SAN FRANCISCO -- A divided federal appeals court on Tuesday declined to reconsider an earlier ruling that the Second Amendment affords Americans no personal right to own firearms.
The December decision by the 9th U.S. Circuit Court of Appeals upheld California's law banning certain assault weapons and revived the national gun ownership debate. With Tuesday's action, the nation's largest federal appeals court cleared the way for an appeal to the U.S. Supreme Court, which has never squarely ruled on the issue.
"I'll have this filed by the end of the week, it's already drafted," said Gary Gorski, the attorney who challenged California's ban on 75 high-powered, rapid-fire weapons.
California lawmakers passed the nation's first law banning such weapons in 1989, after a gunman fired a semiautomatic weapon into a Stockton school yard, killing five children and injuring 30.
Following California's lead, several states and the federal government passed similar or more strict bans.
In originally dismissing the bulk of Gorski's challenge, a three-judge panel of the San Francisco-based appeals court, ruled 2-1 that the Second Amendment was not adopted "to afford rights to individuals with respect to private gun ownership or possession."
That December decision was written by Judge Stephen Reinhardt, a President Carter appointee who also signed on with the court's decision in June declaring the Pledge of Allegiance an unconstitutional endorsement of religion when recited in public schools. The pledge case is pending before the high court.
On Tuesday, a majority of the circuit's 25 active judges declined to rehear the case, as Gorski had requested. Only six judges publicly said they wished to reconsider.
Circuit Judge Alex Kozinski urged his colleagues to rehear the case with a panel of 11 judges, arguing that without individual Second Amendment protections, the government could ban the public's only recourse against tyranny.
"The Second Amendment is a doomsday provision, one designed for those exceptionally rare circumstances where all other rights have failed, where the government refuses to stand for re-election and silences those who protest, where courts have lost the courage to oppose, or can find no one to enforce their decrees," Kozinski wrote in papers released Tuesday.
Matt Nosanchuk, litigation director of the Violence Policy Center, said Kozinski has got it wrong. Weapons don't keep the government in check, free speech does, he said.
"The Second Amendment is not the bulwark against tyranny. It's the First Amendment," he said.
The court's decision -- which said weapons were properly allowed for the states to maintain militias -- conflicts with a 2001 decision from the New Orleans-based 5th U.S. Circuit Court of Appeals that said individuals had a constitutional right to guns.
Reinhardt, appointed in 1980, noted in the December ruling that the Supreme Court's guidance on whether the Second Amendment offers individuals the right to bear arms was "not entirely illuminating." The high court, he said, has never directly said whether the personal right to possess weapons was a constitutional guarantee.
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. The Second Amendment has had little, if any, impact on those decisions, except in the California case.
Attorney General John Ashcroft has said he believes the Second Amendment grants individuals the right to bear arms, but that the right is not absolute.
In a 2001 memo to federal prosecutors, Ashcroft said the Justice Department "will vigorously enforce and defend existing firearms laws."
Larry Pratt, executive director of the 300,000-member Gun Owners of America, said he wants the Supreme Court to overturn Reinhardt's decision.
"If judge Reinhardt prevails, the American people could become subjects of the government," Pratt said.
California Attorney General Bill Lockyer, through a spokeswoman, said he was "pleased that the court has upheld this important California law regulating assault weapons."
The 9th Circuit covers Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon and Washington.
The case is Silveira v. Lockyer, 01-15098.
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Editors: David Kravets has been covering state and federal courts for a decade.
