placergold1
01-10-2007, 07:27 PM
On 1/8/07 an appellate court issued an opinion critical critical of the 2nd Amend as an individual right. An FFL dealer was charged with violations of CA gun laws, and was barred from raising the 2nd Amend as a defense to the state law. The case discusses Miller and Emerson.
The case is People v. Wilmshurst, the full opinion is found at http://www.courtinfo.ca.gov/opinions/
Below is the relevant text from the court opinion:
The defendant contends that the trial court erred in denying his request for an instruction that he had an individual right under the Second Amendment to the federal Constitution to possess certain firearms. We disagree.
The trial court is required to instruct only on general principles of law that are necessary to the jury’s understanding of the case. (People v. Saille (1991) 54 Cal.3d 1103, 1120.) Instructions on specific points or special theories that may be applicable to a defendant’s particular case, referred to as “‘pinpoint’” instructions, must be properly requested by the defendant. (Id. at p. 1119.) Defendant’s proposed jury instruction regarding his Second Amendment right was a “pinpoint” instruction.
Section 1127 states that upon receiving a request for a jury instruction by either party, “[i]f the court thinks [the instruction] correct and pertinent, it must be given; if not, it must be refused.” The trial court properly refused defendant’s proposed instruction because the instruction was neither correct nor pertinent.
The defendant requested the following instruction regarding the Second Amendment right to keep and bear arms:
“The Second Amendment provides that every person may keep firearms that could be used to contribute to the common defense.
“The Second Amendment specifically provides ‘. . . the right of the people to keep and bear arms shall not be infringed.’
“A citizen has a Second Amendment right to keep arms that could be classified as ordinary military equipment.
“Thus, if you find that the firearms offered as evidence in this action would be classified as military style or military firearms then the firearms offered in evidence are not unlawful under the Second Amendment of the Constitution of the United States.”
Defendant contends that the proffered jury instruction was based on the United States Supreme Court’s decision in United States v. Miller (1939) 307 U.S. 174 [83 L.Ed. 1206] (Miller). However, defendant’s instruction mischaracterizes the holding in Miller in two respects. The instruction states that the Second Amendment right to keep and bear arms is, first, an individual right and, second, an absolute right. The instruction was properly refused because neither statement accurately characterizes Miller’s holding or the law.
In Miller, the Supreme Court rejected a Second Amendment challenge to an indictment under federal law for the allegedly unlawful interstate transportation of an unregistered, short-barreled shotgun. (307 U.S. at pp. 175-178, 183.) The Miller court held that the Second Amendment does not guarantee the right to keep and bear a weapon that bears no “reasonable relationship to the preservation or efficiency of a well[-]regulated militia. (Id. at p. 178.) Miller concluded that the Second Amendment must be interpreted and applied according to its purpose of rendering effective the militia. (Ibid.) The Miller court did not opine whether the Second Amendment right is an individual or a collective right, and the Court has not given further instruction on this question since Miller.
Defendant’s proposed instruction states that “[t]he Second Amendment provides that every person may keep firearms that could be used to contribute to the common defense” and that “[a] citizen has a Second Amendment right to keep arms that could be classified as ordinary military equipment.” (Italics added.) Defendant’s instruction erroneously makes no reference to the concept of a well-regulated militia, which was central to the Supreme Court’s holding in Miller.
Defendant’s proposed instruction also reaches the incorrect conclusion that every person’s right to keep and bear arms is absolute so long as the arms can be classified as military style or military firearms. To state such an absurd right is to refute it. The proposed instruction states that all weapons that can be classified as military style or military arms are lawful under the Second Amendment. Unsurprisingly, no court has held that the Second Amendment right to keep and bear arms is absolute in this way.
The United States Supreme Court has repeatedly upheld the constitutionality of reasonable restrictions on the right to keep and bear arms. For example, in Presser v. Illinois (1886) 116 U.S. 252 [29 L.Ed. 615], the Court upheld an Illinois statute prohibiting citizens, apart from organized Illinois volunteer militia, from parading and drilling with arms. In Robertson v. Baldwin (1897) 165 U.S. 275 [41 L.Ed. 715], the Court stated that the Bill of Rights are “subject to certain well-recognized exceptions arising from the necessities of the case” (id. at p. 281) “the right of the people to keep and bear arms (article 2) is not infringed by laws prohibiting the carrying of concealed weapons.” (Id. at pp. 281-282.)
