The Second Amendment
has long been the subject of intense debate, often being either the only provision
in the Bill of Rights
that some people want to construe
broadly, and the only one that others construe narrowly. Indeed, John Ashcroft
himself, who can hardly be accused of stretching the Fourth
, and Sixth Amendments
beyond recognition, draws the line at the Second Amendment. While rounding up Muslim immigrant
s for incommunicado detention
s, or counsel
, he steadfastly refused to cross check
the names of the desaparecidos
to see if any of them owned guns. Why? The Second Amendment.
Despite the controversial nature of the amendment, there have been precious few judicial
opinions construing it. The one U.S. Supreme Court
case to consider the meaning of the Second Amendment did so cryptic
ally, resolving the case not on what the Second Amendment did
protect, but on what it did not. Thus, all we can say for sure is that there is no constitution
al right to own a sawed-off shotgun
Recently, however, the debate has re-entered the courts. In United States v. Emerson
, 270 F.3d 203, 227 (5th Cir. 2001), cert. denied
, 536 U.S. 907, 153 L. Ed. 2d 184, 122 S. Ct. 2362 (2002), the Fifth Circuit Court of Appeals
staked out the NRA party line
that the Second Amendment grants private citizen
s a constitutional right to own firearm
s, regardless of whether they have anything to do with a militia
In Silveira v. Lockyer
, 312 F.3d 1052; rehearing denied
, 328 F.3d 567 (2003), the Ninth Circuit Court of Appeals
has taken position at the other end of the spectrum
, holding that the Second Amendment must be construed in the light of its preamble
, which bases the "right to bear arms
" on the need for a "well-regulated Militia." In the view of the Ninth Circuit, the term "militia" should be construed to mean the same thing that it means in the rest of the Constitution
, namely, the armed forces
of the states
. Based on an exhaustive (and exhausting) exegesis
on the history of the amendment, the Ninth Circuit in Silveira
found that (1) the term "to bear arms" was used at the time of the Constitution to mean "to serve in the military
," (2) the ratification
debates were concerned with ensuring that the state government
s were not fully dependent
on the federal government
for their protection, and (3) proposals to phrase the Second Amendment so as to create an unambiguous private right of weapons ownership were rejected at all levels of the Constitutional Convention
Since the Second Amendment did not give private individuals the right to own firearms except in relation to service in the militia, the Ninth Circuit held that the plaintiffs, who challenged a California assault rifle
, did not have standing
to sue. The court did, however, invalidate a provision that allowed retired law enforcement officers to keep their assault rifles.
See also: Silveira v. Lockyer II and Silveira v. Lockyer III(footnotes)
312 F.3d 1052; rehearing denied,
328 F.3d 567 (2003)
SEAN SILVEIRA; JACK SAFFORD; PATRICK OVERSTREET; DAVID K. MEHL; STEVEN FOCHT, Sgt.; DAVID BLALOCK, Sgt.; MARCUS DAVIS; VANCE BOYCE; KENETH DEWALD, Plaintiffs-Appellants,
BILL LOCKYER, Attorney General, State of California GRAY DAVIS, Governor, State of California, Defendants-Appellees.
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
312 F.3d 1052
February 15, 2002, Argued and Submitted, San Francisco, California
December 5, 2002, Filed
: Gary W. Gorski, Fair Oaks, California, for the plaintiffs-appellants.
Nancy Palmieri, Deputy Attorney General, Office of the Attorney General, San Diego
, California, for the defendants-appellees.
Before: Stephen Reinhardt
, Frank J. Magill
and Raymond C. Fisher
, Circuit Judge
; by Judge Reinhardt; Concurrence by Judge Magill.
The Honorable Frank J. Magill, Senior Circuit Judge, United States Court of Appeals for the Eighth Circuit, sitting by designation.
Stephen Reinhardt, J.
In 1999, the State of California enacted amendment
s to its gun control
laws that significantly strengthened the state's restrictions on the possession, use, and transfer of the semi-automatic weapon
s popularly known as "assault weapon
s, California residents who either own assault weapons, seek to acquire such weapons, or both, brought this challenge to the gun control statute
, asserting that the law, as amended, violates the Second Amendment
, the Equal Protection Clause
, and a host of other constitutional provision
s. The district court
dismissed all of the plaintiffs' claims. Because the Second Amendment does not confer an individual right
to own or possess arms, we affirm the dismissal of all claims brought pursuant to that constitutional provision. As to the Equal Protection claims, we conclude that there is no constitutional infirmity
in the statute's provisions regarding active peace officer
s. We find, however, no rational basis
for the establishment of a statutory exception with respect to retired peace officers, and hold that the retired officers' exception fails even the most deferential
level of scrutiny
under the Equal Protection Clause. Finally, we conclude that each of the three additional constitutional claims asserted by plaintiffs on appeal is without merit
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. See 1989 Cal. Stat. ch. 19, § 3, at 64, codified
at CAL. PENAL CODE
§ 12275 et seq.
