# 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:** 4
**Author:** ![Mtgman](https://avatars.discourse-cdn.com/v4/letter/m/b5a626/32.png) [@Mtgman](https://boards.straightdope.com/u/Mtgman)\ **Post date:** [December 7, 2002, 12:01am UTC](https://boards.straightdope.com/t/9th-circuit-denies-individual-right-to-own-guns/140919/61 "2002-12-07T00:01:09Z")
> [@](#): > > \*Originally posted by UncleBeer \* > **And anyway, there’s another reason to believe the circuit courts have badly misinterpreted the intention of the framers. They believed state-sponsored militia to be anathema to a free people. They believed a free people should be permitted the means to overthrow a tyrannical government. This can hardly mean they’d provide a mechanism whereby only the state militias had a right to keep firearms while also providing a mechanism that would permit private citizens to be disarmed.** Then we’re living in a seriously different country than the framers intended. I promse that 280 million people with hunting rifles and handguns(assuming every man, woman and child in the US had one) still doesn’t stand a chance against the government of the US if the US military still supports the administration. Nuclear weapons kind of tip the scales. Effective rebellion has been nearly impossible in the US for nearly 100 years. One could argue that effective rebellion was impossible even before that and cite the Civil War as the example of a failed rebellion. Enjoy, Steven ---
**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 7, 2002, 12:02am UTC](https://boards.straightdope.com/t/9th-circuit-denies-individual-right-to-own-guns/140919/62 "2002-12-07T00:02:44Z")
> [@](#): > > \*Originally posted by minty green \* > **Hey, Max! Good of you to drop by. You too would prefer a different interpretaion, huh? Well, get cracking on that amicus brief to the Supreme Court.** [mock courteous greeting] to you too, **minty**! [patronizing dismissive question]? [ridiculous suggestion]. There, now I have a template for debating you in kind. Hope you don’t mind if I adopt your methods. > [@](#): > > **Also, sources apparently differ on the comma. The Con Law textbook I checked doesn’t have it, but it turns out the one next to it on my shelf does. [The Government Printing Office](http://www.access.gpo.gov/congress/senate/constitution/amdt2.html) says no comma, but [Findlaw](http://caselaw.lp.findlaw.com/data/constitution/amendment02/) says there is. Anyone know if there’s a graphic version of the original text anywhere online?** I found [this page](http://library.educationworld.net/txt02/) with [this enlarged version of the Bill of Rights](http://library.educationworld.net/txt02/bill.html). The second amendment appears as “Article the Fourth”. Note the comma after “Militia”. ---
**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 7, 2002, 12:28am UTC](https://boards.straightdope.com/t/9th-circuit-denies-individual-right-to-own-guns/140919/63 "2002-12-07T00:28:20Z")
Here is a picture of the Proposed Bill of Rights, as they were sent by Congress to the States for ratification: [http://www.barefootsworld.net/images/billofrt.jpg](http://www.barefootsworld.net/images/billofrt.jpg) As **MaxTorque** points out, the original proposed Bill of Rights had 12 proposed amendments, only 10 of which got ratified in the 18th century, so what became the 2nd Amendment to the Constitution was actually the 4th Proposed Amendment on this copy. Note that this copy has NO comma after Militia, and NO comma after Arms. ---
**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 7, 2002, 12:33am UTC](https://boards.straightdope.com/t/9th-circuit-denies-individual-right-to-own-guns/140919/64 "2002-12-07T00:33:00Z")
Okey doke, that looks like it’s probably a comma. Wonder where it got redacted in the reprinting? Regardless, thanks for the link. There’s nothing stopping you from filing an amicus brief, as far as I know. Knock yourself out, Max. Who knows, the Court might even post it on their web site if they grant review. ---
**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 7, 2002, 12:34am UTC](https://boards.straightdope.com/t/9th-circuit-denies-individual-right-to-own-guns/140919/65 "2002-12-07T00:34:50Z")
Okey doke, that looks like there may not be a comma there after all, **tracer**. My god, maybe we don’t have a Second Amendment after all! 😉 ---
**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 7, 2002, 12:39am UTC](https://boards.straightdope.com/t/9th-circuit-denies-individual-right-to-own-guns/140919/66 "2002-12-07T00:39:54Z")
> [@](#): > > \*Originally posted by UncleBeer \* > **And anyway, there’s another reason to believe the circuit courts have badly misinterpreted the intention of the framers. They believed state-sponsored militia to be anathema to a free people.** No, actually, they believed **standing armies** were anathema to a free people. State-sponsored militias were considered vital not only in defending against foreign invaders, but also in protecting the States from a Federal government that got too powerful. Mark Pitcavage has a good (if long) history of the Militia in America, at [http://www.adl.org/mwd/faq3.asp](http://www.adl.org/mwd/faq3.asp). ---
