# 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:** 2
**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 6, 2002, 8:23pm UTC](https://boards.straightdope.com/t/9th-circuit-denies-individual-right-to-own-guns/140919/21 "2002-12-06T20:23:45Z")
Wow, a trial court ruling? That surely trumps the nine (now ten) court of appeals decisions I cited. šŸ˜‰ Besides, isnā€™t that just the trial court ruling that served as the basis for the _Emerson_ appeal to the Fifth Circuit? ---
**Author:** ![bordelond](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/bordelond/32/150_2.png) [@bordelond](https://boards.straightdope.com/u/bordelond)\ **Post date:** [December 6, 2002, 8:25pm UTC](https://boards.straightdope.com/t/9th-circuit-denies-individual-right-to-own-guns/140919/22 "2002-12-06T20:25:46Z")
I always thought that the Second Amendment was all about INDIVIDUAL rights to bear arms, despite mentions of a ā€œwell armed militiaā€. Has the ā€œmilitiaā€ phrase been given THAT much weight over the past 60 years or so? I canā€™t help but think that the American court system has severely twisted the original intent of this amendment. Not that that can be conclusively proven, but thatā€™s my opinion. Does the 9th Circuit hold that a state can grant individuals the right to bear arms within itā€™s boundaries? Is that the deal? ---
**Author:** ![tracer](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/tracer/32/20578_2.png) [@tracer](https://boards.straightdope.com/u/tracer)\ **Post date:** [December 6, 2002, 8:33pm UTC](https://boards.straightdope.com/t/9th-circuit-denies-individual-right-to-own-guns/140919/23 "2002-12-06T20:33:42Z")
> [@](#): > > \*Originally posted by minty green \* > \*\*Besides, isnā€™t [the District courtā€™s U.S. v. Emerson] just the trial court ruling that served as the basis for the _Emerson_ appeal to the Fifth Circuit? \*\* Uh ā€¦ um ā€¦ Hey, look, over there! Isnā€™t that Marcel Marceau? \ ---
**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 6, 2002, 8:42pm UTC](https://boards.straightdope.com/t/9th-circuit-denies-individual-right-to-own-guns/140919/24 "2002-12-06T20:42:24Z")
Yes, **Realhoops** , the Supreme court has avoided the Second Amendment like the plague. That the Supreme Court has failed to personally resolve an issue hardly means that there is ā€œno case lawā€ on point. Theyā€™ve had multiple opportunities to correct Court of Appeals decisions that there is no individual right. They have refused to do so every time. BTW, there are precisely 11 circuit court (i.e., U.S. Court of Appeals) decisions on point. 10 have held unambiguously that there is no individual right to bear arms under the Second Amendment. Only one (_Emerson_) states in interminably long dicta that there is an individual right to bear arms under the Second Amendment, but that the right is subject to reasonable restrictions. I donā€™t have the federal district court (i.e., trial court) cites available right now, but my clear recollection is that they also rule against the individual rights interpretation, with maybe one or two exceptions that got reversed on appeal anyway. Like I said, the great weight of legal authority holds that there is no individual right to bear arms under the federal constitution. And to add further fuel to the fire, Iā€™d also like to remind everyone that the Second Amendment has _never_ been held to apply against the states. It is, under current law, a restriction solely applicable to the _federal_ government. The states can infringe the right to bear arms to their gun-grabbing heartsā€™ content. šŸ†’ On preview: Gotcha, **tracer**. šŸ˜‰ And it figures it would have been Sam Cummings who issued that ruling, so I still thank you for the link. ---
**Author:** ![aldiboronti](https://avatars.discourse-cdn.com/v4/letter/a/9fc348/32.png) [@aldiboronti](https://boards.straightdope.com/u/aldiboronti)\ **Post date:** [December 6, 2002, 8:48pm UTC](https://boards.straightdope.com/t/9th-circuit-denies-individual-right-to-own-guns/140919/25 "2002-12-06T20:48:02Z")
It appears that SCOTUS last touched Second Amendment issues in 1939 in the Miller case. > **[FindLaw's United States Supreme Court case and opinions.](https://caselaw.findlaw.com/us-supreme-court/307/174.html)** > > FindLaw's searchable database of United States Supreme Court decisions since Iā€™m still trying to figure out whether it supports an individualā€™s putative right to bear arms, comes down against it or has no relevance at all to the question! ---
