Thursday, December 5, 2002

The Ninth Circus Court of Appeals Once Again Demonstrates Its Scholarship

SILVEIRA v. LOCKYER, in which a suit against California's assault weapons law asserted that the Second Amendment protected an individual right. Judge Reinhardt's opinion is one that only a gun control advocate could have written.
Despite the increased attention by commentators and political interest groups to the question of what exactly the Second Amendment protects, with the sole exception of the Fifth Circuit’s Emerson decision there exists no thorough judicial examination of the amendment’s meaning.
Except, of course, that this is incorrect. There is an extensive set of decisions which examine the meaning of the Second Amendment, some in considerable detail, but these decisions have been overwhelmingly in state supreme courts.

The following is a list of state supreme court decisions that have, when an individual appealed to the Second Amendment's protections, the court, rather than deny an individual right was protected, did one of the following:

1. Struck down a gun control law;

2. Claimed that the Second Amendment was only was a limitation on the federal government with respect to individual rights, but did not restrict state laws;

3. Claimed the Second Amendment only restricted the federal government, but struck down a law based on a state RKBA provision;

4. Found some other basis for upholding a law, without denying the claim that the Second Amendment protected an individual right;

5. Found that the Second Amendment protected an individual right, but found some method to harmonize a gun control law based on the idea that this was "reasonable regulation," or that the weapons regulated were not protected.

In short, these decisions refused to make this silly claim that the Second Amendment doesn't protect an individual right.

NOTE BENE: I do NOT claim that every decision on the list below found an absolute right to keep and bear arms, or an unlimited right. In some of the decisions, the court has clearly found a way to avoid directly striking down a law by one of the items listed 2-5 above.

I have also excluded a number of appellate court decisions -- but about as many from all three lists below. I also haven't included any of the federal decisions, most of which acknowledge explicitly or implicitly that the Second Amendment protects an individual right.

Aymette v. State, 2 Hump. (21 Tenn.) 154 (1840)

State v. Newsom, 5 Iredell 181, 27 N.C. 250 (1844)

Nunn v. State, 1 Ga. 243 (1846)

State v. Chandler, 5 La. An. 489 (1850)

Smith v. State, 11 La. An. 633 (1856)

State v. Jumel, 13 La. An. 399 (1858)

Cockrum v. State, 24 Tex. 394 (1859)

Andrews v. State, 3 Heisk. (50 Tenn.) 165 (1871)

Fife v. State, 31 Ark. 455, 25 Am. Rep. 556 (1876)

English v. State, 35 Tex. 473 (1872)

State v. Duke, 42 Tex. 455 (1875)

State v. Hill, 53 Ga. 472 (1874)

State v. Wilforth, 74 Mo. 528 (1881)

State v. Workman, 35 W.Va. 367 (1891)

In Re Brickey, 8 Ida. 597, 70 Pac. 609, 101 Am. St. Rep. 215 (1902)

Strickland v. State, 137 Ga. 1, 72 S.E. 260 (1911)

People v. Persce, 204 N.Y. 397 (1912)

State v. Keet, 269 Mo. 206, 190 S.W. 573 (1916)

State v. Kerner, 181 N.C. 574, 107 S.E. 222 (1921)

State v. Nieto, 101 Ohio St. 409, 130 N.E. 663 (1920)

State v. Woodward, 58 Ida. 385, 74 P.2d 92 (1937)

State v. Hart, 66 Ida. 217, 157 P.2d 72 (1945)

Watson V. Stone, 4 So.2d 700 (Fla. 1941)

People v. Liss, 406 Ill. 419, 94 N.E.2d 320 (1950)

State v. Nickerson, 126 Mont. 157 (1952)

In re Rameriz, 193 Cal. 633, 226 P. 914 (1924)

Application of Grauling, 17 Misc.2d 215, 183 N.Y.S.2d 654 (1959)

Burton v. Sills, 99 N.J.Super. 459 (1968)

Grimm v. City of New York, 56 Misc.2d 525, 289 N.Y.S.2d 358 (1968)

Guida v. Dier, 84 Misc.2d 110, 375 N.Y.S.2d 826 (1975)

Rinzler v. Carson, 262 So.2d 661 (Fla. 1972)

Mosher v. City of Dayton, 48 Ohio St.2d 243, 358 N.E.2d 540 (1976)

Kellogg v. City of Gary, 462 N.E.2d 685 (Ind. 1990)

State v. Kessler, 289 Or. 359 (1980)

City Of Princeton v. Buckner, 377 S.E.2d 139, 142, 143 (W.Va. 1988)

The following decisions strongly implied that an individual right was

protected by the Second Amendment:

State v. Angelo, 3 N.J.Misc. 1014, 130 A. 458 (1925)

State v. Sanne, 116 N.H. 583, 364 A.2d 630 (1976)

Rabbitt v. Leonard, 36 Conn. Sup. 108 (1979)

The following state supreme court decisons have denied the Second

Amendment protects an individual right:

State v. Buzzard, 4 Ark. 18 (1842)

Harris v. State, 432 P.2d 929 (Nev. 1967)

State v. Vlacil, 645 P.2d 677 (Utah 1982) (but see Justice Oaks' concurring opinion)

Commonwealth v. Davis, 343 N.E.2d 847 (Mass. 1976)

Application of Atkinson, 291 N.W.2d 396 (Minn. 1980)

Unsurprisingly, Reinhardt quotes at length from the one-sided Chicago-Kent Law Review symposium issue published two years ago in which only those opposed to the individual rights view were invited--and paid for their articles. (This is almost unheard in scholarly publications.) Of course, Reinhardt cites the well-known soon-to-be former Professor Michael Bellesiles for support for the collective rights view, apparently unaware or unconcerned about Bellesiles's scholarly integrity problem.

This is the sort of decision I expect from the Ninth Circus Court of Appeals: long on verbal sleight of hand, short on examination of original sources, very trusting of gun control advocate opinions.

No comments:

Post a Comment