|OPINION BY: Stephen Reinhardt. 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 Equal Protection Clause, and a host of other constitutional provisions.
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.
Plaintiffs in this case are nine individuals, some of whom lawfully acquired weapons that were subsequently classified as assault weapons under the amended AWCA. 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.
There are three principal schools of thought that form the basis for the debate. The first, which we will refer to as the "traditional individual rights" model, holds that the Second Amendment guarantees to individual private citizens a fundamental right to possess and use firearms for any purpose at all, subject only to limited government regulation. This view, urged by the NRA and other firearms enthusiasts, as well as by a prolific cadre of fervent supporters in the legal academy, had never been adopted by any court until the recent Fifth Circuit decision in United States v. Emerson. The second view, a variant of the first, we will refer to as the "limited individual rights" model. Under that view, individuals maintain a constitutional right to possess firearms insofar as such possession bears a reasonable relationship to militia service. The third, a wholly contrary view, commonly called the "collective rights" model, asserts that the Second Amendment right to "bear arms" guarantees the right of the people to maintain effective state militias, but does not provide any type of individual right to own or possess weapons. Under this theory of the amendment, the federal and state governments have the full authority to enact prohibitions and restrictions on the use and possession of firearms, subject only to generally applicable constitutional constraints, such as due process, equal protection, and the like. Long the dominant view of the Second Amendment, and widely accepted by the federal courts, the collective rights model has recently come under strong criticism from individual rights advocates. After conducting a full analysis of the amendment, its history, and its purpose, we reaffirm our conclusion in Hickman v. Block, that it is this collective rights model which provides the best interpretation of the Second Amendment.
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 we adopted in Hickman: 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. This conclusion is reinforced in part by Miller's implicit rejection of the traditional individual rights position. 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." U.S. CONST. amend. II. 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, and, therefore, that the first clause simply restates the second in more specific terms. Relying on their definition of "militia," they conclude that the prefatory clause was intended simply to reinforce the grant of an individual right that they assert is made by the second clause. We agree with the Fifth Circuit in a very limited respect. 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. We look to such contemporaneously enacted provisions for an understanding of words used in the Second Amendment in part because this is an interpretive principle recently explicated by the Supreme Court in a case involving another word that appears in that amendment -- the word "people." That same interpretive principle is unquestionably applicable when we construe the word "militia."
"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. Those forces were, first, the national army and navy, which were subject to civilian control shared by the president and Congress, and, second, the state militias, which were to be "essentially organized and under control of the states, but subject to regulation by Congress and to 'federalization' at the command of the president."
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: "A well-regulated militia being the best security of a free state, admitted an idea that a standing army was a secondary one." In any event, 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 an historian of the Founding Era has noted, the inclusion of that phrase "further shows that the Amendment does not apply to just any-one." The Second Amendment was enacted soon after the August 1786 - February 1787 uprising of farmers in Western Massachusetts known as Shays's Rebellion. 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. For instance, Professor Dorf, after canvassing documents from the founding era, concluded that "overwhelmingly, the term had a military connotation." Our own review of historical documents confirms the professor's report.
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 Emerson court, citing no authority, concludes that "keep" does not relate to military weapons and therefore the use of the word supports the position that the amendment grants individuals the right to keep arms for personal use. There appears to be little logic or reason to that analysis. Arms can be "kept" for various purposes -- military, social, or criminal. 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. That argument appears to us to have considerable merit. Certainly the right to keep arms is of value only if a right to use them exists. The only right to use arms specified in the Constitution is the right to "bear" them. 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. Furthermore, historians have noted that the right of the states to "keep" arms was a catalyst for the Revolution -- it was the British troops' attempts to capture the Massachusetts militia's arsenal that prompted Paul Revere's warning and the battles at Lexington and Concord to defend the states' stores of munitions. Accordingly, the ability of states to "keep" arms for military use without external interference undoubtedly was prominent in the minds of many founders. 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. Certainly, the use of the term does not detract from the significance of the drafters' decision to protect the right to "bear" arms rather than to "own" or "possess" them. Thus, it in no way undercuts the strong implication that the right granted by the second clause relates to the performance of a military function, and not to the indiscriminate possession of weapons for personal use.
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. As we have noted, and as is evident from the structure of the Second Amendment, the first clause explains the purpose of the more substantive clause that follows, or, to put it differently, it explains the reason necessitating or warranting the enactment of the substantive provision. Moreover, 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. This conclusion is based in part on the premise, explicitly set forth in the text of the amendment, that the maintenance of effective state militias is essential to the preservation of a free State, and in part on the historical meaning of the right that the operative clause protects -- the right to bear arms. 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.
In the end, however, given the history and vigor of the dispute over the meaning of the Second Amendment's language, 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. These include records that reflect the historical context in which the amendment was adopted, and documents that contain significant portions of the contemporary debates relating to the adoption and ratification of the Constitution and the Bill of Rights.
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. We note at the outset that the interpretation of the Second Amendment lends itself particularly to historical analysis. The content of the amendment is restricted to a narrow, specific subject that is itself defined in narrow, specific terms. Only one other provision of the Bill of Rights is similarly composed -- the almost never-used Third Amendment. n34 The other eight amendments all employ broad and general terms, such as "no law respecting" (the Free Exercise Clause), "unreasonable" (searches and seizures), "due process of law" (for deprivations of life, liberty, and property), "cruel and unusual" (punishments). Even the Ninth and Tenth Amendments speak vaguely of "other" rights or unenumerated "reserved" rights. The use of narrow, specific language of limited applicability renders the task of construing the Second Amendment somewhat different from that which we ordinarily undertake when we interpret the other portions of the Bill of Rights.
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. Thus, they feared, the people would be stripped of their ability to defend themselves against a powerful, over-reaching federal government. The debates of the founding era demonstrate that the second of the first ten amendments to the Constitution was included in order to preserve the efficacy of the state militias for the people's defense -- not to ensure an individual right to possess weapons. 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.
After conducting our analysis of the meaning of the words employed in the amendment's two clauses, and the effect of their relationship to each other, we concluded that the language and structure of the amendment strongly support the collective rights view. The preamble establishes that the amendment's purpose was to ensure the maintenance of effective state militias, and the amendment's operative clause establishes that this objective was to be attained by preserving the right of the people to "bear arms" -- to carry weapons in conjunction with their service in the militia. To resolve any remaining uncertainty, we carefully examined the historical circumstances surrounding the adoption of the amendment. Our review of the debates during the Constitutional Convention, the state ratifying conventions, and the First Congress, as well as the other historical materials we have discussed, confirmed what the text strongly suggested: that the amendment was adopted in order to protect the people from the threat of federal tyranny by preserving the right of the states to arm their militias. The proponents of the Second Amendment believed that only if the states retained that power could the existence of effective state militias -- in which the people could exercise their right to "bear arms" -- be ensured. 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. Accordingly, we are persuaded that we were correct in Hickman that the collective rights view, rather than the individual rights models, reflects the proper 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.