12/02 The Ninth Doesn’t Get It

The Ninth Doesn’t Get It
Larry Pratt

The Federal Ninth Circuit Court of Appeals has reiterated its view that the 2nd Amendment only applies to the collective right of states to have a militia. They upheld the constitutionality of the California state ban on certain semi-automatic rifles and shotguns. Their ruling did not get anything right.

In listing the legitimate uses of firearms, the Court failed to even mention self defense. They overlooked the fact that Korean merchants used some of the now banned guns to successfully defend their stores during the Los Angeles riots.

The Court states the view that the 2nd Amendment protects an individual right to keep and bear arms “had never been adopted by any court until the recent Fifth Circuit decision in United States v. Emerson….” But the Dred Scott decision before the Civil War did just that. Justice Tanney wrote for the court that blacks could not become citizens because that would mean they could keep and bear arms.

The Court also failed to deal with U.S. v. Verdugo-Urquidez which found in 1991 that the phrase “the people” is consistently used in the Bill of Rights to refer to individuals. Thus, “….the right of the people to keep and bear arms” refers to an individual right. In the 36 times the Supreme Court has discussed the 2nd Amendment it is almost always treated as an individual right.

The Court never mentioned the post Civil War Freedman’s Bureau that worked to protect the newly-freed slaves’ individual rights, including firearms ownership. The 14th Amendment culminated this era’s legislative activity. It was designed to overturn the Jim Crow laws which were backdoor attempts to re-enslave the blacks.

Opponents in Congress and the state legislatures objected to the 14th Amendment in part because the measure would subject the states to the 2nd Amendment, thus allowing blacks to be armed. The sponsors of the amendment met these objections with a forceful affirmation to the effect that: “That’s what we want to achieve.”

The Court completely missed the long history of Supreme Court decisions upholding Federal supremacy in cases brought by states challenging Federal control of the militia. Had the Court looked at this body of cases, they would have seen that their position of a state’s right to have a militia would mean that the 2nd Amendment nullifies the clause in Article I Section 8 establishing Federal supremacy over the militia.

The Court cited uncritically the California legislature’s finding that the banned guns were being prohibited because of their use in crime. Truth be told, these firearms were used to commit fewer murders than were hands and feet. That is still true.

Hopefully the Supreme Court will keep with its own precedents and throw the Ninth Circuit’s rewrite of the Constitution into the wastebasket where it belongs.