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December 05, 2002
9th Circuit Rules on 2nd Amendment

Well, the most recent appeals court ruling in the 9th in a case challenging the assault weapons ban has been issued and the 9th finds that the 2nd amendment confers a collective right that individuals do not enjoy.

They do admit that the Second is currently hotly contested and review the full history and literature. There seems to be a few failures in their argument for the collective rights model. First, they split a very fine hair that 2nd is only about militias, glossing over the underlying language about American's enjoying the right to arms. Second, they ignore the procedural and historical reality that States never did supply state owned infantry weapons to the men of the militia. Its like saying that you have the right to free speech, you just don't have the right to buy paper. Finally, they ignore the uncertainty over whether Militia means organized by the State or of the State.

There are two bright spots. First, the equal protection claim that retired law enforcement shouldn't get guns the rest of us can't own looks to be upheld. Moving law enforcement in California back to supporting gun rights will be an important step and will remind them that they are subject to the rules they want to see too. Second, this seems to re-enforce the clear district court split between the 9th and the 5th.

Update: Clayton Cramer weighs in - found via Instapundit.

Update 2: Volokh has weighed in. He presents some of the same thoughts that I had, but is far more eloquent and thorough. My favorite point of his is that while the 9th quotes Miller extensively and is quite a bit more careful to not call Miller definitive as they have in the past, they conveniently skip the Supreme Court's definition of Militia as all white males age 18 to 45 capable of bearing arms.

Posted by hoffmang | December 05, 2002 11:54 AM


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