- The Washington Times - Tuesday, December 17, 2002

U.S. Circuit Judge Stephen Reinhardt's high-profile opinion earlier this month declaring that the Second Amendment does not guarantee an individual the right to own guns has triggered controversy, although it changes no precedent and breaks no ground in the constitutional debate.

"Reinhardt is basically thumbing his nose at the Supreme Court and daring them to take the issue up at some future date," said San Jose, Calif., lawyer Donald Kilmer Jr., who is preparing to argue a different Second Amendment issue before the 9th U.S. Circuit Court of Appeals.

In what another gun-rights lawyer calls "a conversation with himself," Judge Reinhardt said previous 9th Circuit decisions deemed the Second Amendment a collective right of the state, not of individuals, and criticized a year-old 5th Circuit decision to the contrary, which the Supreme Court let stand without a hearing.

Judge Reinhardt's Dec. 5 ruling upheld a trial court's dismissal of a challenge to a 1999 law that restricts possession, use and transfer of semiautomatic assault weapons. The ruling said the Second Amendment gives individuals no right to own weapons and that therefore the plaintiffs had no standing to challenge the state regulation.

What the 69-page order written by Judge Reinhardt for a three-judge panel did was confront Attorney General John Ashcroft and Bush administration policy in a case that did not involve the federal government.

"The current leadership of the United States Department of Justice recently reversed the decades-old position of the government on the Second Amendment," Judge Reinhardt wrote. "The Attorney General was as vague as the 5th 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."

The National Rifle Association is mentioned several times in the opinion, although it took no part in the case. NRA spokesman Andrew Arulanandam said nothing in the opinion changed the organization's beliefs that "the Founding Fathers intended the Second Amendment to be an individual right, much like other parts of the Bill of Rights."

NRA attorney Christopher Conte said, "It may invigorate the debate on the Second Amendment, and to that extent, it's a welcome thing, but I don't think this case as a legal matter is going to go much further than it has."

Matt Nosanchuk, litigation director for the Violence Policy Center, agreed that the 9th Circuit case simply applies unchanged what Judge Reinhardt called "binding circuit precedent," the 1996 Hickman v. Block decision upholding the requirement for permits to carry concealed weapons.

"The 9th Circuit case is more in the category of dog bites man than man bites dog," Mr. Nosanchuk said. But he welcomed Judge Reinhardt's timing in the wake of Mr. Ashcroft's public memos and the 5th Circuit's declaration that the Second Amendment does protect an individual's right to keep guns that have legitimate uses for private people.

"All of the evidence indicates that the Second Amendment, like other parts of the Bill of Rights, applies to and protects individual Americans," the 5th Circuit ruling said Oct. 16, 2001, in a case brought by Timothy Joe Emerson, who lost his appeal on other grounds.

On June 10, the Supreme Court refused to review that ruling, letting it stand, but only in the 5th Circuit Louisiana, Mississippi and Texas.

That decision and the change in Justice Department policy, conveyed to the Supreme Court by Solicitor General Theodore Olson, set the stage for Judge Reinhardt's dramatics, Mr. Nosanchuk said.

"This is the first time in the wake of the Emerson opinion and Ashcroft's reversal of policy on the Second Amendment a court has stood up and, like a sleeping giant that has been awakened, said, 'Wait a minute,' " Mr. Nosanchuk said. "If I were an individual-rights supporter, I wouldn't expect the Supreme Court to leap on this case."

The effect of the Dec. 5 decision outside that courtroom was to revive the debate over a constitutional issue the Supreme Court avoids like few others since its 1939 U.S. v. Miller ruling upholding a law against possessing sawed-off shotguns, then a favorite gangster weapon.

The aversion is so obvious that Justice Clarence Thomas noted it in a 1997 opinion, and called for his colleagues to decide whether the Second Amendment confers "a personal right to keep and bear arms."

That outcome would require overturning Miller, whose somewhat cursory opinion has been applied in a manner contrary to the position of many historians, constitutional lawyers and gun-rights lobbyists.

"Perhaps, at some future date, this court will have the opportunity to determine whether Justice [Joseph] Story was correct when he wrote [in 1833] that the right 'to keep and bear arms has justly been considered, as the palladium of the liberties of a republic,'" Justice Thomas said on June 27, 1997.

Gun-law analysts on all sides of the policy dispute voiced doubt the high court will even review the decision written by Judge Reinhardt, a Carter appointee who was joined in the vote by Reagan appointee Judge Frank J. Magill and Clinton appointee Judge Raymond C. Fisher.

"This issue is likely to get to the Supreme Court only when a circuit court rules against the federal government on a Second Amendment issue, probably while it defends an arrest or conviction," said Sanford Levinson, a Second Amendment scholar and professor at the University of Texas Law School who describes himself as a card-carrying member of the American Civil Liberties Union.

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