The immediate cause of the AWCA's enactment was a random shooting earlier that year at the Cleveland Elementary School
, California. An individual armed with an AK-47
semi-automatic weapon opened fire on the schoolyard, where three hundred pupils were enjoying their morning recess. Five children aged 6 to 9 were killed, and one teacher and 29 children were wounded. Kasler v. Lockyer
, 23 Cal. 4th 472, 2 P.3d 581, 587, 97 Cal. Rptr. 2d 334 (Cal. 2000).
The California Assembly met soon thereafter in an extraordinary session called for the purpose of enacting a response to the Stockton shooting. 1 CAL. ASSEMBLY J., at 436-37 (Feb. 13, 1989). The legislation
that followed, the AWCA, was the first legislative restriction on assault weapons in the nation, and was the model for a similar federal
statute enacted in 1994. Public Safety and Firearms Use Protection Act
, Pub. L. No. 103-322, 108 Stat. 1996 (codified at 18 U.S.C.
§§ 921 et seq.). The AWCA renders it a felony
offense to manufacture in California any of the semi-automatic weapons specified in the statute, or to possess, sell, transfer, or import into the state such weapons without a permit. CAL. PENAL CODE § 12280. n1 The statute contains a grandfather clause that permits the ownership of assault weapons by individuals who lawful
ly purchased them before the statute's enactment, so long as the owners register the weapons with the state Department of Justice
n2 The grandfather clause
, however, imposes significant restrictions on the use of weapons that are registered pursuant to its provisions. Id. § 12285(c). n3 Approximately forty models of firearms are listed in the statute as subject to its restrictions. The specified weapons include "civilian
" models of military
weapons that feature slightly less firepower than the military-issue versions, such as the Uzi
, an Israel
i-made military rifle; the AR-15
, a semi-automatic version of the United States military's standard-issue machine gun, the M-16
; and the AK-47, a Russia
n-designed and Chinese
-produced military rifle
. The AWCA also includes a mechanism for the Attorney General to seek a judicial declaration
in certain California Superior Court
s that weapons identical to the listed firearms are also subject to the statutory restrictions. § 12276.5(a)(1)-(2). n4
The AWCA includes a provision that codifies the legislative finding
s and expresses the legislature's reasons for passing the law:
The Legislature hereby finds and declares that the proliferation and use of assault weapons poses a threat to the health, safety, and security of all citizens of this state. The Legislature has restricted the assault weapons specified in [the statute] based upon finding that each firearm has such a high rate of fire and capacity for firepower that its function as a legitimate sports or recreational firearm is substantially outweighed by the danger that it can be used to kill and injure human beings. It is the intent of the Legislature in enacting this chapter to place restrictions on the use of assault weapons and to establish a registration and permit procedure for their lawful sale and possession. It is not, however, the intent of the Legislature by this chapter to place restrictions on the use of those weapons which are primarily designed and intended for hunting, target practice, or other legitimate sports or recreational activities.Id.
In 1999, the legislature amended the AWCA in order to broaden its coverage and to render it more flexible in response to technological developments 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 constitute
s a restricted assault weapon if it possesses certain generic characteristic
s listed in the statute. Id.
§ 12276.1. n5 Examples of the types of weapons restricted by the revised AWCA include a "semiautomatic, center-fire
rifle that has a fixed magazine with the capacity to accept more than 10 rounds," § 12276.1(a)(2), and a semiautomatic, centerfire
rifle that has the capacity to accept a detachable magazine and also features a flash suppressor
, a grenade launcher
, or a flare launcher
. § 12276.1(a)(1)(A)-(E). The amended AWCA also restricts assault weapons equipped with "barrel shroud
s," which protect the user's hands from the intense heat created by the rapid firing of the weapon, as well as semiautomatic weapons equipped with silencer
As originally enacted, the AWCA authorized specified law enforcement
agencies to purchase and possess assault weapons, and permitted individual sworn members of those agencies to possess and use the weapons in the course of their official duties. n6 Two additional provisions relating to peace officers were added by the 1999 amendments. First, the legislature provided that the peace officers permitted to possess and use assault weapons in the discharge of their official duties were permitted to do so "for law enforcement purposes, whether on or off duty." § 12280(g). Second, the amendments added an exception for retired peace officers. The exception provides that "the sale or transfer of assault weapons by an entity
[listed in note 6, supra
,] to a person, upon retirement
, who retired as a sworn officer from that entity" is permissible, and that the general restrictions on possession and use of assault weapons do not apply to a retired peace officer who receives the weapon upon retirement from his official duties. § 12280(h)-(i). In sum, then, the statute as amended may fairly be characterized as constituting a ban on the possession of assault weapons by private individuals; with a grandfather clause permitting the retention of previously-owned weapons by their purchasers, provided the owners register them with the state; and with a statutory exception allowing the possession of assault weapons by retired peace officers who acquire them from their employers at the time of their retirement.
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. 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 California also attack the ban on assault weapon sales as being contrary to their rights under that Amendment. Additionally, plaintiffs who are not active or retired California peace officers challenge on Fourteenth Amendment
Equal Protection grounds two provisions of the AWCA: one that allows active peace officers to possess assault weapons while off-duty, and one that permits retired peace officers to possess assault weapons they acquire from their department at the time of their retirement. The State of California immediately moved to dismiss the action pursuant to Federal Rule of Civil Procedure 12(b)(6)
, contending that all the claims were barred as a matter of law. After a hearing, the district judge granted the defendants' motion
in all respects, and dismissed the case. Plaintiffs appeal
, and we affirm
on all claims but one.
