San Diego County Gun Rights Committee v. Reno

98 F.3d 1121, 96 Daily Journal DAR 12811, 96 Cal. Daily Op. Serv. 7760, 1996 U.S. App. LEXIS 27384, 1996 WL 601508
CourtCourt of Appeals for the Ninth Circuit
DecidedOctober 22, 1996
DocketNo. 95-55811
StatusPublished
Cited by61 cases

This text of 98 F.3d 1121 (San Diego County Gun Rights Committee v. Reno) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
San Diego County Gun Rights Committee v. Reno, 98 F.3d 1121, 96 Daily Journal DAR 12811, 96 Cal. Daily Op. Serv. 7760, 1996 U.S. App. LEXIS 27384, 1996 WL 601508 (9th Cir. 1996).

Opinion

TASHIMA, Circuit Judge:

I

This case presents a pre-enforcement challenge to the constitutionality of Title XI of the Violent Crime Control and Law Enforcement Act of 1994, Pub.L. No. 103-322, 108 Stat. 1796 (1994) (the “Crime Control Act” or “the Act”). Two unincorporated associations and three individuals (collectively, “plaintiffs”) seek declaratory and injunctive relief under the Commerce Clause and the Second and Ninth Amendments. The district court dismissed the action on standing and ripeness grounds. We affirm.

II.BACKGROUND

The Gun Control Act of 1968, as amended, 18 U.S.C. §§ 921-930 (the “GCA”), regulates the manufacture and distribution of firearms. On September 13,1994, Congress passed the Crime Control Act, which amends the GCA. It prohibits, for a period of 10 years, the manufacture, transfer or possession of semiautomatic assault weapons and the transfer or possession of “large capacity ammunition feeding device[s].” 18 U.S.C. §§ 922(v)(l), 922(w)(l). The Act exempts government agencies and law enforcement officers, as well as firearms transferred to an individual upon retirement from a law enforcement agency. 18 U.S.C. §§ 922(v)(4)(A) & (C), 922(w)(3)(A) & (C). In addition, the “grandfather” provisions of the Act permit the possession or transfer of semiautomatic assault weapons and large capacity ammunition feeding devices that were lawfully possessed on the date of enactment. 18 U.S.C. §§ 922(v)(2), 922(w)(2).

The Crime Control Act imposes new requirements on applicants for federal firearms licenses. For example, applicants must certify that the business to be conducted under the license (1) is not prohibited by state or local law, and (2) will comply with the requirements of state and local law. 18 U.S.C. § 923(d)(1)(F)© & (ii). Violations of the firearms or false certification provisions may result in fines, imprisonment, or both. 18 U.S.C. §§ 924(a)(1)(A) & (B), 3571(b). False certification may also result in license revocation. 18 U.S.C. § 923(e).

The two association plaintiffs are the San Diego County Gun Rights Committee and San Diego Militia. The three individual plaintiffs are John Wallner, president of the San Diego Militia; Mark Bruce Skane, a licensed federal firearms dealer; and Henri Jon Donald Buettner, a retired Marine Corps officer. None of the plaintiffs has been prosecuted, arrested or incarcerated for violation of the Crime Control Act. Plaintiffs challenge the constitutionality of the Crime Control Act under the Commerce Clause and the Second and Ninth Amendments. Seeking declaratory and injunctive relief, plaintiffs allege that they “wish and intend” to engage in unspecified conduct prohibited by the Act.

The district court granted defendants’ motion to dismiss. San Diego County Gun Rights Comm. v. Reno, 926 F.Supp. 1415 (S.D.Cal.1995). Because the district court’s dismissal was without leave to amend, and thus evidenced an intent to dispose of the action, it is a final, appealable order. Gerritsen v. de la Madrid Hurtado, 819 F.2d 1511, 1514-15 (9th Cir.1987). We have jurisdiction under 28 U.S.C. § 1291.

III.STANDARD OF REVIEW

Standing and ripeness are questions of law, which we review de novo. Carson Harbor Village Lid. v. City of Carson, 37 F.3d 468, 474 (9th Cir.1994) (ripeness); Barrus v. Sylvania, 55 F.3d 468, 469 (9th Cir.1995) (standing). We review for clear error the factual determinations underlying the district court’s decision on standing. American-Arab Anti-Discrimination Comm. v. Thornburgh, 970 F.2d 501, 506 (9th Cir.1991).

IV.STANDING

We note at the outset that in Hickman v. Block, 81 F.3d 98 (9th Cir.1996), cert. denied, — U.S. —, 117 S.Ct. 276, — L.Ed.2d — (1976), we held that “the Second Amendment is a right held by the states, and does not protect the possession of a weapon by a private citizen.” Id. at 101. We concluded that because Hickman could show no legal injury, he lacked standing to bring an action challenging the constitution[1125]*1125ality of a California firearm permit issuance policy. Id. Hickman is directly applicable here and forecloses plaintiffs’ attempt to assert standing for their Second Amendment challenge to the Crime Control Act.1

Hickman does not, however, affect plaintiffs’ standing to assert Ninth Amendment or Commerce Clause claims. We have not previously addressed whether the Ninth Amendment protects an individual right to possess firearms. We have in other contexts, however, observed that the Ninth Amendment “has not been interpreted as independently securing any constitutional rights for purposes of making out a constitutional violation.” Schowengerdt v. United States, 944 F.2d 483, 490 (9th Cir.1991) (rejecting Navy civilian engineer’s Ninth Amendment claim arising out of allegedly improper investigation and discharge), cert. denied, 503 U.S. 951, 112 S.Ct. 1514, 117 L.Ed.2d 650 (1992); see also Strandberg v. City of Helena, 791 F.2d 744, 748-49 (9th Cir.1986) (rejecting plaintiffs’ § 1983 claim based on the penumbra of the Ninth Amendment in the absence of some specific constitutional guarantee); accord LAURENCE H. TRIBE, AMERICAN CONSTITUTIONAL LAW 776 n. 14 (2d ed.1988) (“It is a common error, but an error nonetheless, to talk of ‘ninth amendment rights.’ The ninth amendment is not a source of rights as such; it is simply a rule about how to read the Constitution.”) (emphasis in original).

Although the Supreme Court has never addressed the issue, three circuits have explicitly rejected the theory that the Ninth Amendment encompasses a right to bear arms independent of the Second Amendment. See United States v. Broussard, 80 F.3d 1025, 1041 (5th Cir.) (‘We are not persuaded to discover or declare a new constitutional right to possess weapons under the Ninth Amendment on the basis of Merritt’s proffered ‘authority1 [a law review article].”), cert. denied, — U.S. —, 117 S.Ct. 264, — L.Ed.2d — (1996); Quilici v. Village of Morton Grove, 695 F.2d 261, 271 (7th Cir.1982) (“Appellants may believe the ninth amendment should be read to recognize an unwritten, fundamental, individual right to own or possess firearms; the fact remains that the Supreme Court has never embraced this theory.”), cert. denied, 464 U.S. 863, 104 S.Ct. 194, 78 L.Ed.2d 170 (1983); United States v. Warin,

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98 F.3d 1121, 96 Daily Journal DAR 12811, 96 Cal. Daily Op. Serv. 7760, 1996 U.S. App. LEXIS 27384, 1996 WL 601508, Counsel Stack Legal Research, https://law.counselstack.com/opinion/san-diego-county-gun-rights-committee-v-reno-ca9-1996.