Silveira v. Lockyer III (thing)

FOOTNOTES

See also: Silveira v. Lockyer I and Silveira v. Lockyer II

n1 Semiautomatic weapons differ from fully automatic machine guns in the following respects: Automatic weapons feed ammunition into the gun's chamber immediately after the firing of each bullet, so that the weapon will continue to reload and fire continuously so long as the trigger is depressed. Purchase and ownership of automatic weapons has been restricted by the federal government since the days of Al Capone and the machine gun violence associated with the Prohibition Era. See EARL R. KRUSCHKE, GUN CONTROL: A REFERENCE HANDBOOK 84, 170 (1995) (discussing the enactment of the National Firearms Act of 1934, ch. 757, 48 Stat. 1236 (1934) (current version codified as 26 U.S.C. §§ 5801-72), as a reaction to the use of machine guns by mobsters and "organized crime elements")."

In contrast to automatic weapons, only one bullet is fired when the user of a semi-automatic weapon depresses the trigger, but another is automatically reloaded into the gun's chamber. 27 C.F.R. § 178.11 (defining semi-automatic weapons). Thus, by squeezing the trigger repeatedly and rapidly, the user can release many rounds of ammunition in a brief period of time -- certainly many more than the user of a standard, manually-loaded weapon. Moreover, the semi-automatic weapons known as assault weapons contain large-capacity magazines, which require the user of the weapon to cease firing to reload relatively infrequently because the magazines contain so much ammunition. Consequently, users of such weapons can "spray-fire" multiple rounds of ammunition, with potentially devastating effects. Michael G. Lennett, Taking A Bite Out of Violent Crime, 20 U. DAYTON L. REV. 573, 609 (1995).

n2 An individual who lawfully obtained an assault weapon prior to the enactment of the AWCA may avoid the requirement of registering it with the state if he renders the weapon permanently inoperable, relinquishes it to a state law enforcement agency, sells it to a licensed California firearms dealer, or removes it from the State of California.

n3 A person who has registered an assault weapon may possess the weapon only at his own residence, his place of business, certain private and public clubs organized for the purpose of target shooting, certain fire-arms exhibitions approved by law enforcement agencies, or on specified public lands. § 12285(c)(1)-(6). Additionally, an assault weapon owner may transport his registered weapon to any of the above locations only so long as he complies with the methods of transportation prescribed in the statute. § 12285(7); § 12026.1.

n4 Unless otherwise noted, citations to statutory provisions in this opinion refer to the sections of the AWCA as codified in the California Penal Code.

n5 The reason that the legislature defined the restricted assault weapons generically, by feature, is that after the enactment of the AWCA, gun manufacturers began to produce "copycat" weapons in order to evade the statute's restrictions. These weapons varied only slightly from the models listed in the act, but were different enough from those models that they evaded the law's restrictions. Martha L. Willman, Davis Backs Bill to Limit Assault Gun Sale and Use Legislation, L.A. TIMES, Apr. 27, 1999, at B2.

n6 The specified agencies include the California Department of Justice, police departments, sheriffs' departments, marshals' offices, the Youth and Adult Corrections Agency, the Department of the California Highway Patrol, district attorneys' offices, Department of Fish and Game, and Department of Parks and Recreation. § 12280(f). Also included were members of the "military or naval forces of this state or of the United States." Id.

n7 The nine plaintiffs include, inter alia, two California National Guardsmen (both combat veterans), a San Francisco police officer, an insurance agent, a chemical engineer, and a California correctional officer.

n8 In the Fifth Circuit's decision in Emerson, that court describes a view of the amendment that it calls the "sophisticated collective rights model." 270 F.3d at 219. That view of the amendment holds that individual members of state militia may personally use and possess firearms, but only to the extent that they do so as part of their active military service. Id. We conclude that a more plausible theory is that which we describe as the "limited individual right" model. Of course, one could posit a series of variations on the Second Amendment theme, including a number of potential approaches differing only in degree from each other. The Fifth Circuit's "sophisticated collective rights model," however, appears to be a strawman that can all too readily be disposed of, as the Fifth Circuit does with relatively little difficulty. Ultimately, the Fifth Circuit adopts a weapons-based theory of the amendment that permits individuals to possess firearms for personal use, regardless of the relationship of the individual or the weapon to militia service, as long as those weapons have a "legitimate use in the hands of private individuals." Emerson, 270 F.3d at 223 (quoting the government's brief in United States v. Miller, 307 U.S. 174, 83 L. Ed. 1206, 59 S. Ct. 816 (1939)). We conclude, respectfully, that the Fifth Circuit's theory is contrary not only to Miller but to the basic purpose and effect of the Second Amendment.