More recently, in Lewis v. United States (1980) 445 U.S. 55 [63 L.Ed.2d 198], the Supreme Court upheld a provision of the Omnibus Crime Control and Safe Streets Act of 1968 prohibiting a felon from possessing a firearm. Although the Court’s analysis centered on the Due Process Clause of the Fifth Amendment, the Court, citing Miller, noted that “[t]hese legislative restrictions on the use of firearms are neither based upon constitutionally suspect criteria, nor do they trench upon any constitutionally protected liberties.” (Lewis, supra, 445 U.S. at p. 65, fn. 8.) The Court also cited three federal circuit court decisions, noting that all three had concluded that the provision at issue did not violate the Second Amendment. (Ibid.)
After Miller, only the Fifth Circuit, in United States v. Emerson (5th Cir. 2001) 270 F.3d 203 (Emerson), has adopted the interpretation of the Second Amendment that the right to keep and bear arms is an individual right. Even under this interpretation, the Fifth Circuit has conceded that the individual right remains subject to “any limited, narrowly tailored specific exceptions or restrictions for particular cases that are reasonable and not inconsistent with the right of Americans generally to individually keep and bear their private arms as historically understood in this country.” (Emerson, supra, 270 F.3d at p. 261.)
In Emerson, the Fifth Circuit upheld an indictment charging the defendant with violating the Gun Control Act of 1968 for possessing a firearm while subject to a restraining order. (Emerson, supra, 270 F.3d at pp. 211-212, 265.) The court concluded that the statute was a reasonable restriction on an individual’s Second Amendment right. (Id. at pp. 262-263.) The Fifth Circuit again upheld an arms regulation statute in United States v. Everist (5th Cir. 2004) 368 F.3d 517, and held that a felon firearm possession statute did not violate the Second Amendment because the statute was “a limited and narrowly tailored exception to the freedom to possess firearms.” (Everist, supra, 368 F.3d at p. 519.) Thus, defendant’s proposed instruction incorrectly concludes that the Second Amendment right to keep and bear certain arms is an absolute right.
Although defendant contends that the proposed instruction was based on Miller, we find that the instruction was an improper characterization of Miller’s holding and the law. The trial court properly denied the requested instruction. (§ 1127.)
The case is People v. Wilmshurst, the full opinion is found at http://www.courtinfo.ca.gov/opinions/
Below is the relevant text from the court opinion:
The defendant contends that the trial court erred in denying his request for an instruction that he had an individual right under the Second Amendment to the federal Constitution to possess certain firearms. We disagree.
The trial court is required to instruct only on general principles of law that are necessary to the jury’s understanding of the case. (People v. Saille (1991) 54 Cal.3d 1103, 1120.) Instructions on specific points or special theories that may be applicable to a defendant’s particular case, referred to as “‘pinpoint’” instructions, must be properly requested by the defendant. (Id. at p. 1119.) Defendant’s proposed jury instruction regarding his Second Amendment right was a “pinpoint” instruction.
Section 1127 states that upon receiving a request for a jury instruction by either party, “[i]f the court thinks [the instruction] correct and pertinent, it must be given; if not, it must be refused.” The trial court properly refused defendant’s proposed instruction because the instruction was neither correct nor pertinent.
The defendant requested the following instruction regarding the Second Amendment right to keep and bear arms:
“The Second Amendment provides that every person may keep firearms that could be used to contribute to the common defense.
“The Second Amendment specifically provides ‘. . . the right of the people to keep and bear arms shall not be infringed.’
“A citizen has a Second Amendment right to keep arms that could be classified as ordinary military equipment.
“Thus, if you find that the firearms offered as evidence in this action would be classified as military style or military firearms then the firearms offered in evidence are not unlawful under the Second Amendment of the Constitution of the United States.”
Defendant contends that the proffered jury instruction was based on the United States Supreme Court’s decision in United States v. Miller (1939) 307 U.S. 174 [83 L.Ed. 1206] (Miller). However, defendant’s instruction mischaracterizes the holding in Miller in two respects. The instruction states that the Second Amendment right to keep and bear arms is, first, an individual right and, second, an absolute right. The instruction was properly refused because neither statement accurately characterizes Miller’s holding or the law.