A. Background and Precedent.
constitutional debate is currently taking place in this nation
regarding the scope
of the Second Amendment, a debate that has gained intensity over the last several years. Until recently, this relatively obscure constitutional provision attracted little judicial
or scholarly attention. As a result, however, of increasing popular concern over gun violence, the passage of legislation restricting the sale and use of firearms, the cultural significance of firearms in America
, and the political activities of pro-gun enthusiasts under the leadership of the National Rifle Association
(the NRA), the disagreement over the meaning of the Second Amendment has grown particularly heated.
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 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
, 536 U.S. 907, 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. n8 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 court
s, the collective rights model has recently come under strong criticism from individual rights advocate
s. 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 commentator
s and political interest group
s 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 that case, a criminal defendant brought a Second Amendment challenge to a federal gun control law that prohibited the transport of sawed-off shotgun
s in interstate commerce
. The Court rejected the challenge to the statute. In the only and oft-quoted passage
in the United States Reports
to consider, albeit somewhat indirectly, whether the Second Amendment establishes an individual right to arms, the Miller
In the absence of any evidence tending to show that possession or use of a 'shotgun having a barrel of less than eighteen inches in length' at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument. Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment or that its use could contribute to the common defense.
, 307 U.S. at 178. The Miller
Court also observed more generally that "with the obvious purpose to assure the continuation and render possible the effectiveness of [state militias] the declaration and guarantee of the Second Amendment were made. It must be interpreted and applied with that end in view." Id.
Thus, 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 Miller Court's opinion stands only for the proposition that the possession of certain weapons is not protected, and offers little guidance as to what rights the Second Amendment does protect. Accordingly, it has been noted, with good reason, that "the Supreme Court's jurisprudence on the scope of [the Second] Amendment is quite limited, and not entirely illuminating." Gillespie v. City of Indianapolis
, 185 F.3d 693, 710 (7th Cir. 1999). What Miller
does strongly imply, however, is that the Supreme Court rejects the traditional individual rights view.
The only post-Miller
reference by the Supreme Court to the scope of the amendment occurred in Lewis v. United States
, 445 U.S. 55, 65 n. 8, 63 L. Ed. 2d 198, 100 S. Ct. 915 (1980), in which the Court noted, in a footnote dismissing a Second Amendment challenge to a felon-in-possession
conviction, that the federal gun control laws at issue did not "trench upon any constitutionally protected liberties," citing Miller
in support of this observation. In that footnote, Lewis
characterized the Miller holding
as follows: "The Second Amendment guarantees no right to keep and bear a firearm that does not have 'some reasonable relationship to the preservation or efficiency of a well-regulated militia.'" Id.
, 307 U.S. at 178). The Lewis
Court, like the Miller
Court, phrased its statements in terms of what is not protected. Lewis does, however, reinforce the strong implication in Miller
that the Court rejects the traditional individual rights model.
Some thirty-odd years after Miller, two Justices of the Court pith
ily 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.
407 U.S. 143, 150, 32 L. Ed. 2d 612, 92 S. Ct. 1921 (1972) (Douglas, J., dissenting). In short, in Adams
two then-sitting Justice
s made it clear that they believed that the Second Amendment did not afford an individual right -- traditional, limited, or otherwise -- to own or possess guns.
We also note that two of the Supreme Court's recent decisions that limit the power of the federal government to regulate activities of the states relate to firearms restrictions. See Printz v. United States
, 521 U.S. 898, 138 L. Ed. 2d 914, 117 S. Ct. 2365 (1997) (holding that a federal requirement that state officers perform background checks on gun purchasers violates the anti-commandeering
principle of the Tenth Amendment
); United States v. Lopez
, 514 U.S. 549, 131 L. Ed. 2d 626, 115 S. Ct. 1624 (1995) (holding that Congress
exceeded its authority under the Commerce Clause
by enacting the Gun-Free School Zones Act
). In neither case did the Court address a Second Amendment issue directly; however, in each case a currently-sitting Justice expressed his individual view of the amendment's scope, directly or indirectly, but from radically different standpoints. In his dissent in Lopez
, Justice Stevens
, although not mentioning the Second Amendment, strongly implied that he believes that it offers no obstacles to the federal government's ability to regulate firearms:
Guns are both articles of commerce and articles that can be used to restrain commerce. Their possession is the consequence, either directly or indirectly, of commercial activity. In my judgment, Congress' power to regulate commerce in firearms includes the power to prohibit possession of guns at any location because of their potentially harmful use . . . .
