"The amendment protects the people's right to maintain an effective state militia, and does not establish an individual right to own or possess firearms for personal or other use."

http://biz.yahoo.com/prnews/021205/dcth039_1.html

SAN FRANCISCO (AP) - A federal appeals court, upholding California's assault-weapons ban, decided that the Second Amendment does not guarantee individuals the right to bear arms.

http://story.news.yahoo.com/news?tmpl=story&u=/ap/20021206/ap_on_re_us/assault_weapons_2

A federal appeals court upheld California's assault weapons control act Thursday, ruling that there is no constitutional right for individuals to keep and bear arms.

http://story.news.yahoo.com/news?tmpl=story&u=/trib/20021206/lo_latimes/court_upholds_state_assault_weapons_ban

What does everyone think about guns and the second amendment?

Does it give an individual the right to own guns?

Should guns be legal or illegal?

What's your opinion?

In my opinion there should be very stiff legal penalties for using a gun to threaten someone's safety, or even making a verbal threat to use a gun to harm someone, whether or not the perpetrator has an actual gun. The actual possession of a gun should not be legislated. Only the harmful use of a gun, or threatened harmful use, should be legislated. Of course causing harm in self-defense, should be excepted.

I don't believe in in controlling violence by controlling the mechanical instruments of violence; I believe in controlling violence by controlling mind. To me, an ideal world would be one with guns all over the place - and without it even occuring to anyone to use any of them to harm someone. This is the situation now with drain-cleaner. It is near every sink; tho it may be kept out of the reach of children, no-one does anything to keep drain-cleaner out of the reach of adults. It rarely occurs to anyone to put drain-cleaner in someones whiskey, or soup. But you can kill someone that way; or at the very least, sentence them to a life of eating thru a stomach tube.

Geez... only one reply from 27 views.

Apple, the 9th Circuit has a long history of reversals on appeal, and their most recent decision that you cited is in direct conflict to the holding in a 2001 5th Circuit opinion that formally recognized the 2nd as an individual right, and not a collective one. The individual "status" is also the formal opinion of Ashcroft's Justice Department. This split among the Circuits could give rise to an opinion from the U.S. Supreme Court. Wanna lay odds on which way they will rule? :D

As far as firearms ownership goes, aside from convicted felons, minors or mental incompetents, I feel that firearms ownership should be absolutely unrestricted in the US. I also feel that the 2nd Amendment plainly states such, and that any state laws to the contrary or federal restrictions such as magazine capacity, etc. are a Constitutionally prohibited "infringement".

Illegal conduct with a firearm is what should be controlled, not the instrumentality itself.

Originally posted by Bankruptor
Apple, the 9th Circuit has a long history of reversals on appeal, and their most recent decision that you cited is in direct conflict to the holding in a 2001 5th Circuit opinion that formally recognized the 2nd as an individual right, and not a collective one. The individual "status" is also the formal opinion of Ashcroft's Justice Department. This split among the Circuits could give rise to an opinion from the U.S. Supreme Court. Wanna lay odds on which way they will rule? :D

Of course it has a long history of reversals. It is one of the most, if not, liberal court in the United States. Every court should be like the 9th District- doncha think? Supreme Court would no doubt reverse it due to the fact it's mostly conservative.

I have no problem with guns being legal. Bullets, on the other hand :naughty:

No, seriously, one of the few things more pathetic than the NRA and the Gun Lobby is my academic track record in government and law classes. Alas, what's even more pathetic, is both that violent crime laws are too right-liberal (perhaps the only time I'll ever say that), and that people actually take the "right" to bear arms seriously. It clearly has no relevance in modern times.

But then, a lot of people take Charlton Heston seriously, too, but the left ain't all that sharp to begin with (and by "begin" I mean the PRESIDENT!)

"I have no problem with guns being legal. Bullets, on the other hand "

Actually, if you must prohibit the construction and dissemination of some kind of human-made device, it does make more sense to prohibit cartridges, than to prohibit guns. Guns are little more than tubes, used to control the direction of bullets. Cartridges, on the other hand, contain the source of chemical energy that propels the bullet, and the bullet itself, and are what primarily determines the velocity of the bullet, and the penetrating ability of the bullet. Without "guns," cartridges can still be used -- you can empty out the nitro-cellulose and make bombs out of it. Or simply put the cartridge in the right sized plumbing pipe, and whack the end with a carpenters hammer. Ban guns? next thing you know, plumbing pipes and carpenters' hammers will need to be banned. Along with other kinds of tubing, and hammers. But ban cartridges -- making replacements to use in your high-tech gun, or pipe, is not as easy as making replacements for guns.

