# Appendix — Silveira v. Lockyer

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386015_1801%3A02

## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 2003
- **Citation:** 540 U.S. 1046

## Text

1A

D6 bed OR aNe Cheeta ke Se UNE Me ake OER oe Boe ce

GATHERING THE DEAD AND WOUNDED
Harpers, May 10, 1873
(After the Colfax Massacre, before US v. Cruikshank - RL)

APPENDIX TO PETITION FOR CERTIORARI

All opinions now are officially reported.
312 F.3d 1052 & 328 F.3d 567.

ORDER OF THE US COURT OF APPEALS, MAY 6,
2003, DENYING REHEARING EN BANC:
SIX DISSENTS, AND FOUR OPINIONS

SILVEIRA v. LOCKYER,
328 F.3d 567 (9 Cir. May 6, 2003)

SEAN SILVEIRA; et al, Plaintiffs-Appellants,
v. ,
BILL LOCKYER, et al, Defendants-Appellees.

No. 01-15098

ORDER
Filed May 6, 2003

Before: Stephen Reinhardt, Frank J. Magill,* and
Raymond C. Fisher, Circuit Judges.
Dissents by Judges Pregerson, Kozinski, Kleinfeld,
and Gould.
*The Honorable Frank J. Magill, Senior Circuit Judge,
Eighth Circuit, sitting by designation.

A majority of the panel has voted to deny the petition
for rehearing en banc. The full court was advised of
the petition for rehearing en banc. An active judge
requested a vote on whether to rehear the matter en
banc. The matter failed to receive a majority of the
votes of the nonrecused active judges in favor of en
banc reconsideration. FED. R. APP. P. 35.
The petition for rehearing en banc is denied.

PREGERSON, Circuit Judge, dissenting from the
denial of rehearing en banc:

I agree with the panel’s decision to uphold California’s
Assault Weapons Control Act. But I part from the
panel’s Second Amendment analysis. The right to keep
and bear arms is in no way absolute; it is subject to
reasonable restrictions such as those embedded in the
statute the California legislature enacted. However,
the panel misses the mark by interpreting the Second
Amendment right to keep and bear arms as a
collective right, rather than as an individual right.
Because the panel’s’ decision abrogates a
constitutional right, this case should have been
reheard en banc. .

KOZINSKI, Circuit Judge, dissenting from denial of
rehearing en banc:

Judges know very well how to read the Constitution
broadly when they are sympathetic to the right being
asserted. We have held, without much ado, that
"speech, or . . . the press" also means the Internet, see
Reno v. ACLU, 521 U.S. 844 (1997), and that "persons,
houses, papers, and effects" also means public
telephone booths, see Katz v. United States, 389 U.S.
347 (1967). When a particular right comports

3A

especially well with our notions of good social
policy, we build magnificent legal edifices on elliptical
constitutional phrases—or even the white spaces
between lines of constitutional text. See, e.g.,
Compassion in Dying v. Washington, 79 F.3d 790 (9th
Cir. 1996) (en banc), rev’d sub nom. Washington v.
Glucksberg, 521 U.S. 702 (1997). But, as the panel
-amply demonstrates, when we're none too keen on a
particular constitutional guarantee, we can be equally
ingenious in burying language that is incontrovertibly
there.

It is wrong to use some constitutional provisions as
springboards for major social change while treating
others like senile relatives to be cooped up in a
nursing home until they quit annoying us. As
guardians of the Constitution, we must be consistent
in interpreting its provisions. If we adopt a
jurisprudence sympathetic to individual rights, we
must give broad compass to all constitutional
provisions that protect individuals from tyranny. If we
take a more static approach, we must give all such
provisions narrow scope. Expanding some _ to
gargantuan proportions while discarding others like a
crumpled gum wrapper is not faithfully applying the
Constitution; it’s using our power as federal judges to
constitutionalize our personal preferences.

The able judges of the panel majority are usually very
sympathetic to individual rights, but they have
succumbed to the temptation to pick and choose. Had
they brought the same generous approach to the
Second Amendment that they routinely bring to the
First, Fourth and selected portions of the Fifth, they
would have had no trouble finding an individual right
to bear arms. Indeed, to conclude otherwise, they had
to ignore binding precedent. United States v. Miller,
307 U.S. 174 (1939), did not hold that the defendants
lacked standing to raise a Second Amendment
defense, even though the government argued the
collective rights theory in its brief. See Kleinfeld
Dissent at 6011-12; see also Brannon P. Denning &

4A

Glenn H. Reynolds, Telling Miller’s Tale: A
Reply to David Yassky, 65 Law & Contemp. Probs.
113, 117-18 (2002). The Supreme Court reached the
Second Amendment claim and rejected it on the merits
after finding no evidence that Miller’s weapon—a
sawed-off shotgun—was reasonably susceptible to
militia use. See Miller, 307 U.S. at 178. We are bound
not only by the outcome of Miller but also by its
rationale. If Miller’s claim was dead on arrival because
it was raised by a person rather than a state, why
would the Court have bothered discussing whether a
sawed-off shotgun was suitable for militia use? The
panel majority not only.ignores Miller's test; it renders
most of the opinion wholly superfluous. As an inferior
court, we may not tell the Supreme Court it was out to
lunch when it last visited a constitutional provision.

The majority falls prey to the delusion—popular in
some circles—that ordinary people are too careless
and stupid to own guns, and we would be far better off
leaving all weapons in the hands of professionals on
the government payroll. But the simple truth—born of
experience—is that tyranny thrives best where
government need not fear the wrath of an armed
people. Our own sorry history bears this out:
Disarmament was the tool of choice for subjugating
both slaves and free blacks in the South. In Florida,
patrols searched blacks’ homes for weapons,
confiscated those found and punished their owners
without judicial process. See Robert J. Cottrol &
Raymond T. Diamond, The Second Amendment:
Toward an Afro-Americanist Reconsideration, 80 Geo.
L.J. 309, 338 (1991). In the North, by contrast, blacks
exercised their right to bear arms to defend against
racial mob violence. Id. at 341-42. As Chief Justice
Taney well appreciated, the institution of slavery
required a class of people who lacked the means to
resist. See Dred Scott v. Sandford, 60 U.S. (19 How.)
393, 417 (1857) (finding black citizenship unthinkable
because it would give blacks the right to "keep and
carry arms wherever they went"). A revolt by Nat

SA
Turner and a few dozen other armed blacks could
be put down without much difficulty; one by four
million armed blacks would have meant big trouble.
All too many of the other great tragedies of history—
Stalin’s atrocities, the killing fields of Cambodia, the
Holocaust, to name but a few—were perpetrated by
armed troops against unarmed populations. Many
could well have been avoided or mitigated, had the
perpetrators known their intended victims were
equipped with a rifle and twenty bullets apiece, as the
Militia Act required here. See Kleinfeld Dissent at
9997-99. If a few hundred Jewish fighters in the
Warsaw Ghetto could hold off the Wehrmacht for
~ almost a month with only a handful of weapons, six
million Jews armed with rifles could not so easily have
been herded into cattle cars.
My excellent colleagues have forgotten these bitter
lessons of history. The prospect of tyranny may not
grab the headlines the way vivid stories of gun crime
routinely do. But few saw the Third Reich coming until
it was too late. The Second Amendment is a doomsday
provision, one designed for those exceptionally rare
circumstances where all other rights have failed—
where the government refuses to stand for reelection
and silences those who protest; where courts have lost
the courage to oppose, or can find no one to enforce
their decrees. However improbable these contingencies
may seem today, facing them unprepared is a mistake
a free people get to make only once.
Fortunately, the Framers were wise enough to
entrench the right of the people to keep and bear arms
within our constitutional structure. The purpose and
importance of that right was still fresh in their minds,
and they spelled it out clearly so it would not be
forgotten. Despite the panel’s mighty struggle to erase
these words, they remain, and the people themselves
can read what they say plainly enough:
A well regulated Militia, being necessary to the
security of a free State, the right of the people to keep
and bear Arms, shall not be infringed.

6A

The sheer ponderousness of the panel’s opinion—
the mountain of verbiage it must deploy to explain
away these fourteen short words of constitutional
text—refutes its thesis far more convincingly than
anything I might say. The panel’s labored effort to
smother the Second Amendment by sheer body weight
has all the grace of a sumo wrestler trying to kill a
rattlesnake by sitting on it—and is just as likely to
succeed.

KLEINFELD, Circuit Judge, with whom Circuit
Judges KOZINSKI, O’SCANNLAIN, and T. B. NELSON
join, dissenting from denial of rehearing en banc:

I respectfully dissent from our order denying rehearing
en banc. In so doing, I am expressing agreement with
my colleague Judge Gould’s special concurrence in
Nordyke v. King,' and with the Fifth Circuit’s opinion
in United States v. Emerson,? both taking the position
that the Second Amendment secures an individual,
and not collective, right to keep and bear arms.

The panel opinion holds that the Second Amendment
"imposes no limitation on California’s [or any other
state’s] ability to enact legislation regulating or
prohibiting the possession or use of firearms"? and
"does not confer an individual right to own or possess
arms." The panel opinion erases the Second
Amendment from our Constitution as effectively as it
can, by holding that no individual even has standing
to challenge any law restricting firearm possession or
use. This means that an individual cannot even get a
case into court to raise the question. The panel’s
theory is that "the Second Amendment affords only a
collective right," an odd deviation from the
individualist philosophy of our Founders. The panel
- strikes a novel blow in favor of states’ rights, opining

1319 F.3d 1185 (9th Cir. 2003).

2 270 F.3d 203 (Sth Cir. 2001).

3 Silveira v. Lockyer, 312 F.3d 1052, 1087 (9th Cir. 2002).
4 Id. at 1056.

5 Id. at 1092.

1A

that "the amendment was not adopted to afford
rights to individuals with respect to private gun
ownership or possession," but was instead “adopted
to ensure that effective state militias would be
maintained, thus preserving the people’s right to bear
arms."7 It is not clear from the opinion whom the
States would sue or what such a suit would claim
were they to try to. enforce this right. The panel’s
protection of what it calls the “people’s right to bear
arms" protects that "right" in the same fictional sense
as the "people’s" rights are protected in a "people’s
democratic republic."

Our circuit law regarding the Second Amendment
squarely conflicts with that of the Fifth Circuit.® It is
inconsistent with decisions of the Supreme Court that
have construed the Second Amendment and phrases
within it.2 Our circuit has effectively repealed the
Second Amendment without the democratic protection
of the amendment process, which Article V requires. 1°
The panel decision purports to undertake historical
analysis. Historical context has its uses in
understanding the context and purposes of any law,
constitutional or legislative,41 but like legislative
history, the use of history is subject to abuse. Where
the historical scholarship is partial and tendentious,
relying on it becomes like relying on legislative history:

© Id. at 1087.

7 Id. at 1086.

8 See United States v. Emerson, 270 F.3d 203 (5th Cir.
2001).

9 See United States v. Verdugo-Urquidez, 494 U.S. 259
(1990), United States v. Miller, 307 U.S. 174 (1939).

10 U.S. Const. art. V (describing amendment procedure}.

1! See Portland 76/Auto Truck Plaza v. Union Oil, 153 #.3d
938, 944 (9th Cir. 1998) (“The statute and not the legisiative
history tells us what solution Congress adopted for the
problem, but the iegislative history is useful to determine
what the problem was.”).

"entering a crowded cocktail party and looking
over the heads of the guests for one’s friends."!2

Much of the panel decision purports to be an attempt
to figure out what the word "militia" means in the
Second Amendment. But the panel’s failure to cite the
contemporaneous implementing!* statute defining the
term demonstrates the tendentiousness of its analysis.
The statute defining the militia, which in substance
provides that the "militia" consists of all adult male
citizens without regard to whether they are in any
state or federal military service, has _ been
subsequently altered to expand its coverage, but the
federal militia statute remains in effect.'4¢ Besides
overlooking the statute, the panel somehow failed to
notice that the United States Supreme Court, in
United States v. Miller,15 held that the term "militia" in
the Second Amendment meant, and means, "all males
physically capable of acting in concert for the common
defense." We are an inferior court, bound by this
holding of the Supreme Court.

The panel opinion swims against a rising tide of legal
scholarship to the contrary, relying heavily on a single
law review article that claims "keep and bear" means
the same thing as "bear," which itself means only to
Carry arms as part of a military unit.!6

About twenty percent of the American population,
those who live in the Ninth Circuit, have lost one of
the ten amendments in the Bill of Rights. And, the
methodology used to take away the right threatens the
rest of the Constitution. The most extraordinary step

12 Conroy v. Aniskoff, 507 U.S. 511, 519 (1993) (Scalia, J.,
concurring) (paraphrasing Judge Harold Leventhal).

13 Congress voted to send the Bill of Rights to the states in
September 1789, and it was ratified by the states on
December 15, 1791. The Militia Act was enacted in 1792.

14 See Militia Act, 1 Stat. 271 (1792); 10 U.S.C. § 311.

15 307 U.S. 174, 179 (1939).

16 Silveira, 312 F.3d at 1074 (citing Michael C. Dorf, What
Does the Second Amendment Mean Today?, 76 Chi.-Kent L.
Rev 291, 294 (2000)).