n9 Justice Thomas did not explain why it was relevant that the Court had not ruled on the issue recently or why a Second Amendment decision might be of less force if it was handed down by an earlier Court.

n10 In Hickman, we held that an individual could not bring a Second Amendment challenge to a California law which requires that a permit be obtained in order to carry a concealed weapon, and, as noted in the text, unambiguously adopted the view that the Second Amendment establishes a collective right. Nevertheless, just six days after the issuance of that decision, Judge Alex Kozinski, acknowledgedly an extremely able and dedicated jurist, appeared to cling fast to the individual rights view, despite the existence of binding circuit precedent to the contrary that may in no way be dismissed as dicta. United States v. Gomez, 92 F.3d 770, 774 n.7 (9th Cir. 1996). The two other judges in Gomez, one of whom was the author of Hickman, refused to join in the footnote.

n11 See Gillespie v. City of Indianapolis, 185 F.3d 693, 710 (7th Cir. 1999), cert. denied, 528 U.S. 1116, 145 L. Ed. 2d 813, 120 S. Ct. 934 (2000); United States v. Wright, 117 F.3d 1265, 1273-74 (11th Cir.), cert. denied, 522 U.S. 1007, 139 L. Ed. 2d 422, 118 S. Ct. 584 (1997); United States v. Rybar, 103 F.3d 273, 286 (3d Cir. 1996), cert. denied, 522 U.S. 807, 139 L. Ed. 2d 13, 118 S. Ct. 46 (1997); Love v. Pepersack, 47 F.3d 120, 124 (4th Cir.), cert. denied, 516 U.S. 813, 133 L. Ed. 2d 27, 116 S. Ct. 64 (1995); United States v. Hale, 978 F.2d 1016, 1019-20 (8th Cir. 1992), cert. denied, 507 U.S. 997, 123 L. Ed. 2d 174, 113 S. Ct. 1614 (1993); Thomas v. Members of City Council, 730 F.2d 41, 42 (1st Cir. 1984) (per curiam); United States v. Oakes, 564 F.2d 384, 387 (10th Cir. 1977), cert. denied, 435 U.S. 926, 55 L. Ed. 2d 521, 98 S. Ct. 1493 (1978); United States v. Warin, 530 F.2d 103, 106 (6th Cir.), cert. denied, 426 U.S. 948, 49 L. Ed. 2d 1185, 96 S. Ct. 3168 (1976).

Although the majority of circuit courts have, with comparatively little analysis, adopted the collective rights view, the Third and Tenth Circuits appear to have suggested the possible use of some form of intermediate model. In rejecting a criminal defendant's Second Amendment defense to a gun possession charge, the Tenth Circuit stated:

"To apply the [Second] Amendment so as to guarantee appellant's right to keep an unregistered firearm which has not been shown to have any connection to the militia, merely because he is technically a member of the Kansas militia, would be unjustifiable in terms of either logic or policy."

Oakes, 564 F.2d at 387. In Rybar, the Third Circuit concluded that: "Rybar [has not] established that his firearm possession bears a reasonable relationship to 'the preservation or efficiency of well-regulated militia.'" 103 F.3d at 286 (quoting Miller, 307 U.S. at 178).

It appears that only the Second and District of Columbia Circuits have not taken a position, considered or otherwise, on the nature of the right established by the Second Amendment. See Fraternal Order of Police v. United States, 332 U.S. App. D.C. 49, 152 F.3d 998, 1002 (D.C. Cir. 1998) ("Despite the intriguing questions raised, we will not attempt to resolve the status of the Second Amendment right . . . .").

n12 Since Hickman, we have cited its holding, with little discussion, in a few criminal cases in which the defendant raised a general Second Amendment defense to various firearms convictions along with other defenses that relate more specifically to the particular offenses alleged. See, e.g., United States v. Hinostroza, 297 F.3d 924 (9th Cir. 2002); United States v. Mack, 164 F.3d 467, 474 (9th Cir. 1999); see also United States v. Hancock, 231 F.3d 557, 566 (9th Cir. 1999) (holding that, because the Second Amendment does not create an individual right to arms, an equal protection challenge to a gun control law is reviewed "under the rational-basis standard."). In the present civil constitutional challenge to a gun control statute, unlike the criminal cases in which the Second Amendment was raised along with a number of more specific defenses, the question of the Second Amendment's scope is the principal issue before the court and has been thoroughly briefed and argued by the parties.

