News & Politics
here. You can visit the Archives online here.
In the portion of the opinion discussing the Second Amendment, the panel followed the 9th Circuit’s own ruling in Hickman v. Block, 81 F.3d 98 (9th. Cir. 1996), which held that the Second Amendment gives a collective right to a militia to the states, not a right to own guns to an individual . The court noted that it had no choice but to follow Hickman, and criticized the panel that recently decided Silviera v. Lockyer, 312 F.3d 1052 (9th Cir. 2003), for including a detailed analysis of the Second Amendment when such an analysis was unnecessary because of the binding precedent of Hickman.
In a concurring opinion, Justice Ronald M. Brown goes so far as to say that though he is bound to follow Hickman, he believes that both it and Silviera are wrong, and that the correct rule is that the Second Amendment does confer an individual right to gun ownership, as was held by the Fifth Circuit in United States v. Emerson, 270 F.3d 203 (5th Cir. 2001). (In other words, “I know this decision is wrong, but I am bound by precedent to render it.”)
Looks like the issue is ripe for a new Supreme Court decision on the Second Amendment, which it has not addressed for a quarter century. Or at least for en banc review in the 9th Circuit, which could result in Hickman‘s reversal.
UPDATE: Law.com has published an article about today’s decision here.