Trying to prevent violence by banning guns but allowng cartridges, is sort of like trying to prevent cannibus-smoking by banning rolling papers but allowing cannibus leaves; like trying to prevent alcohol-drinking, by banning glasses but allowing alcohol.

Umm... Joke.

But I get your point. No, banning bullets is not a serious suggestion.

modern times? lol, i think you put to much confidence in the idea that it being the year 2002 would stop anything bad from happening in which someone might need to defend themselves by means other than their voice. I wonder if shortly before the Nazis were rounding up Jews, everyone was thinking about how wonderful and safe it was to be in "modern times". Don't let the date fool you, people are savages, no matter what year you live in.

The common theme of the constitution and original bill of rights is that the individual should be able to defend themselves, either by force, by vote, by due process or the written/spoken word.

But the framers of the Constitution knew what they were writing was only going to work for near generations, so the original Constitution had to have a "built-in" ability to be updated with the times, and it does indeed have that in the ammendments such as the one in question here. However, private-sector interest groups and lobbyists have corrupted the system to the point where no real social reform is a realistic hope.

The Consititution, by methods of bicameral legislative bodies and checks and balances, designs the American government to be such that no dictator could ever take control of the state forces in the manner Hitler did, so you Nazi analogy is irrelevant.

Also, people really weren't thinking about how wonderful the state was before the Third Reich era. Most of continental Europe was so totally economically ravaged by WWI that it was surely not "wonderful and safe."

I like the idea of being able to defend myself against my government if some dictator took over or something, but if they got ahold of the military (and got all of the generals, etc.) to go along with it, I think we the people would have to get real creative in how to rebel, bc the US military is pretty serious. We would have to have a huge amount of foreign help to even make a dent if we wanted to use traditional violent means to overthrow the goverment.

The writers of the constitution had no idea what they were writing would last 5 years. I would even venture to guess most were suprised the constitution was still in effect at the time of their death, but that is besides the point.

Under stressful circumstances the government could, and has, effectively bypass the constitutional rights of individuals and seek out certain sects of people and without due process detain them for further investigation or in the name of safety of the country. Also may limit individuals freedoms of privacy and give gov't and police depts more authority over surveilance all in the name of safety. Do these individuals not have the right to defend themselves from the gov't actions which is violating their constitutional rights?

i dont know, if the war just ended and a new promising gov't was set up, i would think that wonderful and safe and that genocide wasn't an option in that "modern time".

It's interesting to note how many folks vigorously defend the first 10 amendments to the US Constitution as unquestionably only applying to the "individual", then try to claim some other interpretation of the 2nd. I have vigorously maintained that the 2nd is an individual right since 1968 and the GCA that was a knee jerk reaction to Bobby Kennedy and MLK, and rest assured that I take great pleasure in seeing the DOJ AND one of the highest federal courts in the US support that view. I only hope that the US Supreme Court will hear this matter and definitively settle the long misinterpreted Miller case and its progeny, which case was specifically limited in its facts and has been broadly overcited and overemphasized in modern jurisprudence largely due to a lack of other opinion from "on high".

Max, I can't help but respond to your "It clearly has no relevance in modern times" observation. Perhaps in academia land this is true, but for those of us who have to live in a world where their women are afraid to go to the ATM machine without them, rest assured that a .45 under my jacket is far superior to a cell phone call to a cop that is 15 min. away. I'm thankful that I've never had to call on anything other than my Tony Soprano-like countenance in such matters thus far, but rest assured that there are some of us out there who are willing and prepared to go beyond a philosophical discussion in life or death encounters. I'm sorry if that appears gauche to you.

I find myself in agreement with Majake once again.

Apple, here's a followup article from the SFGate on this case . . . .


http://sfgate.com/cgi-bin/article.c...08/MN220661.DTL


__________________

The framers certainly had future generations in mind when writing the Constitution and purposely writing the Bill of Rights outside of the body proper. Article V of the Constitution is explicitly written to address the need as it was assumed that the Consittution will need to be ammended.

I'm not arguing that we don't have the right to defend ourselves from the government. I am arguing that the right to bear arms is irrelevent means to such ends given the proliferation of lobbying powers (for better and for worse) and political action and the like. We don't need guns to affect change. It is a handy excuse, though.