n13 The Emerson court examined the government's briefs in Miller, and observed that in that case the government made alternative arguments: first, that the Second Amendment does not establish an individual right to possess arms, and second, that the sawed-off shotgun at issue in Miller bore no reasonable relationship to militia service. 270 F.3d at 221-24. In the view of the Emerson court, the Supreme Court's opinion in Miller adopted the government's second argument, and not its first, which is not an unreasonable conclusion. That conclusion does not, however, lead to the result the Fifth Circuit then reaches. In our view, the government's second argument supports either the collective rights view or the limited individual rights view, but not the traditional individual rights doctrine that the Fifth Circuit adopts. Moreover, in an attempt to reconcile its position with Miller, the Fifth Circuit modifies that doctrine by asserting that certain undefined types of arms are excluded from the amendment's coverage. Miller suggests that the arms protected by the amendment, if any, are those related to militia service, but Emerson strays far from that view. While it is unclear precisely what types of arms the Fifth Circuit would deem included or excluded, Emerson's conclusion that the Second Amendment protects private gun ownership so long as the weapons have "legitimate use in the hands of private individuals," 270 F.3d at 223, represents a far different approach from that stated in Miller. In our view, the Fifth Circuit's decision is incompatible with the Supreme Court ruling.

n14 See Opposition to Petition for Certiorari in United States v. Emerson, No. 01-8780, at 19 n.3, available at http://www.usdoj.gov/osg/briefs/2001/0responses/2001-8780.resp.pdf.

n15 If our review had led us to a conclusion contrary to that reached in Hickman, we of course would not attempt to overrule that decision in this opinion. Instead, we would be required to call for en banc review. See Morton v. De Oliveira, 984 F.2d 289, 292 (9th Cir. 1993) ("Only the court sitting en banc may overrule a prior decision of the court."). Because we reaffirm Hickman here, however, an en banc call by the panel is not necessary.

n16 Although Miller is consistent with both the limited individual rights position and the collective rights view, for reasons we explain below we continue to adhere to the collective rights view we adopted in Hickman.

n17 We concluded in Hickman that because the individual plaintiff had no legally protectable interest under the Second Amendment, he lacked constitutional standing to bring a claim under that provision. Other courts have addressed Second Amendment claims on the merits, rather than under the rubric of standing doctrine. See, e.g., Gillespie, 185 F.3d at 710 (offering an informed discussion not only of the standing issue but also of some of the amendment's possible applications). Although in every case we are required to examine standing issues first, see, e.g., Scott v. Pasadena Unified School Dist., 306 F.3d 646, 653-54 (9th Cir. 2002) ("We must establish jurisdiction before proceeding to the merits of the case."), here an examination of that question requires us as a first step to conduct a thorough analysis of the scope and purpose of the Second Amendment. Only after determining the amendment's scope and purpose can we answer the question whether individuals, specifically the plaintiffs here, have standing to sue. Thus, as a practical matter, the choice of jurisprudential approach makes little or no difference. Because we held in Hickman that the absence of an individually enforceable Second Amendment right resulted in a lack of standing, we follow our precedent and decide the case on that basis here.

In Hickman, we did not rely on our earlier decision in Fresno Rifle & Pistol Club, Inc. v. Van de Kamp, 965 F.2d 723 (9th Cir. 1992), that the Second Amendment is not incorporated by the Fourteenth and does not constrain actions by the states, although we noted in dictum that had standing existed, Fresno Rifle would be applicable. We undoubtedly followed that approach in Hickman because, as noted above, we must decide standing issues first. Fresno Rifle itself relied on United States v. Cruikshank, 92 U.S. 542, 23 L. Ed. 588 (1876), and Presser v. Illinois, 116 U.S. 252, 29 L. Ed. 615, 6 S. Ct. 580 (1886), decided before the Supreme Court held that the Bill of Rights is incorporated by the Fourteenth Amendment's Due Process Clause. Following the now-rejected Barron v. Baltimore, 32 U.S. (7 Pet.) 243, 8 L. Ed. 672 (1833) (holding that the Bill of Rights did not apply to the states), Cruikshank and Presser found that the Second Amendment restricted the activities of the federal government, but not those of the states. One point about which we are in agreement with the Fifth Circuit is that Cruikshank and Presser rest on a principle that is now thoroughly discredited. See Emerson, 270 F.3d at 221 n.13. Because we decide this case on the threshold issue of standing, however, we need not consider the question whether the Second Amendment presently enjoins any action on the part of the states.

n18 Our concurring colleague, Judge Magill, says that we should simply decide the case on standing as did Hickman. That is precisely what we do. Hickman first examined the scope and purpose of the Second Amendment, and adopted one of the three principal theories regarding its meaning. It did so in order to resolve the standing question. In fact, it is impossible to decide standing without undertaking the type of analysis which our colleague wishes us to avoid. Only after determining that the collective view of the Second Amendment was correct was the Hickman court able to conclude that the individual plaintiff had no standing. We reach the same conclusion as to the collective view after conducting a similar analysis and, by virtue of doing so, we are also able to reach the same conclusion as to standing.