**Author:** ![TheeGrumpy](https://avatars.discourse-cdn.com/v4/letter/t/779978/32.png) [@TheeGrumpy](https://boards.straightdope.com/u/TheeGrumpy)\ **Post date:** [December 7, 2002, 12:47am UTC](https://boards.straightdope.com/t/9th-circuit-denies-individual-right-to-own-guns/140919/67 "2002-12-07T00:47:54Z")
While you’re highlighting words, **minty** , you can put “keep and bear arms” under the microscope. [Garry Wills](http://www.potomac-inc.org/garwills.html) has argued that the use of those words indicates a clear military connotation, as opposed to using weapons for home defense or sport. “Arms,” he says, refers to weapons of war, including artillery. You “bear arms” when you take part in a military action. When you store this equipment in an arsenal, you “keep” it, as in the keep of a castle. I rather like this interpretation, but that’s only because I want to take away Charleton Heston’s guns. ---
**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 7, 2002, 1:17am UTC](https://boards.straightdope.com/t/9th-circuit-denies-individual-right-to-own-guns/140919/68 "2002-12-07T01:17:11Z")
Quite so, **Grumpy**. The Ninth Circuit opinion does some pretty good historical analysis of what people meant in 1791 when they said “keep and bear arms.” ---
**Author:** ![clairobscur](https://avatars.discourse-cdn.com/v4/letter/c/839c29/32.png) [@clairobscur](https://boards.straightdope.com/u/clairobscur)\ **Post date:** [December 7, 2002, 1:39am UTC](https://boards.straightdope.com/t/9th-circuit-denies-individual-right-to-own-guns/140919/69 "2002-12-07T01:39:40Z")
> [@](#): > > \*Originally posted by bordelond \* > \*\*My unerstanding is that in 1789, a militia – even a “well-regulated” one – consisted simply of any and all able-bodied citizens. IOW, today’s ordinary citizen would have been tomorrow’s minuteman in Revolutionary times. \*\* Not that I’m particulary interested in the topic but wouldn’t it mean that not able bodied people shouldn’t own weapons, then? In other words that as soon as you’re not able to become part of a potential militia of citizens (say, you’re handicapped, or too old), you would have no right to own a weapon? ---
**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 7, 2002, 1:52am UTC](https://boards.straightdope.com/t/9th-circuit-denies-individual-right-to-own-guns/140919/70 "2002-12-07T01:52:24Z")
No girls either, **clair**. ---
**Author:** ![I\_am\_Sparticus](https://avatars.discourse-cdn.com/v4/letter/i/c68b51/32.png) [@I\_am\_Sparticus](https://boards.straightdope.com/u/I_am_Sparticus)\ **Post date:** [December 7, 2002, 2:28am UTC](https://boards.straightdope.com/t/9th-circuit-denies-individual-right-to-own-guns/140919/71 "2002-12-07T02:28:24Z")
An atomic bomb is an arm within the same definition as a gun. An artillery piece is certainly a gun, like Atomic Annie. Having the right to keep and bear arms as an individual has its consequences. ---
**Author:** ![Realhoops](https://avatars.discourse-cdn.com/v4/letter/r/8dc957/32.png) [@Realhoops](https://boards.straightdope.com/u/Realhoops)\ **Post date:** [December 7, 2002, 2:33am UTC](https://boards.straightdope.com/t/9th-circuit-denies-individual-right-to-own-guns/140919/72 "2002-12-07T02:33:32Z")
Holy jumping frijoles. I leave work, go get some supper, and nearly an entire page of posts gets added to this thread. With a whole host of other legal analysts. I also have no desire to hijack, but I’m still curious who all besides \*\* minty \*\* and myself and Bricker are attorneys and who all are interested and literate non-attorneys. Just for my own edification, mind you. Can anyone point me to any thread or previous discussion of who around here is attorneys or has that not been done in a thread before? On the topic at hand… I’m trying really hard to keep up with the discussion despite the variations and strays from the original topic… has anyone managed to cite anything in SCOTUS literature that even remotely suggests they might conclude the Second Amendment confers any sort of individual right? Or are we left, at this point, with a split of circuit authority and a majority of circuits concluding there is no such individual right? Not that the history lessons aren’t interesting or anything, but I’m more inclined to be concerned right now with the legal conclusions of the courts so far than what commentators or even The Federalist papers might have to say on the topic. ---