9A

taken by the panel opinion is to read the
frequently used Constitutional phrase, "the people," as
conferring rights only upon collectives, not
individuals. There is no logical boundary to this
misreading, so it threatens all the rights the
Constitution guarantees to "the people," including
those having nothing to do with guns. I cannot
imagine the judges on the panel similarly repealing
the Fourth Amendment’s protection of the right of "the
people” to be secure against unreasonable searches
and seizures,!7 or the right of "the people" to freedom
of assembly,!® but times and personnel change, so
that this right and_all the other rights of "the people"
are jeopardized by planting this weed in our
Constitutional garden.

I,
The Constitution with its amendments is the supreme
law of this land, not historical artifact, so we must
read it, determine what it means, and follow it,
regardless of our policy preferences. The Second
Amendment to the Constitution provides: "A well
regulated Militia, being necessary to the security of a
free State, the right of the people to keep and bear
Arms, shall not be infringed."!9 To figure out what the
Second Amendment means, we should apply standard
and commonly accepted rules of Statutory and
constitutional construction, such as the rule that all
the words must ordinarily be given force. The forceful
language in the operative language in the Amendment,
"the right of the people to keep and bear Arms, shall
not be infringed," is quite clear, as will be set out
below. The statement of the purpose preceding these
operative words, "A well regulated Militia, being
necessary to the security of a free State," makes the
conclusion unavoidable, once "militia" is read

’

17 U.S. Const. amend. IV.
18 U.S. Const. amend. I.
19 U.S. Const. amend. II.

104

seriously, that the operative words
guarantee an individual right.

The panel’s strongest argument (but not strong
enough) is that the word "bear" in the phrase "bear
Arms" "customarily relates to a military function," so
that when not acting in a military capacity, "the
people" have no right to bear Arms.?2° The military
meaning is certainly among the meanings of "bear," as
is "large, heavily built, furry, four-legged mammal,"
and "investor pessimistic about the stock market." But
the primary meaning of "bear" is "to carry,"2! as when
we arrive at our host’s home "bearing gifts" and arrive
at the airport "bearing burdens." The only way to limit
"bear" to its military meaning is to misread "militia" in
the preamble as though it meant regulars in a
standing military service, which, as shall be shown
below, it emphatically does not.

Of course one can cherry-pick dictionary definitions,
just as one can carefully select from legislative and
other history. The panel opinion cites a law review
article citing the Oxford English Dictionary, and
asserts that the OED "defines ‘to bear arms’ as ‘to
serve as a soldier, do military service, fight.’ "22 This is
correct as far as it goes,23 but it is also misleading,
because the OED says that the "main sense"?* of
"bear" is "to carry."25 True, sense 6(a) of "bear" in the
OED is "To carry about with one, or wear, ensigns of

20 Silveira, 312 F.3d at 1072-75.

21 See 2 Oxford English Dictionary 20 (J.A. Simpson &
E.S.C. Weiner, eds. 2d ed. 1989).

22 Silveira, 312 F.3d at 1073 (citing David Yassky, The
Second Amendment: Structure, History and Constitutional
Change, 99 Mich. L. Rev. 588, 619 (2000) (internal citation
omitted)).

23 Oxford English Dictionary 634 (J.A. Simpson & E.S.C.
Weiner, eds. 2d ed. 1989).

24 The Oxford English Dictionary divides meanings broadly
into “senses.” See id. at xxxviii - xxix.

25 2 Oxford English Dictionary 20 (J.A. Simpson & E.S.C.
Weiner, eds. 2d ed. 1989).

11A

office, weapons of offence or defence,"26 and the
OED lists among the fourth sense of "arms," "to bear
arms" — marked as figurative by the editors — defined
as "to serve as a soldier, do military service, fight."
Certainly the phrase has often been used this way, in
judicial opinions and elsewhere. But that does not
vitiate the "main sense” of "bear": to carry. The word
was used the same way when Congress adopted the
Second Amendment. Webster’s 1828 Dictionary offers
"To support" and "To carry" as the first and second
meanings of "bear."27 If we used the panel’s
methodology, taking each word according a right in
the Bill of Rights in the narrowest possible sense, then
we would limit the freedom of "speech" protected by
the First Amendment to oral declamations. The right
of the people to "bear" arms. means, taking the word in
its ordinary sense both then and now, the right of the
people to "carry" arms, subject as all constitutional
rights are to reasonable regulation and restrictions.28
The word "keep" poses a much more difficult problem
for those who, like the panel, favor judicial repeal of
the Second Amendment. While "bear often has a
military meaning, "keep" does not. For centuries, the
primary meaning of "keep" has been "to retain
possession of."29 There is only one straightforward
interpretation of "keep" in the Second Amendment,
and that is that "the people" have the right to retain
possession of arms, subject to reasonable regulation
and restrictions.

26 Id. at 21.

27Webster’s 1828 Dictionary, available at

www.cbtministries.org/resources/webster1828.htm (last

visited April 21, 2003).

28 See, e.g., Ward v. Rock Against Racism, 491 U.S. 781,

791 (1989)(permitting reasonable restrictions on exercise of
- Tight of free speech).

29 See The American Heritage Dictionary 698 (2d ed.

1982).

12K

The panel claims that "[t]he reason why that
term was included in the amendment is not clear."%°
Of course it is not clear to those who have chosen in
advance to evade the ordinary meaning of the word.
Professing mystification by the meaning of "keep," the
panel does a very creative dance around the Founders’
language, arguing that because "bear" means only to
bear in military service, and "keep" is used in the
same "unitary" phrase, "keep" must also be limited to
military service.3! Thus, "keep" means no more than
"bear," that is to possess in the course of rendering
service in a state militia. The dancers eventually trip
up, though, because it is "a cardinal principle of
statutory construction that we must give effect, if
possible, to every clause and word of a statute."32 The
word "keep" must refer to something different from the
word "bear." We, the people, are entitled by its
separate meaning and the word "and" to have it
construed as giving us a right separate from and
additional to the right attached to the word "bear."
Calling the phrase "unitary" is just a fancy way of
depriving the word "keep" of any force. One might as
well say that if someone has a right to keep and drive
a car, and dies, his estate loses the right to keep the
car because he can no longer drive it.

Colonial statutes, as well as those more recent, used
"keep" and "bear" to mean two different things. These
statutory usages show that before, during, and after
Congress adopted the Second Amendment, "keep" and
"bear" were not used in a "unitary" sense, nor was
"keep" limited to militia service. For instance, seamen
and others exempt from militia service were

30 Silveira, 312 F.3d at 1074.

31 Id. at 1074.

32 Williams v. Taylor, 529 U.S. 362, 404 (2000) (internal
citations and quotations omitted).

134
sometimes nevertheless required to "keep"
arms.%3 Contemporary legal usage in statutes, as well
as the plain meaning of the words, shows that law
directed at the right or duty to "keep" arms was
distinct from duties to "bear" arms in militia service.

Il.

The most important phrase for determining the scope
of the operative words of the Second Amendment (and
the most troublesome to the panel) is "the right of the
people." The operative words of the amendment
syntactically protect the right of "the people," not the
"militia," to keep and bear arms. Despite the panel’s
extensive discussion of "keep," "bear," and the
preamble, it simply skips over "the right of the people”
and attempts no direct analysis of the phrase.
Marbury v. Madison held that "It cannot be presumed
that any clause in the Constitution is intended to be
without effect; and, therefore, such a construction is
inadmissible, unless the words require it."34 Yet the
panel’s conclusion that the Second Amendment
creates no individual rights whatsoever, only a
“collective right" apparently not enforceable by
anyone, requires that this clause establishing a "right
of the people" be read as though it were "without
effect."

The "collective rights" interpretation of the Second
Amendment, that it confers a "right" only on state
governments with respect to state militias, is a logical
and verbal impossibility in light of the phrase "right of
the people." As our Constitution is written,
governments have "powers" but no "rights." People
have both "rights" and "powers." And the Bill of Rights
carefully distinguishes between the powers of the
States and the rights of the people, never speaking of

33 See Don B. Kates, Handgun Prohibition and the Original
Meaning of the Second Amendment, 82 Mich. L. Rev. 204
(1983).

34 Marbury v. Madison, 5 U.S. 137, 174 ( 1803).

144
rights of the people when it means powers of the
states.
The Tenth Amendment expressly draws _ both
distinctions, between powers and rights, and between
powers of state governments and powers of the people:
"The powers not delegated to the United States by the
Constitution, nor prohibited by it to the States, are
reserved to the States respectively, or to the people."35
The Tenth Amendment reserves "powers," not "rights,"
to the state governments, and the Ninth preserves
"rights" for "the people." By use of the word "or," the
Tenth Amendment makes it crystal clear that "the
people" are distinct from the state governments and
hold some reserved powers that the state governments
do not. The Ninth Amendment, speaking of "rights"
rather than "powers," prohibits a construction that
- would deny unenumerated "rights" to "the people."
Without it, the inference from an express listing of
rights might have been that there are no others. The
Ninth Amendment does not prohibit such an expressio
untus est exclusio alterius inference with respect to the
state governments, and the Tenth Amendment
carefully avoids sorting out which powers are reserved
to the states, and which to the people.
The Fifth Circuit conducts this same analysis in
United States v. Emerson.* Emerson points out that
the Constitution describes what governments exercise
as "powers" or "authority."37 The "legislative Powers"
are vested in Congress and the "executive Power" is
vested in the President. A "right," however, is always
exercisable by an individual. Indeed, it was not until
recognition of the corporation as a legally cognizable
"person" that the concept of an entity other than an
individual having constitutional "rights" was even
coherent, and the according of "rights" to

35 U.S. Const. amend. X (emphasis added).
36 270 F.3d 203 (Sth Cir. 2001).
37 Id. at 228.

| |
Le ee ee ee ee ee

15SA
"corporations" was and could be accomplished
only by holding that they were "persons."38
The panel’s holding that the right of "the people" with
respect to weapons "was not adopted in order to afford
rights to individuals"39 but only so that "they would
have the right to bear arms in the service of the
state"? is logically absurd. This becomes clear if one
interprets the phrase "the people" consistently, as
sound construction always requires,*! and applies the
Same construction to other amendments. The First
Amendment preserves "the right of the people
peaceably to assemble."42 The panel’s construction
implies that no individual can sue in court for an
abridgment of his or her right to assemble, because
the right is reserved to the people acting collectively.
The Fourth Amendment preserves "the right of the
people" to security from unreasonable searches and
seizures.43
The panel’s construction implies that no individual
has a right enforceable in court to be free from
unreasonable search and seizure, only "the people" as
a collective. Because "the people" act collectively
through their governments, the panel’s logic suggests
that the right to free assembly and the right to be free
from unreasonable searches and seizures are
protected only when people are acting, in the panel’s
phrase, "in the service of the state." That is not our
country.

38 See Pembina Consol. Silver Mining & Milling v.
Pennsylvania, 125 U.S. 181, 189 (1888).

39 Silveira, 312 F.3d at 1087.

40 Id. at 1076.

4! See, e.g., Dept. of Revenue of Oregon v. ACF Indus., 510
U.S. 332, 342 (1994) (noting the “normal rule of statutory
construction that identical words used in different parts of
the same act are intended to have the same meaning.”)
(quoting Sorenson v. Secretary of Treasury, 475 U.S. 851,
860 (1986)) (internal quotations omitted).

42 U.S. Const. amend. I. .

43 U.S. Const. amend. IV.

164

The panel’s interpretation is inconsistent with the
decision of the Supreme Court in United States v.
Verdugo-Urquidez.#* The Supreme Court said that-the
phrase "the people" "seems to be a term of-art" used in
the Preamble to the Constitution ("We the People’),
Article I § 2 (members of the House are chosen by "the
People"), and the First, Second, Fourth, Ninth and
Tenth Amendments, with the same meaning in each
place. The term "the people" means "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."45

In the usage of the Bill of Rights, a right of "the
people" is precisely what the panel says it is not: a
right of individuals that, like their right to peaceably
assemble and to be free from unreasonable search and
seizure, the Constitution entitles them to assert
against the government.**

44 United States v. Verdugo-Urquidez, 494 U.S. 259, 265
(1990).

45 Id.

*The Supreme Court has not determined whether the
Second Amendment has been “incorporated” so as to apply
against the states. Some commentators suggest that a
battle over incorporation stands between the Amendment
and any right enforceable against state legislation. See, e.g.,
Gil Grantmore, The Phages of American Law, 36 U.C. Davis.
L. Rev. 455, 474-75 (2003). The problem of exegesis posed
by the First Amendment, “Congress shall make no law .. .
.” is that somehow the prohibition against federal laws has
to be extended to state laws. The Second Amendment says
that “the right of the people . . . shall not be infringed,”
without limiting this protection of “the people’s” right to
protection against the federal government, so there is no
verbal barrier to incorporation as there was with the First
Amendment. Since it is plain that the First and Fourth
amendments, also protecting rights of “the people,” are
incorporated against the states, it is hard to discern any
sound reason why the right of “the people” in the Second
Amendment would not be similarly incorporated.