The difference between our decision and Hickman is twofold. Since Hickman was decided, there have been extensive developments in the area of Second Amendment law. We take account of these developments and, after analyzing them, conclude that the result reached in Hickman does not change. Second, Hickman based its conclusion principally on a reading of Miller that appears to be incorrect: Miller neither adopts nor rejects the collective view. Because we believe Hickman reached the correct result on a significant constitutional issue currently being raised with some frequency in the district courts, we think it important to ground our circuit law on more solid constitutional reasoning and analysis. Given the plaintiffs' direct challenge to Hickman, the importance of the issue, and the extensive continuing judicial debate on the subject, it is, contrary to our colleague's view, in no way improper for us to reconsider Hickman in order to decide whether to (a) simply follow it without comment, (b) reaffirm it after considering intervening developments and engaging in a fuller constitutional analysis, or (c) request en banc review of the case before us.

n19 Dorf, supra, at 294.

n20 Stephen J. Heyman, Natural Rights and the Second Amendment, 76 CHI.-KENT L. REV. 237, 238 (2000).

n21 L.A. Powe, Jr., Guns, Words and Constitutional Interpretation, 38 WM. & MARY L. REV. 1311, 1360 (1997).

n22 Even the learned Professor Tribe has appeared stymied by the task of construing the Second Amendment. In the first two editions of his treatise on constitutional law, he advocated the collective rights position. See, e.g., LAURENCE H. TRIBE, AMERICAN CONSTITUTIONAL LAW 299 n.6 (2d ed. 1988) ("The sole concern of the Second Amendment's framers was to prevent such federal interferences with the state militia as would permit the establishment of a standing national army and the consequent destruction of local autonomy. Thus the inapplicability of the Second Amendment to purely private conduct . . . comports with the narrowly limited aim of the amendment as merely ancillary to other constitutional guarantees of state sovereignty."). However, in the treatise's third edition Professor Tribe tentatively concluded that the amendment provides "a right (admittedly of uncertain scope) on the part of individuals," although he left unresolved many of the more difficult questions regarding the amendment's practical effect, concluding unhelpfully that "the Second Amendment provides fertile ground in which to till the soil of federalism and to unearth its relationship with individual as well as collective notions of rights." LAURENCE H. TRIBE, 1 AMERICAN CONSTITUTIONAL LAW 902 n.221 (Foundation Press, 3d ed. 2000). Soon after the third edition of the treatise was sent to press, Professor Tribe, in concert with another equally puzzled law school professor, appeared to equivocate even further regarding the scope of the amendment's protections. The two professors abandoned constitutional analysis almost entirely and retreated to a wholly pragmatic and political, though overly optimistic, discussion of how the two sides to the bitter Second Amendment debate could live happily ever after by reaching reasonable practical accommodations of their sharply conflicting constitutional views. Laurence H. Tribe & Akhil Reed Amar, Well-Regulated Militias, and More, N.Y. TIMES, Oct. 28, 1999, at A31.

n23 Professor Levinson is of the view that another constitutional provision includes a similar type of preamble. He argues that the Copyright and Patent Clause, which states that Congress has the power "to promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries," U.S. CONST. art. I, § 8, has a structure analogous to that of the Second Amendment. See Levinson, supra. In our view, this is highly doubtful; the first phrase of the Copyright and Patent Clause appears to set forth the substantive power granted to Congress, not the limitation on such a power.

n24 Other advocates of the traditional individual rights model appear to read the first clause out of the amendment altogether. See Volokh, supra, at 807-09; see also Powe, Jr., supra, at 1336 ("To some, like the National Rifle Association, the preface bears so little relevance to the right that the preface might as well have been written in invisible ink.") For instance, in an article that has attracted much comment, Professor Volokh points out that although prefatory clauses like that included in the Second Amendment are not found elsewhere in the federal constitutional text, they are commonplace in state constitutions. On the basis of the limited significance of the prefatory clauses in the state constitutions, the able professor maintains that the prefatory clause in the Second Amendment should not be read as restricting the right established in the operative clause. Volokh, supra, at 807-09. However, this interpretation results in the denial of any significance at all to the first part of the amendment, in violation of the well-established canon of interpretation that requires a court, wherever possible, to give force to each word in every statutory (or constitutional) provision. United States v. Menasche, 348 U.S. 528, 538-539, 99 L. Ed. 615, 75 S. Ct. 513 (1955); see Marbury v. Madison, 5 U.S. (1 Cranch.) 137, 174, 2 L. Ed. 60 (1803). Moreover, as Professor Dorf, a leading exponent of the collective rights view, notes, the fact that preambles are common in state constitutions does not alter the fact that they are entirely atypical in the federal constitution. To the contrary, Professor Dorf says, the first clause of the Second Amendment ought to be attributed substantial weight, in part because it is so unusual. Dorf, supra, at 301. We find Professor Dorf's argument the more persuasive.

