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A year later, a Ninth Circuit panel flatly disagreed with Emerson, instead endorsing the collective rights model of the Second Amendment in a challenge to California’s regulations on some types of semi-automatic firearms. In Silveira v. Lockyer (2002), the panel examined more or less the same types of evidence as the Emerson panel but came to the opposite conclusion. As you read the excerpt below, refer back to Emerson and note specific ways in which the opinions disagree on the Second Amendment’s text and history.

Silveira v. Lockyer

312 F. 3d 1052 (9^th Cir. 2002)

Facts: California amended its existing gun control laws to strengthen restrictions on certain semi-automatic weapons (high-capacity chambers, barrel shrouds, silencers, etc.). Owners of these weapons—or those who sought to acquire them—sued, arguing the law violated the Second Amendment.

Question: Does the Second Amendment create an individual right to own firearms that could limit California’s gun regulations?

Vote: No (3-0)

For the Panel: Judge Reinhardt

Special concurring opinion: Judge Magill

REINHARDT, Circuit Judge.

In 1999, the State of California enacted amendments to its gun control laws that significantly strengthened the state’s restrictions on the possession, use, and transfer of the semi-automatic weapons popularly known as “assault weapons.” Plaintiffs, 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 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…

I. INTRODUCTION

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. The immediate cause of the AWCA’s enactment was a random shooting earlier that year at the Cleveland Elementary School in Stockton, 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.

The California Assembly met soon thereafter in an extraordinary session called for the purpose of enacting a response to the Stockton shooting. 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. 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…

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 semi-automatic weapons… Examples of the types of weapons restricted by the revised AWCA include a “semiautomatic, centerfire rifle that has a fixed magazine with the capacity to accept more than 10 rounds,” 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. The amended AWCA also restricts assault weapons equipped with “barrel shrouds,” 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 silencers…

Plaintiffs in this case are nine individuals, some of whom lawfully acquired weapons that were subsequently classified as assault weapons under the amended AWCA. 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…

II. DISCUSSION

A. Background and Precedent.

A robust 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…

Despite the increased attention by commentators and political interest groups 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 (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 shotguns in interstate commerce… the Miller Court concluded:

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.

… 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… What Miller does strongly imply, however, is that the Supreme Court rejects the traditional individual rights view…

Our court, like every other federal court of appeals to reach the issue except for the Fifth Circuit, has interpreted Miller as rejecting the traditional individual rights view…

We agree that our determination … that Miller 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… First, as we have noted, there is the recent Emerson decision in … the Fifth Circuit… 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…

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.  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.

Given the dearth of both reasoned and definitive judicial authority, a particularly active academic debate has developed over the scope of the Second Amendment…  As a result of the renewed interest in the issue, the Second Amendment has been the subject of a number of scholarly symposia…

… we [thus] believe it prudent to explore Appellants’ Second Amendment arguments in some depth, and to address the merits of the issue…

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 and structure 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… 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. Because we hold that the Second Amendment does not provide an individual right to own or possess guns or other firearms, plaintiffs lack standing to challenge the AWCA.

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.” 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,” “an enigma,” and “baffling” by scholars of varying ideological persuasions. 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. 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 and intent. 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 citizens… 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 contemporaneously 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…

“Militia” appears repeatedly in the first and second Articles of the Constitution. From its use in those sections, it is apparent that the drafters were referring in the Constitution to the second of two government-established and -controlled military forces…

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 Insurrections and repel Invasions.” The fact that the militias may be “called forth” by the federal government only in appropriate circumstances underscores their status as state institutions… the contexts in which the term is used demonstrate that … “militia” refers to state military organizations and not to their members or potential members throughout these two Articles…

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… 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.

… 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.”

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… 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 a historian of the Founding Era has noted, the inclusion of that phrase “further shows that the Amendment does not apply to just anyone.” … 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 supremacists or other racial or religious bigots, 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…

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…

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.” Historians have observed that “[n]o state at the time, nor any state before, had ever compelled people to carry weapons in their private capacity.” 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.

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 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…  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… 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…

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… 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.

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… 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.

… 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…

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…

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… 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 colonists’ break from Britain was a distrust of the standing army maintained by the Crown on American shores… Standing armies in the colonial era were looked on with great skepticism… Even after the break with Britain, a large portion of Americans had grave reservations about establishing a permanent standing army.

