LIMITS ON THE POWER OF STATES TO REGULATE FIREARMS

LIMITS ON THE POWER OF STATES TO REGULATE FIREARMS

I.	INTRODUCTION
	Although state gun control legislation is proposed as one method
of controlling the spread of firearms in California, there are many
objections raised. This paper explores the validity of these objections,
focussing federal and state constitutional rights and prohibitions. (A
related paper analyzes constitutional rights of the individual and state
that would prevent the federal government from passing gun control
legislation.)
	First, the federal Constitution's prohibition on interfering with
the "right to bear arms" is examined, and alternative constructions are
analyzed to see whether this is considered a right conferred on
individuals or on the state. Regardless of the construction used, the
Second Amendment prohibition has no effect on state legislatures wishing
to formulate gun control measures.
	A second argument used to prevent the California legislature from
passing gun control legislation is that the California Constitution also
confers an individual right of the individual to own guns. The California
Constitution contains nothing explicit, however, on the right to bear
arms. Finally, some common constitutional methods of challenging state
gun control legislation are discussed, though virtually none of these
have been successful.

II.	THE SCOPE OF THE SECOND AMENDMENT: INDIVIDUAL RIGHT OR STATE
RIGHT?

	The question of whether the Second Amendment confers an
individual right to bear arms or merely prohibits the federal government
from interfering with the state militia has not been clearly decided by
the Supreme Court. The individual right approach treats the Second
Amendment as a right of individual citizens which cannot be restricted by
the federal government. [No. 1] The more popular interpretation, the
state's right approach, characterizes the Second Amendment as a right
granted to the states that cannot be infringed by the federal government.
[No. 2] Though the Supreme Court has remained silent on the scope of the
Second Amendment, both of these academic interpretations of the right to
bear arms have been discussed by at least one federal appeals court. [No.
3]

A.	The Individual Right Approach
	Under the individual right interpretation, the federal government
may not completely prohibit individual gun ownership. [No. 4] The
question of whether a state may prohibit gun ownership is less clear; the
answer depends on whether the Second Amendment has been applied to the
states through the doctrine of selective incorporation. [No. 5]

	1.	The Doctrine of Selective Incorporation
	The Bill of Rights only protects citizens against action by the
federal government. However, through the doctrine of selective
incorporation, the Supreme Court has held that the Due Process Clause of
the Fourteenth Amendment may limit action by state and local governments
as well. [No. 6] Nevertheless, the Supreme Court rejects the notion that
the Fourteenth Amendment incorporates the entire Bill of Rights. [No. 7]
Instead, the Court has decided on a case by case basis which rights are
so "fundamental" as to be brought into the Fourteenth Amendment and to
bind state and local governments. [No. 8] However, ambiguity remains.
Some provisions of the Bill of Rights have still not been considered by
the Supreme Court since it began applying the incorporation doctrine.
	The Second Amendment is not among those rights incorporated into
the Fourteenth Amendment. In United States v. Cruikshank, the Supreme
Court held that "the second amendment . . . means no more than that it
shall not be infringed by Congress." [No. 9] Subsequently, in Presser v.
Illinois, the Court rejected a claim that the Second Amendment could
invalidate a state law. [No. 10] In that case, the Court upheld an
Illinois statute which made it unlawful for a group other than the state
militia or federal troops to drill or parade with arms in public without
permission from the governor. [No. 11] The defendant argued that this law
violated the Second Amendment guarantee of the right to bear arms. [No.
12] Relying on Cruikshank, the Court disagreed, reasoning that "the
amendment is a limitation only upon the power of Congress and the
National government, and not upon that of the states." [No. 03]

	2.	The Validity of Nonincorporation
	Because the Second Amendment has never been explicitly addressed
in formal incorporation analysis, the conclusion that the amendment only
applies to actions by the federal government has been questioned. The
decisions in Cruikshank and Presser came several years before any
provisions of the Bill of Rights were incorporated, thus one cannot be
sure that the justices in the Second Amendment cases considered the
possibility of incorporation. [No. 14]
	The first incorporation decision occurred in 1897, eleven years
after Presser and twenty-two years after Cruikshank. [No. 15] Today, only
three provisions of the Bill of Rights, including the Second, Fifth and
Seventh Amendments, remain unincorporated. [No. 16] The almost total
incorporation of the Bill of Rights lends support to the theory that
incorporation of the Second Amendment is inevitable. However, more than
one hundred years have passed since Cruikshank and Presser were decided,
during which time the Supreme Court has been content to let those
decisions stand.
	The Supreme Court's reluctance to revisit the Second Amendment
incorporation question is most notable in its refusal to hear an appeal
of a case in which the Seventh Circuit upheld a local government's ban on
possession of handguns within its borders. [No. 17] The appeals court,
citing Presser, based its decision on the nonapplicability of the Second
Amendment to state and local governments. [No. 18]
	Likewise, the Ninth Circuit has followed Cruikshank and Presser
in upholding California's Roberti-Roos Assault Weapons Control Act of
1989 (AWCA). [No. 19] The plaintiffs attempted to have the AWCA declared
unconstitutional on several grounds, including arguing that the law
violates the Second Amendment right to bear arms. [No. 20] The court
rejected this argument, holding that the Second Amendment only binds the
federal government. [No. 21] This case was never appealed to the Supreme
Court.
	More than a century after they were decided, Cruikshank and
Presser remain good law. Thus, the right to bear arms granted by the
Constitution, if analyzed as an individual right, only limits the
federal government's attempts to restrict firearms. State and local
governments are not bound by the Second Amendment.