174

There is also a collective aspect to "the people,"
but hardly the government-run collective
contemplated by the panel. "We the People," when we
"ordain and establish this Constitution," 47 act
through convention, and then ratification in each
state through conventions of delegates chosen in each
state by the people. The act of "the people” in this
sense was revolutionary, replacing an old regime, the
Articles of Confederation, with a new one. And a core
value protected by the Second Amendment for "the
people" was “the Right of the people to alter or
abolish"** tyrannical government, as they had done a
decade before. The concept had been established by
law in England as well, after its revolution from 1640
to 1660. In 1765, Blackstone explained the right of
every Englishman "of having arms for their defence’
arose from "the natural right of resistance and self-
preservation, when the sanctions of society and laws
are found insufficient to restrain the violence of
oppression."49 .

As Blackstone describes the "natural right" of an
Englishman to keep and bear arms, the arms are for
personal defense as well as resistance to tyranny. The
two are not always separable. After the Civil War,
- southern states began passing "Black Codes,"
designed to limit the freedom of blacks as much as
possible.6© The "Black Codes" often contained
restrictions on firearm ownership and possession.51
The codes sometimes made it a crime for whites even
to loan guns to blacks.82 A substantial part of the

47 U.S. Const. pream.

48 The Declaration of Independence para. 2 (U.S. 1776).

* 1 William Blackstone, Commentaries on the Laws of
England 139 (Legal Classics Library 1983) (1765).

5° Robert J. Cottrol and Raymond T. Diamond, The Second
Amendment: Toward an Afro-Americanist Reconsideration,
80 Geo. L.J. 309, 344 (1991).

51 Id. at 345.

52 Id. at 345 n.178.

18A

debate in Congress on the Fourteenth Amendment
was its necessity to enable blacks to protect
themselves from White terrorism and tyranny in the
South.53 Private terrorist organizations, such as the
Ku Klux Klan, were abetted by southern state
governments’ refusal to protect black citizens, and the
violence of such groups could only be realistically
resisted with private firearms. When the state itself
abets organized terrorism, the right of the people to
keep and bear arms against a tyrant becomes
inseparable from the right to self-defense.

Ill.

The Second Amendment begins with the clause "A
weli-regulated Militia, being necessary to the security
of a free State ... ."&% Like the words "keep," "bear,"
and "the people," this prefatory language requires a
construction that accords it independent meaning. As
we shall see, far from limiting the right of the people to
keep and bear arms to their active military service in
some state-run unit, the prefatory language compels
an interpretation that protects the right of peopie as
individuals to keep and bear arms.

Much of the panel opinion addresses the meaning of
the term "militia," yet the panel fails to acknowledge
the controlling authorities that establish the meaning.
The word "militia" is a term of art, and does not mean
in the Constitution and laws of the United States what
it ;Ae€ans in some popular and journalistic usage — a
group of ultra-right wing individuals who arm
themselves as a paramilitary force. The panel defines

53. Stephen P. Halbrook, That Every Man Be Armed 110-15
(2d ed. 1994). Chief Justice Taney, in contrast, had earlier
led the Supreme Court to deny citizenship to blacks
precisely because it was so unthinkable they should have
the full rights of citizenship — including the right “to keep
and carry arms wherever they went.” Dred Scott v.
Sandford, 60 U.S. 393, 417 (1857).

54 U.S. Const. amend. II.

194

militia as "the permanent state militia, not some
amorphous body of the people as a whole."8S But the
law establishes with the utmost clarity that the militia
is precisely what the panel says it is not, an
"amorphous body of the people as a whole."

The United States Supreme Court’s decision in United
States v. Miller® establishes the definition of "militia"
in the Second Amendment, a definition we, as an
inferior court, must apply. Miller holds that "[tJhe
signification attached to the term Militia appears from
the debates in the Convention, the history and
‘legislation of Colonies and States, and the writings of
approved commentators. These show plainly enough
that the Militia comprised all males physically capable
of acting in concert for the common defense. ‘A body of
citizens enrolled for military discipline.’ "87 As no
intervening Supreme Court decision has altered this
holding, we must proceed on the basis that a militia is
a body of citizens, comprised at least of all males
physically capable of acting in concert for the common
defense. We shall see that "enrolled," for purposes of
militia service, means something more like being
registered for the draft, listed in the computer rolls for
potential jury service, or enrolled by social security
number for payment of taxes, than showing up at an
armory for signup and training. The panel offers no
explanation (and none could suffice) for failing to
follow Miller’s definition.

The Second Amendment was ratified in 1791. The
next year, Congress enacted the Militia Act,5%
implementing the Amendment and incorporating the
general understanding of the time as to what the word
meant, and establishing that the militia was indeed
what the panel says it was not — an "amorphous body

Silveira, 312 F.3d at 1072.

Id. at 179.

55
s© United States v. Miller, 307 U.S.-174 (1939).
$7
88 Militia Act, 1 Stat. 271 (1792).

204

of the people as a_ whole."5® The Militia Act
of 1792 defined the "militia" as: “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."©° Thus, contrary to the "collective rights"
notion in the panel opinion, the militia was precisely
not "a state entity, a state fighting force,"®! limited to
those who are active members of such a collective
organization. It was all the able-bodied white male
citizens from 18 to 45, whether they were organized
into a state fighting force or not.

In the appendix, I have reproduced the full text of this
act of the Second Congress of the United States, and
the text of section one appears in the footnote. It is
worth noting a few additional aspects of the act. First,
"each and every" "free able-bodied white male citizen"
between 18 and 45 is in the militia. Second, each such
person "shall" be enrolled by the commanding officer
and notified of his enrollment, whether he wants to be
enrolled or not.62 Most importantly, third, the act

59 That contemporaneous Congressional enactments should
inform our interpretation of the Bill of Rights is well
established. See Marsh v. Chambers, 463 U.S. 783, 788-92
(1983) (in discussing the constitutionality of opening
legislative sessions with a prayer, “It can hardly be thought
that in the same week Members of the First Congress voted
to appoint and to pay a Chaplain for each House and also
voted to approve the draft of the First Amendment for
submission to the States, they intended the Establishment
Clause of the Amendment to forbid what they had just
declared acceptable.”).

60 Id.

61 Silveira, 312 F.3d at 1070.

62 CHAP. XXXIII.— An Act more effectually to provide for the
National Defence by establishing an Uniform Militia
throughout the United States. (a)

SECTION 1. Be it enacted by the Senate and House of
Representatives of the United States of America in Congress
assembled, That each and every free able-bodied white male

Oe

214
required this “amorphous _ body of the people as a
whole" to arm themselves, as opposed to the historical
notion concocted by the panel that the Second
Amendment merely "preserved the right of the states to

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 (except as is herein after excepted) shall
severally and respectively be enrolled in the militia by the
captain or commanding officer of the company, within
whose bounds such citizen shall reside, and that within
twelve months after the passing of this act. And it shall at
all times hereafter be the duty of every such captain or
commanding officer of a company to enrol every such
citizen, as aforesaid, and also those who shall, from time to
time, arrive at the age of eighteen years, or being of the age
of eighteen years and under the age of forty-five years
(except as before excepted) shall come to reside within his
bounds; and shall without delay notify such citizen of the
said enrolment, by a proper noncommissioned officer of the
company, by whom such notice may be proved. That every
citizen so enrolled and notified, shall, within six months
thereafter, provide himself with a good musket or firelock, a
sufficient bayonet and belt, two spare flints, and a
knapsack, a pouch with a box therein to contain not less
than twenty-four cartridges, suited to the bore of his
musket or firelock, each cartridge to contain a proper
quantity of powder and ball; or with a good rifle, knapsack,
shot-pouch and powder-horn, twenty balls suited to the
bore of his rifle, and a quarter of a pound of powder; and
shall appear, so armed, accoutred and provided, when
called out to exercise, or into service, except, that when
called out on company days to exercise only, he may appear
without a knapsack. That the commissioned officers shall
severally be armed with a sword or hanger and espontoon,
and that from and after five years from the passing of this
act, all muskets for arming the militia as herein required,
shall be of bores sufficient for balls of the eighteenth part of
a pound. And every citizen so enrolled, and providing
himself with the arms, ammunition and accoutrements
required as aforesaid, shall hold the same exempted from
all suits, distresses, executions or sales, for debt or for the
payment of taxes.

224

arm their militias." The key language of this
enactment, contemporaneous with the Second
Amendment, is that "every citizen so enrolled and
notified shall, within six months thereafter, provide
himself with a good musket or firelock . . . or with a
good rifle."* Each militiaman also, by federal law, had
to "provide himself’ with a bayonet, two spare flints, at
least 24 cartridges if he brought a musket or firelock,
or 20 balls (bullets) if he brought a rifle, and all sorts
of other shooting equipment denoted in the finest
detail by the statute.66 The weapons, ammunition and
accessories were, by federal statute, "exempted" from
all suits and execution "for debt or for the payment of
taxes."66 Thus militiamen were entitled to keep their
weapons even if a creditor could take the rest of their
property, and even if that creditor was the government
(for unpaid taxes).

An incidental’ obenefit from reading this
contemporaneous implementing statute is that it
makes perfectly obvious what "well regulated" meant
at the time the Second Amendment was adopted. The
panel seems to imagine that a well regulated militia is
a people disarmed until the government puts guns in
their hands after summoning them to service. But the
contemporaneous statute shows that a well regulated

63 Silveira, 312 F.3d at 1087 (emphasis added).

64 1 Stat. 271 (1792) (emphasis added).

A musket is a shoulder gun, not necessarily rifled, named
as guns used to be after a small bird of prey. A firelock is a
flintlock, igniting the powder by flint and steel much as a
Zippo ignites lighter fluid; a rifle is a shoulder gun with
grooves in the barrel to make the bullet spin like a football
as it flies. See 5 Oxford English Dictionary 950 (J.A.
Simpson & E.S.C. Weiner, eds. 2d ed. 1989) (firelock); 10
Oxford English Dictionary 132 (J.A. Simpson & E.S.C.
Weiner, eds. 2d ed. 1989) (musket); and see generally John
Olson, The Book of the Rifle, 7-9 (1974); NRA Firearms Fact
Book 33-35 (3d ed. 1989).

6S 1 Stat. 271 (1792) (emphasis added).

66 = Id.

234

militia is just the opposite, a people who
have armed themselves at least to minimal national
standards, and whom the militia officers inspect to
assure that they have not wandered in off the streets
without guns.§7 The "regulat[ion]" contemplated was
not to disarm people when they were not at militia
exercises, but rather to make sure they were armed,
with their own guns. This was consistent with the
colonial pattern of laws that typically "required
colonists to carry weapons."6* Among the acts of the
crown seen as oppressions to be prevented from ever
happening again were the Militia Acts of 1757 through
1763 authorizing British officials "to seize and remove
the arms" of colonial militias when they thought it
necessary to the peace of the kingdom.6 The
American Revolution was triggered when General Gage
ordered troops to march from Boston to Lexington and
Concord to do just that.7 "[T]he Framers very
arguably rejected as basic a Weberian notion as the
state’s monopoly on legitimate violence . . . . [T]he
Framers weren’t late-twentieth-century Americans

°7 The notion of regulation requiring rather than prohibiting
civilians to carry guns is not so antique as this reference
may be taken to imply. The previously silent Alaska statutes
were amended in 1949 to require flyers of small planes to
Carry emergency equipment including “one pistol, revolver,
shotgun, or rifle, and ammunition for the same” much as
the colonial statutes did, in order to enable the pilot to
protect against bears if the plane went down before
completing its flight. This requirement was deleted from the
statute in 2001. See Alaska Stat. § 02.35.110 (current
version); ACLA § 32-6-13 (1949), amended by § 2 ch 128
SLA 1949 (adding provision requiring firearms); and § 10 ch
56 SLA 2001 (deleting that provision).

68 See Joyce Lee Malcom, To Keep and Bear Arms 139
(Harvard 1994).

69 Id. at 144.

70 Id. at 145.

244

(much less late-twentieth-century Europeans)... . "7!
They were the heirs of two revolutions, the English
and the American, with an altogether different
worldview.

The federal militia act promulgated immediately after
the Second Amendment was ratified assured that no
state could lighten the burden of its militia-eligible
citizens, perhaps by requiring of them only a dozen
rounds of ammunition instead of two dozen. And the
militia officers had to check to make sure all the able-
bodied white male citizens showed up when
summoned, as a jury clerk does. Beyond that, they
had to conduct inspections to make sure everyone had
the firearms, bullets, bayonets, two spare flints,
quarter pound of powder, ammunition pouch, and all
the accessories the statute required of them.72 These
were the national regulations of the "well regulated
militia.”

The interpretation the panel gives to the phrase "well
regulated" makes no more_ sense than _ the
interpretation it gives to "militia." The panel relies on a
single law review article for the proposition that the
purpose of a "well regulated Militia" is inconsistent
with an individual right to own weapons.7? The law
review article simply presents the author’s opinion, as
an ipse dixit, that "[The Second Amendment] does not
apply to the ‘unorganized’ militia, because that militia
is certainly not ‘well regulated’. . . The majority in the
First Congress intended to reassure the Anti-

71 Glenn Harlan Reynolds, The Second Amendment as a
Window on the Framer’s Worldview, in Eugene Volokh,
Robert J. Cottrol, Sanford Levinson, L.A. Powe, Jr., & Glenn
Harlan Reynolds, The Second Amendment as Teaching Tool
in Constitutional Law Classes, 48 J. Legal Educ. 591, 598
(1998).

