TCS Daily

Blogs 1, Reinhardt 0

By Pejman Yousefzadeh - December 12, 2002 12:00 AM

This past week, the Ninth Circuit Court of Appeals-which enjoys the dubious reputation of having had more of its decisions reversed by the United States Supreme Court than any other circuit-unburdened itself of a 69-page magnum opus written by Circuit Judge Stephen Reinhardt, arguing that Second Amendment rights are collective and not individual in nature. As such, the Ninth Circuit set up a conflict with the Fifth Circuit, which concluded in United States v. Emerson that the Second Amendment does confer an individual right to bear arms.

With its decision, the Ninth Circuit makes it likely that the United States Supreme Court will seek to resolve the conflict in circuits. Here is hoping that the High Court takes a more intellectually honest and rigorous look at the question. If it does, it should conclude that the Fifth Circuit, not the Ninth, got the question right.

Judge Reinhardt relies in large part on the Supreme Court's 1939 decision in United States v. Miller to make his argument that Second Amendment rights are collective. Although he concedes that the decision in Miller was "cryptic," Judge Reinhardt cites the following passage to indicate that "what Miller does strongly imply, however, is that the Supreme Court rejects the traditional individual rights view:

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.

The problem with Judge Reinhardt's analysis is that the Miller Court's discussion clearly centered on whether a particular shotgun with specific dimensions (a sawed-off shotgun) had a relationship to the preservation of a well-regulated militia, with the answer being no. This is an exceedingly narrow ruling, and did not constitute a declaration by the Court that Second Amendment rights are collective.

Judge Reinhardt then goes on to cite footnote 8 in Lewis v. United States, which states that "[T]he Second Amendment guarantees no right to keep and bear a firearm that does not have 'some reasonable relationship to the preservation or efficiency of a well-regulated militia.'"

However, Judge Reinhardt completely misses the historical meaning of the term "militia," as law professor and Second Amendment expert Eugene Volokh points out in a passage that is worth quoting at length:

The Ninth Circuit repeatedly stresses that the right relates to "a military force established and controlled by a government entity," "not some amorphous body of the people as a whole" (p. 32). But nowhere does the Ninth Circuit acknowledge that this militia was essentially the adult white male able-bodied citizenry. Not a National Guard, not a small group of people chosen by the state, but pretty much everyone who mattered at the time (yes, I know it was limited to white males, but that was the 1790s for you), subject only to an 18-to-45 age restriction (which I suspect covered the great majority of people). Much more consistent with a right of the people-you and me-than if "militia" simply meant a National Guard.

You'd think that in a discussion of what "militia" means in the Second Amendment, the Ninth Circuit would quote the Supreme Court's statement as to what this means: "The signification attributed to the term Militia appears from the debates in the Convention, the history and legislation of Colonies and States, and the writings of approved commentators. These show plainly enough that the Militia comprised all males physically capable of acting in concert for the common defense." United States v. Miller (1939).

You'd think that the Ninth Circuit would quote the Militia Act of 1792 (enacted by Congress three years after Congress proposed the Second Amendment), which defined "militia" to include "each and every free able-bodied white male citizen of the respective states, resident therein, who is or shall be of the age of eighteen years, and under the age of forty-five years [subject to some narrow exceptions]"-and curiously the definition remains pretty much the same today.

You'd think that it would quote the four state ratifying conventions' calls for a right to bear arms, which all speak of a "well regulated Militia composed of the body of the people trained to arms" or "capable of bearing arms."

But you'd be mistaken in so thinking, because the Ninth Court never quotes these sources.

The failure to quote Volokh's apt sources does not speak well to the scholarship or the intellectual rigor of the opinion. And that is another problem with Judge Reinhardt's opinion-it gets a number of quotations and historical arguments cited in support of the opinion blatantly wrong.

For example, in arguing that some of the founders "explicitly disparaged the idea of creating an individual right to personal arms," Judge Reinhardt cites precisely one quote from the Founders to make his argument:

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; it is a dissolution of the government."

But as blogger and TCS contributor Stuart Buck points out, Judge Reinhardt did not provide the full quote from Adams, which is as follows:

To suppose arms in the hands of citizens, to be used at individual discretion, except in private self-defense, or by partial orders of towns, countries or districts of a state, is to demolish every constitution, and lay the laws prostrate, so that liberty can be enjoyed by no man; it is a dissolution of the government. The fundamental law of the militia is, that it be created, directed and commanded by the laws, and ever for the support of the laws.

Buck then goes on to explain that when Adams' words are properly considered in their full context, their meaning is decidedly different than what Judge Reinhardt maintains:

In other words, Adams was not arguing against an individual right to have arms. In fact, as the highlighted text above shows, he supported allowing private citizens, at their individual discretion, to use arms in "private self-defense." What he was writing about here was the necessity of legal control over the militia-in other words, he didn't want to have a bunch of vigilantes running around purporting to be a military.

This is not the only instance in which Judge Reinhardt gets the facts wrong. Blogger Clayton Cramer notices yet another mistake by Judge Reinhardt-this one having to do with representations made in footnote 37 of the Ninth Circuit's opinion. The footnote in Judge Reinhardt's opinion reads as follows:

. . . 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. . . .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, "[w]e are fast verging to anarchy and confusion!"

Unfortunately, it appears that Judge Reinhardt misrepresented Washington's opinion on the issue. After quoting Washington's letter in full, Cramer points out the following:

Now, Washington certainly mentions the Shays's Rebellion in this letter-after discussing "anarchy and confusion!" But there isn't any discussion of "because of the lack of a unified national military force." One might at least as fairly assume that Washington was referring to the problems of finances and the previous inability of Congress to vote for a "paper emission." Washington was definitely a supporter of a standing army, having found militias to be a "weak reed" upon which to rely. But this letter is quite a bit more ambiguous than either Bellesiles's representation of it, or Reinhardt's representation of Bellesiles.

Thus, once again, it appears that Judge Reinhardt did not allow the historical facts so important to a correct ruling on the Second Amendment to get in the way of his zeal to argue that the Second Amendment confers a collective, not an individual right.

In writing about the ruling, Professor Volokh stated that he found it "disappointing." Considering how many aspects of Second Amendment law and scholarship Judge Reinhardt got wrong, characterizing the opinion as "disappointing" would perhaps constitute a monumental understatement.

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