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Second Amendment shot down yesterday

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

Ninth Circuit Upholds State Assault Weapons Ban



By ROBERT GREENE, Staff Writer



The Second Amendment never was meant to guarantee an individual’s right to own a gun, the Ninth U.S. Circuit Court of Appeals said yesterday in a ruling upholding California’s tight restrictions on assault weapons.

The 1989 Roberti-Roos Assault Weapons Control Act, enacted after the schoolyard killing of five Stockton children by gunman Patrick Purdy, doesn’t violate the Bill of Rights because the Second Amendment was meant only to affirm the power of official state militias to organize and to arm their troopers, Judge Stephen Reinhardt wrote for the three-judge panel.

The law bars anyone from making certain semi-automatic weapons in California or importing them into the state. Anyone who already owned guns that were put on the list of banned weapons by the state attorney general must register them, make them inoperable, take them out of the state or give them up.

Exceptions for law enforcement officers, even when they are off duty, are valid under the Equal Protection Clause because public protection forms a rational basis for treating officers differently, Reinhardt said.

But the court rejected a provision that also provides an exception for retired law enforcement officers. Just because Congress incorporated the same exception into a 1994 federal law modeled on the California statute, the judge said, doesn’t mean there was a rational basis for the exemption in California.

“An unconstitutional statute adopted by a dozen jurisdictions is no less unconstitutional by virtue of its popularity,” Reinhardt said.

The court also rejected assertions that the special training officers had before they retired, or the fact that officers may have purchased their duty weapons on retirement, provided a rational basis for the exception.

The Second Amendment reads, “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 opinion was not the first in which the Ninth Circuit has cited the “well-regulated militia” clause to support its position that the Second Amendment does not apply to personal gun ownership. That position—that the prefatory clause modifies the following clause, usually known as the “collective rights model”—is widely accepted by gun control advocates, and Reinhardt said it was the accepted interpretation in the nation for most of its history.

The competing “traditional individual rights model” is of more recent vintage, he said.

But the Fifth Circuit has ruled that the Second Amendment guarantees personal gun ownership rights, and Attorney General John Ashcroft has adopted that position.

Reinhardt’s opinion was unusual in that most of its 70 pages, a length generally reserved for law review articles, was devoted to an analysis of the two approaches to interpreting the clause.

Second Amendment scholar David Kopel, research director of the Colorado-based Independence Institution and a staunch defender of the individualist rights approach, said the opinion could not be taken seriously because Reinhardt’s analysis relied in part on a law review article by someone Kopel called a proven fraud.

“When footnote 1 is a book that has been exposed as a hoax, there is no reason to believe anything else in it,” Kopel said.

Reinhardt cited “Gun Control: A Historical Overview” by Michael A. Bellesiles, 28 Crime & Just. 137. Bellesiles is the author of “Arming America: The Origins of a National Gun Culture,” a 2000 book that asserts among other things that guns were rare in early America. Bellesiles resigned from the faculty of Emory University, effective the end of this year, after assertions that he fabricated research data led to a special academic inquiry.

The committee concluded that Bellesiles failed to abide by proper research standards.

Although the circuits are split on the meaning of the Second Amendment, the Supreme Court has not taken review of cases that deal with the issue directly. Kopel said the justices were not likely to take this case either, but would wait for one that dealt with a federal gun control law—or would continue to pass on the issue.

“The Supreme Court has finite political capital and spends it as it wants to,” Kopel said.

In 1939, the high court upheld a federal law prohibiting the interstate transport of sawed-off shotguns, finding the weapon unsuitable for use in the militia and not constitutionally protected. The court has since rarely delved into Second Amendment issues.

The California assault weapons ban restricts guns that reload automatically after the trigger is pulled and use large ammunition magazines to allow continuous shooting without reloading.

In 1999, the Legislature redrafted the law to ban copycat weapons with similar features. The law permits the state attorney general to add guns to the list of banned weapons.

“While I respect the rights of Californians to pursue hunting and sports shooting, and of law-abiding citizens to protect their homes and businesses, there is no need for these military style weapons to be on the streets in our state,” Attorney General Bill Lockyer said in a statement.

The National Rifle Association said it was disappointed with the ruling.

“From an organizational standpoint, for 131 years we’ve been standing steadfastly to protect the freedoms of all law abiding Americans and stand steadfastly that the Second Amendment is an individual right and will continue to do so,” NRA spokesman Andrew Arulanandam said.

The case is Silveira v. Lockyer, 01-15098.

by WhizWart
This is a really mixed issue. On the one hand if your a responsible individual who's not a nut or a felon, you should be allowed to own a gun. But do you really need that AR-15 with the Teflon coated bullets? I think anyone who thinks there home is in danger could easily be safe with just a plain ol' shotgun, and that home would be equaly safe if you kept the ammo and the gun locked up. No respondsible gun owner should have a gun, kids or no kids, without a secure place to store it (and no, behind the stove and under your bed don't count.)
by Radian
Singling out semi auto's is illogical. A bolt action rifle with a scope is devestating out to 400 yards. A shotgun is equally destructive at close range. You can walk into a hardware store and buy the ingredients to make a bomb that will level a city block or chemicals that could kill hundreds of people in a closed space.