B.	The State's Right Approach
	The alternate interpretation of the Second Amendment, the
state's right approach, has received more support in Supreme Court
opinions than has the individual right theory. [No. 22] Under this
analysis, the right to bear arms has no application to state
legislation, and means only that the federal government may impose any
firearm restriction so long as it does not impede a state's militia.
[No. 23]
	In United States v. Miller, the Supreme Court, noting that the
purpose of the Second Amendment was to ensure an effective militia,
upheld a federal law banning the transport in interstate commerce and
subsequent ownership of sawed off shotguns. [No. 24] The Court found
that such weapons may be prohibited because they bear no reasonable
relationship to a well regulated state militia. [No. 25] Moreover, the
Supreme Court recently cited Miller in support of its conclusion that
Congress may restrict firearm possession by felons because such a law
does not impair a state's right to preserve its militia. [No. 26]
	These decisions suggest that the Court favors a Second
Amendment test that determines whether the prohibited weapon bears a
reasonable relationship to the state militia. Such a test presumes
that the Second Amendment is a right granted to states, not to
individuals. In practice, courts allow the federal government broad
power to restrict firearms: since the Miller decision in 1939, "no
federal court has found any individual's possession of a military
weapon to be `reasonably related to a well regulated militia.'" [No.
27]

C.	Second Amendment Conclusion
	Under the state's right analysis, the Second Amendment only
restricts federal government action and imposes no barrier to state or
local governments.
	Likewise, if an individual right analysis is used, only the
federal government is bound by the Second Amendment. State and local
governments are not restricted as long as the Second Amendment remains
unincorporated into the Fourteenth Amendment.

III.	THE CALIFORNIA CONSTITUTION
	The California Constitution does not contain a provision
guaranteeing the right to bear arms. [No. 28] Furthermore, because the
Second Amendment does not apply to state legislation, California state
laws are not subject to U.S. constitutional attacks based on the right
to bear arms. [No. 29] The California Supreme Court notes that the
claim that a weapons regulation "violates the Second Amendment has
been rejected by every court which has ruled on the question." [No.
30] The court also states that "[i]t is long since settled in this
state that regulation of firearms is a proper police function." [No.
31] Therefore, absent a state constitutional amendment, California
firearms restrictions are not limited by the right to bear arms.

IV.	OTHER ARGUMENTS AGAINST STATE GUN CONTROL LEGISLATION
	Gun control legislation has been challenged on a wide variety
of bases with virtually no success. Some of the more common methods
for challenging weapons regulations are discussed below. However, most
challenges are fact-specific to their particular case. Therefore, this
list is merely illustrative of some possible arguments.

A.	Fifth Amendment of the U.S. Constitution
	The Fifth Amendment privilege against self-incrimination was
used to invalidate a portion of the National Firearms Act of 1934.
[No. 32]  The privilege against self-incrimination permits persons to
refuse to give inculpatory testimony. The Act contained a gun
registration requirement that was directed primarily at persons who
had obtained weapons illegally. [No. 33] The Supreme Court found that
requiring such persons to register their weapons forced them to
incriminate themselves for these other criminal acts. [No. 34]
	However, the self-incrimination argument ultimately failed.
After Congress rewrote the offending provision by only requiring
lawful possessors of firearms to register, the Supreme Court ruled
that the Act no longer violates the privilege against
self-incrimination. [No. 35]

B.	Ninth Amendment of the U.S. Constitution
	Parties have argued that the right to possess firearms for the
purpose of self-defense, if not explicitly listed in the Bill of
Rights, is a right contained in the Ninth Amendment. [No. 36] The
Ninth Amendment states that "[t]he enumeration in the Constitution of
certain rights shall not be construed to deny or disparage others
retained by the people." [No. 37] The Seventh Circuit rejected this
argument, finding no Supreme Court precedent to support the theory
that the Ninth Amendment protects any specific right. [No. 38] In
fact, the Ninth Amendment has not been used to define the rights of
individuals or to invalidate state or federal laws. [No. 39]

