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February 12, 2002
2nd Amendment in the 9th Circuit

This weekend, I did some reading about the 2nd Amendment. I had noticed that Kasler v. Lokyer was silent on second amendment issues. I did some more digging and found that the last major case in the 9th Circuit that touched on the 2nd Amendment was Fresno Rifle And Pistol Club, Inc. v. Van De Kamp decided in 1992. In that case the appellate panel which was Schroeder, Leavy and Rymer relied on United States v. Cruikshank and Presser v. Illinois to determine that Supreme Court precedent was that the 2nd Amendment only restrained the Federal and not the states. All of these opinions can be found at this excellent website.

Interestingly, in Presser the court stated

    It is undoubtedly true that all citizens capable of bearing arms constitute the reserved military force or reserve militia of the United States as well as of the States, and in view of this prerogative of the general government, as well as of its general powers, the States cannot, even laying the constitutional provision in question out of view, prohibit the people from keeping and bearing arms, so as to deprive the United States of their rightful resource for maintaining the public security, and disable the people from performing their duty to the general government. But, as already stated, we think it clear that the sections under consideration do not have this effect.

In the final sentence of this paragraph, the Court was affirming that Illinois did have the right to regulate wether its citizens could form an additional, non state sponsored militia proper.

What I find most interesting about my reading is that there must be some strategic issue which holds the gun rights lobby back from a Supreme Court appeal. I didn't find evidence that a certiorari was denied, but I haven't looked too hard yet. There is a fundamental question in my mind about wether there is some political issue around the current Supreme Court justices that really makes the gun lobby wish to wait before going for Supreme Court precedent. It may also be that Fresno had structural flaws. I am very interested in hearing folks opinions. Of course this all may turn on wether the 2nd should apply to the states through the 14th or not. It certainly seems that if the 1st and fourth do, the 2nd should. Also, I have not yet put my hands on the plaintiff briefs for Fresno Rifle as the appellate group refers to their historical brief relating to Reconstruction which may lend credence to the legislative intent of the 14th to apply the 2nd to the states.

Update: While looking for any evidence of certiorari being denied, I ran across this interesting quote in Staples v. United States by Clarence Thomas, "In contrast to the selling of dangerous drugs at issue in Balint or the possession of hand grenades considered in Freed, private ownership of guns in this country has enjoyed a long tradition of being entirely lawful conduct." The case was about wether the U.S. had to prove beyond a reasonable doubt that Staples knew that the weapon he thought was a semi-auto was actually modified to shoot full auto. The court ruled that the government would have to prove beyond a reasonable doubt that he knew.

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