514 U.S. at 602-03 (Stevens, J., dissenting). Justice Thomas
spoke to the Second Amendment issue more directly in his concurrence in Printz
, in words that suggested that he may well support the traditional individual rights view:
This Court has not had recent occasion to consider the nature of the substantive right safeguarded by the Second Amendment. If, however, the Second Amendment is read to confer a personal right to "keep and bear arms," a colorable argument exists that the Federal Government's regulatory scheme, at least as it pertains to the purely intrastate sale or possession of firearms, runs afoul of that Amendment's protections. As the parties did not raise this argument, however, we need not consider it here. Perhaps, at some future date, this Court will have the opportunity to determine whether Justice Story was correct when he wrote that the right to bear arms "has justly been considered, as the palladium of the liberties of a republic." 3 J. Story, Commentaries § 1890, p. 746 (1833).521 U.S. at 938-39 (Thomas, J., concurring) (emphasis in original). n9
Finally, we note that, after his retirement, Chief Justice Warren Burger
uttered one of the most widely publicized comments about the Second Amendment ever made by a Justice inside or outside the context of a judicial opinion. In an interview, former Chief Justice Burger stated that the traditional individual rights view was:
one of the greatest pieces of fraud, I repeat the word 'fraud,' on the American public by special interest groups that I've ever seen in my lifetime. The real purpose of the Second Amendment was to ensure that state armies -- the militia -- would be maintained for the defense of the state. The very language of the Second Amendment refutes any argument that it was intended to guarantee every citizen an unfettered right to any kind of weapon he or she desires.
Warren E. Burger, The Right to Bear Arms
, PARADE MAGAZINE
, Jan. 14, 1990, at 4. Although we in no way share Chief Justice Burger's view that Second Amendment enthusiasts are guilty of fraud, we do generally agree with his statements regarding the Amendment's purpose and scope.
Our court, like every other federal court of appeal
s 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). n10 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 the force of the amendment. See id.
Appellants contend that we misread Miller
. n12 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
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 canvas
sed 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 appeals ever to have so decided. n13 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 United States government contends that the Second Amendment establishes an individual right to possess arms. n14 The Solicitor General
has advised the Supreme Court that "the current position of the United States . . . is that the Second Amendment more broadly protects the rights of individuals, including persons who are not members of any militia or engaged in active military service or training
, to possess and bear their own firearms, subject to reasonable restrictions . . . ." Opposition to Petition for Certiorari
in United States v. Emerson
, No. 01-8780, at 19 n.3. In doing so, the Solicitor General transmitted to the Court a memorandum
from Attorney General John Ashcroft
to all United States Attorney
s adopting the Fifth Circuit's view and emphasizing that the Emerson court "undertook a scholarly and comprehensive review of the pertinent legal materials . . . ," although the Attorney General was as vague as the Fifth Circuit with respect both to the types of weapons that he believes to be protected by the Second Amendment, and the basis for making such determinations. Id.
, app. A.
The reversal of position by the Justice Department has caused some turmoil
in the lower courts, and has led to a number of challenges to federal statutes relating to weapons sales, transport, and possession, including a heavy volume in the district courts of this circuit. See, e.g., United States v. Stepney
, 2002 U.S. Dist. LEXIS 23935, No. 01-0344, 2002 WL 1460258 (N.D. Cal. July 1, 2002); Jason Hoppin, No Free Ride For Gun Argument
, THE RECORDER, July 25, 2002 (discussing Second Amendment defenses raised by criminal defendants in Northern District of California cases). Similar Second Amendment defenses have been raised by criminal defendants throughout the nation as a result of the Justice Department's new position on the amendment. See Adam Liptak, Revised View of Second Amendment Is Cited As Defense in Gun Cases
, N.Y. TIMES
, July 23, 2002, at A1.
Given the dearth
of both reasoned and definitive
judicial authority, a particularly active academic debate has developed over the scope of the Second Amendment. Compare, e.g. Eugene Volokh, The Commonplace Second Amendment
, 73 N.Y.U.
L. REV. 793 (1998) (advocating individual rights view) and Sanford Levinson, The Embarrassing Second Amendment
, 99 YALE
L.J. 637 (1989) (same) with Michael C. Dorf, What Does the Second Amendment Mean Today?
, 76 CHI.-KENT L. REV. 291, 294 (2000) (advocating collective rights view); Jack N. Rakove, The Second Amendment: The Highest Stage of Originalism
, 76 CHI.-KENT L. REV. 103, 124 (2000) (same); and David Yassky, The Second Amendment: Structure, History and Constitutional Change
, 99 MICH. L. REV. 588 (2000) (same). As a result of the renewed interest in the issue, the Second Amendment has been the subject of a number of scholarly symposia
. See, e.g., The Second Amendment: Fresh Looks
, 76 CHI.-KENT L. REV. 3-715 (2000); Second Amendment Symposium
, 1998 B.Y.U. L. REV. 1-336; A Second Amendment Symposium Issue
, 62 TENN. L. REV. 443-821 (1995). Indeed, Second Amendment scholarship
has become so active that the scholarship itself has become the subject of study. See Robert J. Spitzer, Lost and Found: Researching the Second Amendment
, 76 CHI.-KENT L. REV. 349 (2000).