In Miller, the Supreme Court rejected a Second Amendment challenge to an indictment under federal law for the allegedly unlawful interstate transportation of an unregistered, short-barreled shotgun. (307 U.S. at pp. 175-178, 183.) The Miller court held that the Second Amendment does not guarantee the right to keep and bear a weapon that bears no “reasonable relationship to the preservation or efficiency of a well[-]regulated militia. (Id. at p. 178.) Miller concluded that the Second Amendment must be interpreted and applied according to its purpose of rendering effective the militia. (Ibid.) The Miller court did not opine whether the Second Amendment right is an individual or a collective right, and the Court has not given further instruction on this question since Miller.
Defendant’s proposed instruction states that “[t]he Second Amendment provides that every person may keep firearms that could be used to contribute to the common defense” and that “[a] citizen has a Second Amendment right to keep arms that could be classified as ordinary military equipment.” (Italics added.) Defendant’s instruction erroneously makes no reference to the concept of a well-regulated militia, which was central to the Supreme Court’s holding in Miller.
Defendant’s proposed instruction also reaches the incorrect conclusion that every person’s right to keep and bear arms is absolute so long as the arms can be classified as military style or military firearms. To state such an absurd right is to refute it. The proposed instruction states that all weapons that can be classified as military style or military arms are lawful under the Second Amendment. Unsurprisingly, no court has held that the Second Amendment right to keep and bear arms is absolute in this way.
The United States Supreme Court has repeatedly upheld the constitutionality of reasonable restrictions on the right to keep and bear arms. For example, in Presser v. Illinois (1886) 116 U.S. 252 [29 L.Ed. 615], the Court upheld an Illinois statute prohibiting citizens, apart from organized Illinois volunteer militia, from parading and drilling with arms. In Robertson v. Baldwin (1897) 165 U.S. 275 [41 L.Ed. 715], the Court stated that the Bill of Rights are “subject to certain well-recognized exceptions arising from the necessities of the case” (id. at p. 281) “the right of the people to keep and bear arms (article 2) is not infringed by laws prohibiting the carrying of concealed weapons.” (Id. at pp. 281-282.)
More recently, in Lewis v. United States (1980) 445 U.S. 55 [63 L.Ed.2d 198], the Supreme Court upheld a provision of the Omnibus Crime Control and Safe Streets Act of 1968 prohibiting a felon from possessing a firearm. Although the Court’s analysis centered on the Due Process Clause of the Fifth Amendment, the Court, citing Miller, noted that “[t]hese legislative restrictions on the use of firearms are neither based upon constitutionally suspect criteria, nor do they trench upon any constitutionally protected liberties.” (Lewis, supra, 445 U.S. at p. 65, fn. 8.) The Court also cited three federal circuit court decisions, noting that all three had concluded that the provision at issue did not violate the Second Amendment. (Ibid.)
After Miller, only the Fifth Circuit, in United States v. Emerson (5th Cir. 2001) 270 F.3d 203 (Emerson), has adopted the interpretation of the Second Amendment that the right to keep and bear arms is an individual right. Even under this interpretation, the Fifth Circuit has conceded that the individual right remains subject to “any limited, narrowly tailored specific exceptions or restrictions for particular cases that are reasonable and not inconsistent with the right of Americans generally to individually keep and bear their private arms as historically understood in this country.” (Emerson, supra, 270 F.3d at p. 261.)
In Emerson, the Fifth Circuit upheld an indictment charging the defendant with violating the Gun Control Act of 1968 for possessing a firearm while subject to a restraining order. (Emerson, supra, 270 F.3d at pp. 211-212, 265.) The court concluded that the statute was a reasonable restriction on an individual’s Second Amendment right. (Id. at pp. 262-263.) The Fifth Circuit again upheld an arms regulation statute in United States v. Everist (5th Cir. 2004) 368 F.3d 517, and held that a felon firearm possession statute did not violate the Second Amendment because the statute was “a limited and narrowly tailored exception to the freedom to possess firearms.” (Everist, supra, 368 F.3d at p. 519.) Thus, defendant’s proposed instruction incorrectly concludes that the Second Amendment right to keep and bear certain arms is an absolute right.
Although defendant contends that the proposed instruction was based on Miller, we find that the instruction was an improper characterization of Miller’s holding and the law. The trial court properly denied the requested instruction. (§ 1127.)