Attorney General Position on the Second Amendment to the United States Constitution
I am deeply committed to the preservation and protection of the system of government our founding fathers established for our country more than two hundred years ago, including the Bill of Rights. 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. (California Constitution, article V, section 13 and California Government Code, section 12511.)
The Second Amendment to the United States Constitution provides, in its entirety:
"A well-regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed."
Although I am sworn to uphold the law, the responsibilities of my office do not permit me to independently interpret the state and federal Constitutions or the statutes written pursuant to those Constitutions. In the system of separation of powers established by our forefathers, that role is properly performed by the state and federal Courts.
"In the last few decades, courts and commentators have offered what may fairly be characterized as three different basic interpretations of the Second Amendment. The first is that the Second Amendment does not apply to individuals; rather, it merely recognizes the right of a state to arm its militia. . . . [the second perspective is that] the `individual' right to bear
arms can only be exercised by members of a functioning, organized state militia who bear the arms while and as a part of actively participating in the organized militia's activities. . . .The third model is simply that the Second Amendment recognizes the right of individuals to keep and bear arms." United States v. Emerson
(2001) 270 F.3d 203, 218-220. Although the only federal circuit court of appeals to adopt the third model has been the Fifth Circuit Court of Appeals, "the individual rights view has enjoyed considerable academic endorsement, especially in the last two decades." (Id
The federal and state courts interpreting the scope and meaning of the Second Amendment in California's jurisdiction, however, have consistently reached two conclusions, both of which are clear and unambiguous:
1) The Second Amendment limits only the powers of the federal government, not those of the states; and,
2) 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." (United States v. Miller
, 307 U.S. 174, 178 (1939); Hickman v. Block
, 81 F.3d 98, 101-102 (9th Cir. 1995); Fresno Rifle Club v. Van de Kamp
, 965 F.2d 723, 729-731 (9th Cir. 1992); see also cases listed in "Federal Constitutional Right to Bear Arms" 37 A.L.R.Fed. 696 and Supp (1978); and see Galvan v. Superior Court
, 70 Cal.2d 851, 866 (1969)["The claim that legislation regulating weapons violates the Second Amendment has been rejected by every court which has ruled on the question."]. The Second Amendment also permits federal regulation of firearms, as long as such regulation does not encroach upon the preservation or efficiency of a well regulated militia. (United States v. Miller
, 307 U.S. 174 (1939); see also, Gun Control Act of 1968, Title 18 United States Code, section 921, et seq.)
Likewise, the California Supreme Court has determined that laws passed by the state legislature which address gun control can be valid. "No mention is made in [the California Constitution] of a right to bear arms. (See In re Ramirez
(1924) 193 Cal. 633, 651 [226 P. 914, 34 A.L.R. 51][`The constitution of this state contains no provision on the subject.'].) Moreover, `it is long since settled in this state that regulation of firearms is a proper police function.' (Galvan v. Superior Court
, (1969) 70 Cal.2d 851, 866 [76 Cal.Rptr. 642, 452 P.2d 930].)" Kasler v. Lockyer
, (2000) 23 Cal.4th 472, 481.
I am duty bound and constitutionally obligated to defend and enforce the law as written by our state legislature and explained by our courts. And, while I am personally convinced that the Second Amendment was indeed intended to provide some measure of entitlement for individuals to own firearms, the degree of that entitlement, and the extent to which it must be balanced with the state's right and responsibility to protect public health and safety, is still being interpreted by our nation's courts. And I believe that the interpretation of most courts, which holds that the states have the power to regulate firearms possession and usage within their boundaries, is both wise and correct. As a legislator, I supported reasonable measures to regulate firearms over the years. As California's Attorney General, I strongly support the system of government which we enjoy, and which I am sworn to preserve and protect, and I will continue to keep my promise to the people of California to fairly and fully enforce our laws, and to defend the laws our representatives have enacted.