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. n15
B. Appellants Lack Standing to Challenge the Assault Weapons Control Act on Second Amendment Grounds.
Appellants contend that the California Assault Weapons Control Act and its 1999 revisions violate their Second Amendment rights. We unequivocally reject this contention. We conclude that although the text
of the amendment, standing alone, do not conclusively resolve the question of its meaning, when we give the text its most plausible
reading and consider the amendment in light of the historical context
and circumstances surrounding its enactment we are compelled to reaffirm the collective rights view we adopted in Hickman
: 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. This conclusion is reinforced in part by Miller
's implicit rejection of the traditional individual rights position. n16 Because we hold that the Second Amendment does not provide an individual right to own or possess guns or other firearms, n17 plaintiffs lack standing to challenge the AWCA. n18
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 free State, the right of the people to keep and bear Arms, shall not be infringed." U.S. CONST. amend. II. As commentators on all sides of the debate regarding the amendment's meaning have acknowledged, the language of the amendment alone does not conclusively resolve the question of its scope. Indeed, the Second Amendment's text has been called "puzzling," n19 "an enigma," n20 and "baffling" n21 by scholars of varying ideological persuasion
s. n22 What renders the language and structure of the amendment particularly striking is the existence of a prefatory
clause, a syntactical
device that is absent from all other provisions of the Constitution, including the nine other provisions of the Bill of Rights. n23 Our analysis thus must address not only the meaning of each of the two clauses of the amendment but the unique relationship that exists between them.
a. The Meaning of the Amendment's First Clause: "A Well-Regulated Militia Being Necessary to the Security of A Free State."
The first or prefatory clause of the Second Amendment sets forth the amendment's purpose
. 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, have taken the position that the term "militia" was meant to refer to all citizen
s, and, therefore, that the first clause simply restates the second in more specific terms. See Emerson
, 270 F.3d at 235 ("Militia . . . was understood to be composed of the people generally possessed of arms which they knew how to use, rather than to refer to some formal military group separate and distinct from the people at large."). Relying on their definition of "militia," they conclude that the prefatory clause was intended simply to reinforce the grant of an individual right that they assert is made by the second clause. See id.
at 236. n24 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 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 contemporaneous
ly 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 explicate
d by the Supreme Court in a case involving another word that appears in that amendment -- the word "people." n25 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 drafter
s were referring in the Constitution to the second of two government-established and -controlled military forces. Those forces were, first, the national army
, which were subject to civilian
control shared by the president
, n26 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.-KENT L. REV. 195, 204 (2000).
Article I also provides that the militia, which is essentially a state military entity, may on occasion be federalized; Congress may "provide for calling forth the Militia to execute
the Laws of the Union
, suppress Insurrection
s and repel Invasion
s." U.S. CONST. art. I, § 8, cl. 15. The fact that the militias may be "called forth" by the federal government only in appropriate circumstances underscores their status as state institutions. Article II
also demonstrates that the militia were conceived of as state military entities; it provides that the President is to be "Commander in Chief
of the Army and Navy of the United States, and of the Militia of the several States
, when called into the actual Service
of the United States." Id.
art. II, § 2, cl. 1 (emphasis added). Like the Second Amendment, not all of the provisions in Articles I and II refer specifically to the militia as "the state militia." Nevertheless, the contexts in which the term is used demonstrate that even without the prefatory word, "militia" refers to state military organizations and not to their members or potential members throughout these two Articles.
Our conclusion that "militia" refers to a state entity, a state fighting force
, is also supported by the use of that term in another of the provisions of the Bill of Rights. The Fifth Amendment
, enacted by the First Congress at the same time as the Second Amendment, provides that a criminal defendant
has a right to an indictment
or a presentment
"except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War
or public danger
. . . ." U.S. CONST. amend. V. The inclusion of separate references to the "land or naval forces" and "the Militia," both of which may be in "actual service" to the nation's defense
, indicates that the framers
conceived of two formal military forces that would be active in times of war -- one being the national army and navy, and the other the federalized state militia. Certainly, the use of "militia" in this provision of the Bill of Rights is most reasonably understood as referring to a state entity, and not to the collection of individuals who may participate in it.
Not only did the drafters of the Constitution use "militia" to refer to state military entities, so too did the drafters of the Constitution's predecessor
document, the Articles of Confederation
. The Articles provided that "every state shall always keep up a well regulated and disciplined militia, sufficiently armed and accouter
ed, and shall provide and constantly have ready for use, in public stores, a due number of field pieces and tents, and a proper quantity of arms, ammunition
and camp equipage
." THE ARTICLES OF CONFEDERATION art. 6 (1777), in DOCUMENTS OF AMERICAN HISTORY 112 (Henry Steele Commager ed., 7th ed. 1963). The "well regulated and discipline
d militias" described by the Articles of Confederation were quite clearly those institutions established by the individual states. Thus, the prevailing understanding both before and at the time of the adoption of the Constitution was that a "militia" constituted a state military force to which the able-bodied male
citizens of the various states might be called to service.
