- The Washington Times - Monday, December 1, 2003

The Supreme Court yesterday declined to hear a challenge to a California appellate court ruling that U.S. citizens have no Second Amendment right to own a gun.

In refusing to hear the case, the high court let stand a ruling by the 9th U.S. Circuit Court of Appeals in San Francisco in a lawsuit challenging California’s ban on assault weapons, saying the intent of the Second Amendment was not to protect the gun rights of individuals, but of militias.

The decision not to hear the case, which had drawn intense national attention from gun-control supporters and opponents, leaves the long-standing and often-challenged question of gun-ownership rights in limbo.

In October, the 5th U.S. Circuit Court of Appeals in New Orleans said the Second Amendment guaranteed a person’s right to own a gun. That court said the Constitution “protects the right of individuals, including those not then actually a member of any militia or engaged in active military service or training, to privately possess and bear their own firearms.”

It said the government must show that its restrictions are “not inconsistent with the right of Americans generally to individually keep and bear their private arms.”

Although the White House and the Justice Department have endorsed individual gun-ownership rights, they did not encourage the Supreme Court to consider the California challenge.

The Second Amendment says a “well-regulated militia” was necessary for the security of a free state and the “right of the people to keep and bear arms shall not be infringed.” The last major gun case to be heard by the high court was in 1939, when it upheld a federal law blocking the interstate transportation of sawed-off shotguns.

The 9th Circuit, in an opinion written by Appeals Court Judge Stephen Reinhardt, said the Second Amendment sought only 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.”

“The historical record makes it plain that the amendment was not adopted in order to afford rights to individuals with respect to private gun ownership or possession,” the judge wrote.

California’s assault-weapons ban was passed in 1999. Attorney Gary Gorski, representing a group of California residents, challenged the law under Second Amendment guarantees after they were unable to buy specific makes and models of various high-powered rifles. Mr. Gorski argued that the Constitution protected the rights of individuals to keep and bear arms without the threat of state confiscation or compulsory registration.

A federal judge dismissed the constitutional challenge, and the appeals court later upheld that order.

The National Rifle Association (NRA) also challenged the ruling in a “friend-of-the-court” brief, arguing that the historical record “makes it quite plain that the Second Amendment was indeed adopted in order to afford such rights to individuals.” In the brief, the NRA said the 9th Circuit ruling had “driven a stake through the heart” of the appeals court’s “judicial credibility.”

Along with the NRA, several groups wanted the high court to review the case, putting to rest the matter of individual gun-ownership rights. The groups included the Pink Pistols, a group of homosexual gun owners; the Second Amendment Sisters; Doctors for Sensible Gun Laws; and Jews for the Preservation of Firearms Ownership.

But Dennis Henigan, director of the Brady Center’s Legal Action Project, hailed the appeals court decision, noting that since the 5th Circuit ruling conferring an individual right to gun ownership, more than 20 federal district and appellate courts have rejected that court’s reasoning.

“With today’s actions by the Supreme Court, the gun lobby continues its unbroken string of defeats in Second Amendment challenges to gun laws,” Mr. Henigan said. “There is no more settled area of constitutional law.”

Mathew Nosanchuk, director of the Violence Policy Center, also applauded the decision. He called it a “victory for public safety and security and a defeat for the National Rifle Association and the gun industry.”

The federal assault-weapon ban will expire next year unless Congress acts to renew it.

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