. 397, the powers allowed to the States by existing statutes are significant. Pp. 353-354. > > (e) Thus, the Montgomery Amendment is not inconsistent with the Militia Clauses. Since the original gubernatorial veto was not constitutionally compelled, its partial repeal by the Amendment is constitutionally valid. Pp. 354-355. > > ``` So the state militia is invalidated by a call-up of the National Guard, which is in fact under Federal jurisdiction. How exactly does that demonstrate a “collective right” of the State to have its own militia, if that militia is dissolved by a federal order? Or is that dicta? 😉 ---
**Author:** ![porkchop\_d\_clown](https://avatars.discourse-cdn.com/v4/letter/p/3bc359/32.png) [@porkchop\_d\_clown](https://boards.straightdope.com/u/porkchop_d_clown)\ **Post date:** [December 11, 2002, 8:45pm UTC](https://boards.straightdope.com/t/9th-circuit-denies-individual-right-to-own-guns/140919/214 "2002-12-11T20:45:58Z")
> [@](#): > > \*Originally posted by Joe\_Cool \* > \*\* > So the state militia is invalidated by a call-up of the National Guard, which is in fact under Federal jurisdiction. How exactly does that demonstrate a “collective right” of the State to have its own militia, if that militia is dissolved by a federal order? > > Or is that dicta? 😉 \*\* No, it’s more an example of how the feds have used the tax system to subvert states’ rights. The set it up so that the vast majority of tax revenue flows to them and then dole the cash back out to the states - making them dependent on the fed for things like organizing, training and maintaining the national guard. ---
**Author:** ![SPOOFE](https://avatars.discourse-cdn.com/v4/letter/s/c5a1d2/32.png) [@SPOOFE](https://boards.straightdope.com/u/SPOOFE)\ **Post date:** [December 11, 2002, 9:04pm UTC](https://boards.straightdope.com/t/9th-circuit-denies-individual-right-to-own-guns/140919/215 "2002-12-11T21:04:27Z")
Lost track of this thread, but I’d like to say something to Minty regarding my earlier post: Just because the law is set a certain way, sir, doesn’t mean that it _should_ be. You of all people should know this better than anyone… hence my earlier reference to slavery. ---
**Author:** ![minty\_green](https://avatars.discourse-cdn.com/v4/letter/m/f6c823/32.png) [@minty\_green](https://boards.straightdope.com/u/minty_green)\ **Post date:** [December 11, 2002, 9:14pm UTC](https://boards.straightdope.com/t/9th-circuit-denies-individual-right-to-own-guns/140919/216 "2002-12-11T21:14:32Z")
I understood your point. I merely rejected the comparison to the extent that it sought to compare gun control and slavery. ---
**Author:** ![Max\_Torque](https://avatars.discourse-cdn.com/v4/letter/m/e9bcb4/32.png) [@Max\_Torque](https://boards.straightdope.com/u/Max_Torque)\ **Post date:** [December 11, 2002, 9:26pm UTC](https://boards.straightdope.com/t/9th-circuit-denies-individual-right-to-own-guns/140919/217 "2002-12-11T21:26:15Z")
> [@](#): > > \*Originally posted by minty green \* > \*\*The case is what the case is, Max. If they’d known Miller was dead instead of just hiding out, it wouldn’t have gone forward in the S. Ct. They didn’t know, it went forward, and the principles were established. \*\* Nah, they would have gone forward regardless. Remember, it was the _prosecution’s_ appeal, not Miller’s. The feds had an interest in arguing that their statute was in fact constitutional, whether the other side was represented or not. ---
**Author:** ![Joe\_Cool](https://avatars.discourse-cdn.com/v4/letter/j/ecb155/32.png) [@Joe\_Cool](https://boards.straightdope.com/u/Joe_Cool)\ **Post date:** [December 11, 2002, 9:28pm UTC](https://boards.straightdope.com/t/9th-circuit-denies-individual-right-to-own-guns/140919/218 "2002-12-11T21:28:24Z")
> [@](#): > > \*Originally posted by porkchop\_d\_clown \* > \*\*No, it’s more an example of how the feds have used the tax system to subvert states’ rights. The set it up so that the vast majority of tax revenue flows to them and then dole the cash back out to the states - making them dependent on the fed for things like organizing, training and maintaining the national guard. \*\* No, if you read what I quoted, section © says > [@](#): > > This interpretation merely recognizes the supremacy of federal power in the military affairs area and does not significantly affect either the State’s basic training responsibility or its ability to rely on its own Guard in state emergency situations. Pp. 351-352. ---
**Author:** ![SenorBeef](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/senorbeef/32/2220_2.png) [@SenorBeef](https://boards.straightdope.com/u/SenorBeef)\ **Post date:** [December 12, 2002, 12:02am UTC](https://boards.straightdope.com/t/9th-circuit-denies-individual-right-to-own-guns/140919/219 "2002-12-12T00:02:35Z")
Additionally - if anything, the national guard might be a descendant of organized militias, but as far as I know, federal code still outlines what constitutes the unorganized militia - and a select militia, especially under federal control, like the national guard, certainly doesn’t replace it. I wouldn’t consider it replacing state militias for that matter. They’re trained with federal money, often using federal equipment, and can be called into federal service - not exactly the preservers of state integrity over potential federal abuse. ---