**Author:** ![Realhoops](https://avatars.discourse-cdn.com/v4/letter/r/8dc957/32.png) [@Realhoops](https://boards.straightdope.com/u/Realhoops)\ **Post date:** [December 6, 2002, 8:48pm UTC](https://boards.straightdope.com/t/9th-circuit-denies-individual-right-to-own-guns/140919/26 "2002-12-06T20:48:08Z")
**Minty** , I recognize that all the circuit and district court opinions demonstrate that there is hardly ā€œno case lawā€ out there. I was merely hypothesizing that when **Boxcar** said there was ā€œno case lawā€ he really meant to say ā€œno case law from the Supreme Court.ā€ [hijack] BTW, I havenā€™t spent much time lurking around here in recent monthsā€¦ Iā€™m aware (if I recall correctly) that Bricker is an attorney. Safe to assume that you are as well? Or are you just a concerned citizen who enjoys reading legal literature? šŸ™‚ FTR, I am also an attorney and work for an appellate court, so Iā€™m relatively well-versed in the items that I choose to speak about. Just curious about some of you othersā€™ backgrounds in this regard to give some context to our discussionsā€¦ errā€¦ ā€œdebates.ā€ [/hijack] Nice chatting with all of you on this stuffā€¦ ---
**Author:** ![David\_Simmons](https://avatars.discourse-cdn.com/v4/letter/d/9de053/32.png) [@David\_Simmons](https://boards.straightdope.com/u/David_Simmons)\ **Post date:** [December 6, 2002, 8:54pm UTC](https://boards.straightdope.com/t/9th-circuit-denies-individual-right-to-own-guns/140919/27 "2002-12-06T20:54:27Z")
> [@](#): > > \*Originally posted by bordelond \* > \*\*I always thought that the Second Amendment was all about INDIVIDUAL rights to bear arms, \*\* I guess might depend upon whether the italicized bit in ā€œthe right of _the people_ to keep and bear armsā€ is taken to mean the people collectively or people individually. ---
**Author:** ![bordelond](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/bordelond/32/150_2.png) [@bordelond](https://boards.straightdope.com/u/bordelond)\ **Post date:** [December 6, 2002, 8:57pm UTC](https://boards.straightdope.com/t/9th-circuit-denies-individual-right-to-own-guns/140919/28 "2002-12-06T20:57:22Z")
> [@](#): > > \*Originally posted by minty green \* > **And to add further fuel to the fire, Iā€™d also like to remind everyone that the Second Amendment has _never_ been held to apply against the states. It is, under current law, a restriction solely applicable to the _federal_ government. The states can infringe the right to bear arms to their gun-grabbing heartsā€™ content.** That is the exact opposite of what Iā€™ve always thought the Second Amendment entialed. The EXACT opposite. ---
**Author:** ![David\_Simmons](https://avatars.discourse-cdn.com/v4/letter/d/9de053/32.png) [@David\_Simmons](https://boards.straightdope.com/u/David_Simmons)\ **Post date:** [December 6, 2002, 9:06pm UTC](https://boards.straightdope.com/t/9th-circuit-denies-individual-right-to-own-guns/140919/29 "2002-12-06T21:06:37Z")
> [@](#): > > \*Originally posted by bordelond \* > \*\*That is the exact opposite of what Iā€™ve always thought the Second Amendment entialed. The EXACT opposite. \*\* IANAL. However, I believe the general tenor of cases has been that an individual can have a gun in his or her home without restriction. As soon as they take that gun out in public, though, a state has an interest in and a relatively unrestricted right to regulate what kind of a gun it is and pretty much everything about its use, transportation, etc., etc. As **minty green** either says, or implies, this goes back a long way. New York has a long history of regulating guns and those regulations are upheld by courts. ---
**Author:** ![bordelond](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/bordelond/32/150_2.png) [@bordelond](https://boards.straightdope.com/u/bordelond)\ **Post date:** [December 6, 2002, 9:08pm UTC](https://boards.straightdope.com/t/9th-circuit-denies-individual-right-to-own-guns/140919/30 "2002-12-06T21:08:46Z")
> [@](#): > > \*Originally posted by David Simmons \* > \*\*I guess might depend upon whether the italicized bit in ā€œthe right of _the people_ to keep and bear armsā€ is taken to mean the people collectively or people individually. \*\* Ack! It never crossed my mind that ā€œthe peopleā€ could mean anything but ā€œeach individual citizenā€. How does the Constitution have ANY meaning at all??? Spin it anyway you want ā€¦ it can mean anything you want. Just jiggle around with the definitions of a few phrases here or there. Criminy. ---
**Author:** ![Cervaise](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/cervaise/32/16693_2.png) [@Cervaise](https://boards.straightdope.com/u/Cervaise)\ **Post date:** [December 6, 2002, 9:16pm UTC](https://boards.straightdope.com/t/9th-circuit-denies-individual-right-to-own-guns/140919/31 "2002-12-06T21:16:09Z")
Welcome to Constitutional law, **bordelond.** Try looking up ā€œstrict constructionistā€ sometime. ---