To determine that "militia" in the Second Amendment is something different from the state entity referred to whenever that word is employed in the rest of the Constitution would be to apply contradictory interpretive methods to words in the same provision. The interpretation urged by those advocating the traditional individual rights view would conflict directly with Verdugo-Urquidez
. If the term "the people" in the latter half of the Second Amendment must have the same meaning throughout the Constitution, so too must the phrase "militia." n27
Our reading of the term "militia" as referring to a state military force is also supported by the fact that in the amendment's first clause the militia is described as "necessary to the security of a free State." This choice of language was far from accidental: Madison's first draft of the amendment stated that a well-regulated militia was "the best security of a free country." Anti-Federalist Elbridge Gerry
explained that changing the language to "necessary to the security of a free State" emphasized the primacy
of the state militia over the federal standing army: "A well-regulated militia being the best security of a free state, admitted an idea that a standing army was a secondary one." Yassky, supra
, at 610 (quoting THE CONGRESSIONAL REGISTER
, August 17, 1789). In any event, as we will explain infra
at 32, 45-47, 53-55, it is clear that the drafters believed the militia that provides the best security for a free state to be the permanent state militia, not some amorphous
body of the people as a whole, or whatever random
and informal collection of armed individuals may from time to time appear on the scene
for one purpose or another.
Finally, our definition of "militia" is supported by the inclusion of the modifier "well regulated." As an historian
of the Founding Era
has noted, the inclusion of that phrase "further shows that the Amendment does not apply to just anyone." Finkelman, supra
, at 234. The Second Amendment was enacted soon after the August 1786 - February 1787 uprising of farmers in Western Massachusetts
known as Shays's Rebellion
. What the drafters of the amendment thought "necessary to the security of a free State" was not an "unregulated" mob
of armed individuals such as Shays's band of farmers, the modern-day privately organized Michigan Militia
, the type of extremist
"militia" associated with Timothy McVeigh
and other militants with similar anti-government views, groups of white supremacist
s or other racial or religious bigot
s, or indeed any other private collection of individuals. To the contrary, "well regulated" confirms that "militia" can only reasonably be construed as referring to a military force established and controlled by a governmental entity.
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 free states within the confines of their newly structured constitutional relationship. With that understanding, the reason for and purpose of the Second Amendment becomes clearer.
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 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. n28 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. n29 The Tennessee
Supreme Court, in the most significant judicial decision to construe
the term "bear arms," concluded that it referred to the performance of a military function: "A man in pursuit of deer
es might carry his rifle every day for forty years, and yet it would never be said of him that he had borne arms." Aymette v. State
, 21 Tenn. (2 Humph.) 154 (1840). n30 Other nineteenth-century judicial opinions evince that same understanding of the term, as it appears in the Constitution. See English v. State
, 35 Tex. 473, 476 (1872) ("The word 'arms' in the connection we find it in the Constitution of the United States refers to the arms of a militiaman
or soldier, and the word is used in its military sense."); State v. Workman
, 35 W. Va. 367, 14 S.E. 9, 11 (W. Va. 1891) ("In regard to the kind of arms referred to in the [Second A]mendment, it must be held to refer to the weapons of warfare
to be used by the militia."); see also Lucilius A. Emery, The Constitutional Right to Keep and Bear Arms
, 28 HARV. L. REV. 473, 476 (1915) ("The single individual or the unorganized crowd
, in carrying weapons, is not spoken of or thought of as 'bearing arms.'"). Further, the Oxford English Dictionary
defines "to bear arms" as "to serve as a soldier
, do military service
, fight." 1 OXFORD ENGLISH DICTIONARY 634 (J.A. Simpson & E.S.C. Weiner, eds., 2d ed. 1989) (quoted in Yassky, supra, at 619). Thus, the use of the phrase "bear arms" in its second clause strongly suggests that the right that the Second Amendment seeks to protect is the right to carry arms in connection with military service.
We also believe it to be significant that the first version of the amendment proposed by Madison to the House of Representatives
concluded with an exemption
from "bearing arms" for the "religiously scrupulous
." THE COMPLETE BILL OF RIGHTS: THE DRAFTS, DEBATES, SOURCES, AND ORIGINS 169 (Neil H. Cogan ed., 1997) [hereinafter BILL OF RIGHTS] ("No person religiously scrupulous of bearing arms, shall be compel
led to render military service in person."). Historians have observed that "no state at the time, nor any state before, had ever compelled people to carry weapons in their private capacity." Finkelman, supra
, at 228. Accordingly, the exemption from bearing arms for the religiously scrupulous can only be understood as an exemption from carrying arms in the service of a state militia, and not from possessing arms in a private capacity. Otherwise, Madison's insertion of the religiously-scrupulous exception in the first draft of the present amendment would have made no sense at all. n31
Finally, we address the use of the term "keep" in the second clause. The reason why that term was included in the amendment is not clear. The Emerson
court, citing no authority
, concludes that "keep" does not relate to military weapons and therefore the use of the word supports the position that the amendment grants individuals the right to keep arms for personal use. 270 F.3d at 232. There appears to be little logic or reason to that analysis. Arms can be "kept" for various purposes -- military, social, or criminal. The question with respect to the Second Amendment is not whether arms may be kept, but by whom and for what purpose. If they may be kept so that the possessor is enabled to "bear arms" that are required for military service, the words would connote
something entirely different than if they may be kept for any individual purpose whatsoever. In this connection, some scholars have suggested that "keep and bear" must be construed together (like "necessary and proper
") as a unitary
phrase that relates to the maintenance of arms for military service. See Dorf, supra
, at 317. That argument appears to us to have considerable merit. Certainly the right to keep arms is of value only if a right to use them exists. The only right to use arms specified in the Constitution is the right to "bear" them. Thus, it seems unlikely that the drafters intended the term "keep" to be broader in scope than the term "bear." Any other explanation would run into considerable logical and historical difficulty. Furthermore, historians have noted that the right of the states to "keep" arms was a catalyst for the Revolution
-- it was the British troops' attempts to capture the Massachusetts militia's arsenal
that prompted Paul Revere
's warning and the battles at Lexington and Concord
to defend the states' stores of munitions. Finkelman, supra
, at 234. Accordingly, the ability of states to "keep" arms for military use without external interference undoubtedly was prominent in the minds of many founders
. In the end, however, the use of the term "keep" does not appear to assist either side in the present controversy
to any measurable extent. Certainly, the use of the term does not detract from the significance of the drafters' decision to protect the right to "bear" arms rather than to "own" or "possess" them. Thus, it in no way undercut
s the strong implication
that the right granted by the second clause relates to the performance of a military function, and not to the indiscriminate
possession of weapons for personal use.
