United States V. Wright

United States v. Wright

117 F.3d 1265 (11th Cir. 1997)

Kravitch, Judge.

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The Second Amendment to the United States Constitution provides: "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." In this case, we must decide whether this amendment grants constitutional protection to an individual whose possession or use of machineguns and pipe bombs is not reasonably related to an organized state militia. . . .

I. Background

In June 1994, the Bureau of Alcohol Tobacco and Firearms received information that Donald Wright was looking for someone to reassemble a .50 caliber machinegun. Subsequently, two undercover local law enforcement agents were introduced to Wright as individuals capable of reassembling this gun. At this meeting, Wright produced the disassembled machinegun and told the agents that, once it was reassembled, he planned to shoot the gun, grease it, and then bury it. Agents arrested Wright in possession of the disassembled machinegun as he drove away from the meeting. Upon arrest, Wright consented to a search of his residence during which agents discovered a .223 caliber Olympic Arms model Car-AR automatic assault machinegun and three pipe bombs in a shed outside his home. Agents also found several other unregistered assault weapons, ammunition, and assorted documents and videotapes describing threats to United States sovereignty posed by the "New World Order."

Wright was charged with one count of possessing machineguns in violation of 18 U.S.C. § 922(o) and with one count of possessing unregistered destructive devices in violation of 26 U.S.C. § 5861(d). He filed a motion to dismiss the indictment on the grounds that the charging statutes violated, among other constitutional provisions, the Commerce Clause and the Second Amendment. In support of his motion, Wright submitted the seized documents and videotapes to demonstrate that his weapons possession was motivated by what he perceived to be the danger of the "New World Order." He also offered the testimony of a firearms expert to establish that the machineguns and pipe bombs were the type of weapons used by contemporary militias. The district court, adopting the magistrate judge's report and recommendation, denied his motion.

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II. Discussion

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B. Second Amendment

Wright . . . contends that §§ 922(o) and 5861(d) violate his right to bear arms under the Second Amendment. As a member of Georgia's unorganized militia, Wright claims that he has a constitutional right to possess machineguns and pipe bombs because these weapons are used by contemporary militia fighting forces. . . .

. . . [T]he Supreme Court has provided us with important guidance in interpreting this constitutional provision.In United States v. Miller, 307 U.S. 174 (1939), the Court considered whether the National Firearms Act of 1934, 26 U.S.C. § 1132, which required the registration of certain firearms, violated the Second Amendment rights of two individuals indicted for transporting unregistered sawed-off shotguns in interstate commerce.In reversing the district court's order . . . the Court stated:

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.

Because the Court concluded that there was no evidence that the sawed-off shotgun was "any part of the ordinary military equipment or that its use could contribute to the common defense," the Court held that the statute did not violate the Second Amendment rights of the defendants.

The fact that the Miller Court did not examine the possession or use of the sawed-off shotguns in that case in no way suggests, as appellant contends, that individual possession of a military-type weapon is protected by the Constitution irrespective of whether the possession or use of that weapon is reasonably related to a "well regulated militia." Without any evidence that the sawed-off shotgun at issue in that case could have been used as a weapon by a well regulated militia group to provide for the common defense, there was no need for the Court to determine if the actual possession or use of the weapons bore a reasonable relationship to a well regulated militia.

Therefore, in order to claim Second Amendment protection, Wright must demonstrate a reasonable relationship between his possession of the machineguns and pipe bombs and "the preservation or efficiency of a well regulated militia." Wright claims that he has satisfied this test because his weapons possession is reasonably related to his membership in Georgia's unorganized militia, which he asserts is "well regulated" within the meaning of the Second Amendment.

Because the sawed-off shotguns inMiller were not susceptible to use in any militia, the Court did not need to determine explicitly what constituted a "well regulated militia." A careful reading of Miller, however, strongly suggests that only militias actively maintained and trained by the states can satisfy the "well regulated militia" requirement of the Second Amendment. As the Miller Court emphasized, the "obvious purpose" of the Second Amendment was to "render possible the effectiveness of" the governmental militia described in the Militia Clauses of the Constitution.

At the time of ratification, and as remains the case today, the militia was defined broadly and was understood to include "all males physically capable of acting in concert for the common defense." But because the Constitution protects only the possession or use of guns reasonably related to a "well regulated militia," membership in this broad segment of the population is constitutionally insignificant. In determining the scope of Second Amendment protection, theMiller Court did not rely on the commonly understood and wide-reaching definition of the militia, but rather turned to early militia laws of New York, Massachusetts, and Virginia, which provided for the training, maintenance, and equipping of these states' respective militias. We find the Miller Court's reliance on these statutory provisions regulating "the organization and government of the Militia,"to be significant. In our view, it indicates that the Miller Court understood the Second Amendment to protect only the possession or use of weapons that is reasonably related to a militia actively maintained and trained by the states.

Moreover, after examining the text and history of the Second Amendment, we conclude that this reading of Miller is consistent with the motivating purposes of the drafters of the Second Amendment. The amendment describes a "well regulated militia" as "being necessary to the security of a free State." The fact that the drafters qualified "well regulated militia" by reference to state security suggests to us that they intended this term to refer only to governmental militias that are actively maintained and used for the common defense. We find substantial support for this textual reading in the history of the drafting and ratification of the Constitution and the Bill of Rights.

