SEAN SILVEIRA; JACK SAFFORD; PATRICK
OVERSTREET; DAVID K. MEHL; STEVEN FOCHT, Sgt.; DAVID BLALOCK, Sgt.; MARCUS
DAVIS; VANCE BOYCE; KENETH DEWALD, Plaintiffs-Appellants, v. BILL LOCKYER,
Attorney General, State of California; GRAY DAVIS, Governor, State of
California, Defendants-Appellees.
No. 01-15098
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
2002
PRIOR HISTORY: [*1] Appeal
from the
DISPOSITION: AFFIRMED in part, REVERSED in part, and REMANDED.
[. . . ]
OPINIONBY: Stephen Reinhardt
OPINION:
REINHARDT, Circuit Judge:
In 1999, the State of
I. INTRODUCTION
In response to a proliferation of shootings involving semi-automatic weapons,
the California Legislature passed the Roberti-Roos Assault Weapons Control Act
("the AWCA") in 1989. . . . The AWCA renders it a felony offense to
manufacture in
In 1999, the legislature amended the AWCA in order to broaden its coverage and
to render it more flexible in response to technological developments
[*7] in the manufacture of semiautomatic weapons. The
amended AWCA retains both the original list of models of restricted weapons,
and the judicial declaration procedure by which models may be
added to the list. The 1999 amendments to the AWCA statute add a third
method of defining the class of restricted weapons: The amendments provide that
a weapon constitutes a restricted assault weapon if it possesses certain
generic characteristics listed in the statute.
Plaintiffs in this case are nine individuals, some of whom lawfully acquired
weapons that were subsequently classified as assault weapons under the amended
AWCA. n7 They filed this action in February, 2000, one
month after the 1999 AWCA amendments took effect. [*10] Plaintiffs
who own assault weapons challenge the AWCA requirements that they either register, relinquish, or render inoperable their
assault weapons as violative of their Second Amendment rights. Plaintiffs who
seek to purchase weapons that may no longer lawfully be
purchased in
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n7 The nine plaintiffs include, inter alia, two California National
Guardsmen (both combat veterans), a San Francisco police officer, an insurance
agent, a chemical engineer, and a California correctional officer.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - [*11]
II. DISCUSSION
A. Background and Precedent.
[. . . ]
There are three principal schools of thought that form
the basis for the debate. The first, which we will refer to as the
"traditional individual rights" model, holds that the Second
Amendment guarantees to individual private citizens a fundamental right to
possess and use firearms for any purpose at all, subject only to limited government
regulation. This view, urged by the NRA and other firearms
enthusiasts, as well as by a prolific [*12] cadre of fervent
supporters in the legal academy, had never been adopted by any court until the
recent Fifth Circuit decision in United States v. Emerson, 270 F.3d
203, 227 (5th Cir. 2001), cert. denied, 153 L. Ed. 2d 184, 122 S. Ct.
2362 (2002). The second view, a variant of the first, we will refer to
as the "limited individual rights" model. Under that view,
individuals maintain a constitutional right to possess firearms insofar as such
possession bears a reasonable relationship to militia service. The third, a wholly contrary view, commonly
called the "collective rights" model, asserts that the Second Amendment
right to "bear arms" guarantees the right of the people to maintain
effective state militias, but does not provide any type of individual right to
own or possess weapons. Under this theory of the amendment, the federal and
state governments have the full authority to enact prohibitions and restrictions
on the use and possession of firearms, subject only to generally applicable
constitutional constraints, such as due process, equal protection, and the
like. Long the dominant view of the Second Amendment, and widely accepted by
the federal [*13] courts, the collective
rights model has recently come under strong criticism from individual rights
advocates. After conducting a full analysis of the amendment, its history, and
its purpose, we reaffirm our conclusion in Hickman v. Block, 81 F.3d
98 (9th Cir. 1996), that it is this collective rights
model which provides the best interpretation of the Second Amendment.
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. The Supreme Court's most extensive treatment of the amendment is a
somewhat cryptic discussion in United States v. Miller, 307 U.S. 174,
83 L. Ed. 1206, 59 S. Ct. 816 (1939). . . .
in Miller the Supreme Court decided
that because a weapon was not suitable for use in the militia, its possession
was not protected by the Second Amendment. As a result
of its phrasing of its holding in the negative, however, the
[. . .]