**Author:** ![ExTank](https://avatars.discourse-cdn.com/v4/letter/e/35a633/32.png) [@ExTank](https://boards.straightdope.com/u/ExTank)\ **Post date:** [December 12, 2002, 6:51am UTC](https://boards.straightdope.com/t/9th-circuit-denies-individual-right-to-own-guns/140919/220 "2002-12-12T06:51:51Z")
Too late to add anything substantive to this, but I would like to say: **Anthracite:** great rant! Assclowns, indeed! Inflatable ones, no less. That was good for a nosefull of Coke and an extended coughing spasm. **Uncle, Spoofe, Max, Tracer, Joe, Johnny, Sensor:** Howdy! And an especial congrats to **Max!** Just what we need: another lawyer! 😉 At least I know whose side you’re on: your clients! (Beware of Sarah Brady’s bearing cashier’s checks for large sums of money). Again, the Arms/Ordnance distinction in a nutshell: Weapons designed and meant for one person, and one person only to use, are arms. They are protected under the Second. The 9th Circuit is squirrel nut zippers. Weapons designed and meant for several people, usually acting as a team, are ordnance. They are not protected under the Second. Yes: some advances in technology have begun to blur this distinction, such as grenade launchers capable of being mounted to the standard Assault Rifle (the M-16/M-203 combo). In these cases, two usefull criteria apply: call them the “Intended Area of Effect,” and the “Intended Target” criterias. Note that these are wholly fabricated terms I have concocted to illustrate the difference between Arms and Ordnance. The first, the Intended Area of Effect, has to do with whether the weapon is designed to effect a single point target (such as an individual enemy soldier) or an area limited mostly by the explosive content of the weapon’s projectile. For instance, the 40mm M-203 grenade launcher is, in the hands of the average infantryman trained in its use, quite capable of dropping a 40mm grenade right on top of a single person, conceivably as far away as 200 meters. But its intended design is to drop that projectile into the middle of a _squad_ of enemy infantry, injuring or killing them all. As such, it is Ordnance. The second, the Intended Target, is usefull when considering such things like man-portable anti-tank rockets and rocket-propelled grenades, as well as shoulder launched anti-aircraft missiles. In these instances, the intended target is not a discrete person, but rather enemy materials, be they machines of war (tanks and airplanes), or simple earthen bunkers, or any other building or structure that a member or members of an enemy force have occupied as cover and/or concealment. Can these weapons conceivably be aimed at and hit a single person? Yes. But it is not their intended design; not how they were meant to be employed. As such, they are Ordnance. The really blurry line is modern Assault Rifles, as they are usually capable of fully automatic fire, which is real usefull under the Intended Area of Effect rule, a point that Mr. **Simmons** points out quite correctly, albeit somewhat rhetorically. However, trends in U.S. military thinking have pulled back from the “Spray-'n-Pray” mentality developed during the Vietnam war, and the recent incarnation of the M-16 is capable of, at best, a 3-round burst. This is an effective compromise between Area Effect (extremely limited by having only three round to spread around any given area) and Point Target shooting. **Dave** can feel justified in defining a suitcase nuke as “Arms” all he wants, even though no military or legal precedent that I know of supports such an assertion. And to the person several pages back who mentioned that people owning machineguns was a bad, bad thing, I have some bad news for you: private ownership of machineguns is generally legal in the U.S.A. In the only recorded instance of a violent crime being committed with a legally owned machinegun, it was committed by a police officer. Pillar of the community; one of the select “classes” of people that quite a few gun-banners feel should be allowed unrestricted ownership and possession of firearms. I know that one single incident is hardly a datum that can be extrapolated into a generality, so I don’t hold the entire law enforcement communty responsible for the act of that particular police officer. I just wish that the gun-control community would follow the same example. :rolleyes: [Previous page](https://boards.straightdope.com/t/9th-circuit-denies-individual-right-to-own-guns/140919.md?page=10) [Next page](https://boards.straightdope.com/t/9th-circuit-denies-individual-right-to-own-guns/140919.md?page=12)