72 1 Stat. 271 (1792).

73 Silveira, 312 F.3d at 1072 (citing Paul Finkelman, “A Well
Regulated Militia”: The Second Amendment in Historical
Perspective, 76 Chi.-Kent L. Rev. 195, 234 (2000)).

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254

federalists that the national government
would not disarm those who are trained by the state
militia and in that body — the ‘well regulated Militia.’
"74 One reason this makes no sense is that the Second
Congress, consisting of many of the same personnel
as the first, described precisely what sort of regulation
they had in mind for a "well regulated" militia, and far
from requiring that anyone with a gun be trained and
supervised, they required that all the untrained and
unsupervised white male citizens between 18 and 45
acquire and maintain guns and ammunition. Another
reason is that, as the panel concedes, the Second
Amendment was written in part to avoid the necessity
of standing armies, and protect the citizenry against
standing armies, precisely the opposite of requiring
that only members of formally organized standing
collective government organizations have guns.

Were the modern federal statute to narrow the
meaning of "militia" to something like the organized
national guard that the panel envisions, then the
statutory meaning of the term would differ from the
meaning in the Second Amendment, and we would be
bound, for Constitutional purposes, by the broader
definition established by Miller. It would be as though
Congress defined "press" for purposes of issuing press
passes to a reserved section of the Capitol building to
mean something narrower than "press" for purposes of
the "freedom . . . of the press" protected by the First
Amendment. The new, narrower statutory meaning
would not limit the Constitutional freedom.

We need not parse this problem, though, because
Congress has broadened rather than narrowed the
term. Today the United States Code still defines the
term ‘"militia.""5 The modern statute, instead of

’4 Finkelman, 76 Chi.-Kent L. Rev. at 234. ’
7° 10 U.S.C. § 311. Militia: composition and classes

The militia of the United States consists of all able-bodied

males at least 17 years of age and, except as provided in

section 313 of title 32, under 45 years of age who are, or

a
tt tl ee ee

264

narrowing the militia to an organized body of
regularly supervised and trained part time soldiers,
broadens the term. The statute specifies that the
"militia" consists not only of the "organized" militia,
consisting of the National Guard and the Naval Militia,
but also an "unorganized militia." The "unorganized
militia" is precisely what the panel says it is not, "an
amorphous body of the people as a whole." Now,
instead of being limited to white male citizens between
18 and 45, the militia has (of course) no racial
restriction. Non-citizens are now included, provided
they have declared an intention to become citizens.
The sex restriction is gone and females are included if
they are members of the National Guard. People
become part of the militia now at age 17 instead of 18.
The only narrowing of the statutory scope is that we
are no longer required by law to own and furnish
guns, ammunition and bayonets. So now the militia
consists not only of all white male citizens between 18
and 45, but also all able-bodied non-white males,
whether citizens or non-citizens declared for
citizenship, between 17 and 45, and all females in the
National Guard. Those of us who are male and able-
bodied have almost all been militiamen for most of our
lives whether we know it or not, whether we were
organized or not, whether our state governments
supervised our possession and use of arms or not.

Thus, as used in law, the meaning of the word has not
changed significantly, other than to grow more
inclusive. It is, and always has been, emphatically the

who have made a declaration of intention to become,
citizens of the United States and of female citizens of the
United States who are members of the National Guard.

The classes of the militia are—

the organized militia, which consists of the National Guard
and the Naval Militia; and

(2) the unorganized militia, which consists of the members
of the militia who are not members of the National Guard or
the Naval

274

case that militia members do not have to
be "organized" in a "collective" state service, because
the statute provides expressly for the existence of the
"unorganized" militia. Members of the National Guard
are in the “organized militia," and those not in the
National Guard are also in the "unorganized militia."
Various classes of persons are exempt from militia
service, most notably the "organized fighting force," as
the panel would put it, who are active "[mJembers of
the armed forces." Thus, soldiers, as we now use the
term, are generally not in the militia, and the rest of
us are. Far from being an organized collectivity
functioning as a fighting force, the militia is like the
jury pool, consisting of "the people," limited, like the
jury pool, to those capable of performing the service
for which militias or jury pools are established. The
militia is indeed "the people," as individuals and not
as an organized collective body, and the Second
Amendment expressly prohibits government from
disarming the people.

IV.

The next analytic task is to determine how the
prefatory or purpose clause of the Second
Amendment, "A well-regulated Militia, being necessary
to the security of a free State," bears on the meaning
of "the right of the people to keep and bear Arms." The
panel’s interpretation that the Second Amendment
protects only the right of the states to arm their
militias is syntactically impossible, because the
language expressly provides that the right belongs to
"the people" rather than the states or the militias.
Treating the right the Second Amendment assigns to
"the people" as a power of the militia is even less
defensible than it would be to limit the Congressional
power to grant copyrights only to those writings that
actually do "promote the Progress of Science and
useful Arts,"76 rendering The Wizard of Oz and

76 U.S. Const. art. I.

Steamboat Willie uncopyrightable. The task of
providing a sounder interpretation is assisted by
consideration of the historical context of the Second
Amendment, the analytic approach used by the
Supreme Court in United States v. Miller, and the
practical consequences for militia service of an armed,
or disarmed, populace.

The historical context of the Second Amendment is a
long struggle by the English citizenry to enable
common people to possess firearms. When the
Amendment was adopted, the drafters doubtless
turned to provisions in many of the state constitutions
as models.77 These provisions themselves had models,
in the tradition of common-law lawyers copying older
forms. Like many of our individual liberties, the right
to keep and bear arms was cemented into English law
in the aftermath of the English Revolution, a little over
a century before the Second Amendment was drafted.
And like many provisions of the federal Constitution,
the Second Amendment had state constitutional
models, among which justificatory preambles were
common.78

The history that led to the drafting of the Second
Amendment evolved for centuries in England, leading
to its immediate predecessor in the English
Declaration of Rights. A 1328 statute provided for
forfeiture of arms and imprisonment if they were
improperly used or carried.79 A 1686 case construing
that statute held that its purpose was "to punish
people who go armed to terrify the King’s subjects,"8°

77 Eugene Volokh, The Commonplace Second Amendment,
73 N.Y.U. L. Rev. 793, 814 et seq. (1998).

78 Id. at 794 et seq.

79 Statute of Northampton, 2 Edw. 3, c. 3 (1328) (quoted in
5S The Founders’ Constitution 209 (Philip B. Kurland &
Ralph Lerner, eds., Liberty Fund 1987)).

80 Sir John Knight’s Case, 87 Eng. Rep. 75 (K.B. 1686)
(quoted in 5 The Founders’ Constitution 209 (Philip B.
Kurland & Ralph Lerner, eds., Liberty Fund 1987)).

294

apparently limiting the statute. Of course the
King’s subjects decided to quit being subjects in the
English revolution, from 1640 to 1660, and seized for
commoners rights that had previously been limited.
After the Restoration, following a long series of
grievances against James II, Parliament declared in
1689 that the English throne was "vacant."8! In
response to these grievances, and prior to offering the
throne to William of Orange and Mary, parliament
drafted the Declaration of Rights. In the debates
leading up to the passage of the Declaration of Rights,
members of parliament complained of Charles II’s and
James Il’s attempts to disarm their subjects.82
Parliament conditioned William’s and Mary’s accession
upon their acceptance of the Declaration of Rights (or
Bill of Rights as it is usually termed) of 1689.

The English Bill of Rights, a century before ours,
provided "That the subjects which are protestants,
may have arms for their defence suitable to their
conditions, and as allowed by law."83 Since England
had no states, obviously this right of "subjects" was a
right of individuals, not of states. William Blackstone,
who wrote his Commentaries roughly 75 years after
the Declaration of Rights, provided the standard
reference work for Colonial and early American
lawyers. "[His] works constituted the preeminent
authority on English law for the founding
generation,"®* and he was "the Framers’ accepted
authority on English law and_ the English
Constitution."8§ Because Blackstone covered the

8! Joyce Lee Malcom, To Keep and Bear Arms 113 (Harvard
1994).

82 Id. at 115.

83 1 W. & M., 2d sess., c, 2, Dec. 16, 1689 (quoted in 5 The
Founders’ Constitution 210 (Philip B. Kurland & Ralph
Lerner, eds., Liberty Fund 1987)).

84 Alden v. Maine, 527 U.S. 706, 715 (1999).

85 Neder v. United States, 527 U.S. 1, 30 (1999) (Scalia,
Souter, & Ginsburg, JJ., concurring in part and dissenting
in part). :

304

whole of the common law in only four easily read,
highly portable, well indexed volumes, it is easy to see
why our Founders found his treatise so useful, and
copied from it as much as they did. Blackstone
explains that the right of "having" arms is among the
five basic rights of every Englishman, those rights
which serve to secure the "primary rights."®¢ The right
to have arms is a natural right, in Blackstone’s view,
because it arises from the natural right of self
preservation, and the right (as an Englishman writing
only a century after the English Revolution would be
mindful of) of "resistance . . . to the violence of
oppression." Blackstone wrote: "The fifth and last
auxiliary right of the subject, that I shall at present
mention, is that of having arms for their defence,
suitable to their condition and degree, and such as are
allowed by law. Which is also declared by the same
statute 1 W. & M. st. 2. c.2 [the provision of the
English Bill of Rights quoted above] and is indeed a
public allowance, under due restrictions, of the
natural right of resistance and self-preservation, when
the sanctions of society and laws are found
insufficient to restrain the violence of oppression."87
Though Blackstone refers to the right of resistance
against oppression, his reasoning in the preceding
pages is based more on the idea that life and limb are
a gift of God, that natural liberty consists of "the right
of personal security, the right of personal liberty, and
the right of private property,"®* and that the high
value of life is what pardons homicide if in self
defense.®9

The English Bill of Rights and the Constitution’s
predecessor state constitutions based on it protected a
private and individual right to bear arms both for self

86 | William Blackstone, Commentaries on the Laws of
England 136, 139 (Legal Classics Library 1983) (1765).

87 Id. at 139.

88 Id. at 125.

89 Id. at 126.

314

defense and for defense against oppression, as
Blackstone explained. The Second Amendment was
not novel, but rather codified and expanded upon long
established principles. These principles protected
individual, not collective, rights to keep and bear
arms. And it was so understood. William Rawle’s A
View of the Constitution, published in 1829, explained
"The prohibition [in the Second Amendment] is
general. No clause in the Constitution could by any
rule of construction be conceived to give to congress a
power to disarm the people. Such a flagitious attempt
could only be made under some general pretence by a
state legislature. But if in any blind pursuit of
inordinate power, either should attempt it, this
amendment may be appealed to as a restraint on
both." Likewise, Justice Joseph Story wrote that
"The militia is the natural defence of a free country
against sudden _ foreign invasions, domestic
insurrections, and domestic usurpations of power by
rulers. It is against sound policy for a free people to
keep up large military establishments and standing
armies in time of peace, both from the enormous
expenses, with which they are attended, and the facile
means, which they afford to ambitious and
unprincipled rulers, to subvert the government, or
trample upon the rights of the people. The right of the
citizens to keep and bear arms has justly been
considered, as the palladium of the liberties of a
republic; since it offers a strong moral check against
the usurpation and arbitrary power of rulers; and will
generally, even if these are successful in the first
instance, enable the people to resist and triumph over
them."9!

9 William Rawle, A View of the Constitution of the United
States, 125-26 (2d. ed 1829) (quoted in 5 The Founders’
Constitution 214 (Philip B. Kurland & Ralph Lerner, eds.,
Liberty Fund 1987)).

91 3 Joseph Story, Commentaries on the Constitution §
1890 (1833) (quoted in 5 The Founders’ Constitution 214

324

Judge Thomas Cooley, in his The General Principles
of Constitutional Law wrote "It may be supposed from
the phraseology of this provision that the right to keep
and bear arms was only guaranteed to the militia; but
this would be an interpretation not warranted by the
intent. The militia, as has been elsewhere explained,
consists of those persons who, under the law, are
liable to the performance of military duty, and are
officered and enrolled for service when called upon.
But the law may make provision for the enrolment of
all who are fit to perform military duty, or of a small
number only, or it may wholly omit to make any
provision at all; and if the right were limited to those
enrolled, the purpose of this guaranty might be
defeated altogether by the action or neglect to act of
the government it was meant to hold in check. The
meaning of the provision undoubtedly is, that the
people, from whom the militia must be taken, shall
have the right to keep and bear arms, and they need
no permission or regulation of law for the purpose."%
Both Judge Cooley and Justice Story are, of course,
expressly cited as "important" commentators by the
Supreme Court’s opinion in Miller.9%

As Justice Thomas has written, "a growing body of
scholarly commentary indicates that the ‘right to keep
and bear arms’ is, as the Amendment’s text suggests,
a personal right."% The embarrassed attitude of many

(Philip B. Kurland & Ralph Lerner, eds., Liberty Fund
1987)).

