Get ready for a knock-down, drag-out fight in America's high courts over the rights of gun ownership.
This month, Judge Stephen Reinhardt of the Ninth Circuit U.S. Court of Appeals wrote an opinion in which he argued that gun ownership is not an individual right but a "collective" right. He's not the first judge to come to that opinion, but his writings essentially throw down the gauntlet before an earlier appeals court ruling that found gun ownership to be an individual right.
Not so, Reinhardt says. The "Second Amendment does not confer an individual right to own or possess arms."
This is news to John C. Eastman, professor at the Chapman University School of Law in Orange County. The Constitution, Eastman noted, is a statement that "governments don't confer rights," but that certain rights are basic and inalienable.
Eastman also was surprised by Reinhardt's dismissal of the Second Amendment as a "relatively obscure constitutional provision."
It is, after all, the second item in the Bill of Rights.
Reinhardt makes a good argument that the Founding Fathers intended the Second Amendment to protect "militia" -- that is, state military forces that can protect states from an intolerable federal government. He wrote, "Specifically, the amendment was enacted to guarantee that the people would be able to maintain an effective state fighting force -- and that they would have the right to bear arms in the service of the state."
OK, that's a collective right.
But there's nothing in the Bill of Rights that says a collective right can't also be an individual right.
Reinhardt tried to dismiss the idea of an individual's gun rights as a delusion unique to Attorney General John Ashcroft and the National Rifle Association -- an organization to which he repeatedly refers, even though it is not a party to the lawsuit. Yet even Democrats recognize "the Second Amendment was indeed intended to provide some measure of entitlement for individuals to own firearms," as California Attorney General Bill Lockyer has written.
It's not logical to argue that the Founding Fathers recognized a state's right to defend itself, but not an individual's right to self-protection. Self-defense, after all, is fundamental to freedom. What's more, it's not as if the Founding Fathers were averse to guns.
I can't argue against the result of Reinhardt's ruling -- a 3-to-0 decision that California's assault-weapons ban is constitutional. As California Deputy Attorney General Tim Rieger noted, gun ownership can be seen as an individual right and still be subject to restriction in the interest of public safety. That's why your next-door neighbor doesn't own an atomic bomb.
But while Reinhardt is arguing to restrict an individual's powers, he moved along on expanding his own. He turned himself into a lawmaker.
The plaintiffs in the case had argued that exemptions allowing off-duty and retired peace officers to possess assault weapons violated their 14th Amendment right to equal protection. Reinhardt found no "rational basis" for the law to exempt retired peace officers. Then he struck down the exemption he didn't like.
Judges routinely strike down unconstitutional laws. But as Eastman noted, in striking the exemption, Reinhardt essentially wrote a new law: "He's now making it criminal for retired peace officers to possess assault weapons, even though the legislation said it was legal."
So, by his ruling, you don't have an individual right to own a gun, but he has this new power to write, not just interpret, the law.