Do states trump Bill of Rights on firearms?
AG claims federal Constitution has limited jurisdiction over Californians
Posted: September 20, 2002
By Jon Dougherty
? 2002 WorldNetDaily.com
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
"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."
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
"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."
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
"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.