**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 6, 2002, 9:18pm UTC](https://boards.straightdope.com/t/9th-circuit-denies-individual-right-to-own-guns/140919/32 "2002-12-06T21:18:43Z")
I figured you for a lawyer. Since most of the people 'round here are not, I often make basic points for their benefit that the lawyers in the audience would already know. Donā€™t worry, not trying to talk down to you! šŸ™‚ FTR, I am also an attorney, predominantly in state appellate law. The Second Amendment stuff is a hobby I picked up 'round here when I realized how big many peopleā€™s misconceptions were about the state of Second Amendment law. One of these days, I swear Iā€™m going to assemble a Second Amendment FAQ post so I can just link back to it in future debates with the notation to ā€œSee Question #4.ā€ > [@](#): > > _Originally posted by aldiboronti_ > Iā€™m still trying to figure out whether it supports an individualā€™s putative right to bear arms, comes down against it or has no relevance at all to the question! _Miller_ does not resolve the individual vs. collective rights dispute. However, it does lend some support to the collective rights interpretation in that it gives substantive effect to the introductory ā€œmilitiaā€ clause that so many gun rights folks would read as a nullity. That is, _Miller_ limits the guarantee of the second clause by reading the milita lanaguage of the first clause as a limitation on the guarantee. Thus, the Court held that a firearm is only protected by the Second Amendment if it is of a type suitable for militia service. If you apply the militia clause to ā€œthe peopleā€ of the second clause, just as _Miller_ does to the ā€œarms,ā€ you end up with a reading that the people = the militia. **bordelond** , I assure you that the case law, though limited to a handful of cases, does indeed hold that the Second Amendment applies only against the federal government and not against the states. Iā€™ll try to dig up some cites for you later. (Itā€™s all going in the FAQ eventually!) Your own stateā€™s constitution and/or statutes may, of course, assure an individual right to bear arms, but the Second Amendment does not. ---
**Author:** ![Realhoops](https://avatars.discourse-cdn.com/v4/letter/r/8dc957/32.png) [@Realhoops](https://boards.straightdope.com/u/Realhoops)\ **Post date:** [December 6, 2002, 9:19pm UTC](https://boards.straightdope.com/t/9th-circuit-denies-individual-right-to-own-guns/140919/33 "2002-12-06T21:19:11Z")
**Bordelund:** ā€¦ just curious about what you thought the part of the Second Amendment that talks about a ā€œwell regulated militiaā€ meant? You seem surprised that the words ā€œthe peopleā€ are open to interpretation, but Iā€™m guessing from your posts in this thread that you would also suggest ā€œthe militiaā€ part of the amendment doesnā€™t really mean what it literally says? Probably Unnecessary Legal Disclaimer: Again, not trying to start a debate in this thread about whether people _do_ have the right to bear arms, arm bears, or anything elseā€¦ just wondering what your thinking about ā€œinterpretationā€ is. ---
**Author:** ![Zoff](https://avatars.discourse-cdn.com/v4/letter/z/6de8d8/32.png) [@Zoff](https://boards.straightdope.com/u/Zoff)\ **Post date:** [December 6, 2002, 9:19pm UTC](https://boards.straightdope.com/t/9th-circuit-denies-individual-right-to-own-guns/140919/34 "2002-12-06T21:19:29Z")
> [@](#): > > _Originally posted by minty green_ > Only one (Emerson) states in interminably long dicta that there is an individual right to bear arms under the Second Amendment, I understand that some have argued that the _Emerson_ discussion of the Second Amendment is dicta, the courts have generally not construed to be dicta. The Ninth Circuit case criticized the _Emerson_ decision but did not say it is dicta. Other courts have discussed _Emerson_ and approached it as the law of the Fifth Circuit and not dicta. Since courts view it as the holding of the Fifth Circuit, I donā€™t think it is properly referred to as dicta. ---
**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 6, 2002, 9:22pm UTC](https://boards.straightdope.com/t/9th-circuit-denies-individual-right-to-own-guns/140919/35 "2002-12-06T21:22:54Z")
> [@](#): > > \*Originally posted by Cervaise \* > Try looking up ā€œstrict constructionistā€ sometime. Do, however, keep in mind that ā€œstrict constructionistā€ is merely code for ā€œpolitical conservative.ā€ I assure you, Cervaise, that William Rhenquist applies the language of the Constitution no more strictly than does Ruth Bader Ginsburg. They each merely apply it differently. ---