n25 Specifically, in United States v. Verdugo-Urquidez, the Court stated that the use of the word "people" should have the same meaning in the Second Amendment as it does throughout the Constitution:

"The people" seems to have been a term of art employed in select parts of the Constitution. The Preamble declares that the Constitution is ordained and established by "the People of the United States." The Second Amendment protects "the right of the people to keep and bear Arms," and the Ninth and Tenth Amendments provide that certain rights and powers are retained by and reserved to "the people." While this textual exegesis is by no means conclusive, it suggests that "the people" protected by the Fourth Amendment, and by the First and Second Amendments, and to whom rights and powers are reserved in the Ninth and Tenth Amendments, refers to a class of persons who are part of a national community or who have otherwise developed sufficient connection with this country to be considered part of that community.

494 U.S. 259, 265, 108 L. Ed. 2d 222, 110 S. Ct. 1056 (1990) (citations omitted).

We note that James Madison, no minor authority on the constitutional text, noted the arbitrariness of this interpretive approach. In doing so, in Federalist 37, he observed, "no language is so copious as to supply words and phrases for every complex idea, or so correct as not to include many equivocally different ideas." THE FEDERALIST NO. 37, at 197 (Clinton Rossiter, ed., 1961). Nevertheless, we are bound by the views of the Supreme Court.

n26 U.S. CONST. art. I, § 8, cls. 12-14 (granting the power "To raise and support Armies," "To provide and maintain a Navy," and "To make Rules for the Government and Regulation of the land and naval Forces.").

n27 Professor Jack Rakove, an eminent historian, in criticizing the logic underlying the traditional individual rights position, observes that "'people' is routinely defined by advocates of the traditional individual rights position intratextually, by reference to use in other amendments, but 'militia' leaps beyond the proverbial four corners of the document, and is parsed [by those advocates] in terms of a historically contingent definition of what the militia has been and must presumably evermore be." Rakove, supra, at 124.

n28 The Emerson court points to a few uses of the phrase "bear arms" that do not refer to military service, primarily in the Report of the Pennsylvania Minority, prepared by those members of the Pennsylvania Ratifying Convention who dissented from that state's decision to ratify the Constitution. The Pennsylvania minority report is one of the few contemporaneous documents to refer to a private right to arms. However, its view was doubly rejected: first, by the Pennsylvania convention, which chose not to recommend to the new Congress any amendment related to the regulation of arms, and second, by the First Congress, which adopted the Second Amendment rather than the individual rights proposal of the Pennsylvania minority.

n29 For instance, the Declaration of Independence cites as a grievance against the British Crown the fact that Great Britain impressed into the British Navy Americans captured on the high seas, and forced the prisoners to "bear arms" against their countrymen. THE DECLARATION OF INDEPENDENCE para. 28 (U.S. 1776). The Continental Congress frequently used the term when permitting prisoners of war to be released to Britain, conditioning their release on the prisoners' "parole not to bear arms against the United States or their allies during the war." 14 JOURNALS OF THE CONTINENTAL CONGRESS 826 (July 14, 1779). Similarly, in giving instruction to General Washington to conduct an exchange of prisoners of war with Britain, Congress instructed that the exchanged prisoners be prohibited from active service in the military: "That hostages be mutually given as a security that the Convention troops and those received in exchange for them do not bear arms prior to the first day of May next." 18 JOURNALS OF THE CONTINENTAL CONGRESS 1030 (Nov. 17, 1780).

n30 The Fifth Circuit dismisses the Aymette decision because it believed that the constitutional provision relied on by the Tennessee court granted free white men the right to "keep and bear arms for their common defense." According to the Emerson court, the "common defense" language, which is not present in the Second Amendment, rendered the interpretation of the Aymette court inapplicable here. However, the Tennessee court reached its conclusion primarily because of a different provision of the state constitution that did not include the "common defense" language. Thus, the Fifth Circuit's attempt to distinguish Aymette fails.