Originally posted by Bankruptor
Perhaps in academia land this is true, but for those of us who have to live in a world where their women are afraid to go to the ATM machine without them, rest assured that a .45 under my jacket is far superior to a cell phone call to a cop that is 15 min. away.

And I'm afraid of that woman carrying a concealed weapon in public. I certainly wouldn't move back to Baltimore without my .22, but I'd keep it in a safety lock beside my bed where I need it.

I'm not against gun ownership. I'm against the leftist rhetoric that says that we can own any weapon that can be manufactured. I'm also not a big fan of the far right views towards banning all forms of defensive weapon owning.

Max, I never mentioned anything about a woman carrying a weapon, though no doubt many lawfully do; I was referring to myself. If you're afraid of me when I'm carrying, all I can say is that the State isn't, that's why they issued me the license many moons ago, and to no regret from either side.

Originally posted by Max Power
...I'm not against gun ownership. I'm against the leftist rhetoric that says that we can own any weapon that can be manufactured. I'm also not a big fan of the far right views towards banning all forms of defensive weapon owning.
Are left and right used differently in the context of gun politics?

How would a dictator get and keep control without military backing? I think it would be safe to say that it mostly unrealistic that a dictator could get control and keep it without military control. In which case the military would be on the opposite side. If not, hand guns and riffles wouldn't even make a small dent against the military.

Originally posted by Thalia
I like the idea of being able to defend myself against my government if some dictator took over or something, but if they got ahold of the military (and got all of the generals, etc.) to go along with it, I think we the people would have to get real creative in how to rebel, bc the US military is pretty serious. We would have to have a huge amount of foreign help to even make a dent if we wanted to use traditional violent means to overthrow the goverment.

Bankruptor: Your link doesn't work.

Apple, sorry about that, they disabled it after I linked it. Here's the text if you're interested.



'Intellectual feast' for U.S. high court
9th Circuit ruling a recipe to review gun control case

Bob Egelko, Chronicle Staff Writer Sunday, December 8, 2002

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Take the nation's most provocatively liberal federal judge, Stephen Reinhardt. Add one of the U.S. Constitution's murkiest and most controversial provisions, the Second Amendment. Throw in a simmering legal and political debate, joined by a pro-gun attorney general, John Ashcroft.

It's a formula for an explosive new ruling on firearm regulation, issued by the nation's largest and most willful federal appeals court, based in San Francisco. And it could spur the U.S. Supreme Court into deciding an issue that it last addressed -- without fully resolving -- in 1939: Does the Constitution give individual Americans the right to own guns?

"This case is an intellectual feast, and I wouldn't be surprised if the court decides to sit at the table," said Los Angeles attorney Edward Lazarus, author of the 1998 book "Closed Chambers: The Rise, Fall and Future of the Modern Supreme Court."

"If it's not this case, it's going to be a case pretty soon."

The previously obscure case that suddenly vaulted into the spotlight Thursday was a ruling by the Ninth U.S. Circuit Court of Appeals, written by Reinhardt, upholding California's ban on semiautomatic assault weapons.

The conclusion was not as noteworthy as Reinhardt's 70-page examination of the Second Amendment -- its language, history and purpose -- and summation that the amendment's right to "keep and bear arms" applies to state militias, not private citizens.

The ruling conflicts with an interpretation by another federal appeals court last year, a circumstance that usually increases the likelihood of Supreme Court review. Some analysts said a resolution by the high court was inevitable and long overdue in light of the increasing public attention on the role of guns in society.

"It's like watching the question of segregated schools bubble over in the 1940s and 1950s," said Peter Keane, dean of Golden Gate University School of Law in San Francisco. "It's got to come to a head in the Supreme Court."

Not all commentators agreed that Supreme Court intervention was imminent. But most said Reinhardt's opinion had moved the legal debate a step forward.

"It's long and thoughtful. He deserves credit for confronting the issues, " said UCLA law Professor Eugene Volokh, whose writings endorsing an individual's right to own guns were cited -- and disputed -- by Reinhardt.

Confrontation is nothing unusual for Reinhardt, who has made a habit of it since President Jimmy Carter appointed him to the court in 1980.

A judge's role is not to "see that the majority prevails," Reinhardt told an interviewer this June, after taking part in the 2-1 ruling that declared the phrase "one nation under God" in the Pledge of Allegiance unconstitutional.