**Author:** ![bordelond](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/bordelond/32/150_2.png) [@bordelond](https://boards.straightdope.com/u/bordelond)\ **Post date:** [December 6, 2002, 9:26pm UTC](https://boards.straightdope.com/t/9th-circuit-denies-individual-right-to-own-guns/140919/36 "2002-12-06T21:26:40Z")
> [@](#): > > \*Originally posted by Realhoops \* > \*\*\*\*Bordelund: **ā€¦ just curious about what you thought the part of the Second Amendment that talks about a ā€œwell regulated militiaā€ meant? You seem surprised that the words ā€œthe peopleā€ are open to interpretation, but Iā€™m guessing from your posts in this thread that you would also suggest ā€œthe militiaā€ part of the amendment doesnā€™t really mean what it literally says?** My unerstanding is that in 1789, a militia ā€“ even a ā€œwell-regulatedā€ one ā€“ consisted simply of any and all able-bodied citizens. IOW, todayā€™s ordinary citizen would have been tomorrowā€™s minuteman in Revolutionary times. ---
**Author:** ![Dangerosa](https://avatars.discourse-cdn.com/v4/letter/d/22d042/32.png) [@Dangerosa](https://boards.straightdope.com/u/Dangerosa)\ **Post date:** [December 6, 2002, 9:27pm UTC](https://boards.straightdope.com/t/9th-circuit-denies-individual-right-to-own-guns/140919/37 "2002-12-06T21:27:54Z")
BTW, Minty, thank you for taking up the Second Amendment as a hobby. ---
**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 6, 2002, 9:31pm UTC](https://boards.straightdope.com/t/9th-circuit-denies-individual-right-to-own-guns/140919/38 "2002-12-06T21:31:03Z")
**Zoff** : Judge Parkerā€™s concurrence in _Emerson_ does an admirable job of explaining why the individual rights discussion in that case is dicta. I also took a crack at it myself [here](http://boards.straightdope.com/sdmb/showthread.php?threadid=93594&pagenumber=2). In a nutshell, since Emerson would lose in exactly the same way no matter whether it is a collective or individual right, the resolution of the colelctive/individual right issue was not necessary to the outcome of the case. Thatā€™s the very definition of _obiter dictum_: > [@](#): > > A judicial comment made in the course of delivering a judicial opinion, but one that is unnecessary to the decision in the case and therefore not precedential (though it may be considered persuasive). Blackā€™s Law Dictionary, Seventh Ed. Anytime, **Dangerosa**. šŸ™‚ ---
**Author:** ![december](https://avatars.discourse-cdn.com/v4/letter/d/838e76/32.png) [@december](https://boards.straightdope.com/u/december)\ **Post date:** [December 6, 2002, 9:31pm UTC](https://boards.straightdope.com/t/9th-circuit-denies-individual-right-to-own-guns/140919/39 "2002-12-06T21:31:55Z")
> [@](#): > > \*Originally posted by minty green \* > \*\*Do, however, keep in mind that ā€œstrict constructionistā€ is merely code for ā€œpolitical conservative.ā€ I assure you, Cervaise, that William Rhenquist applies the language of the Constitution no more strictly than does Ruth Bader Ginsburg. They each merely apply it differently. \*\* I find this hard to believe. Letā€™s take Roe v. Wade as an example. This decision does not come from the language of the Constitution. However, SCOTUS has made it settled law, and IMHO itā€™s unlikely to ever be reversed. However, if the possibility arose, I would think Rehnquist (or Scalia or Thomas) would be more likely than Ginsburg to reverse Roe v. Wade, because the decision itself doesnā€™t follow the language of the Constitution. ---
**Author:** ![David\_Simmons](https://avatars.discourse-cdn.com/v4/letter/d/9de053/32.png) [@David\_Simmons](https://boards.straightdope.com/u/David_Simmons)\ **Post date:** [December 6, 2002, 9:34pm UTC](https://boards.straightdope.com/t/9th-circuit-denies-individual-right-to-own-guns/140919/40 "2002-12-06T21:34:53Z")
> [@](#): > > \*Originally posted by minty green \* > > ## \*\*quote: > > ## Originally posted by Cervaise Try looking up ā€œstrict constructionistā€ sometime. > > Do, however, keep in mind that ā€œstrict constructionistā€ is merely code for ā€œpolitical conservative.ā€ I assure you, Cervaise, that William Rhenquist applies the language of the Constitution no more strictly than does Ruth Bader Ginsburg. They each merely apply it differently. \*\* Yes indeed. Even Thomas Jefferson said quite clearly that the world belongs to the living and it is their right to interpret anything whatever in terms that suit their purpose. ā€œOriginal intentā€ and ā€œstrict constructionā€ seem to me to just be shorthand to either approve or disparage something without providing any justification for either stance. [Previous page](https://boards.straightdope.com/t/9th-circuit-denies-individual-right-to-own-guns/140919.md?page=1) [Next page](https://boards.straightdope.com/t/9th-circuit-denies-individual-right-to-own-guns/140919.md?page=3)