Some thirty-odd years after Miller [*17],
two Justices of the Court pithily expressed their views on the question whether
the Second Amendment limits the power of the federal or state governments to
enact gun control laws. Justice Douglas, joined by Justice Thurgood Marshall,
stated in dissent in Adams v. Williams, that in his view, the problem of
police fearing that suspects they apprehend are armed:
"is an acute one not because of the Fourth
Amendment, but because of the ease with which anyone can acquire a pistol. A
powerful lobby dins into the ears of our citizenry that these gun purchases are
constitutional rights protected by the Second Amendment . . . . There is under
our decisions no reason why stiff state laws governing the purchase and
possession of pistols may not be enacted. There is no
reason why pistols may not be barred from anyone with
a police record. There is no reason why a State may not require a purchaser of
a pistol to pass a psychiatric test. There is no reason why all pistols should
not be barred to everyone except the police."
[. . . ]
Our court, like every other federal court of appeals to reach the issue except
for the Fifth Circuit, has interpreted Miller as rejecting the
traditional individual rights view. In Hickman v. Block, we held that
"the Second Amendment guarantees a collective rather than an individual
right." 81 F.3d at 102 (citation and quotation
marks omitted). Like the other courts, we reached our conclusion regarding the
Second Amendment's scope largely on the basis of the rather cursory discussion
in Miller, and touched only briefly on the merits of the debate over [*22] the force of the amendment. See
id.
Appellants contend that we misread Miller in Hickman. They point out that, as we have already
noted, Miller, like most other cases that address the Second
Amendment, fails to provide much reasoning in support of its conclusion. We
agree that our determination in Hickman that Miller endorsed
the collective rights position is open to serious debate. We also agree that
the entire subject of the meaning of the Second Amendment deserves more
consideration than we, or the Supreme Court, have thus far been able (or
willing) to give it. This is particularly so because, since Hickman
was decided, there have been a number of important developments with respect to
the interpretation of the highly controversial provision: First, as we have
noted, there is the recent Emerson decision in which the Fifth
Circuit, after analyzing the opinion at length, concluded that the Supreme
Court's decision in Miller does not resolve the issue of the
Amendment's meaning. The Emerson court then canvassed the
pertinent scholarship and historical materials, and held that the Second
Amendment does establish an individual right to possess arms -- the first
federal court of [*24] appeals ever to
have so decided. Second, the current
leadership of the United States Department of Justice recently reversed the
decades-old position of the government on the Second Amendment, and adopted the
view of the Fifth Circuit. Now, for the first time, the
[. . . ]
In light of the United States government's recent change in
position on the meaning of the amendment, the resultant flood of Second
Amendment challenges in the district courts, the Fifth Circuit's extensive
study and analysis of the amendment and its conclusion that Miller
does not mean what we and other courts have assumed it to mean, the
proliferation of gun control statutes both state and federal, and the active
scholarly debate that is being waged across this nation, we believe it prudent
to explore Appellants' Second Amendment arguments in some depth, and to address
the merits of the issue, even though this circuit's position on the scope and
effect of the amendment was established in Hickman. Having
engaged in that exploration, we determine that the conclusion we reached in Hickman
was correct.
[. . .]
1. The Text and Structure of the Second
Amendment Demonstrate that the Amendment's Purpose is to Preserve Effective
State Militias; That Purpose Helps Shape the Content of the Amendment.
The Second Amendment states in its entirety: "A well regulated Militia
being necessary to the security of a
a. The Meaning of the Amendment's First Clause: "A
Well-Regulated Militia Being Necessary to the Security of A
The first or prefatory clause of the Second Amendment sets forth the
amendment's purpose and intent. An important aspect of ascertaining that
purpose and intent is determining the import of the term "militia."
Many advocates of the traditional individual rights model, including the Fifth
Circuit, [*36] have taken the position
that the term "militia" was meant to refer to all citizens, and,
therefore, that the first clause simply restates the second in more specific
terms. . . . We agree with the Fifth Circuit in a very limited respect. We
agree that the interpretation of the first clause and the extent to which that
clause shapes the content of the second depends in large part on the meaning of
the term "militia." If militia refers, as the Fifth Circuit suggests,
to all persons in a state, rather than to the state military entity, the first
clause would have one meaning -- a meaning that would support the concept of
traditional individual rights. If the term refers instead, as we believe, to
the entity [*37] ordinarily identified by
that designation, the state-created and -organized military force, it would
likely be necessary to attribute a considerably different meaning to the first
clause of the Second Amendment and ultimately to the amendment as a whole.
We believe the answer to the definitional question is the one that most persons
would expect: "militia" refers to a state military force. We reach
our conclusion not only because that is the ordinary meaning of the word, but
because contemporaneously enacted provisions of the Constitution that contain
the word "militia" consistently use the term to refer to a state
military entity, not to the people of the state as a whole. We look to such
contemporaneously enacted provisions for an understanding of words used in the
Second Amendment in part because this is an interpretive principle recently
explicated by the Supreme Court in a case involving another word that appears
in that amendment -- the word "people." That same interpretive principle is
unquestionably applicable when we construe the word "militia."