**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 7, 2002, 2:35am UTC](https://boards.straightdope.com/t/9th-circuit-denies-individual-right-to-own-guns/140919/73 "2002-12-07T02:35:07Z")
**I am Spartacus** : Even in the early days of the Republic, I’ll bet civilian ownership of the heavy weapons of war (e.g. cannons) was frowned upon. Are there any really old – I mean antebellum old – laws in the States restricting the private posession of cannons? ---
**Author:** ![december](https://avatars.discourse-cdn.com/v4/letter/d/838e76/32.png) [@december](https://boards.straightdope.com/u/december)\ **Post date:** [December 7, 2002, 2:41am UTC](https://boards.straightdope.com/t/9th-circuit-denies-individual-right-to-own-guns/140919/74 "2002-12-07T02:41:18Z")
Interesting [analysis by Volokh](http://nationalreview.com/comment/comment-volohk120602.asp). He assumes an evolving Consitution (not original intent), and concludes that the case for the individual rights interpretation is strong given that approach. He points out that the individual rights interpretation was the understanding of most citizens when the Constitution was ratified, when it was extended to the States via the 14th Amendment and today. ---
**Author:** ![Realhoops](https://avatars.discourse-cdn.com/v4/letter/r/8dc957/32.png) [@Realhoops](https://boards.straightdope.com/u/Realhoops)\ **Post date:** [December 7, 2002, 2:42am UTC](https://boards.straightdope.com/t/9th-circuit-denies-individual-right-to-own-guns/140919/75 "2002-12-07T02:42:21Z")
> [@](#): > > \*Originally posted by Joe\_Cool \* > \*\*This is not significantly different from what the 2nd Amendment says now. It gives an explanation in the subordinate clause, and safeguards the right (which belongs to **the people** , not the militia) in the primary one. And it does not say that only people who eat Froot Loops are allowed to bear arms, nor does it say that the Froot Loops themselves are allowed to regulate the possession of arms. The people are the ones the right belongs to, and the Froot Loops are the reason it’s vital that the people be armed. > > There is one way to read it that is not dishonest or ignorant, and that is to acknowledge that the text says what it says. THE RIGHT OF THE PEOPLE TO KEEP AND BEAR ARMS SHALL NOT BE INFRINGED. Because a well-regulated militia is necessary to the security of a free state. Nowhere does it say anything about the right of the militia or the states to do anything. It says THE PEOPLE, it means THE PEOPLE. > \*\* Well… that just doesn’t make sense. The difference between the froot loops example and the real-live Second Amendment is that in the Second Amendment the subordinate clause clearly has a relation to the primary clause… in other words, they didn’t talk about froot loops but talked about “a militia” because it had something to do with what was in the primary clause, the right to bear arms. Doesn’t some other relatively famous document drafted by our founding fathers start with some language along the lines of “We THE PEOPLE, in order to form a more perfect union…” Did they mean to say “We THE INDIVIDUALS” there and not “We THE COLLECTIVE PEOPLE OF THE UNITED STATES”? Just tossing out a couple of more thoughts for fodder… ---
**Author:** ![Johnny\_L.A](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/johnny_l.a/32/1084_2.png) [@Johnny\_L.A](https://boards.straightdope.com/u/Johnny_L.A)\ **Post date:** [December 7, 2002, 2:45am UTC](https://boards.straightdope.com/t/9th-circuit-denies-individual-right-to-own-guns/140919/76 "2002-12-07T02:45:09Z")
I have not read the thread yet, so please forgive me if I’m re-posting. There are some who say the “slippery slope” argument is a fallacy. They say that it doesn’t happen and that people who think that it does are paranoid. California passed an “assault weapons” (and we all know that’s a made-up phrase) ban quite a while ago. It banned 75 firearms. Then they passed another law that banned _hundreds_ of firearms (according to this morning’s broadcast on NPR). From 75 to “hundreds”. Sounds like slippage to me. _Now_ a California court has said that people don’t have a right to own _any_ firearm. Sounds pretty slippery to me. ---
**Author:** ![I\_am\_Sparticus](https://avatars.discourse-cdn.com/v4/letter/i/c68b51/32.png) [@I\_am\_Sparticus](https://boards.straightdope.com/u/I_am_Sparticus)\ **Post date:** [December 7, 2002, 2:50am UTC](https://boards.straightdope.com/t/9th-circuit-denies-individual-right-to-own-guns/140919/77 "2002-12-07T02:50:09Z")
Any strict constuction/original intent analysis depends on assuming that the founding fathers, and the electorate of the time, agreed, which they most certainly did not. It really becomes which faction of the founding fathers philosophical progeny has ground the axe longer and better. ---
