February 2003

Downrange: 02/03

THE NUTTY NINTH CIRCUIT: For better or worse, it seems that the issue of individual gun rights might be headed for a Supreme Court showdown.

The reason: Before Christmas, the U.S. Ninth Circuit Court of Appeals made a reasoned, if mistaken, argument that put the California court at odds with the Fifth Circuit, which held last year in U.S. v. Emerson that the Second Amendment does, in fact, protect an individual’s right to firearms.

The Ninth Circuit’s decision came in a case called Silveira v. Lockyer, which pitted nine plaintiffs against the state of California, which a decade ago banned “assault weapons.” But the law made an exception for individuals who owned such weapons before the ban went into effect.

In 1999 a new law took effect providing that all owners of “grandfathered” guns, except current and retired policemen, had to register their guns with the state. Sean Silveira and eight other plaintiffs claimed that the law violated the Second Amendment as well as other constitutional rights.

The Ninth Circuit, in a decision by Judge Stephen Reinhardt, rejected virtually all of Silveira’s claims. Moreover, the court held that the Second Amendment does not protect an individual’s right to firearms. Instead, it merely protects a state’s right to equip and train its militia.

This, Judge Reinhardt asserts, is why the Second Amendment includes the clause “a well regulated militia.” But any thinking person has to wonder why the founders would have deemed it necessary to guarantee the government’s right to arm its own militia. Isn’t that a given?

Also, there’s a historical contradiction. If Reinhardt is correct, then why didn’t the state governments build armories for the express purpose of arming their militias? Instead, state governments largely bought weapons from businesses that supplied private citizens with personal guns, or those state governments simply conscripted soldiers and their personal firearms as needed. Obviously, the guns were personal gear, and not the governments’, else the firearms would have been supplied, like cannon.

Still, there is no guarantee that the conflicting cases will be resolved by the Supreme Court. But it’s unlikely there will be a better time than now for this question to be settled in gun-owners’ favor, since the Nutty Ninth is the most heavily reversed appeals court in the land.

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OH WELL, CANADA: A Canadian law that became effective only a month ago is turning out to be a national headache. Under the 1995 Firearms Act, all gun owners across the country were to have their firearms registered by January 1, 2003, but last week Justice Minister Martin Cauchon said gun owners need only send a letter to Ottawa stating their intent to register.

Those who apply for registration or submit a letter by the December 31 deadline will have an additional six months without penalty while they await their registration. Cauchon announced the change last week, just a few weeks after he froze further funding to the registry following a damning report by Auditor General Sheila Fraser. Fraser said the cost of the registry—initially expected to reach $2 million—would exceed $1 billion by 2005.

Not only is the expense of the national registry running enormously more than initial estimates, there is an active resistance to the law by residents of Canada’s more rural provinces. Members of an organization called the Law-abiding Unregistered Firearms Association claim they will turn themselves in to the Mounties in large enough numbers to cause an unmanageable enforcement of the law.

-by Todd Woodard