C.	Preemption
	The argument that state gun control legislation is preempted
by federal law has not been accepted. The supremacy clause [No. 40] of
the Constitution requires that federal law override conflicting state
law. [No. 41] The Ninth Circuit explains that preemption generally
occurs when Congress has explicitly or implicitly intended to
supersede state law. [No. 42] The court also notes that "Congress
expressly disavowed any intent to occupy the field of gun control in
the Gun Control Act of 1968." [No. 43] In fact, the purpose of the Act
was to assist the states in regulating firearms. [No. 44] Furthermore,
the Act mandates compliance with state and local gun control laws.
[No. 45] Thus, it cannot be argued that Congress intended to supersede
state legislation.

V.	CONCLUSION
	Courts thus far have been reluctant to invalidate gun control
laws under any constitutional provision, particularly the Second
Amendment. Under either the individual right analysis or the state's
right analysis the conclusion is the same: state and local governments
are not bound by the Second Amendment. Furthermore, the California
Constitution does not contain a provision guaranteeing the right to
bear arms. Finally, other constitutional arguments for invalidating
state legislation generally have been unsuccessful or, if successful,
the constitutional defects have been corrected by Congress.

NOTES
[No. 1] John E. Nowak & Ronald D. Rotunda, Constitutional Law (4th ed.
1991).
[No. 2] Id.
[No. 3] Fresno Rifle and Pistol Club, Inc. v. Van de Kamp, 965 F.2d
723, 729 (9th Cir. 1992).
[No. 4] Id.
[No. 5] Id.
[No. 6] E.g., Duncan v. Louisiana, 391 U.S. 145 (1968).
[No. 7] See Palko v. Connecticut, 302 U.S. 319, 323 (1937).  See also
Duncan, 391 U.S. at 163 (Black, J., concurring); Nowak and Rotunda,
supra note 1.
[No. 8] Duncan, 391 U.S. at 149.  See also infra note 16 (listing
unincorporated provisions of the Bill of Rights).
[No. 9] 92 U.S. 542, 553 (1875).
[No. 10] 116 U.S. 252 (1886).
[No. 11] Id.
[No. 12] Id. at 264.
[No. 13] Id. at 265.
[No. 14] Sanford Levinson, The Embarrassing Second Amendment, 99 Yale
L.J. 637, 653 (1989).
[No. 15] Chicago B. & Q. R. Co. v. Chicago, 166 U.S. 226 (1897).
[No. 16] The Fifth Amendment right to criminal prosecution only on
grand jury indictment remains inapplicable to the states, Hurtado v.
California, 110 U.S. 516 (1884), and the Seventh Amendment guarantee
of a jury trial in a civil case also remains inapplicable to the
states, Minneapolis & St. Louis R.R. Co. v. Bombolis, 241 U.S. 211
(1916).
[No. 17] Quilici v. Village of Morton Grove, 695 F.2d 261 (7th Cir.
1982), cert. denied, 464 U.S. 863 (1983).
[No. 18] Id. at 270.
[No. 19] Fresno Rifle and Pistol Club, 965 F.2d 723.
[No. 20] Id. at 729.
[No. 21] Id. at 730.
[No. 22] Nowak and Rotunda, supra note 1.
[No. 23] Id.
[No. 24] 307 U.S. 174, 178 (1939).
[No. 25] Id.
[No. 26] Lewis v. United States, 445 U.S. 55, 65 n.8 (1980).
[No. 27] United States v. Hale, 978 F.2d 1016, 1020 (8th Cir. 1992).
[No. 28] Witkin Sum. Const Law 143.
[No. 29] See, e.g., In re Rameriz, 193 Cal. 633, 651 (1924).
[No. 30] Galvan v. Superior Court of San Francisco, 70 Cal. 2d 851,
866 (1969).


[No. 31] Id.
[No. 32] Haynes v. United States, 390 U.S. 85 (1968).
[No. 33] Id. at 96.
[No. 34] Id.
[No. 35] United States v. Freed, 401 U.S. 601 (1971).
[No. 36] Quilici, 695 F.2d at 271.
[No. 37] U.S. Const. amend. IX.
[No. 38] Quilici, 695 F.2d at 271.
[No. 39] Nowak and Rotunda, supra note 1.
[No. 40] U.S. Const. art. VI, cl. 2.
[No. 41] Nowak and Rotunda, supra note 1.
[No. 42] Fresno Rifle and Pistol Club, 965 F.2d at 725-26.
[No. 43] Id. at 726 n. 4.
[No. 44] Id.
[No. 45] Id.