The Militia Clauses in Article I authorized Congress to organize, arm, and discipline the militia, but reserved to the states the authority to train the militia and appoint its officers. This dual grant of authority reflected the tension between two competing concerns at the Constitutional Convention: the widespread distrust of a national standing army versus the danger of relying on inadequately trained soldiers as the primary means of providing for the common defense. . . . The Second Amendment was inserted into the Bill of Rights to protect the role of the states in maintaining and arming the militia. It was designed to protect the state militias from federal legislation enacted to undermine the role of state militias. . . .

The concerns motivating the creation of the Second Amendment convince us that the amendment was intended to protect only the use or possession of weapons that is reasonably related to a militia actively maintained and trained by the states. With this conclusion, we join every other federal court that has been called on to consider the "well regulated militia" requirement of the Second Amendment, several of which have considered and rejected the claim made by Wright in this case that membership in a state's unorganized militia is sufficient to bring gun possession within the protection of the Second Amendment.

Faced with this overwhelming body of contrary authority, Wright nevertheless maintains that Georgia's unorganized militia is sufficiently well regulated to trigger constitutional protection. He notes that under Georgia law the Governor has the authority to prescribe and to establish regulations governing the unorganized militia. Wright also refers to statutes that allow, under certain circumstances, "the Governor [to] call for and accept from the unorganized militia as many volunteers as are required for service in the organized militia."

In our view, these statutes fall far short of rendering the Georgia unorganized militia "well regulated" for the purposes of the Second Amendment. The possibility that in responding to a future crisis state authorities might seek the aid of members of the unorganized militia does not speak to the militia's current state of regulation. Wright has not directed us to any Georgia statutes governing the actual, as opposed to potential, organization, training, and equipping of the members of the unorganized militia. . . .

Because Wright has presented no evidence to demonstrate any connection, let alone a "reasonable relationship," between his possession of the machineguns and pipe bombs and the preservation or efficiency of a militia actively trained and maintained by the State of Georgia, his weapons possession is entitled to no constitutional protection. Therefore, we conclude in this case that neither § 922(o)’s blanket ban of machinegun possession nor the registration requirements of § 5861(d) infringe on any constitutionally protected liberties.

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Silveira v. Lockyer

312 F.3d 1052 (9th Cir. 2002)

Reinhardt, Judge.

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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. . . .

I. INTRODUCTION

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 ClevelandElementary 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.

. . . [T]he AWCA, was the first legislative restriction on assault weapons in the nation, and was the model for a similar federal statute enacted in 1994. The AWCA renders it a felony offense to manufacture in California any of the semi-automatic weapons specified in the statute, or to possess, sell, transfer, or import into the state such weapons without a permit. The statute contains a grandfather clause that permits the ownership of assault weapons by individuals who lawfully purchased them before the statute's enactment, so long as the owners register the weapons with the state Department of Justice. The grandfather clause, however, imposes significant restrictions on the use of weapons that are registered pursuant to its provisions. Approximately forty models of firearms are listed in the statute as subject to its restrictions. The specified weapons include "civilian" models of military weapons that feature slightly less firepower than the military-issue versions, such as the Uzi, an Israeli-made military rifle; the AR-15, a semi-automatic version of the United States military's standard-issue machine gun, the M-16; and the AK-47, a Russian-designed and Chinese-produced military rifle. The AWCA also includes a mechanism for the Attorney General to seek a judicial declaration in certain California Superior Courts that weapons identical to the listed firearms are also subject to the statutory restrictions.

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In 1999, the legislature amended the AWCA in order to broaden its coverage and to render it more flexible in response to technological developments in the manufacture of semi-automatic weapons. The amended AWCA retains both the original list of models of restricted weapons, and the judicial declaration procedure by which models may be added to the list. The 1999 amendments to the AWCA statute add a third method of defining the class of restricted weapons: The amendments provide that a weapon constitutes a restricted assault weapon if it possesses certain generic characteristics listed in the statute. . . .

Plaintiffs in this case are nine individuals, some of whom lawfully acquired weapons that were subsequently classified as assault weapons under the amended AWCA. They filed this action in February, 2000, one month after the 1999 AWCA amendments took effect. 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. Plaintiffs who seek to purchase weapons that may no longer lawfully be purchased in California also attack the ban on assault weapon sales as being contrary to their rights under that Amendment. Additionally, plaintiffs who are not active or retired California peace officers challenge on Fourteenth Amendment Equal Protection grounds two provisions of the AWCA: one that allows active peace officers to possess assault weapons while off-duty, and one that permits retired peace officers to possess assault weapons they acquire from their department at the time of their retirement. . . .

II. DISCUSSION

A. Background and Precedent.

A robust constitutional debate is currently taking place in this nation regarding the scope of the Second Amendment, a debate that has gained intensity over the last several years. . . . 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 inUnited States v. Emerson, 270 F.3d 203 (5th Cir. 2001). 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 inHickman v. Block, 81 F.3d 98 (9th Cir. 1996), that it is this collective rights model which provides the best interpretation of the Second Amendment.

[The court then discussed the limited relevance of the Supreme Court’s decision in United States v. Miller.]

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In light of the United States government's recent change in position on the meaning of the amendment, the resultant flood of Second Amendment challenges in the district courts, the Fifth Circuit's extensive study and analysis of the amendment and its conclusion that Miller does not mean what we and other courts have assumed it to mean, the proliferation of gun control statutes both state and federal, and the active scholarly debate that is being waged across this nation, we believe it prudent to explore Appellants' Second Amendment arguments in some depth, and to address the merits of the issue, even though this circuit's position on the scope and effect of the amendment was established inHickman.

B. Appellants Lack Standing to Challenge the Assault Weapons Control Act on Second Amendment Grounds.

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 inHickman: 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. . . . 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.