Do states trump Bill of Rights on firearms?

By Jon Dougherty

The right of individuals to keep and bear arms may have some validity on the federal level, but states have a right to regulate and ban firearm ownership among the people, says California Attorney General Bill Lockyer.

In a letter sent earlier this month to David Codrea, co-founder of Citizens of America, a California-based gun-rights organization, Lockyer said that while his duty is to enforce the laws of his state and the nation, “the responsibilities of my office do not permit me to independently interpret the state and federal Constitutions or the statutes written pursuant to those Constitutions.”

California Attorney General Bill Lockyer

“The federal and state courts interpreting the scope and meaning of the Second Amendment in California’s jurisdiction … have consistently reached two conclusions, both of which are clear and unambiguous,” said Lockyer. “The Second Amendment limits only the powers of the federal government, not those of the states; and the ‘right to keep and bear arms’ under the Second Amendment is not an individual right to possess firearms, but a collective right of the States to keep and maintain a ‘well-regulated militia.'”

To support his conclusion, Lockyer cited a 1939 U.S. Supreme Court ruling [United States v. Miller], and two U.S. 9th Circuit Court rulings [Hickman v. Block (1995) and Fresno Rifle Club v. Van de Kamp (1992)].

“Likewise,” he continued, “the California Supreme Court has determined that laws passed by the state legislature which address gun control can be valid.” To support that conclusion, Lockyer cited state high court passages noting that the California Constitution did not contain a right of its citizens “to keep and bear arms.”

“I am deeply committed to the preservation and protection of the system of government our founding fathers established for our country more than 200 years ago, including the Bill of Rights,” he wrote. “I am also honored that the people of California elected me to a position sworn to uphold and protect both the California and United States Constitutions as the chief law officer of our state.”

U.S. Attorney General John Ashcroft

Lockyer’s interpretation of individual gun rights appears at odds with those of U.S. Attorney General John Ashcroft.

“The text and the original intent of the Second Amendment clearly protect the right of individuals to keep and bear firearms,” Ashcroft said in a May 17, 2001, letter to James Jay Baker, executive director of the National Rifle Association’s Institute for Legislative Action.

Since then, the U.S. 5th Circuit Court of Appeals, in U.S. v. Emerson, has supported Ashcroft’s opinion, ruling in that case that the Second Amendment guarantees the right of a private citizen to keep and bear arms, “regardless of whether the particular individual is then actually a member of the militia.”

In addition, last May the Justice Department reversed a long-held government policy by affirming that the Second Amendment protects an individual’s right to possess firearms. The opinion was in the form of a brief filed with the Supreme Court.

Citizens of America officials say Lockyer is out of step with 18 other state attorneys general, each of whom have signed a letter initiated by Alabama Attorney General Bill Pryor in July aligning themselves with Ashcroft’s interpretation.

“We agree that this is the proper reading of the Second Amendment, and that this policy best protects the fundamental interest of Americans in security and self-preservation,” said the letter.

Signers included attorneys general from Delaware, Georgia, Idaho, Kentucky, Montana, Nebraska, North Dakota, Oklahoma, Pennsylvania, South Carolina, South Dakota, Tennessee, Texas, Utah, Virginia, West Virginia and Wyoming.

Codrea says using Lockyer’s logic, “California can also deny our rights of equal protection, free speech, free press, religion and assembly.”

California state Sen. Dick Ackerman

State Sen. Dick Ackerman, a Republican from California’s 33rd district and Lockyer opponent in the November election, pledged to uphold Ashcroft’s interpretation of the Second Amendment.

“Sen. Ackerman will sign the letter agreeing with U.S. Attorney General Ashcroft’s interpretation of the Second Amendment, should he be elected attorney general,” said Paul Dress, Ackerman’s campaign manager, in a Sept. 13 letter to Citizens of America.

Early legal scholars also believed the Second Amendment was an individual right.

“No clause in the Constitution could by any rule of construction be conceived to give the Congress a power to disarm the people,” wrote William Rawle in his 1825 text, “View of the Constitution.”

“Such a flagitious attempt could only be made under a general pretence by a state legislature,” wrote Rawle – who was offered the job as the nation’s first attorney general by George Washington but declined. “But if in any pursuit of an inordinate power either should attempt it, this [Second] amendment may be appealed to as a restraint on both.”

Rawle’s text was the standard for constitutional law taught at Harvard until 1845 and at Dartmouth until 1860.

Related stories:

Second Amendment defended by judges

No right to bear arms?

Second Amendment ruling reversed

Second Amendment petition sent to Ashcroft

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