Brutally enforcing laws on the books against using guns in crime is effective. It is a personality issue tat leads to gun crime, and crime in general. Ever wondered why there is almost no gun crime in switzerland where everyone has access to all types of weapons?
by AK47FAN
I own a number of guns, including assault rifles, and I enjoy having them. But I don't hide behind and misconstrue the constitution as giving me any special right to own one. I own guns the same way I own a refrigerator, a car, this computer, a loaf of bread, or tennis shoes. The constitution speaks to arming a militia, not a bunch of hunters and recreational shooters like me. We have a militia, thank you very much. It is called the US Army. The army needs guns. For the rest of us, they're just nice to have. And if you think it's so bad in this country that you need guns to overthrow the government that guarantees you all the rights you have, (incidentally this government consists of about 25% of our population), then why don't you just get the hell out, you stinking crybaby. I'll register my guns if in some small way it may help prevent or solve crimes - it's no big deal, and I have nothing to hide. What I resent like hell is registering my motor vehicles, and displaying license plates on them. Think about it: sure, a license plate is in code, and I don't have anything to hide, but maybe I just don't care to wear my name on the outside of my car. And if you want to raise money for road improvements, have the guts to raise taxes and stop masking a tax with the registration of a motor vehicle. Register guns, if you must, but not cars. The guys who drafted the constitution never envisioned the abuses of the rights they were trying to preserve. Do you think they envisioned kiddie porn, wire taps, hidden cameras, or the kind of outrageous speech whose only purpose is shock effect. Americans have proven that they cannot handle unlimited rights in some areas. It's time to stop kissing up to an outdated constitiution and trying to apply it to a world about a thousand years ahead of the time of the guys who wrote it. Guns are a constitutional right guaranteed to the nation's armed forces. For the individual, the right to own a gun is no more guaranteed than the right to own a coffee pot.
by AK47FAN
Thanks. But don't you think the basis for the right to own a gun should be broadened beyond that second amendment stuff? All somebody has to do is mess with the firearm amendment and guns are down the tubes. The right to gun ownership ought to be mixed in with the rights to own other things such that should somebody outlaw guns, then blenders and vacuum cleaners would have to go, too.
Actually, that's not true, at least no in legal terms. Here is the legal definition of "The Militia":

UNITED STATES CODE
TITLE 10 - ARMED FORCES
Subtitle A - General Military Law
PART I - ORGANIZATION AND GENERAL MILITARY POWERS
CHAPTER 13 - THE MILITIA

§ 311. Militia: composition and classes

(a) The militia of the United States consists of all able-bodied males at least 17 years of age and, except as provided in section 313 of title 32, under 45 years of age who are, or who have made a declaration of intention to become, citizens of the United States and of female citizens of the United States who are members of the National Guard.

(b) The classes of the militia are -

(1) the organized militia, which consists of the National Guard and the Naval Militia;

and

(2) the unorganized militia, which consists of the members of the militia who are not members of the National Guard or the Naval Militia.

by AK47FAN
Thanks, legal eagle, for the definition of "militia". A couple of serious questions, though: I may interpret this wrong, but doesn't this definition basically say that there are two kinds of militia - the National Guard (organized) and everybody else 17 - 45 (the unorganized)? Would you, then say that the right to bear arms (under 2nd Amend) is then applicable only to those in the National Guard and only to those 17 - 45 ? And, was this definition adopted at the time of the constitution in the context of the struggle with Britain at that time? I suspect that the part-time citizen-soldiers of the 1770's would have been considered a "militia" at that time, whose purpose would have been to supplement whatever regular army we had at the time to beat back the foreign enemy, the Brits. I can't imagine that the framers of the constitution would have sanctioned a homespun militia as the watchdog and potential usurper of its own government. I also think those framers would have contemplated that dissatisfaction with the government by its citizenry would have been dealt with by peaceful, not armed means. I would like to read your thoughts on this.
by AK47FAN
Nessie - I don't think that registering guns leads to a "gun grab", so I don't have any problem registering mine. I also think that there are millions of owners out there in gunland that see gun ownership as a God-given right, and who will only give up their guns when their cold, dead fingers are pried from the trigger. I am not one of these, and I agree with you that as a practical matter, nobody is ever going to take them away.
by a
If you believe in registering guns, possibly to help solve crimes, then you should have no problem with registering cars. Each year in the US, about 10,000 people are killed by guns, but about 50,000 are killed by cars. Many collisions are "hit-and-run" and getting a glimpse of the license plate can make the difference in catching the offender.
by Mr. Placid
Let’s look into a dark future, just for drill.
Our military is off fighting in South America, Asia and Europe
being the police to counteract ‘terrorism’ and we have
martial law here in the U.S. enforced by paid para-military
forces (police) selected as they are not for intelligence but
for loyalty to the ones providing their protected life styles.
You know the kind, we see them with pepper spray and
shot guns at most rallies itching to bust some heads.
Even now cops can kill with near impunity using the flimsiest
of pretext. How many are behind bars now for murder?
Ownership of firearms is now illegal and raids ( remember waco?)
are being carried out on a daily basis using lethal force
to capture ‘gun terrorists’ as the media looks the other way.
I gotta think about this. Oh yes I’m a paranoid manic schizophrenic
psychotic neurotic obsessive compulsive. Ha.
by Mr. Placid
The atmosphere of violence is getting thicker all the time.
The scale of violence between civilians and the police is
like the violence in Palestine. One Israel death equals
about ten Palestinians. The tragic death of any innocent is
a dreadful waste of life.
Siting the murder of a police officer does not forgive the
abuse of force perpetrated upon civilians.
It also does not address the issue of power wielded by authoritarian
structures against a population upon which its charge is to
‘protect and serve’.
by Rita (adrianna46299 [at] yahoo.com)
Our police officers in this country face danger in the streets everyday to protect us. yes some of them are brutal, but the majority are there to protect the citizens of this country from violence. so, should the majority suffer for the few? I think not. I have a deep respect for men and women who put theirselves in the line of fire on a daily basis to protect me and my family, and so should you!
by Mr. Placid
Well I guess you have never have had
guns shoved into your face or back for only being out
on the streets, walking. Or have been robed by the police
after they have used a bogus warrant to enter and search your home. Or have had them lie in court and in depositions to frame
you in order to justify their illegal warrant. You’re just lucky.
by Mr. Placid
Gee. Bledge, sorry about that. I’m not black. I’m just not
wealthy. I’m sure that doesn’t much matter, right?
Personally I think cops do serve a good role as traffic cops
or detectives but not for protection of my familly.
That's why I'm well armed. I've nerver robed or assulted
or frauded anyone. Hell, I'm a model citizen.
by oh bullcrap
Why didn't you call the impound lot and demand they release your bike to your friends? Send them down with a notarized letter? Get a Power of Attorney to have them act on your behalf? Take out a cash advance on a credit card to get the bike out of hock? Borrow the money from friends or family? Explain the situation to the city and ask for remitment or redress of grievances? Get a lawyer and take the city to small claims court?