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 warrant
ing the enactment of the substantive provision. n32 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. This approach is consistent with that taken by the Supreme Court regarding the Preamble to the Constitution in a number of other instances. See, e.g., U.S. Term Limits v. Thornton
, 514 U.S. 779, 821 n.31, 131 L. Ed. 2d 881, 115 S. Ct. 1842 (1995) (pointing to language in the Preamble to the Constitution to determine the nature of representation
established in that document). More important, it is the approach
that the Supreme Court has specifically declared must be employed when seeking to determine the meaning of the Second Amendment. n33
When the second clause is read in light of the first, so as to implement the policy set 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 free State, and in part on the historical meaning of the right that the operative clause protects -- the right to bear arms. In contrast, it seems reasonably clear that any fair reading of the "bear Arms" clause with the end in view of "assuring . . . the effectiveness of" the state militias cannot lead to the conclusion that the Second Amendment guarantees an individual right to own or possess weapons for personal and other purposes. See, e.g., Gillespie v. City of Indianapolis
, 185 F.3d 693, 710-11 (7th Cir. 1999) (adopting the collective rights theory and concluding that firearms possession related to militia service represents too attenuate
d a connection to the purpose and objective of the Second Amendment to support a claim of an individual right).
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. We now examine those source
s, all of which ultimately point to the same result to which our analysis of the text leads us.
2. The Historical Context of the Second Amendment and the Debates Relevant to its Adoption Demonstrate that the Founders Sought to Protect the Survival of Free States by Ensuring the Existence of Effective State Militias, Not by Establishing An Individual Right to Possess Firearms.
An examination of the historical context surrounding the enactment of the Second Amendment leaves us with little doubt that the proper reading of the amendment is that embodied in the collective rights model
. We note at the outset
that the interpretation of the Second Amendment lends itself particularly to historical analysis
. The content
of the amendment is restricted to a narrow, specific subject
that is itself defined in narrow, specific terms. Only one other provision of the Bill of Rights
is similarly composed -- the almost never-used Third Amendment
. n34 The other eight amendments all employ broad and general terms, such as "no law
respecting" (the Free Exercise Clause
" (searches and seizures), "due process
of law" (for deprivation
s of life
, and property
), "cruel and unusual
" (punishments). Even the Ninth and Tenth Amendments speak vaguely of "other" rights or unenumerated "reserved" rights. The use of narrow, specific language of limited applicability renders the task of construing the Second Amendment somewhat different from that which we ordinarily undertake when we interpret the other portions of the Bill of Rights.
What our historical inquiry
reveals is that the Second Amendment was enacted in order to assuage
the fears of Anti-Federalists that the new federal government would cause the state militias to atrophy
by refusing to exercise its prerogative
of arming the state fighting forces, and that the states would, in the absence of the amendment, be without the authority to provide them with the necessary arms. Thus, they feared, the people would be stripped of their ability to defend themselves against a powerful, over-reaching
federal government. The debates of the founding era
demonstrate that the second of the first ten amendments to the Constitution was included in order to preserve the efficacy
of the state militias for the people's defense
-- not to ensure an individual right to possess weapons. Specifically, the amendment was enacted to guarantee that the people would be able to maintain an effective state fighting force -- that they would have the right to bear arms in the service of the state.
a. The Problem Of Military Power in the Colonies and Confederation.