"That is why we have a Bill of Rights -- so that a court will see that the majority doesn't take away the rights of those they don't agree with."

A former Democratic National Committee member who is married to the executive director of the American Civil Liberties Union of Southern California, Reinhardt is known for cutting-edge rulings and Supreme Court rebuffs.

Among his decisions that have been overturned by the high court were rulings that would have established a constitutional right to doctor-assisted suicide and would have struck down California's term-limits law. Reinhardt's rulings have contributed heavily to the Ninth Circuit's record as the nation's most-reversed appellate court.

"He's a bit of a lightning rod for the Supreme Court," said Loyola University law Professor Laurie Levenson. "If they weren't interested in an issue before, he usually gets their attention."

In Thursday's ruling, Reinhardt, joined by Judge Raymond Fisher, said scholars have long been mystified by the text of the Second Amendment: "A well- regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed."

The Supreme Court last discussed its meaning in 1939 when it upheld a law banning interstate shipment of sawed-off shotguns, on the grounds that possession of such a weapon has no relationship to preserving a well-regulated militia.

That ruling settled the debate for most federal courts -- although, as Reinhardt pointed out, it stopped short of a clear-cut statement that the Second Amendment applied only to state militias and not individuals.

The U.S. Justice Department relied on the 1939 ruling for many decades in fending off appeals by defendants charged with violating federal gun laws, like the bans on shipping machine guns and sawed-off shotguns and the prohibition on gun ownership by convicted felons. The department's position was that the Constitution didn't protect any gun transaction that was prohibited by law.

In the legal community, too, the view that the Second Amendment protects individual gun ownership has long been a minority position. However, it has gained increasing acceptance in the last decade from law professors and commentators, not all of them conservative.

Last year, a federal appeals court in New Orleans, after going through its own historical analysis, concluded that the Second Amendment protected gun ownership by private citizens. Nonetheless, the court said the government could impose reasonable regulations, and it upheld a federal ban on gun possession by anyone subject to a domestic-violence restraining order.

Ashcroft had announced the same view -- that the Constitution protects private gun ownership -- earlier in 2001, reversing decades of Justice Department policy. In May, he formally endorsed the individual rights position in a Supreme Court brief urging the court to leave the New Orleans decision in place. The high court refused to review of the decision, leaving the gun law intact and the Second Amendment issue unsettled.

On Thursday, Reinhardt put the Second Amendment under a magnifying glass, with discourses on the historical meaning of "militia" and the right to "keep and bear arms." He infused his opinion with commentary from the likes of Patrick Henry and John Adams as well as modern-day law professors.

The judge said they all pointed to the same conclusion: that the constitutional provision was intended to keep the federal government from disarming state militias, not to allow individuals to own guns. That means the government has a free hand to regulate firearms.

As the third panel member, Judge Frank Magill, pointed out, the entire discussion was legally unnecessary, because the Ninth Circuit had reached the same interpretation of the Second Amendment in a much briefer 1996 ruling that is still binding. But Reinhardt said the issue was worth re-examining at length because of new legal developments since 1996.

"There wasn't really the need to have such a lengthy discussion unless you're anticipating the issue going up to a higher court," observed Loyola's Levenson.

Several analysts questioned whether the California case was a good candidate for Supreme Court review. UC Berkeley law Professor Jesse Choper said the court was more likely to intervene after some lower court used the Second Amendment to overturn a gun law. Others cited procedural obstacles, including the still-unanswered question of whether the Second Amendment applies to state laws.

The court would be most likely to take up the issue at the invitation of the Bush administration, and "from the administration's perspective, you don't have the ideal test case" in a lawsuit over the right to own assault weapons, said Jack Rakove, a Stanford University history and political science professor and Second Amendment authority. But at least, he said, the latest ruling "will make people realize there's a serious debate out there."

E-mail Bob Egelko at begelko@sfchronicle.com.

How do you get individual right when the second amendment refers to a militia?

"A well- regulated militia being necessary to the security of a free state, the right of the PEOPLE (emphasis mine) to keep and bear arms shall not be infringed"

Apple, the use of the word "people" has never been interpreted to mean anything other than the individual in any appellate opinion dealing with the other 10 amendments in the Bill of Rights.

Originally posted by Thalia
Are left and right used differently in the context of gun politics?

yes.

But everyday citizens or people with guns is not a "well regulated militia."