92 Thomas M. Cooley, The General Principles of
Constitutional Law in the United States of America 281-82
(2d ed. 1891) (quoted in David B. Kopel, The Second
Amendment in the Nineteenth Century, 1998 B.Y.U. L. Rev.
1359, 1465 (1998)).

93 United States v. Miller, 307 U.S. 174, 182 n.3 (1939).

94 Printz v. United States, 521 U.S. 898, 938 n.2 (1997)
(Thomas, J., concurring) (citing J. Malcolm, To Keep and
Bear Arms: The Origins of an Anglo-American Right 162
(1994); S. Halbrook, That Every Man Be Armed, The
Evolution of a Constitutional Right (1984); Van Alstyne, The

334 |
of the honest scholars who have so concluded,
contrary to their own policy preferences, is well stated
by the title of one of the seminal articles, "The
Embarrassing Second Amendment." The texts and
treatises appear generally to be moving to the view
expressed in this opinion.%

V.
What we have, in the Second Amendment, is a
prohibition against government infringement of an
individual right to keep and bear arms, consistent
with what had long been understood to be a natural
right guaranteed by the English Bill of Rights to
Englishmen. The militia clause expanded the
protection from the English Bill of Rights to emphasize
the importance of a check and balance on standing
armies in addition to the traditional English right to
possess arms for purposes of self-defense. Like any
right, it is not absolute. Just as the right to freedom of
speech is subject to limitations for defamation,
threats, conspiracy, and all sorts of other traditional
qualifications, so is the right to keep and bear arms.
Indeed, the word "infringed" in the Second
Amendment suggests that the right, such as it is, may
not be "encroached upon,"% rather than that it, unlike

Second Amendment and the Personal Right to Arms, 43
Duke L.J. 1236 (1994); Amar, The Bill of Rights and the
Fourteenth Amendment, 101 Yale L.J. 1193 (1992); Cottrol
& Diamond, The Second Amendment: Toward an Afro-
Americanist Reconsideration, 80 Geo. L.J. 309 (1991);
Levinson, The Embarrassing Second Amendment, 99 Yale
L.J. 637 (1989); Kates, Handgun Prohibition and the
Original Meaning of the Second Amendment, 82 Mich.
L.Rev. 204 (1983)).

% See, e.g., 1 Laurence H. Tribe, American Constitutional
Law 902 n.211 (3d. ed. 2000) (recognizing a “right
(admittedly of uncertain scope) on the part of individuals to
possess and use firearms in the defense of themselves and
their homes 8 .”) and Akhil Reed Amar, The Bili of Rights
46-63 (1998) (adopting individual rights view).

% The American Heritage Dictionary 661 (2d ed. 1982).

- 348

all the other rights in the _ Bill of Rights, is absolute.
The one thing that is absolute is that the Second
Amendment guarantees a personal and individual
right ico keep and bear arms, and _ prohibits
government from disarming the people.

The Supreme Court’s decision in United States v.
Miller®? establishes the method by which we must
apply the Amendment’s opening clause, "A_ well
regulated militia, being necessary to the security of a
free state." In Miller, two defendants tried to get an
indictment for possessing a sawed off shotgun
dismissed on the basis of the Second Amendment
right to keep and bear arms. The district court granted
their motion. The Supreme Court reversed and
remanded. Miller teaches that the Amendment has the
"obvious purpose to assure the continuation and
render possible the effectiveness"%* of state militias
who would be "civilians primarily, soldiers on
occasion," -9® because of the wariness at the time
toward standing armies. The term "militia," Miller
holds, was intended in the Second Amendment to
denote substantially "all males physically capable of
acting in concert for the common defense."!©° Far from
being armed by the state governments as they found
desirable, as the panel says,!®! Miller holds that "these
men were expected to appear bearing arms supplied
by themselves." 1% Miller cites Blackstone, Adam
Smith, and colonial history sources, explaining the
civilian aspect of militias, as opposed to standing
armies, and that the militia system implied not just a
right, but "the general obligation of all adult male

97 307 U.S. 174 (1939).

9% Id. at 178.

9 Id. at 179.

100 Id.

101 Silveira, 312 F.3d at 1087.
102 307 U.S. at 179.

354

inhabitants to possess arms,"!% to assist as
needed in defense, and to furnish ammunition,
subject to fines if they did not possess arms. Many
of the colonies’ laws, quoted extensively in Miller,
established minimum standards to assure that the
weapons were adequate, such as that a musket had to
be at least 39" long. Much as building codes today
require smoke detectors in the home, a man had to
have a bullet mould, a pound of powder, four pounds
of lead, and twenty bullets, to be produced when
called for by a militia officer.195

Thus Miller cemented in, rather than reading out, the
interpretation of the Second Amendment that I have
followed. The Amendment reflected the Founders’
hostility to standing armies, and had as its purpose
assuring the effectiveness of a civilian non-standing
militia consisting of most of the able-bodied male
population, who were expected and often required to
own their own guns. The reason that the defendants
(who did not appear on appeal!) lost their case was
that "In the absence of any evidence tending to show
that possession or use of a ‘shotgun having a barrel of
less than eighteen inches in length’ at this time has
some reasonable relationship to the preservation or
efficiency of a well regulated militia, we cannot say
that the Second Amendment guarantees the right to
keep and bear such an instrument. Certainly it is not
within judicial notice that this weapon is any part of
the ordinary military equipment or that its use could
contribute to the common defense."1°7

What is striking about the reversal in Miller is the
great care the court took to limit its holding. Miller did

103 Id. (quoting 1 Osgood, The American Colonies in the
17th Century).

104 Id. at 180.

105 Td. at 180-81.

106 Stephen P. Halbrook, That Every Man Be Armed 165 (2d
ed. 1994).

107 Miller, 307 U.S. at 178 (emphasis added).

364

not adopt the "collective rights” notion that only
state governments as supervisors of the militia could
possess arms, though the government had urged that
interpretation on the Court in its brief.!°% Miller
rejected the notion of a sawed-off shotgun as a militia
weapon. It did not reject the right of individuals to
possess arms. And Miller qualified even the rejection of
sawed-off shotguns, by limiting the holding to a case
where there was no evidence, and judicial notice could
not be taken, of any "reasonable relationship" of
sawed-off shotguns to militia use. Had the Court been
of the view that the Second Amendment protected only
the powers of the states to arm their militias, it would
have accepted that argument from the government’s
brief, and never would have reached the issue of the
relationship of sawed off shotguns to militias.

What private possession of arms does carry a
"reasonable relationship to the preservation or
efficiency of a well-regulated militia?” This is the
question we must ask because this is the Second
Amendment test Miller construes’ from _ the
introductory clause of the Amendment. At the time the
Amendment was drafted, when states were likely to
have inadequate revenues to arm their militias, it was
necessary that those who might be useful arm
themselves with military type weapons. That is
probably less relevant today, though times can always
change. But the issue of furnishing arms for combat is
not the only one involved in militia effectiveness. An
effective militia requires not only that people have
guns, but that they be able to shoot them with more
danger to their adversaries than themselves. Standing
next to a nineteen year old who for the first time has a
loaded gun in his hands is like taking a fifteen or
sixteen year old for his first driving lesson. And if no
one knew how to shoot except designated shooters, a
military supply unit of new recruits would be as

106 United States v. Emerson, 270 F.3d 203, 223 (Sth Cir.
2001).

374

helpless as if no one knew how to drive except
designated drivers. Just as military mobility is
enhanced by near-universal civilian knowledge of how
to drive, likewise military effectiveness is promoted by
widespread civilian shooting skills (and, we shall see,
Congress has so decided and_ provided for civilian
firearms training).

An effective militia undoubtedly requires that a
considerable portion of the members enter it with
some familiarity with gun safety and use. Beginning in
1916, Congress provided for the army to promote
"practice in the use of rifled arms" by giving free
weapons and ammunition to "youth-oriented
organizations" and selling army surplus weapons to
adults, in an army-assisted "Civilian Marksmanship
Program."109 [In 1996, Congress’ created an
independent federal corporation, the first board of
directors to be appointed by the Secretary of the Army,
to carry on the same program,!!° which is in effect
today, for "instruction of citizens of the United States
in marksmanship."!11 Congress directed that the
corporation "give priority to activities that benefit
firearms safety, training, and competition for youth
and that reach as many youth participants as
possible."112 Thus, regardless of what policy
preferences others might have, the policy Congress
has adopted (and re-adopted in 1996) is to provide for
a well regulated militia by putting guns in young
people’s hands and teaching them how to handle them
safely and how to shoot them.

Though the stated justification and purpose of the
Amendment relates to the militia, the language is
carefully drafted to avoid abridging the traditional
English Bill of Rights entitlement of individuals to

9 10 U.S.C. § 4308 (1995).

10 36 U.S.C. § 5501 (1996) (current version at 36 U.S.C. §§
40701-02).

111 36 U.S.C. § 5502 (1996), recodified at 36 U.S.C. § 40722.
112 36 U.S.C. § 5502 (1996) recodified at 36 U.S.C. § 40724.

38h

possess arms for self defense. It would have, of
course, been highly unlikely that the American
Revolutionaries a few years later would have wanted
to deprive Americans of rights they had always had as
Englishmen. They protected this traditional right by
attaching the "right . . . to keep and bear Arms" to "the
people," rather than establishing it as a "power" of the
states. The English right was retained, and expanded.
Like most serious discussions of the Second
Amendment, this dissent focuses heavily on history.
Though general history, like legislative history, cannot
be used to supplant the words of the law, it informs us
of what social problem the writers of the law intended
to address.!13 The problem the Founders sought to
avoid was a disarmed populace. At the margins, the
Second Amendment can be read various ways in
various cases, but there is no way this Amendment,
designed to assure an armed population, can be read
to allow government to disarm the population.

VI.
Constitutional interpretation cannot properly be based
on whatever policy judgments we might make about
the desirability of an armed populace, or the relevance
of the Amendment’s concern with citizen militias to
modern times. Those who think the Second
Amendment is a troublesome antique inappropriate to
modern times can repeal it, as provided in Article V.
That has been done before, as with legislative selection
of Senators, and with Prohibition. There is a serious
argument for its continued relevance, from those who
think that the natural right to self defense, protected
by the English Bill of Rights as well as the Second
Amendment, is still important as a matter of policy. A
police force in a free state cannot provide everyone
with bodyguards. Indeed, while some think guns
cause violent crime, others think that widespread

113 See Portland 76/Auto Truck Plaza v. Union Oil, 153 F.3d
938, 944 (9th Cir. 1998).

394

possession of guns on balance reduces violent
crime.114 None of these policy arguments on either
side affects what the Second Amendment says, that
our Constitution protects "the right of the people to
keep and bear Arms."

Neither can judges’ policy concerns affect our duty as
a court. Congress and the states may enact
reasonable restrictions to manage the ways in which
the populace exercises its right to keep and bear arms,
just as reasonable restrictions are imposed on our
rights to free speech, free assembly, freedom from
search and seizure, and all our other constitutional
rights. What the Second Amendment prohibits is not
reasonable regulation consistent with its purposes,
but disarmament of the people. Where the
Constitution establishes a right of the people, no
organ of the government, including the courts, can
legitimately take that right away from the people. All of
our rights, every one of them, may become
impediments to the efficient functioning of our
government and our society from time to time, but
fortunately they are locked in by the Constitution
against permanent loss because of temporary
impediments. The courts should enforce our
individual rights guaranteed by our Constitution, not
erase them.

GOULD, Circuit Judge, with whom Circuit Judge
KOZINSKI joins, dissenting from denial of rehearing
en banc:

The error of Hickman v. Block, 81 F.3d 98 (9th Cir.
1996), is repeated once again, thus I respectfully
dissent from denial of rehearing en banc for the
reasons stated in my concurring opinion in Nordyke uv.
King, 319 F.3d 1185, 1192-98 (9th Cir. 2003) (Gould,
J., specially concurring). As 1 there explained,
restricting the Second Amendment to a "collective

114 See, e.g., John Lott, More Guns, Less Crime (1998).

404
rights" view and ignoring _ the individual right of the
people to keep and bear arms is inconsistent with the
Second Amendment’s language, structure, and
purposes, and weakens our Nation against recurrent
internal and external threats that may undermine
individual liberty. See also United States v. Emerson,
270 F.3d 203 (Sth Cir. 2001).

DECISION OF US COURT OF APPEALS
SILVEIRA v. LOCKYER,
312 F.3d 1052 (97 Cir. Dec. 5, 2002,
amended Jan. 27, 2003)
http: / /caselaw.lp.findlaw.com/data2/circs/9th/0115
O98ap.pdf

UNITED STATES COURT OF APPEALS
NINTH CIRCUIT

SEAN SILVEIRA, et al, Plaintiffs-Appellants,
v.
BILL LOCKYER, Attorney General; GRAY DAVIS,
Governor, State of California, Defendants-Appellees.