A significant motivation
for the American colonist
s' break from Britain was a distrust
of the standing army maintained by the Crown
on American shore
s. Dorf, supra
, at 308. Indeed, one of the principal complaint
s listed in the Declaration of the Independence was that King George III
"has kept among us, in times of peace
, Standing Armies without the Consent
of our legislature
s. He has affected to render the Military independent of and superior to the Civil
power." THE DECLARATION OF INDEPENDENCE para. 2 (U.S. 1776). Standing armies in the colonial era were looked on with great skepticism
: "The sentiment
of the time strongly disfavored standing armies; the common view was that adequate defense of country and laws could be secured through the Militia." Miller
, 307 U.S. at 179. Even after the break with Britain, a large portion of Americans had grave reservations about establishing a permanent standing army. n35
Nevertheless, many other newly independent Americans expressed the need to strengthen the federal fighting force, even in peacetime
. During the brief period in which the Articles of Confederation were in effect, from 1781-1789, relatively weak federal authority existed, particularly as related to military matters. The bulwark
of the national defense was the state militias, which bodies the states could voluntarily contribute to the services of the Confederation. The states retained the sole power to arm and otherwise to maintain their respective militias. The Articles of Confederation specifically granted that power (and obligation) to the states: "Every state shall always keep up a well regulated and disciplined militia, sufficiently armed and accoutered, and shall provide and constantly have ready for use, in public stores, a due number of field pieces and tents, and a proper quantity of arms, ammunition and camp equipage." THE ARTICLES OF CONFEDERATION, supra
, art. 6. It is highly significant that prior to the enactment of the Constitution, the prevailing understanding as expressed in the governing charter
then in effect was that the responsibility of arming their militias belonged to the states, not the federal government and not the individual militiamen. n36 It was this function of the states, albeit no longer an exclusive one after the Constitution was adopted, that the Anti-Federalists attempted to preserve, through the enactment of the Second Amendment, in order to ensure that the militias would be effective.
s of the Revolution
expressed concern that as the Continental Army disband
ed following the cessation of hostilities with England
, the various state militias were inadequate to provide for the common defense due to their poor training and equipment. n37 The establishment of a national armed force was one of the primary reasons that the Constitutional Convention in 1787 was convene
d. The issue pervaded the convention's debates. In Virginia Governor Edmund Randolph
's opening speech at the convention -- in which he suggested that the body reject the Articles of Confederation entirely in favor of a new constitution, rather than merely revise them -- Randolph cited military reform
as a principal reason for strengthening the federal charter: "The confederation produced no security against foreign invasion . . . neither militia nor [state] draught
s being fit for defence on such occasions." 1 THE RECORDS OF THE FEDERAL CONVENTION OF 1787, at 17 (Max Farrand ed., rev. ed. 1937) [hereinafter CONVENTION RECORDS]. Randolph also "observed that the Militia were every where neglect
ed by the State Legislatures, the members of which courted popularity too much to enforce a proper discipline
." 2 id.
, at 388. Other delegates to the Convention shared this view. Influential South Carolinian Charles Pinckney
, for instance, maintained that a stronger federal government was necessary principally so as to maintain "a real military force." Id.
at 332. n38 The compromise that the convention eventually reached, which granted the federal government the dominant control over the national defense, led ultimately to the enactment of the counter-balancing Second Amendment.
b. The Constitutional Convention and the Compromise of the Army and Militia Clauses
The minutes of the proceedings of the Constitutional Convention reveal that the delegate
s to the convention devote
d substantial effort
s to determining the proper balance
between state and federal control of military matters. See Yassky, supra
, at 599 (describing this issue as "one of the most contentious
issues faced by the Philadelphia
Convention."). See also 2 CONVENTION RECORDS, supra
, at 380-89 (debates regarding the Militia Clauses
). Despite the general view that "standing armies are dangerous to liberty," THE FEDERALIST NO. 29, at 183 (Alexander Hamilton
) (Clinton Rossiter ed., 1961), and over the objection of some Anti-Federalists, the delegates to the convention agreed that a national army was "potentially dangerous" but "necessary." Yassky, supra
, at 605. Thus, Article I of the proposed constitution granted Congress the authority to establish a "National Army," and Article II established the President as commander-in-chief of that army.
The delegates at Philadelphia also provided for the strengthening of the state militias, in part to provide a check on the new national army. "As the greatest danger to liberty is from large standing armies, it is best to prevent them by an effectual provision for a good Militia." 2 CONVENTION RECORDS, supra, at 388 (Statement of James Madison). Under the compromise reached by the delegates, the militias were strengthened by the grant to Congress of substantial responsibility for their management, although they remained essentially state entities. On the one hand, the Constitution granted Congress
the power to prescribe methods of organizing, arming and disciplining the state militias. U.S. CONST. art. I, § 8, cl. 15. On the other, the states expressly retained the power to appoint militia officer
s and provide the militiamen with their training
, in accordance with Congressional dictates, if any. See Perpich v. Department of Defense
, 496 U.S. 334, 340, 110 L. Ed. 2d 312, 110 S. Ct. 2418 (1990) (observing that the Militia Clauses were the result of "two conflicting theme
s."). The provision that most troubled the Anti-Federalists, and that prompted the most strident
calls for amendment to the proposed constitution, was the one that authorized Congress to provide arms to the militias. The disagreement among the delegates arose not over whether Congress should be able to arm the militias at all, but over whether that power should be exclusive or concurrent with a state power to provide such arms -- as well as over how other responsibilities for the militias should be distributed between the state and federal governments. Id.
s n39 defended the compromise that was reached, which greatly increased federal involvement in the management
of the militias, in part by arguing that stronger state militias would provide an important counterbalance
to the new national army. n40 In an effort to persuade the nation at large to ratify the proposed consti