n31 The use of "bear arms" in Madison's proposal for a conscientious objector proposal is identical to its use in a number of suggested amendments offered by the state ratifying conventions. In Virginia, for example, George Wythe suggested a proposed constitutional amendment that, like Madison's first draft of the Second Amendment, quite evidently uses "bear arms" to mean military service: "That any person religiously scrupulous of bearing arms ought to be exempted, upon payment of an equivalent to employ another to bear arms in his stead." 3 THE DEBATES IN THE SEVERAL STATE CONVENTIONS ON THE ADOPTION OF THE FEDERAL CONSTITUTION 659 (Jonathan Elliott ed., 2d ed. 1866) [hereinafter DEBATES]; see also 1 DEBATES, supra, at 335 (Rhode Island Ratifying Convention Proposed Amendments) ("That any person religiously scrupulous of bearing arms ought to be exempted upon payment of an equivalent to employ another to bear arms in his stead.").

n32 As Professor John Hart Ely has observed, "here, as almost nowhere else, the framers and ratifiers apparently opted against leaving to the future the attribution of purposes, choosing instead explicitly to legislate the goal in terms of which the provision was to be interpreted." JOHN HART ELY, DEMOCRACY AND DISTRUST 95 (1980).

n33 As we have noted, supra p. 14, the Miller Court stated: "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." 307 U.S. at 178 (emphasis added).

n34 The Third Amendment states: "No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in manner prescribed by law."

n35 A number of early state constitutions included provisions prohibiting the maintenance of standing armies by the executive branch. The Massachusetts provision is typical: "And as in time of peace armies are dangerous to liberty, they ought not to be maintained without the consent of the legislature; and the military power shall always be held in exact subordination to the civil authority, and be governed by it." MASS. CONST. pt. I, art. XVII (1780), in BILL OF RIGHTS, supra, at 183. See also DELAWARE DECLARATION OF RIGHTS, § 19 (1776) ("That standing armies are dangerous to liberty, and ought not to be raised or kept up without the consent of the Legislature."), in BILL OF RIGHTS, supra, at 183.

n36 Some states, particularly during the Articles of Confederation period, in turn required individual militiamen to bring their own arms for militia service. See Miller, 307 U.S. at 180-82 (citing statutes). As we observed in Hickman, however, "in practice, the command" that militiamen arm themselves "was ignored." 81 F.3d at 103 n.8. In many other states, both the official and the actual responsibility for arming the militia rested, as the Articles of Confederation contemplated, with the state governments. The Georgia statute was typical; the state was required to "Arm and Array the militia for suppressing all such insurrections, as may happen." Act of 1778, in 19 THE COLONIAL RECORDS OF THE STATE OF GEORGIA: STATUTES COLONIAL AND REVOLUTIONARY, 1774 to 1805, at 104 (1970). Regardless of where the official responsibility rested, however, the comments of Madison, Randolph, and others, made at the Constitutional Convention, cited infra, reflect the common understanding that the state militias were ill-equipped.

n37 During the period that the Articles were in effect, both George Washington and Henry Knox, who was to become the nation's first Secretary of War in the Washington Administration, urged the creation of a standing national military force, to no avail. H. Richard Uviller & William G. Merkel, The Second Amendment in Context: The Case of the Vanishing Predicate, 76 CHI.-KENT L. REV. 403, 411-13 (2000). Washington in particular felt that the need was acute; in 1783 he wrote a document entitled Sentiments On A Peace Establishment, in which he recommended establishing a national militia that would exist along with those maintained by the individual states. Subsequently, he wrote to John Adams in the wake of Shays's Rebellion that because of the lack of a unified national military force, "we are fast verging to anarchy and confusion!" Letter from George Washington to James Madison (Nov. 5, 1786), in 29 THE WRITINGS OF GEORGE WASHINGTON, 1745-1799, at 51 (John Clement Fitzpatrick ed., 1931). n38 See also 2 DEBATES, supra, at 387 (Virginia Ratifying Convention) ("Have we not found from experience, that, while the power of arming and governing has been solely vested in the state legislatures, they were neglected and rendered unfit for immediate service?") (Statement of James Madison).

n39 We use the terms "Federalist" and "Anti-Federalist" as they were originally intended and as they plainly read, as opposed to the current paradoxical distortions of the terms. For some inexplicable reason, the term "Federalist" is currently used to refer to those who favor devolving fundamentally national functions upon the individual states, rather than to those who favor granting to the national government the powers necessary to operate effectively and to promote the social compact that underlies American democracy.