Appeal from the United States District Court
Eastern District of California
William B. Shubb, District Judge, Presiding
Argued and Submitted
February 15, 2002—San Francisco, California
FILED DECEMBER 5, 2002
Before: Stephen Reinhardt, Frank J. Magill,* and
Raymond C. Fisher, Circuit Judges.
Opinion by Judge Reinhardt;
Concurrence by Judge Magill

*The Honorable Frank J. Magill, Senior Circuit Judge,
Eighth Circuit, sitting by designation.

COUNSEL
Gary W. Gorski, Fair Oaks, California, for appellants.

414
Nancy Palmieri, Deputy Attorney General, Office
of the Attorney General, San Diego, California, for the
appellees. d
ORDER

The majority opinion filed Dec. 5, 2002, is hereby
amended as follows:

1 At Slip Op. at 7, footnote 1, replace “See Michael A.
Bellesiles, Gun Control: A Historical Overview, 28
CRIME & JUST. 137, 174-76 (2001) (discussing the
enactment of the National Firearms Act of 1934, ch.
757, 48 Stat. 1236 (1934) (current version codified as
26 U.S.C. §§ 5801-72)), as a reaction to the use of
machine guns by mobsters and the depiction of such
violence in films such as Scarface).”

with

“See EARL R. KRUSCHKE, GUN CONTROL: A
REFERENCE HANDBOOK 84, 170-(1995) (discussing
the enactment of the National Firearms Act of 1934,
ch. 757, 48 Stat. 1236 (1934) (current version codified
as 26 U.S.C. §§ 5801-72), as a reaction to the use of
machine guns by mobsters and “organized crime
elements”).”

2. At Slip Op. at 44, footnote 37, delete “(quoted in
Michael A. Bellesiles, The Second Amendment in
Action, 76 CHI.-KENT L. REV. 61, 65 (2000))”

OPINION
REINHARDT, Circuit Judge:

In 1999, the State of California enacted
amendments to its gun control laws that significantly
strengthened the state’s restrictions on _ the
possession, use, and transfer of the semiautomatic
weapons popularly known as “assault weapons.”
Plaintiffs, California residents who either own assault
weapons, seek to acquire such weapons, or both,
brought this challenge to the gun control statute,
asserting that the law, as 5 SILVEIRA v. LOCKYER
amended, violates the Second Amendment, the Equal
Protection Clause, and a host of other constitutional

42K

provisions. The district court dismissed all of the
plaintiffs’ claims. Because the Second Amendment
does not confer an individual right to own or possess
arms, we affirm the dismissal of all claims brought
pursuant to that constitutional provision. As to the
Equal Protection claims, we conclude that there is no
constitutional infirmity in the statute’s provisions
regarding active peace officers. We find, however, no
rational basis for the establishment of a statutory
exception with respect to retired peace officers,_ and
hold that the retired officers’ exception fails even the
most deferential level of scrutiny under the Equal
Protection Clause. Finally, we conclude that each of
the three additional constitutional claims asserted by
plaintiffs on appeal is without merit.

I, INTRODUCTION

In response to a proliferation of shootings
involving semiautomatic weapons, the California
Legislature passed the Roberti-Roos Assault Weapons
Control Act (“the AWCA”) in 1989. See 1989 Cal. Stat.
ch. 19, § 3, at 64, codified at CAL. PENAL CODE §
12275 et seq. The immediate cause of the AWCA’s
enactment was a random shooting earlier that year at
the Cleveland -Elementary School in Stockton,
California. An individual armed with an AK-47 semi-
automatic weapon opened fire on the schoolyard,
where three hundred pupils were enjoying their
morning recess. Five children aged 6 to 9 were killed,
and one teacher and 29 children were wounded.
Kasler v. Lockyer, 2 P.3d 581, 587 (Cal. 2000).

The California Assembly met soon thereafter in
an extraordinary session called for the purpose of
enacting a response to the Stockton shooting. 1 CAL.
ASSEMBLY J., at 436-37 (Feb. 13, 1989). The
legislation that followed, the AWCA, was the first
legislative restriction on assault weapons in the
nation, and was the model for a similar federal statute
enacted in 1994. Public Safety and Firearms Use
Protection Act, Pub. L. 6 SILVEIRA v. LOCKYER No.

434
103-322, 108 Stat. 1996 (codified at 18 U.S.C. §§
921 et seqg.). The AWCA renders it a felony offense to
manufacture in California any of the semi-automatic
weapons specified in the statute, or to possess, sell,
transfer, or import into the state such weapons
without a permit. CAL. PENAL CODE § 12280.

1 The statute contains a grandfather clause that
permits the ownership of assault weapons by individuals
who lawfully purchased them before the _ statute’s
enactment, so long as the owners register the weapons

1 Semiautomatic weapons differ from fully automatic machine
guns in the following respects: Automatic weapons feed
ammunition into the gun’s chamber immediately after the firing
of each bullet, so that the weapon will continue to reload and
fire continuously so long as the trigger is depressed. Purchase
and ownership of automatic weapons has been restricted by the
federal government since the days of Al Capone and the
machine gun violence associated with the Prohibition Era. See
Michael A. Bellesiles, Gun Control: A Historical Overview, 28
CRIME & JUST. 137, 174-76 (2001) (discussing the enactment
of the National Firearms Act of 1934, ch. 757, 48 Stat. 1236
(1934) (current version codified as 26 U.S.C. §§ 5801-72)), asa
reaction to the use of machine guns by mobsters and the
depiction of such violence in films such as Scarface).

In contrast to automatic weapons, only one bullet is fired when
the user of a semi-automatic weapon depresses the trigger, but
another is automatically reloaded into the gun’s chamber. 27
C.F.R. § 178.11 (defining semiautomatic weapons). Thus, by
squeezing the trigger repeatedly and rapidly, the user can
release many rounds of ammunition in a brief period of time —
certainly many more than the user of a standard, manually-
loaded weapon. Moreover, the semi-automatic weapons known
as assault weapons contain large-capacity magazines, which
require the user of the weapon to cease firing to reload relatively
infrequently because the magazines contain so much
ammunition. Consequently, users of such weapons can “spray-
fire” multiple rounds of ammunition, with potentially
devastating effects. Michael G. Lennett, Taking A Bite Out of
Violent Crime, 20 U. DAYTON L. REV. 573, 609 (1995).

444

with the state Department of Justice. Id.2 The grandfather
clause, however, imposes significant restrictions on the
use of weapons that are registered pursuant to its
provisions. Id.§ 12285(c).3 Approximately forty models of
firearms are listed in the statute as subject to ‘its
restrictions.

The specified weapons include “civilian” models of
military weapons that feature slightly less firepower than
the military issue versions, such as the Uzi, an Israeli-
made military rifle; the AR-15, a semi-automatic version
of the United States military’s standard-issue machine
gun, the M-16; and the AK-47, a Russian-designed and
Chinese-produced military rifle. The AWCA also includes a
mechanism for the Attorney General to seek a judicial
declaration in certain California Superior Courts that
weapons identical to the listed firearms are also subject to
the statutory restrictions. § 12276.5(a)(1)-(2).4

The AWCA includes a provision that codifies the
. legislative findings and expresses the legislature’s reasons
for passing the law:

2 An individual who lawfully obtained an assault weapon prior
to the enactment of the AWCA may avoid the requirement of
registering it with the state if he renders the weapon
permanently inoperable, relinquishes it to a_ state law
enforcement agency, sells it to a licensed California firearms
dealer, or removes it from the State of California.

3 A person who has registered an assault weapon may possess
the weapon only at his own residence, his place of business,
certain private and public clubs organized for the purpose of
target shooting, certain firearms exhibitions approved by law
enforcement agencies, or on specified public lands. §
12285(c)(1)-(6). Additionally, an assault weapon owner may
transport his registered weapon to any of the above locations
only so long as he complies with the methods of transportation
prescribed in the statute. § 12285(7); § 12026.1.

4 Unless otherwise noted, citations to statutory provisions in
this opinion refer to the sections of the AWCA as codified in the
California Penal Code.

The Legislature hereby finds and declares that the
proliferation and use of assault weapons poses a threat to
the health, safety, and security of all citizens of this state.
The Legislature has restricted the assault weapons
specified in [the statute] based upon finding that each
firearm has such a high rate of fire and capacity for
firepower that its function as a legitimate sports or
recreational firearm is substantially outweighed by the
danger that it can be used to kill and injure human
beings. It is the intent of the Legislature in enacting this
chapter to place restrictions on the use of assault
weapons and to establish a registration and permit
procedure for their lawful sale and possession. It is not,
however, the intent of the Legislature by this chapter to
place restrictions on the use of those weapons which are
primarily designed and intended for hunting, target
practice, or other legitimate sports or recreational
activities. Id. § 12275.5.

In 1999, the legislature amended the AWCA in
order to broaden its coverage and to render it more
flexible in response to technological developments in the
manufacture of semiautomatic weapons. The amended
AWCA retains both the original list of models of restricted
weapons, and the judicial declaration procedure by which
models may be added to the list. The 1999 amendments
to the AWCA statute add a third method of defining the
class of restricted weapons: The amendments provide that
a weapon constitutes a restricted assault weapon if it
possesses certain generic characteristics listed in the
statute. Id. § 12276.1.5 Examples of the types of weapons

5 The reason that the legislature defined the restricted assault
weapons generically, by feature, is that after the enactment of
the AWCA, gun manufacturers began to produce “copycat”
weapons in order to evade the statute’s restrictions. These
weapons varied only slightly from the models listed in the act,
but were different enough from those models that they evaded
the law’s restrictions. Martha L. Willman, Davis Backs Bill to

restricted by the revised AWCA include a “semiautomatic,
centerfire rifle that has a fixed magazine with the capacity
to accept more than 10 rounds,” § 12276.1(a)(2), and a
semiautomatic, centerfire rifle that has the capacity to
accept a detachable magazine and also features a flash
suppressor, a grenade launcher, or a flare launcher. §
12276. 1(a)(1)(A)-(E). The amended AWCA also restricts
assault weapons equipped with “barrel shrouds,” which
protect the user’s hands from the intense heat created by
the rapid firing of the weapon, as well as semiautomatic
weapons equipped with silencers. Id.

As originally enacted, the AWCA authorized
specified law enforcement agencies to purchase and
possess assault weapons, and permitted individual sworn
members of those agencies to possess and use the
weapons in the course of their official duties.6 Two
additional provisions relating to peace officers were added
by the 1999 amendments. First, the legislature provided
that the peace officers permitted to possess and use
assault weapons in the discharge of their official duties
were permitted to do so “for law enforcement purposes,
whether on or off duty.” § 12280(g). Second, the
amendments added an exception for retired peace officers.
The exception provides that “the sale or transfer of assault
weapons by an entity [listed in note 6, supra,] to a person,
upon retirement, who retired as a sworn officer from that
entity” is permissible, and that the general restrictions on
possession and use of assault weapons do not apply to a
retired peace officer who receives the weapon upon

Limit Assault Gun Sale and Use Legislation, L.A. TIMES, Apr. 27,
1999, at B2.

6 The specified agencies include the California Department of
Justice, police departments, sheriffs’ departments, marshals’
offices, the Youth and Adult Corrections Agency, the
Department of the California Highway Patrol, district attorneys’
offices, Department of Fish and Game, and Department of Parks
and Recreation. § 12280(f). Also included were members of the
“military or naval forces of this state or of the United States.” Id.

474

retirement from his official duties. § 12280(h)-(i). In sum,
then, the statute as amended may fairly be characterized
as constituting a ban on the possession of assault
weapons by private individuals; with a grandfather clause
permitting the retention of previously-owned weapons by
their purchasers, provided the owners register them with
the state; and with a statutory exception allowing the
possession of assault weapons by retired peace officers
who acquire them from their employers at the time of
their retirement.

Plaintitfs in this case are nine individuals, some of
whom lawfully acquired weapons that were subsequently
classified as assault weapons under the amended AWCA.7
They filed this action in February, 2000, one month afté=——
the 1999 AWCA amendments took effect. Plaintiffs who

" Own assault weapons challenge the AWCA-requirements
that they either register, relinquish, or render inoperable
their assault weapons as violative of their Second
Amendment rights. Plaintiffs who seek to purchase
weapons that may no longer lawfully be purchased in
California also attack the ban on assault weapon sales as
being contrary to their rights under that Amendment.
Additionally, plaintiffs who are not active or retired
California peace officers challenge on Fourteenth
Amendment Equal Protection grounds two provisions of
the AWCA: one that allows active peace officers to possess
assault weapons while off-duty, and one that permits
retired peace officers to possess assault weapons they
acquire from their department at the time of their
retirement. The State of California immediately moved to
dismiss the action pursuant to Federal Rule of Civil
Procedure 12(b)(6), contending that all the claims were
barred as a matter of law. After a hearing, the district
judge granted the defendants’ motion in all respects, and

? The nine plaintiffs include, inter alia, two California National
Guardsmen (both combat veterans), a San Francisco police
officer, an insurance agent, a chemical engineer, and a
California correctional officer.