The one thing I've learned in my life is that if there is a will, there is a way. Only whiners carry a grudges about things that have happened to them that were essentially their own fault. The only thing that is "completely and totally irrelevant" is whiners. And you are a whiner.

>There's a name for people who rely on the police to protect them. They are called "victims."

So what happens when someone sneaks up behind you at a gas pump and puts two bullets in your head? Who takes responsibility for your family's safety then? Your wife? Your two year old child? Perhaps they should march out into the streets themselves to subdue your killer?

Maybe we should ask David Mobilio's family?

There's a name for people who rely on themselves to serve justice. They are called "vigilantes".
by Sheepdog
This murder is looking more like a deliberate ‘event’ to
justify goon squad tactics.
The trial isn’t even on yet and SOME people are riding
this tragic death for all it’s worth, discusting.
Ny deep condolences to the familly and their awfull
pain and loss. It’s a very cheap shot to captilaze on it
for fodder to use.
by DM
If a police officer had pumped two bullets into the back of the head of an activist at a gas station, when the activist community kept talking about it and pointing it out over and over and over, would the activists doing that also be accused of the equivalent? of creating a "deliberate ‘event’ to justify goon squad tactics"? When an 11 yr old girl got arrested for misbehaving on a bridge, you talked about it endlessly. Welcome to a taste of your own medicine.
As if the death of a man is only worth a few rants on a bizzaro liberalist webpage.

The activism of Andy Mickel didn't even make the national media. It was insignifigant in the big scheme. But the the enigma of David Mobilio is monumental.

The only place this tragedy is getting any air-time is on indymedia. Because these were the criminals that perpetrated the act.

And they're still walking the streets. Where's that vigilante-style anarchist justice when you need it?
by Sheepdog
Talk about unsubstantiated allegations.
-”The only place this tragedy is getting any air-time is on indymedia. Because these were the criminals that perpetrated the act”-
Yep, looking more like a cointel event to attack IMC using another
innocent to further the cause of information suppression, anti
terror laws or public opinion.
It’s curious that the Mc Viegh type of ‘ killer ‘ comes up to commit
senseless crimes that conveniently stoke the ideologies these
‘lone nuts’ are proposed to be against.
by balderdash
From the manifesto of Andrew McRae posted to the IMC network as a whole:

"Everyone!- Remember that the authorities will lie to you. They will try to make you distrust one another. Trust each other in spite of the disinformation they feed you. Don’t believe any rumors you hear until they are confirmed. Different views and different tactics are okay, but communicate with one another! Especially when you are two autonomous groups collaborating. Communicate and don’t believe rumors.
Communicate with the liberal press, and with indymedia. "

This guy stepped up to the plate. Now the activists turn their backs on him like yesterdays news?

The only thing unsubstantiated is:

"Yep, looking more like a cointel event to attack IMC using another innocent to further the cause of information suppression, anti terror laws or public opinion. "
I've got an idea. Why don't the Indymedia press document and cover the Andrew McRae trial on their website like they did with the Judi Bari trial?
by hooooey
So quit whining.
by Darwin
Not really. He was blaming the "idiot".

The stupid will be punished.
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