Shenanigans by the 9th Circuit.(LETTERS)(FORUM)

The Washington Times (Washington, DC), December 22, 2002 | Go to article overview

Shenanigans by the 9th Circuit.(LETTERS)(FORUM)


Byline: THE WASHINGTON TIMES

On Dec. 5, a three-judge panel of the 9th U.S. Circuit Court of Appeals ruled that the Second Amendment does not confer an individual right to own firearms. While the opinion is based on extensive research, it appears that the only thing of which the court is sure is that it is not sure of its holding. Although impressive in its scope, the opinion has some problems.

The court sought refuge in United States vs. Miller, a 1939 Supreme Court case that the 9th Circuit and most of the other circuits have interpreted to mean that there is no individual right to own firearms under the Second Amendment. Citing the Miller case posed one of many problems for the 9th Circuit. The court held that because, under Miller, the plaintiffs had no right to own firearms, the plaintiffs lack standing to make a Second Amendment claim. The obvious question is why did the Supreme Court in Miller not dismiss the case on the ground that the Miller lacked standing?

In Miller, the Supreme Court said that because it was not shown that a sawed-off shotgun has any militia value, the court could not say if the Second Amendment protects such a weapon. That statement is what many courts have interpreted to mean that the Second Amendment applies only to militia, and not to private citizens. If the Supreme Court were of that view, why did it not seek to determine if the plaintiff Miller was a member of any state militia? But perhaps the court did not ask that question because it was operating under the belief that the militia was made up of any and all citizens.

What seems to emerge from the 9th Circuit's analysis and from Miller is that "members" (citizens) of the militia are to have their own guns and ammunition. Nowhere in the 9th Circuit's analysis do we find anything that suggested the weapons are to be kept in some kind of armory and in times of crisis, militia members would line up to receive their weapons. If that is not the case, then it must be that people should have their weapons at home. And further, the historical research reflected in the ruling did not find much in the way to support a claim that citizens were forbidden to own guns, whether or not they were members or not members of any militia.

Although the 9th Circuit opinion is based on considerable research, there is enough sloppiness on simple matters of fact to cast doubt on the entire opinion. The opinion said that the only federal court to have held that the Second Amendment guarantees an individual right to own guns is the Fifth Circuit Court of Appeals. The fact is that the Fifth Circuit's ruling was in response to an appeal from a district court in Texas. That court had ruled that the Second Amendment guarantees an individual right. The U.S. Supreme Court's Miller case was an appeal from a district court in Arkansas that also found the Second Amendment guarantees an individual right.

The 9th Circuit was confusing when it came to the U.S. government's view on the Second Amendment. …

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