7 48h
dismissed the case. Plaintiffs appeal, and we affirm on all

claims but one.
i. DISCUSSION

A. Background and Precedent.

A robust constitutional debate is currently taking
place in this nation regarding the scope of the Second
Amendment, a debate that has gained intensity over the
last several years. Until recently, this relatively obscure
constitutional provision attracted little judicial or
scholarly attention. As a result, however, of increasing
popular concern over gun violence, the passage of
legislation restricting the sale and use of firearms, the
cultural significance of firearms in American society, and
the political activities of pro-gun enthusiasts under the
leadership of the National Rifle Association (the NRA), the
disagreement over the meaning of the Second Amendment
has grown particularly heated.

[1] There are three principal schools of thought that
form the basis for the debate. The first, which we will refer
to as the “traditional individual rights” m idel, holds that
the Second Amendment guarantees to .idividual private
citizens a fundamental right to possess and use firearms
for any purpose at all, subject only to limited government
regulation. This view, urged by the NRA and other |
firearms enthusiasts, as well as by a prolific cadre of
fervent supporters in the legal academy, had never been
adopted by any court until the recent Fifth Circuit
decision in United States v. Emerson, 270 F.3d 203, 227
(Sth Cir. 2001), cert. denied, 122 S. Ct. 2362 (2002). The
second view, a variant of the first, we will refer to as the
“limited individual rights” model. Under that view,
individuals maintain a constitutional right to possess
firearms insofar as such possession bears a reasonable
relationship to militia service.* The third, a wholly

8 In the Fifth Circuit’s decision in Emerson, that court describes
a view of the amendment that it calls the “sophisticated
collective rights model.” 270 F.3d at 219. That view of the
amendment holds that individual members of state militia may

Se

494

contrary view, commonly called the “collective rights”
model, asserts that the Second Amendment right to “bear
arms” guarantees the right of the people to maintain
effective state militias, but does not provide any type of
individual right to own or possess weapons. Under this
theory of the amendment, the federal and_ state
governments have the full authority to enact prohibitions
and restrictions on the use and possession of firearms,
subject only to generally applicable constitutional
constraints, such as due process, equal protection, and
the like. Long the doniinant view of the Second
Amendment, and widely accepied by the federal courts,
the collective rights model has recently come under strong
criticism from individual rights advocates. After
conducting a full analysis of the amendment, its history,
and its purpose, we reaffirm our conclusion in Hickman v.
Block, 81 F.3d 98 (9th Cir. 1996), that it is this collective
rights model which provides the best interpretation of the
Second Amendment.

personally use and possess firearms, but only to the extent that
they do sc as part of their active military service. Id. We
conclude that a more plausible theory is that which we describe
as the “limited individual right” model. Of course, one could
posit a series of variations on the Second Amendment theme,
including a number of potential approaches differing only in
degree from each other. The Fifth Circuit’s “sophisticated
collective rights model,” however, appears to be a strawman
that can all too readily be disposed of, as the Fifth Circuit does
with relatively little difficulty. Ultimately, the Fifth Circuit
adopts a weapons-based theory of the amendment that permits
individuals to possess firearms for personal use, regardless of
the relationship of the individual or the weapon to militia
service, as long as those weapons have a “legitimate use in the
hands of private individuals.” Emerson, 270 F.3d at 223
(quoting the government’s brief in United States v. Miller, 307
U.S. 174 (1939)). We conclude, respectfully, that the Fifth
Circuit’s theory is contrary not only to Miller but to the basic
purpose and effect of the Second Amendment.

Despite the increased attention by commentators
and political interest groups to the question of what
exactly the Second Amendment protects, with the sole
exception of the Fifth Circuit’s Emerson decision there
exists no thorough judicial examination of the
amendment’s meaning. The Supreme Court’s most
extensive treatment of the amendment is a somewhat
cryptic discussion in United States v. Miller, 307 U.S. 174
(1939). In that case, a criminal defendant brought a
Second Amendment challenge to a federal gun control law
that prohibited the transport of sawed-off shotguns in
interstate commerce. The Court rejected the challenge to
the statute. In the only and oft-quoted passage in the
United States Reports to consider, albeit somewhat
indirectly, whether the Second Amendment establishes an
individual right to arms, the Miller Court concluded:

In the absence of any evidence tending to show that

possession or use of a ‘shotgun having a barrel of

less than eighteen inches in length’ at this time has
some reasonable relationship to the reservation or
efficiency of a well regulated militia, we cannot say
that the Second Amendment guarantees the right
to keep and bear such an instrument. Certainly it
is not within judicial notice that this weapon is any
part of the ordinary military equipment or that its
use could contribute to the common defense.
Miller, 307 U.S. at 178. The Miller Court also observed
more generally that “[w]ith the obvious purpose to assure
the continuation and render possible the effectiveness of
[state militias] the declaration and guarantee of the
Second Amendment were made. It must be interpreted
and applied with that end in view.” Id. Thus, in Miller the
Supreme Court decided that because a weapon was not
suitable for use in the militia, its possession was not
protected by the Second Amendment. As a result of its
phrasing of its holding in the negative, however, the Miller
Court’s opinion stands only for the proposition that the
possession of certain weapons is not protected, and offers
little guidance as to what rights the Second Amendment

SIA

does protect. Accordingly, it has been noted, with good
reason, that “[t]he Supreme Court’s jurisprudence on the
scope of [the Second] [AJmendment is quite limited, and
not entirely illuminating.” Gillespie v. City of Indianapolis,
185 F.3d 693, 710 (7th Cir. 1999). What Miller does
strongly imply, however, is that the Supreme Court rejects
the traditional individual rights view.

The only post-Miller reference by the Supreme

Court to the scope of the amendment occurred in Lewis v.
United States, 445 U.S. 55, 65 n. 8 (1980), in which the
Court noted, in a footnote dismissing a Second
Amendment challenge to a felon-in-possession conviction,
that the federal gun control laws at issue did not “trench
upon any constitutionally protected liberties,” citing Miller
in support of this observation. In that footnote, Lewis
characterized the Miller holding as follows:
“[T]he Second Amendment guarantees no right to keep
and bear a firearm that does not have ‘some reasonable
relationship to the preservation or efficiency of a well-
regulated militia.’ ” Id. (quoting Miller, 307 U.S. at 178).
The Lewis Court, like the Miller Court, phrased its
statements in terms of what is not protected. Lewis does,
however, reinforce the strong implication in Miller that the
Court rejects the traditional individual rights model.

Some thirty-odd years after Miller, two Justices of
the Court pithily expressed their views on the question
whether the Second Amendment limits the power of the
federal or state governments to enact gun control laws.
Justice Douglas, joined by Justice Thurgood Marshall,
stated in dissent in Adams v. Williams, that in his view,
the problem of police fearing that suspects they
apprehend are armed:

is an acute one not because of the Fourth

Amendment, but because of the ease with which

anyone can acquire a pistol. A powerful lobby dins

into the ears of our citizenry that these gun
purchases are constitutional rights protected by
the Second Amendment ... . There is under our
decisions no reason why stiff state laws governing

the purchase and possession of pistols may not be
enacted. There is no reason why pistols may not be
barred from anyone with a police record. There is
no reason why a State may not require a purchaser
of a pistol to pass a psychiatric test. There is no
reason why all pistols should not be barred to
everyone except the police.
407 U.S. 143, 150 (1972) (Douglas, J., dissenting). In
short, in Adams two then-sitting Justices made it clear
that they believed that the Second Amendment did not
afford an individual right — traditional, limited, or
otherwise — to own or possess guns.

We also note that two of the Supreme Court’s
recent decisions that limit the power of the federal
government to regulate activities of the states relate to
firearms restrictions. See Printz v. United States, 521 U.S.
898 (1997) (holding that a federal requirement that state
officers perform background checks on gun purchasers
violates the anti-commandeering principle of the Tenth
Amendment); United States v. Lopez, 514 U.S. 549 (1995)
(holding that Congress exceeded its authority under the
Commerce Clause by enacting the Gun-Free School Zones
Act). In neither case did the Court address a Second
Amendment issue directly; however, in each case a
currently-sitting Justice expressed his individual view of
the amendment’s scope, directly or indirectly, but from
radically different standpoints. In his dissent in Lopez,

Justice Stevens, although not mentioning the Second -

Amendment, strongly implied that he believes that it

offers no obstacles to the federal government’s ability to

regulate firearms:
Guns are both articles of commerce and articles
that can be used to restrain commerce. Their
possession is the consequence, either directly or
indirectly, of commercial activity. In my judgment,
Congress’ power to regulate commerce in firearms
includes the power to prohibit possession of guns
at any location because of their potentially harmful
use....

S34

514 U.S. at 602-03 (Stevens, J., dissenting). Justice
Thomas spoke to the Second Amendment issue more
directly in his concurrence in Printz, in words that
suggested that he may well support the traditional
individual rights view:
This Court has not had recent occasion to consider
the nature of the substantive right safeguarded by
the Second Amendment. If, however, the Second
Amendment is read to confer a personal right to
“keep and bear arms,” a colorable argument exists
that the Federal Government’s regulatory scheme,
at least as it pertains to the purely intrastate sale
or possession of firearms, runs afoul of that
Amendment’s protections. As the parties did not
raise this argument, however, we need not consider
it here. Perhaps, at some future date, this Court
will have the opportunity to determine whether
Justice Story was correct when he wrote that the
right to bear arms “has justly been considered, as
the palladium of the liberties of a republic.” 3 J.
Story, Commentaries § 1890, p. 746 (1833).
521 U.S. at 938-39 (Thomas, J., concurring) (emphasis in
original).9
Finally, we note that, after his retirement, Chief
Justice Warren Burger uttered one of the most widely
publicized comments about the Second Amendment ever
made by a Justice inside or outside the context of a
judicial opinion. In an interview, former Chief Justice
Burger stated that the traditional individual rights view
was:
one of the greatest pieces of fraud, I repeat the
word ‘fraud,’ on the American public by special
interest groups that I've ever seen in my lifetime.

® Justice Thomas did not explain why it was relevant that the
Court had not ruled on the issue recently or why a Second
Amendment decision might be of less force if it was handed
down by an earlier Court.

S4A

The real purpose of the Second Amendment was to
ensure that state armies — the militia — would be
maintained for the defense of the state. The very
language of the Second Amendment refutes any
argument that it was intended to guarantee every
citizen an unfettered right to any kind of weapon he
or she desires.
Warren E. Burger, The Right to Bear Arms, PARADE
MAGAZINE, Jan. 14, 1990, at 4. Although we in no way
share Chief Justice Burger’s view that Second
Amendment enthusiasts are gu*ity of fraud, we do
generally agree with his statements regarding the
Amendment’s purpose and scope.

Our court, like every other federal court of appeals
to reach the issue except for the Fifth Circuit, has
interpreted Miller as rejecting the traditional individual
rights view. In Hickman v. Block, we held that “the Second
Amendment guarantees a collective rather than an
individual right.” 81 F.3d at 102 (citation and quotation
marks omitted).!° Like the other courts, we reached our
conclusion regarding the Second Amendment’s scope
largely on the basis of the rather cursory discussion in
Miller, and touched only briefly on the merits of the debate
over the force of the amendment. See id.!!

10 In Hickman, we held that an individual could not bring a
Second Amendment challenge to a California law which requires
that a permit be obtained in order to carry a concealed weapon,
and, as noted in the text, unambiguously adopted the view that
the Second Amendment establishes a_ collective right.
Nevertheless, just six days after the issuance of that decision,
Judge Alex Kozinski, acknowledgedly an extremely able and
dedicated jurist, appeared to cling fast to the individual rights
view, despite the existence of binding circuit precedent to the
contrary that may in no way be dismissed as dicta. United
States v. Gomez, 92 F.3d 770, 774 n.7 (9th Cir. 1996). The two
other judges in Gomez, one of whom was the author of
Hickman, refused to join in the footnote.

11 See Gillespie v. City of Indianapolis, 185 F.3d 693, 710 (7th
Cir. 1999), cert. denied, 528 U.S. 1116 (2000); United States v.

Pe eee eS ee a

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FP Ee ey ebay ON) Oe aT See eee ene ee

Appellants contend that we misread Miller in
Hickman.'2 They point out that, as we have already noted,

Wright, 117 F.3d 1265, 1273-74 (11th Cir.), cert. denied, 522
U.S. 1007 (1997); United States v. Rybar, 103 F.3d 273, 286 (3d
Cir. 1996), cert. denied, 522 U.S. 807 (1997); Love v. Pepersack,
47 F.3d 120, 124 (4th Cir.), cert. denied, 516 U.S. 813 (1995);
United States v. Hale, 978 F.2d 1016, 1019-20 (8th Cir. 1992),
cert. denied, 507 U.S. 997 (1993); Thomas v. Members of City
Council, 730 F.2d 41, 42 (lst Cir. 1984) (per curiam); United
States v. Oakes, 564 F.2d 384, 387 (10th Cir. 1977), cert.
denied, 435 U.S. 926 (1978); United States v. Warin, 530 F.2d
103, 106 (6th Cir.), cert. denied, 426 U.S. 948 (1976).