n40 See 3 DEBATES, supra, at 392 ("If you give [the power to federalize the militia] not to Congress, it may be denied by the states. If you withhold it, you render a standing army absolutely necessary; for if they have not the militia, they must have such a body of troops as will be necessary for the general defence of the Union.") (statement of George Nicholas at the Virginia Ratifying Convention).

n41 Advocates of the traditional individual rights view often quote Madison's observation that the American people have the "advantage of being armed" as conclusive evidence that the Founders intended to protect the personal ownership of firearms. See, e.g., Emerson, 270 F.3d at 249 n.3; Don B. Kates, Jr., Gun Control: Separating Reality From Symbolism, 20 J. CONTEMP. L. 353, 364 (1994). However, examination of those words in context, as set forth above, suggests that Madison was referring to armed citizens in the service of state governments, i.e., militiamen.

n42 This was in Madison's early period, when he was an ally of Hamilton's; it was not until later that he joined Jefferson in organizing the political faction that became the Republican Party and opposed the policies of the Federalists, including President Washington and, more openly, those of President John Adams. See DAVID MCCULLOUGH, JOHN ADAMS 436, 475 (2001).

n43 The text of Article I does not state that Congress has exclusive power to arm the militia. The language indicates that the grant of power is permissive: Congress "may" arm the militia. Nothing in the Article or elsewhere in the Constitution appears to bar the states from choosing to arm their respective militias as they wish. Nevertheless, most prominent Anti-Federalists -- whether motivated by sincere belief or by a desire to engage in the rhetoric at which they excelled -- complained that the Militia Clauses were a dangerous extension of exclusive federal power. For instance, in a published exchange of letters with Federalist Oliver Ellsworth of Connecticut, prominent Anti Federalist Luther Martin of Maryland complained that the federal government has "the powers by which only the militia can be organized and armed, and by the neglect of which they may be rendered utterly useless and insignificant." 3 CONVENTION RECORDS, supra, at 285.

n44 The Civil War and its consequences, including the adoption of the Fourteenth Amendment, appear to have settled a number of the theoretical issues that caused the Anti-Federalists such concern; the question of a national as opposed to state-by-state military defense force would also seem somewhat academic after World War I, World War II, the Cold War, and Al Qaeda.

n45 None of the major proposals for a Bill of Rights included any provision affording individuals such a right. For instance, two of the more prominent Anti-Federalist critics of the proposed constitution, Mason and Richard Henry Lee, both of Virginia, published highly influential objections to the new Constitution. However, although these two statesmen "articulated nearly all the major principles that would eventually be written into the Bill of Rights, [they] made no claim for a purely private right to arms." Uviller & Merkel, supra, at 482. Similarly, Thomas Jefferson, who was in France during the ratification period, suggested a number of changes to the new Constitution in a letter to Madison; although protection against standing armies was among his proposals, an individual right to possess arms was not. Letter from Thomas Jefferson to James Madison (Dec. 20, 1787), quoted in Uviller & Merkel, supra, at 494.

n46 See The Address and Reasons of Dissent of the Minority of the Convention of Pennsylvania to Their Constituents, 3 THE COMPLETE ANTI-FEDERALIST 151 (Herbert J. Storing, ed., 1981).

n47 The Pennsylvania minority, so frequently cited by the proponents of the individual rights view, also used language markedly different from that of the Second Amendment. Its proposal for a federal constitutional amendment, which was rejected in favor of the Second Amendment, would have unambiguously established a personal right to possess arms for personal purposes: "No law shall be passed for disarming the people or any of them, unless for crimes committed, or real danger of public injury from individuals . . . ." The Address and Reasons of Dissent of the Minority of the Convention of the State of Pennsylvania to Their Constituents, at 623-24 (quoted in Finkelman, supra, at 208).

n48 One other proposal for an amendment establishing an individual right to possess arms might be considered, at most, moderately significant, if only because it was advanced by prominent Massachusetts Anti-Federalist and revolutionary leader Samuel Adams. The proposal failed to attract the support of many Massachusetts delegates, and is included in the Report of the Minority which was issued at the conclusion of that state's ratifying convention. Report of the Massachusetts Minority, Feb. 6, 1788, in BILL OF RIGHTS, supra, at 181.

n49 Professor Rakove takes traditional individual rights advocates to task in regard to their contrary analysis of the ratification process:

"If Americans had indeed been concerned with the impact of the constitution on [the private right to arms], and addressed the subject directly, the proponents of the individual right theory would not have to recycle the same handful of references to the dissenters in the Pennsylvania Ratification Convention and the protests of several Massachusetts members against their state's proposed constitution, or to rip promising snippets of quotations from the texts and speeches in which they are embedded."