Nevertheless, many other newly independent Americans expressed the need to strengthen the federal fighting force, even in peacetime… 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. 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…

… Randolph cited military reform as a principal reason for strengthening the federal charter: “[T]he confederation produced no security against foreign invasion … neither militia nor [state] draughts being fit for defence on such occasions.” Influential South Carolinian Charles Pinckney, for instance, maintained that a stronger federal government was necessary principally so as to maintain “a real military force.” 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 delegates to the convention devoted substantial efforts to determining the proper balance between state and federal control of military matters…

The delegates at Philadelphia also provided for the strengthening of the state militias, in part to provide a check on the new national army…

Federalists 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…

… the compromise that resulted, is that the balance of military power between the states and the federal government, although now an anachronistic subject foreign to our mode of thinking, was, at the time of the founding, a preeminent and much-debated question.

c. Anti-Federalist Objections and the Ratification Debates

The Anti-Federalists sought to ensure that the people of the several states would enjoy the protection of effective state militias so that their new-found liberties would be preserved. To accomplish this purpose, they sought to change, or at the least, to clarify, the nature of the proposed balance of military power between the state and federal governments… One of the principal arguments against ratification of the new Constitution was that it would take away from the states the right to arm the members of its militias, and thus could deprive the people of an effective counter-force to the new national army…

… Once it became apparent that ratification was likely, Anti-Federalists shifted their efforts from defeating the Constitution to securing amendments, to be adopted almost simultaneously, that would render the new system more to their liking… Ratification debates from those states demonstrate that the proposed amendments had nothing to do with an individual right to possess arms, whether for personal or other use. Indeed, the ratification debates were almost entirely-but not completely-devoid of any mention of an individual right to own weapons…

Thus, the Anti-Federalists worried that the federal government would deprive the militia of its arms, not that it would take personal weapons from individual citizens…

In short, to the extent that the ratification debates concerned firearms at all, the discussion related to the importance of ensuring that effective state militias be maintained, such militias being considered essential to the preservation of the people’s freedom…

d. The First Congress and the Second Amendment

… The debates of the First Congress regarding Madison’s proposed Second Amendment, like the debates at the Constitution’s ratifying conventions, support the view that the amendment was designed to ensure that the people retained the right to maintain effective state militias… No one in the First Congress was concerned, however, that federal marshals might go house-to-house taking away muskets and swords from the man on the street or on the farm. Notably, there is not a single statement in the congressional debate about the proposed amendment that indicates that any congressman contemplated that it would establish an individual right to possess a weapon. Moreover, in other public fora, some of the framers explicitly disparaged the idea of creating an individual right to personal arms. For instance, in a highly influential treatise, John Adams ridiculed the concept of such a right, asserting that the general availability of arms would “demolish every constitution, and lay the laws prostrate, so that liberty can be enjoyed by no man…”

In sum, our review of the historical record regarding the enactment of the Second Amendment reveals that the amendment was adopted to ensure that effective state militias would be maintained, thus preserving the people’s right to bear arms…

3. Text, History, and Precedent All Support the Collective Rights View of the Amendment.

We reaffirm our earlier adherence to the collective rights interpretation of the Second Amendment… Thus, we hold that the Second Amendment imposes no limitation on California’s ability to enact legislation regulating or prohibiting the possession or use of firearms, including dangerous weapons such as assault weapons. Plaintiffs lack standing to assert a Second Amendment claim, and their challenge to the Assault Weapons Control Act fails…

MAGILL, Circuit Judge, Special Concurrence.

I join parts I, II-C, and III of the court’s opinion. Respectfully, I cannot join parts II-A and II-B, but I do concur in the judgment. Parts II-A and II-B consist of a long analysis involving the merits of the Second Amendment claims and the Ninth Circuit’s adoption of the collective rights theory of the Second Amendment. As discussed below, this analysis seems unnecessary…

Here, the court claims that:

[a]lthough in every case we are required to examine standing issues first, … 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.

Respectfully, I disagree. Previously, this court decided the scope and purpose of the Second Amendment. We are bound by that precedent…

In Hickman (9^th Cir. 1996), this court announced that the Second Amendment guarantees a collective right, not an individual right. As such, this court held that an individual plaintiff lacks standing to enforce the right to keep and bear arms because “the states alone stand in the position to show legal injury when this right is infringed.” As recognized by my colleague Judge Reinhardt, we have no power to overrule Hickman; only an en banc panel may do so…