Although the majority of circuit courts have, with comparatively
little analysis, adopted the collective rights view, the Third and
Tenth Circuits appear to have suggested the possible use of
some form of intermediate model. In rejecting a criminal
defendant’s Second Amendment defense to a gun possession
charge, the Tenth Circuit stated: “To apply the [Second]
[AJmendment so as to guarantee appellant’s right to keep an
unregistered firearm which has not been shown to have any
connection to the militia, merely because he is technically a
member of the Kansas militia, would be unjustifiable in terms of
either logic or policy.” Oakes, 564 F.2d at 387. In Rybar, the
Third Circuit concluded that: “Rybar [has not] establish[ed] that
his firearm possession bears a reasonable relationship to ‘the
preservation or efficiency of well-regulated militia.’” 103 F.3d at
286 (quoting Miller, 307 U.S. at 178).

It appears that only the Second and District of Columbia
Circuits have not taken a position, considered or otherwise, on
the nature of the right established by the Second Amendment.
See Fraternal Order of Police v. United States, 152 F.3d 998,
1002 {D.C. Cir. 1998) (“Despite the intriguing questions raised,
we will not attempt to resolve the status of the Second
Amendment right... .”).

12 Since Hickman, we have cited its holding, with little
discussion, in a few criminal cases in which the defendant
raised a general Second Amendment defense to various firearms
convictions along with other defenses that relate more
specifically to the particular offenses alleged. See, e.g., United
States v. Hinostroza, 297 F.3d 924 (9th Cir. 2002); United States
v. Mack, 164 F.3d 464, 474 (9th Cir. 1999); see also United

Miller, like most other cases that address the Second
Amendment, fails to provide much reasoning in support of
its conclusion. We agree that our determination in
Hickman that Miller endorsed the collective rights position
is open to serious debate. We also agree that the entire
subject of the meaning of the Second Amendment
deserves more consideration than we, or the Supreme
Court, have thus far been able (or willing) to give it. This
is particularly so because, since Hickman was decided,
there have been a number of important developments with
respect to the interpretation of the highly controversial
provision: First, as we have noted, there is the recent
Emerson decision in which the Fifth Circuit, after
analyzing the opinion at length, concluded that the
Supreme Court’s decision in Miller does not resolve the
issue of the Amendment’s meaning. The Emerson court
then canvassed the pertinent scholarship and historical
materials, and held that the Second Amendment does
establish an individual right to possess arms — the first
federal court of appeals ever to have so decided.!3 Second,

~_-

States v. Hancock, 231 F.3d 557, 566 (9th Cir. 1999) (holding
that, because the Second Amendment does not create an
individual right to arms, an equal protection challenge to a gun
control law is reviewed “under the rational-basis standard.”). In
the present civil constitutional challenge to a gun control
statute, unlike the criminal cases in which the Second
Amendment was raised along with a number of more specific
defenses, the question of the Second Amendment’s scope is the
principal issue before the court and has been aie briefed
and argued by the parties.

13 The Emerson court examined the government’ s briefs in
Miller, and observed that in that case the government made
alternative arguments: first, that the Second Amendment does
not establish an individual right to possess arms, and second,
that the sawed-off shotgun at issue in Miller bore no reasonable
relationship to militia service. 270 F.3d at 221-24. In the view of
the Emerson court, the Supreme Court’s opinion in Miller
adopted the government’s second argument, and not its first,
which is not an unreasonable conclusion. That conciusion does

S7A

the current leadership of the United States Department of
Justice recently reversed the decades-old position of the
government on the Second Amendment, and adopted the
view of the Fifth Circuit. Now, for the first time, the United
States government contends that the Second Amendment
establishes an individual right to possess arms.!4 The
Solicitor General has advised the Supreme Court that
“(t]he current position of the United States . . . is that the
Second Amendment more: broadly protects the rights of
individuals, including persons who are not members of
any militia or engaged in active military service or
training, to possess and bear their own firearms, subject
to reasonable restrictions . . . .” Opposition to Petition for
Certiorari in United States v. Emerson, No. 01-8780, at 19
n.3. In doing so, the Solicitor General transmitted to the
Court a memorandum from Attorney General John
Ashcroft to all United States Attorneys adopting the Fifth
Circuit’s view and emphasizing that the Emerson court

not, however, lead to the result the Fifth Circuit then reaches.
In our view, the government’s second argument supports either
the collective rights view or the limited individual rights view,
but not the traditional individual rights doctrine that the Fifth
Circuit adopts. Moreover, in an attempt to reconcile its position
with Miller, the Fifth Circuit modifies that doctrine by asserting
that certain undefined types of arms are excluded from the
amendment’s coverage. Miller suggests that the arms protected
by the amendment, if any, are those related to militia service,
but Emerson strays far from that view. While it is unclear
precisely what types of arms the Fifth Circuit would deem
included or excluded, Emerson’s conclusion that the Second
Amendment protects private gun ownership so long as the
weapons have “legitimate use in the hands of private
individuals,” 270 F.3d at 223, represents a far different
approach from that stated in Miller. In our view, the Fifth
Circuit’s decision is incompatible with the Supreme Court
ruling.

14 See Opposition to Petition for Certiorari in United States v.
Emerson, No. 01-8780, at 19 n.3, available’ at
www.usdoj.gov/osg/briefs/2001 /Oresponses/2001-
8780.resp. pdf.

ee

“undertook a scholarly and comprehensive review of the
pertinent legal materials ... ,” although the Attorney
General was as vague as the Fifth Circuit with respect
both to the types of weapons that he believes to be
protected by the Second Amendment, and the basis for
making such determinations. Id., app. A.

The reversal of position by the Justice Department
has caused some turmoil in the lower courts, and has led
to a number of challenges to federal statutes relating to
weapons sales, transport, and possession, including a
heavy volume in the district courts of this circuit. See,
e.g., United States v. Stepney, No. 01-0344, 2002 WL
1460258 (N.D. Cal. July 1, 2002); Jason Hoppin, No Free
Ride For Gun Argument, THE RECORDER, July 25, 2002
(discussing Second Amendment defenses raised by
criminal defendants in Northern District of California
cases). Similar Second Amendment defenses have been
raised by criminal defendants throughout the nation as a
result of the Justice Department’s new position on the
amendment. See Adam Liptak, Revised View of Second
Amendment Is Cited As Defense in Gun Cases, N.Y.
TIMES, July 23, 2002, at Al.

Given the dearth of both reasoned and definitive
judicial authority, a particularly active academic debate
has developed over the scope of the Second Amendment.
Compare, e.g. Eugene Volokh, The Commonplace Second
Amendment, 73 N.Y.U. L. REV. 793 (1998) (advocating
individual rights view) and Sanford Levinson, The |
Embarrassing Second Amendment, 99 YALE L.J. 637 |
(1989) (same) with Michael C. Dorf, What Does the Second
Amendment Mean Today?, 76 CHI.-KENT L. REV. 291,
294 (2000) (advocating collective rights view); Jack N.
Rakove, The Second Amendment: The Highest Stage of
Originalism, 76 CHI.-KENT L. REV. 103, 124 (2000)
(same); and David Yassky, The Second Amendment:
Structure, History and Constitutional Change, 99 MICH. L.
REV. 588 (2000) (same). As a result of the renewed
interest in the issue, the Second Amendment has been the
subject of a number of scholarly symposia. See, e.g., The

Second Amendment: Fresh Looks, 76 CHI.-KENT L. REV.
3-715 (2000); Second Amendment Symposium, 1998
B.Y.U. L. REV. 1-336; A Second Amendment Symposium
Issue, 62 TENN. L. REV. 443-821 (1995). Indeed, Second
Amendment scholarship has become so active that the
scholarship itself has become the subject of study. See
Robert J. Spitzer, Lost and Found: Researching the Second
Amendment, 76 CHI.-KENT L. REV. 349 (2000).

In light of the United States government’s recent
change in position on the meaning of the amendment, the
resultant flood of Second Amendment challenges in the
district courts, the Fifth Circuit’s extensive study and
analysis of the amendment and its conclusion that Miller
does not mean what we arid other courts have assumed it
to mean, the proliferation of gun control statutes both
state and federal, and the active scholarly debate that is
being waged across this nation, we believe it prudent to
explore Appellants’ Second Amendment arguments in
some depth, and to address the merits of the issue, even
though this circuit’s position on the scope and effect of
the amendment was established in Hickman. Having
engaged in that exploration, we determine that the
conclusion we reached in Hickman was correct.!5

B. Appellants Lack Standing to Challenge the Assault
Weapons Control Act on Second Amendment Grounds.

[2] Appellants contend that the California Assault
Weapons Control Act and its 1999 revisions violate their
Second Amendment rights. We unequivocally reject this
contention. We conclude that although the text and
structure of the amendment, standing alone, do not

1S If our review had led us to a conclusion contrary to that
reached in Hickman, we of course would not attempt to overrule
that decision in this opinion. Instead, we would be required to
call for en banc review. See Morton v. De Oliveira, 984 F.2d 289,
292 (9th Cir. 1993) (“[O]nly the court sitting en banc may
overrule a prior decision of the court.”). Because we reaffirm
Hickman here, however, an en banc call by the panel is not

necessary.

conclusively resolve the question of its meaning, when we
give the text its most plausible reading and consider the
amendment in light of the historical context and
circumstances surrounding its enactment we are
compelled to reaffirm the collective rights view we adopted
in Hickman: The amendment protects the people’s right to
maintain an effective state militia, and does not establish
an individual right to own or possess firearms for personal
or other use. This conclusion is reinforced in part by
Millers implicit rejection of the traditional individual
rights position.'6 Because we hold that the Second
Amendment does not provide an individual right to own or
possess guns or other firearms,!’ plaintiffs lack standing
to challenge the AWCA.!8

16 Although Miller is consistent with both the limited individual
rights position and the collective rights view, for reasons we
explain below we continue to adhere to the collective rights view
we adopted in Hickman.

17 We concluded in Hickman that because the individual
plaintiff had no legally protectable interest under the Second
Amendment, he lacked constitutional standing to bring a claim
under that provision. Other courts have addressed Second
Amendment claims on the merits, rather than under the rubric
of standing doctrine. See, e.g., Gillespie, 185 F.3d at 710
(offering an informed discussion not only of the standing issue
but also of some of the amendment’s possible applications).
Although in every case we are required to examine standing
issues first, see, e.g., Scott v. Pasadena Unified School Dist., 306
F.3d 646, 653-54 (9th Cir. 2002) (“We must establish
jurisdiction before proceeding to the merits of the case.”), here
an examination of that question requires us as a first step to
conduct a thorough analysis of the scope and purpose of the
Second Amendment. Only after determining the amendment’s
scope and purpose can we answer the question whether
individuals, specifically the plaintiffs here, have standing to sue.
Thus, as a practical matter, the choice of jurisprudential
approach makes little or no difference. Because we held in
Hickman that the absence of an individually enforceable Second
Amendment right resulted in a lack of standing, we follow our
precedent and decide the case on that basis here.

ee ee

In Hickman, we did not rely on our earlier decision in Fresno
Rifle & Pistol Club, Inc. v. Van de Kamp, 965 F.2d 723 (9th Cir.
1992), that the Second Amendment is not incorporated by the
Fourteenth and does not constrain actions by the states,
although we noted in dictum that had standing existed, Fresno
Rifle would be applicable. We undoubtedly followed that
approach in Hickman because, as noted above, we must decide
standing issues first. Fresno Rifle itself relied on United States v.
Cruikshank, 92 U.S. 542 (1876), and Presser v. Illinois, 116 U.S.
252 (1886), decided before the Supreme Court held that the Bill
of Rights is incorporated by the Fourteenth Amendment’s Due
Process Clause. Following the now-rejected Barron v. Baltimore,
32 U.S. (7 Pet.) 243 (1833) (holding that the Bill of Rights did
not apply to the states), Cruikshank and Presser found that the
Second Amendment restricted the activities of the federal
government, but not those of the states. One point about which
we are in agreement with the Fifth Circuit is that Cruikshank
and Presser rest on a principle that is now thoroughly
discredited. See Emerson, 270 F.3d at 221 n.13. Because we
decide this case on the threshold issue of standing, however, we
need not consider the question whether the Second Amendment
presently enjoins any action on the part of the states.

18 Our concurring colleague, Judge Magill, says that we should
simply decide the case on standing as did Hickman. That is
precisely what we do. Hickman first examined the scope and
purpose of the Second Amendment, and adopted one of the
three principal theories regarding its meaning. It did so in order
to resolve the standing question. In fact, it is impossible to
decide standing without undertaking the type of analysis which
our colleague wishes us to avoid. Only after determining that
the collective view of the Second Amendment was correct was
the Hickman court able to conclude that the individual plaintiff
had no standing. We reach the same conclusion as to the
collective view after conducting a similar analysis and, by virtue
of doing so, we are also able to reach the same conclusion as to
standing.

The difference between our decision and Hickman is twofold.
Since Hickman was decided, there have been extensive
developments in the area of Second Amendment law. We take
account of these developments and, after analyzing them,
conclude that the result reached in Hickman does not change.

1. The Text and Structure of the Second
Amendment Demonstrate that the Amendment’s
Purpose is to Preserve Effective State Militias; That
Purpose Helps Shape the Content of the
Amendment.
[3] The Second Amendment states in its entirety: “A well
regulated Militia being necessary to the security of a free
State, the right of the p

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386015_1801%3A02. Public record. Not legal advice.