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RULING RENEWS DEBATE ON GUNS Question of Right to Bear Arms Might Reach High Court By David Kravets, The Associate Press, Reported in Las Vegas Review-Journal, 12-07-02 SAN FRANCISCO - An appeals court ruling that the Second Amendment does not grant Americans a personal right to own firearms contradicts Attorney general John Ashcroft and might put the Supreme Court at the center of a constitutional debate that has inspired passionate arguments for much of the nation's history. The 9th U.S. Circuit Court of Appeals decision, written by one of the judges who declared the Pledge of Allegiance unconstitutional in June, seems to go against two centuries of popular thinking and contrary to assertions from the National Rifle Association, scholars, politicians and others that individuals do have the right to bear arms. The decision is expected to be appealed to the Supreme Court, which has never ruled squarely on the issue, and could take years to resolve. But beyond the academic debate over the Second Amendment's meaning, there appears to be little, if any political momentum to take the opinion to its logical conclusion: the banning of gun ownership. In the long run, gun advocates said the decision, if upheld, could one day result in the government banning the public from possessing weapons. But even a liberal member of Congress isn't taking that position. Sen. Dianne Feinstein, D-Calif., said the court's ruling upholding California's assault weapons ban "is clear confirmation that the government has the ability to place common sense regulations on firearms." Many state and federal rules, Feinstein said, already place limits on who can possess weapons and what types they can have. Laws already require background checks to ensure the gun buyer is not a felon, juvenile, mentally ill or domestic violence offender. Following California's 1989 lead in adopting a ban on assault weapons, several states and the federal government passed similar or even stricter bans. Gun rights advocate, Rep. John Dingell, D-Mich., a former NRA board member, said gun ownership is a right regardless of the decision. "I always thought and anyone I respected as a good lawyer always came to the assumption that constitutional rights set forth in the U.S. Constitution were personal rights. That's why we put them in the Constitution," he said. Some legal experts said the government, theoretically, could impose a total ban on individuals possessing guns even if they have a Second Amendment right to possess them. This is because a host of state and federal laws barring assault and other types of weapons are routinely upheld in the courts on grounds that the prohibitions are rational governmental approaches to combat violence. "It's conceivable that the federal government can pass a law you can't own a gun," said Chuck Michel, an NRA attorney. He said the government could do so and perhaps, defeat court challenges on grounds that the government "had a compelling interest to ban guns." "Some court at some point could say, 'federal government, you are right,'" Michel said. Even Ashcroft, who views the Second Amendment as granting individuals the right to bear arms, says that such a right is not absolute. "As I have stated many times, reducing gun crime is a top priority for the department. We will vigorously enforce and defend existing firearms laws in order to accomplish that goal," Ashcroft said in a memo last year to U.S. attorneys. The Justice Department declined comment Friday on the 9th Circuit's ruling, pointing out that the federal government is not a party to the case. Ashcroft's memo on the individual right to bear arms was issued Nov. 9, 2001, after the 5th U.S. Circuit Court of Appeals in New Orleans decided in another case that such an individual right existed. The scholarly discussion of the Second Amendment was renewed Thursday when the San Francisco-based appeals court, responding to a suit by gun owners, unanimously upheld California's ban on assault weapons. "The historical record makes it equally plain that the amendment was not adopted in order to afford rights to individuals with respect to private gun ownership or possession," Judge Stephen Reinhardt wrote for the three-judge panel. Reinhardt, who this summer also joined in the pledge opinion, ruled that the purpose of the Second Amendment was to maintain effective state militias. Reinhardt noted the U.S. Supreme Court's guidance on whether the Second Amendment offers individuals the right to bear arms was "not entirely illuminating." The court, he said, has never directly said whether the personal right to possess weapons was a constitutional guarantee. In 1939, in the closest case on point, the U.S. Supreme Court upheld a federal law prohibiting the interstate transport of sawed-off shotguns. The Supreme Court found the weapon in question was unsuitable for use in the militia and therefore not constitutionally protected. Mathew Nosanchuk, litigation director for the anti-gun Violence Policy Center, doesn't view Reinhardt's decision as a slippery slope to a complete weapons ban. And while such an outright federal ban could conflict with state laws allowing gun ownership, he said, "is not saying that people don't have the ability to have or own guns." "What it's saying is, it's not a constitutional right," he said. "I have a right to wear the blue jeans I'm wearing, but I don't have a constitutional right to wear them." WORKING TOGETHER TO ATTAIN FAIRNESS | ||
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