San Francisco An appeals court ruling that the Second Amendment does not grant Americans a personal right to own firearms contradicts Atty. Gen. John Ashcroft and may put the Supreme Court at the center of an impassioned debate as old as the nation.
The 9th U.S. Circuit Court of Appeals decision, written by one of the judges who in June declared the Pledge of Allegiance unconstitutional, seems to go against two centuries of popular thinking and contrary to assertions from the National Rifle Assn., 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 squarely ruled 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 require background checks to ensure the gun buyer is not a felon, juvenile, mentally ill person 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 was 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.
That 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 (saying) 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 lawsuit 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.
Matthew Nosanchuk, litigation director for the anti-gun Violence Policy Center, doesn't view the 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, the appellate court's decision "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."