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Ninth Circuit Claims There Is No Right To Arms

Sunday, December 15, 2002

Last week, on December 5, the San Francisco-based Ninth Circuit Court of Appeals handed down a ruling in a challenge to California’s ban on so-called "assault weapons" that has created quite a stir in the debate over our Right to Keep and Bear Arms. The court dismissed the challenge in the case of Silviera v. Lockyer, but the most disturbing aspect of the ruling was that the court held that "the Second Amendment does not confer an individual right to own or possess arms." And while this statement flies in the face of reams of scholarly research, historical evidence, and rulings from other circuits that affirms the Second Amendment does protect an individual Right to Keep and Bear Arms, the text of the ruling includes exceptionally questionable elements.

Although an overwhelming amount of research from highly respected scholars, historians, and constitutional experts supports the fact that the Second Amendment does, indeed, protect an individual right, the Ninth Circuit chose to reference "research" from the widely discredited Michael Bellesiles. Bellesiles, of course, is the historian forced to resign his position as a professor at Emory University after a committee found him "guilty of unprofessional and misleading work" in important areas of his controversial book, "Arming America." The committee also wrote, "We are seriously troubled by Professor Bellesiles’s scholarly conduct," and, "the failure to clearly identify his sources moves into the realm of falsification." And just today, Columbia University announced its Board of Trustees had voted to revoke the Bancroft Prize Bellesiles had been awarded for "Arming America" in 2001. The Bancroft Prize is considered by many to be the ultimate honor an American historian can receive, and this revocation is surely the final nail in the coffin of Bellesiles`s credibility. But the Ninth Circuit seemed to have no problem citing Bellesiles.

Also found in the ruling is an inference that those who share the view that the Second Amendment protects an individual right are comparable to "the type of extremist ‘militia’ associated with Timothy McVeigh and other militants with similar anti-government views." However, poll after poll indicate the vast majority of Americans share this alleged "extremist" view, and the Ninth Circuit failed to recognize that other courts support the individual Right to Keep and Bear Arms, including the Fifth Circuit Court of Appeals (as held in the case of U.S. v. Emerson) and the Supreme Court of the United States (as noted in the case of U.S. v. Verdugo-Urquidez).

But this outrageous ruling should come as no real surprise. The Ninth Circuit is widely regarded as the most extreme in the country, and its rulings are overturned by the Supreme Court of the United States more often than any other. In 1997, the Supreme Court overturned 28 of 29 cases reviewed from the Ninth Circuit, and at one point this year, the high court had overturned 12 out of 17 reviewed cases from the Ninth, including one rare day in jurisprudence when three cases were overturned. And, of course, this is the same court that, earlier this year, ruled the Pledge of Allegiance was unconstitutional because of the words "under God." As could be expected, this latter ruling promulgated a deafening outcry of opposition from the vast majority of Americans. Lawmakers from both sides of the aisle described the ruling with such unflattering terms as "nuts" and "stupid," and the U.S. Senate quickly responded by passing a resolution "expressing support for the Pledge of Allegiance" on a 99-0 vote. Perhaps realizing it had made a grave error, the Ninth Circuit quickly suspended its ruling, so the Supreme Court may not have an opportunity to overturn this particularly egregious edict.

The Ninth also ruled earlier this year that its interpretation of Idaho intoxication laws led it to believe drivers could operate motor vehicles while high on marijuana in that state, provided they do not drive erratically and can pass a field sobriety test. And a ruling by the same court in the case of U.S. v. Knight would have, according to Los Angeles Police Officer Jack Dunphy, "denied police officers a valuable tool in their efforts against crime and villainy." Dunphy, writing for National Review Online, was referring to the court’s ruling that a warrantless search of a vandalism suspect who was on probation for a previous offense was unconstitutional, even though one of the routine conditions for such a probationer is that he "[s]ubmit his . . . person, property, place of residence, vehicle, personal effects, to search at anytime, with or without a search warrant, warrant of arrest or reasonable cause by any probation officer or law enforcement officer." Upon review by the Supreme Court, however, the Ninth was again reversed, and reversed unanimously. Dunphy—who refers to the Ninth as a court that "says a lot of things, few of which, thank God (!), are taken seriously outside their own chambers"—described the 9-0 decision as being "peppered with little barbs" that were "tantamount to asking, ‘How did these pinheads ever pass the bar in the first place?’"

Of course, gun-ban extremists have embraced the ruling in Silviera v. Lockyer as "remarkable" and "spectacular," as would be expected. But the fact that this particular court has been so historically out of step with both mainstream America and the Supreme Court should only serve to highlight just how desperate and out of step is the anti-gun movement. What happens next with this particular case remains to be seen, but you can rest assured we will follow it and whatever effect it has on our Right to Keep and Bear Arms very closely.

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