Rakove, supra, at 109.

n50 For instance, Madison resisted Anti-Federalist proposals to place limits on the national army, as well as on the authority of the federal government to call the state militia into federal service. Various amendments related to the national army had been offered, such as to restrict the standing army in peacetime, to require a super majority for congressional authorizations regarding the federal army, or to impose a numeric limit on the size of any federal army. See Yassky, supra, at 607. Madison rejected all of them. Anti-Federalists offered dire predictions, particularly regarding the federal power to call forth state militias. They predicted that this power would lead to one state's militia being turned against another's, and that the federal government would force state militias to march to far-flung corners of the nation. Id.

n51 We differ with the Fifth Circuit's reading of the historical record in this respect. The Emerson court cites a number of general statements, both in the congressional record and outside of it, by "prominent Americans" that the first twelve proposed amendments, ten of which were ratified as the Bill of Rights, relate to individual rights. 270 F.3d at 245-55. It is of course true that the amendments primarily establish individual rights; however, it cannot be disputed that certain portions of the proposed amendments related to other matters. The Tenth Amendment, for instance, relates primarily to the balance of power between the state and federal governments. Additionally, the provision that was recently ratified as the Twenty-Seventh Amendment, but was originally promulgated with the original twelve amendments, relates to Congressional compensation, not individual rights. Thus, we find unconvincing the argument that because some legislators and public figures generally discussed the group of proposed amendments, as establishing individual rights, the Second Amendment establishes a private right to own or possess firearms.

n52 Comments of individual delegates also reveal that those who supported the Second Amendment did so because they sought to protect the people from federal hegemony. For instance, Anti-Federalist Elbridge Gerry of Massachusetts sought elimination of the conscientious objector provision because he was concerned that if it were included in the federal constitution, then Congress, rather than the state legislatures, would define what constituted conscientious objection, and that Congress would thereby have excessive authority over the management of the state militia. Gerry concluded, "if we give a discretionary power [to the federal government] to exclude those from militia duty who have religious scruples, we may as well make no provision on this head." BILL OF RIGHTS, supra, at 185. Thus, in Gerry's view, if Congress, through the conscientious objector provision, could control membership in the militia, then there was little point to the Second Amendment at all. Id.

n53 Plaintiffs have standing to bring these claims because they allege that the challenged provisions to the AWCA afford a benefit to some persons and not to others based on grounds that cannot survive Equal Protection scrutiny. If their arguments are correct, plaintiffs would suffer an equal protection injury. As the Supreme Court has explained:

When the government erects a barrier that makes it more difficult for members of one group to obtain a benefit than it is for members of another group, a member of the former group seeking to challenge the barrier need not allege that he would have obtained the benefit but for the barrier in order to establish standing. The "injury in fact" in an equal protection case of this variety is the denial of equal treatment resulting from the imposition of the barrier, not the ultimate inability to obtain the benefit.

Northeastern Fla. Chapter of Associated Gen. Contractors v. City of Jacksonville, 508 U.S. 656, 666, 124 L. Ed. 2d 586, 113 S. Ct. 2297 (1993).

n54 One could question the wisdom of arming certain government officials categorized as "peace officers" by the AWCA -- particularly park rangers and employees of the district attorney's office -- with high-powered military-style weapons. However, that is not the basis for plaintiffs' challenge to this provision of the AWCA. The question is whether those officers furnished such weapons may use them for law enforcement purposes when off duty. As set forth in the text, inclusion of the limitation that the assault weapons are to be used for law enforcement purposes only renders the provision a rational one.

n55 It would appear from the wording of § 12285 that retired peace officers who obtain assault weapons for personal use upon retirement from government service are exempt from the registration and use restrictions of the AWCA. Whether or not they are, however, our conclusion is the same.

n56 California Governor Gray Davis, who signed the 1999 amendments to the AWCA including the retired officer exception, evinced a similar intent through his public statements. In announcing, with great fanfare, his support for the 1999 amendments to the AWCA, he proclaimed that "there is no justification whatsoever for [assault weapons] on the streets of a civilized society." Martha L. Willman, Davis Backs Bill to Limit Assault Gun Sale and Use Legislation, L.A. TIMES, Apr. 27, 1999, at B2.

n57 While the grandfather clause may also appear to be inconsistent with this legislative intent, that clause is not challenged here. Equally important, the argument that a rational basis for the grandfather clause exists is entirely different from, and likely more substantial than, those put forward to justify the off-duty exception.

n58 We need not consider here whether any officers who may have purchased weapons prior to the adoption of the AWCA are covered by its grandfather clause. That issue is not before us.