"Militia" appears repeatedly in the first and second Articles of the
Constitution. From its use in those sections, it is apparent that the drafters
were referring in the Constitution to the second of two government-established
and -controlled military forces. Those forces were, first, the national army
and navy, which were subject to civilian control shared by the president and Congress,
and, second, the state militias, which were to be "essentially
organized and under control of the states, but subject to regulation by
Congress and to 'federalization' at the command of the president." Paul
Finkelman, "A Well Regulated Militia": The Second Amendment in
Historical Perspective, 76 CHI.-
[. . .]
After examining each of the significant words or phrases in the Second
Amendment's first clause, we conclude that the clause declares the importance
of state militias to the security of the various
b. The Meaning of the Amendment's Second Clause: "The Right of the
People to Keep and Bear Arms, Shall Not Be
Infringed."
Having determined that the [*46] first clause of the Second
Amendment declares the importance of state militias to the proper functioning
of the new constitutional system, we now turn to the meaning of the second
clause, the effect the first clause has on the second, and the meaning of the
amendment as a whole. The second clause -- "the right of the people to
keep and bear Arms, shall not be infringed" -- is not free from ambiguity.
We consider it highly significant, however, that the second clause does not
purport to protect the right to "possess" or "own" arms,
but rather to "keep and bear" arms. This choice of words is important
because the phrase "bear arms" is a phrase that customarily relates
to a military function.
Historical research shows that the use of the term "bear arms"
generally referred to the carrying of arms in military service -- not the
private use of arms for personal purposes.
For instance, Professor Dorf, after canvassing documents from the
founding era, concluded that "overwhelmingly, the
term had a military connotation." Dorf, supra,
at 314. Our own review of historical documents confirms the professor's
report. . . .
c. The Relationship Between the Two Clauses.
Our next step is to consider the relationship between the two clauses, and the
meaning of the amendment as a whole. As we have noted, and as is evident from
the structure of the Second Amendment, the first clause explains the purpose of
the more substantive clause that follows, or, to put
it differently, it explains the reason necessitating or warranting the
enactment of the substantive provision. Moreover, in this case, the first
clause does more than simply state the amendment's purpose or justification: it
also helps shape and define the meaning of the
substantive provision contained in the second clause, and thus of the amendment
itself. . . .
When the second clause is read in light of the first, so as
to implement the policy set [*55] forth in the preamble, we believe
that the most plausible construction of the Second Amendment is that it seeks
to ensure the existence of effective state militias in which the people may
exercise their right to bear arms, and forbids the federal government to
interfere with such exercise. This conclusion is based in part on the
premise, explicitly set forth in the text of the amendment, that the
maintenance of effective state militias is essential to the preservation of a
In the end, however, given
the history and vigor of the dispute over the meaning of the Second Amendment's
language, we would be reluctant to say that the text and structure alone
establish with certainty which of the various views is correct. Fortunately, we
have available a number of other important sources that can help us determine
whether ours is the proper understanding. These include records that reflect
the historical context in which the amendment was adopted,
and documents that contain significant portions of the contemporary debates
relating to the adoption and ratification of the Constitution and the Bill of
Rights. . . .
In sum, our review of the
historical record regarding the enactment of the Second Amendment reveals that
the amendment was adopted to ensure that effective state militias would be
maintained, thus preserving the people's right to bear arms. The militias, in
turn, were viewed as critical to preserving the
integrity of the states within the newly structured national government as well
as to ensuring the freedom of the people from federal tyranny. Properly read,
the historical record relating to the Second Amendment leaves little doubt as
to its intended scope and effect.
3. Text, History, and Precedent All
Support the Collective Rights View of the Amendment.
[. . . ]
After conducting our analysis of the meaning of the words employed in the
amendment's two clauses, and the effect of their relationship to each other, we
concluded that the language and structure of the amendment strongly support the
collective rights view. The preamble establishes that the amendment's purpose
was to ensure the maintenance of effective state militias, and the amendment's
operative clause establishes that this objective was to be
attained by preserving the right of the people to "bear arms"
-- to carry weapons in conjunction with their service in the militia. . . .
IV. [*106] CONCLUSION
Because the Second Amendment affords only a collective right to own or possess
guns or other firearms, the district court's dismissal of plaintiffs' Second
Amendment claims is AFFIRMED. . . . The constitutional challenges to the
validity of the California Assault Weapons Control Act are
all rejected, with the exception of the claim relating to the retired
officers provision.
AFFIRMED in part, REVERSED in part, and REMANDED.