Showdown ahead on right to bear arms: an individual or collective right?
December 7, 2002
“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.”
– Second Amendment to the U.S. Constitution
The 9th U.S. Circuit Court of Appeals’ ruling that the Second Amendment does not grant Americans an individual right to own firearms could put the Supreme Court at the center of a constitutional debate that has inspired passionate arguments for much of the nation’s history.
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The decision, written by one of the judges who declared the Pledge of Allegiance unconstitutional in June, contradicts the 5th U.S. Circuit Court of Appeals in New Orleans, which decided in another case that an individual right exists.
The decision is expected to be appealed to the Supreme Court, which has never squarely ruled on the issue, and could take years to resolve.
“The good news to take out of this,” said Dave LaCourse of the Second Amendment Foundation in Bellevue, Wash., “is this decision is so shrill that it’s going to force the U.S. Supreme Court to finally rule soundly on gun control.”
Some legal experts said the government, theoretically, could impose a total ban on individuals possessing guns even if they have a Second Amendment right to possess them.
That is because a host of state and federal laws barring assault and other types of weapons are routinely upheld in the courts on grounds that the prohibitions are rational governmental approaches to combat violence. Laws already require background checks to ensure the gun buyer is not a felon, juvenile, mentally ill or domestic-violence offender.
At the Carson City Rifle and Pistol Range on Friday evening, the talk was about hunting, not crime.
“That’s what we’re out here for,” said Greg Hein of Carson, who was with his son. “We’re sighting him in for a junior deer tag.”
Hein, who hadn’t yet heard of the 9th Circuit Court decision, said he believes Americans should have the personal right to own guns at least for hunting.
“It’s a God-given right even just to provide for your family,” he said.
“The Indians did it, so why shouldn’t we?” asked his 14-year-old son, Tristan Hein, who has a late season tag near Gerlach.
California is one of the few states not to grant an individual right to bear arms. Nevada’s law is clear: Nevada’s Constitution, Article 1, Section 11, reads, “Every citizen has the right to keep and bear arms for security and defense, for lawful hunting and recreational use and for other lawful purposes.”
Nevada’s use of the term “every citizen” could be important in the current debate between an individual right to bear arms and a collective right.
Judge Stephen Reinhardt of the 9th U.S. Circuit Court decided differently about an individual’s right to own guns than the writers of Nevada’s constitution.
“The historical record makes it equally plain that the (Second) Amendment was not adopted in order to afford rights to individuals with respect to private gun ownership or possession,” Reinhardt wrote for the three-judge panel.
Reinhardt, who this summer also joined in the Pledge of Allegiance “under God” opinion, ruled the purpose of the Second Amendment was to maintain effective state militias.
The Justice Department declined comment Friday on the 9th Circuit’s ruling, pointing out that the federal government is not a party to the case.
“It’s conceivable that the federal government can pass a law you can’t own a gun,” said Chuck Michel, an National Rifle Association attorney. He said the government could do so and, perhaps, defeat court challenges on grounds that the government “had a compelling interest to ban guns.”
“Some court at some point could say, ‘federal government, you are right,”‘ Michel said.
ON THE NET
Second Amendment Foundation: http://www.saf.org
Gun Control in the United States: http://www.soros.org/crime/guncontrol.htm