**Author:** ![Johnny\_L.A](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/johnny_l.a/32/1084_2.png) [@Johnny\_L.A](https://boards.straightdope.com/u/Johnny_L.A)\ **Post date:** [December 7, 2002, 3:03am UTC](https://boards.straightdope.com/t/9th-circuit-denies-individual-right-to-own-guns/140919/78 "2002-12-07T03:03:07Z")
> [@](#): > > An atomic bomb is an arm within the same definition as a gun. An artillery piece is certainly a gun, like Atomic Annie. Having the right to keep and bear arms as an individual has its consequences. There is a difference between a discreet weapon, like a rifle, shotgun or handgun, and an area weapon like a grenade, molotov coctail, an explosive shell fired from an artillery piece, or a nuclear, chemical or biological weapon. Therefore, an atomic bomb is not an arm within the same definition as a gun. ---
**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 7, 2002, 3:03am UTC](https://boards.straightdope.com/t/9th-circuit-denies-individual-right-to-own-guns/140919/79 "2002-12-07T03:03:45Z")
> [@](#): > > \*Originally posted by Realhoops \* > **Holy jumping frijoles. I leave work, go get some supper, and nearly an entire page of posts gets added to this thread. With a whole host of other legal analysts. I also have no desire to hijack, but I’m still curious who all besides \*\* minty \*\* and myself and Bricker are attorneys and who all are interested and literate non-attorneys. Just for my own edification, mind you. Can anyone point me to any thread or previous discussion of who around here is attorneys or has that not been done in a thread before?** I’m a brand-spankin’-new attorney in Texas. Still waiting for my license to show up in the mail, actually. > [@](#): > > **On the topic at hand… I’m trying really hard to keep up with the discussion despite the variations and strays from the original topic… has anyone managed to cite anything in SCOTUS literature that even remotely suggests they might conclude the Second Amendment confers any sort of individual right?** It’s generally preferable to say that rights in the Bill of Rights are “enumerated”, not “conferred”. “Conferred” means that the government _gave_ them to us, and, well, that’s a whole 'nother argument in itself. On to a SCOTUS cite. I give you _U.S. v. Verdugo-Urquidez_, 494 U.S. 259 (1990). > [@](#): > > The Fourth Amendment provides: [494 U.S. 259, 265] \_ > > “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” > > That text, by contrast with the Fifth and Sixth Amendments, extends its reach only to “the people.” Contrary to the suggestion of amici curiae that the Framers used this phrase “simply to avoid [an] awkward rhetorical redundancy,” Brief for American Civil Liberties Union et al. as Amici Curiae 12, n. 4, “the people” seems to have been a term of art employed in select parts of the Constitution. The Preamble declares that the Constitution is ordained and established by “the people of the United States.” **The Second Amendment protects “the right of the people to keep and bear Arms,”** and the Ninth and Tenth Amendments provide that certain rights and powers are retained by and reserved to “the people.” See also U.S. Const., Amdt. 1 (“Congress shall make no law . . . abridging . . . the right of the people peaceably to assemble”) (emphasis added); Art. I, 2, cl. 1 (“The House of Representatives shall be composed of Members chosen every second Year by the people of the several States”) (emphasis added). **While this textual exegesis is by no means conclusive, it suggests that “the people” protected by the Fourth Amendment, and by the First and Second Amendments, and to whom rights and powers are reserved in the Ninth and Tenth Amendments, refers to a class of persons who are part of a national community or who have otherwise developed sufficient connection with this country to be considered part of that community.** Bolding mine. ---
**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 7, 2002, 3:13am UTC](https://boards.straightdope.com/t/9th-circuit-denies-individual-right-to-own-guns/140919/80 "2002-12-07T03:13:24Z")
> [@](#): > > \*Originally posted by UncleBeer \* > \*\*And anyway, there’s another reason to believe the circuit courts have badly misinterpreted the intention of the framers. They believed state-sponsored militia to be anathema to a free people. … > > I quote Federalist 29 written by Alexander Hamilton:\*\* Well, at least the quote shows what Alexander Hamilton thought. Whether or not that reflected the intentions of “the framers” is still open to question. It might not even have been Hamilton’s views a year earlier or a year hence. That’s the problem with citing authorities. For example, you could cite a quote from Thos. Jefferson supporting almost any side of the slavery question that you care to take. [Previous page](https://boards.straightdope.com/t/9th-circuit-denies-individual-right-to-own-guns/140919.md?page=3) [Next page](https://boards.straightdope.com/t/9th-circuit-denies-individual-right-to-own-guns/140919.md?page=5)