Silveira v. Lockyer: Continued

See also: Silveira v. Lockyer I and Silveira v. Lockyer III(footnotes)

c. Anti-Federalist Objections and the Ratification Debates

The Anti-Federalists sought to ensure that the people of the several states would enjoy the protection of effective state militias so that their new-found liberties would be preserved. To accomplish this purpose, they sought to change, or at the least, to clarify, the nature of the proposed balance of military power between the state and federal governments. Despite the arguments advanced by Hamilton, Madison, and others, n42 federal control over state militias remained one of the central objections to the new charter on the part of Anti-Federalists. In particular, if the federal Congress were permitted to "organize, arm[ ], and discipline" the militia, opponents of the Constitution contended, then Congress would have the implied power to disarm the state militias and thus the people as well. One of the principal arguments against ratification of the new Constitution was that it would take away from the states the right to arm the members of its militias, and thus could deprive the people of an effective counterforce to the new national army. Without an armed militia, the argument went, the people would be bereft of arms. For instance, Patrick Henry, a leading Anti-Federalist at the Virginia ratifying convention, attacked the grant of power that permitted Congress to arm the militias:
By this [provision], sir, you see that [congressional] control over our last and best defence is unlimited. If they neglect or refuse to discipline or arm our militia, they will be useless: the states can do neither -- this power being exclusively given to Congress. The power of appointing officers over men not disciplined or armed is ridiculous . . . .
3 DEBATES, supra, at 379 (Statement of Patrick Henry). George Mason's concerns were similar; he predicted that Congress would "neglect [the militia], and let them perish, in order to have a pretence of establishing a standing army." 3 DEBATES, supra, at 379. See also North Carolina Ratification Debate, in BILL OF RIGHTS, supra, at 191 ("[Congress] can disarm the militia.") (Statement of Rep. Lenoir). The Anti-Federalists viewed the state militias as providing the only true opportunity for the people to bear arms. Luther Martin of Maryland's alarmist rhetoric was typical of those who complained that the new Constitution jeopardized the people's freedom because it deprived them of effective state militias and thus of their means of self-defense. Martin stated:
It was urged [at Philadelphia] that, if after having retained to the general government the great powers already granted, and among those, that of raising and keeping up regular troops without limitations, the power over the militia should be taken away from the States, and also given to the general government, it ought to be considered as the last coup de grâce to the State governments; . . . and that every State in the Union ought to reject such a system with indignation, since, if the general government should attempt to oppress and enslave them, they could not have any possible means of self-defense . . . .
3 CONVENTION RECORDS, supra, at 209. The Anti-Federalist concern was that if Congress possessed exclusive power to arm the militia, the people would be incapable of resisting federal tyranny. n43 Although Federalists, like Madison, responded that "the power [to arm the militia] is concurrent, and not exclusive," BILL OF RIGHTS, supra, at 195, the Anti-Federalists remained adamant. From the perspective of history, the Anti-Federalists' worries that the new national government would permit the state militia to atrophy through neglect may seem to be inconsequential, because we have become so accustomed to the provision of defense being essentially a federal function, and so few of us remain concerned with any right of the people to take up arms against the federal government. n44 Nevertheless, such arguments were central to the Anti-Federalist critique of the proposed new government.

Despite the Anti-Federalist arguments regarding the dangers of the distribution of powers with respect to state militias, and the effect upon the people's ability to provide for their own defense, it soon became clear that the requisite number of states would ratify the new Constitution. Once it became apparent that ratification was likely, Anti-Federalists shifted their efforts from defeating the Constitution to securing amendments, to be adopted almost simultaneously, that would render the new system more to their liking. Six of the state ratifying conventions adopted petitions urging that the newly established federal government enact a series of constitutional amendments, many of which became a part of the Bill of Rights. Four of those six state conventions included proposed amendments related to the militia power: New York, Virginia, Rhode Island, and North Carolina all proposed amendments similar in wording to the Second Amendment in its final form. BILL OF RIGHTS, supra, at 181-83. Ratification debates from those states demonstrate that the proposed amendments had nothing to do with an individual right to possess arms, whether for personal or other use. Indeed, the ratification debates were almost entirely -- but not completely -- devoid of any mention of an individual right to own weapons. n45 Rather, the proposed amendments were the result of concerns expressed in the various ratifying conventions -- similar to those expressed at the Constitutional Convention itself -- regarding the "defin[ition of] the respective powers of two levels of government" over the militia, and particularly over whether states would have the authority to arm the militias. Rakove, supra, at 161; see Finkelman, supra, at 224-25 (citing state ratification debates from New York and Massachusetts).

One of the strongest attacks on the proposed treatment of the militia in the Constitution was delivered by George Mason at the Virginia ratifying convention:
The militia may be here destroyed by that method which has been practised in other parts of the world before; that is, by rendering them useless -- by disarming them. Under various pretences, Congress may neglect to provide for arming and disciplining the militia; and the state governments cannot do it, for Congress has an exclusive right to arm them, &c. . . . Should the national government wish to render the militia useless, they may neglect them, and let them perish, in order to have a pretence of establishing a standing army.
3 DEBATES, supra, at 379 (Statement of George Mason). Mason, like other Anti-Federalists, feared that the neglect of the state militia would lead to the oppression of the people, because without an effective militia the people would be defenseless, and thus he urged that the people's right to an effective militia be secured by an amendment to the new Constitution. He, like the others, saw the people's right to self-defense exclusively in terms of the maintenance of a strong militia. Thus, the Anti-Federalists worried that the federal government would deprive the militia of its arms, not that it would take personal weapons from individual citizens. In order to meet that concern, Mason proposed an amendment similar in wording to what became the Second Amendment. He believed that the amendment would guarantee the people a militia that the state would be free to arm and thus render effective. He justified it as a protection for the people against tyranny and oppression by the federal government:
Id. at 380 (emphasis added).

In short, to the extent that the ratification debates concerned firearms at all, the discussion related to the importance of ensuring that effective state militias be maintained, such militias being considered essential to the preservation of the people's freedom. Those who deemed the Constitution inadequate for this purpose, absent some amendment, emphasized the importance of the states' being afforded the right to arm their own militias, thus ensuring the people's right to maintain a military force for their self-defense.

There were only a few isolated voices that sought to establish an individual right to possess arms, and alone among the 13 colonies, New Hampshire, by a majority vote of the delegates to its ratifying convention, recommended a proposed amendment to the Constitution explicitly establishing a personal right to possess arms: "Congress shall never disarm any Citizen unless such as are or have been in Actual Rebellion." Proposal 12 of the New Hampshire State Convention (June 21, 1788), in BILL OF RIGHTS, supra, at 181. The New Hampshire proposal is significant not only because it was substantially different from the proposals to emerge from the various other state conventions (which in turn were quite similar to that ultimately enacted as the Second Amendment), but also because it suggests that an amendment establishing an individual right to bear arms would have been worded quite differently from the Second Amendment. In no other state did a proposal to establish an individual right to possess arms gain significant support. For instance, while one member of the Pennsylvania ratifying convention vociferously urged the inclusion of such a proposal in the recommendations made by that body to the First Congress, n46 his views, like those of another few elsewhere who called for the establishment of such a right, were soundly rejected. n47 As two commentators have observed, "the failure of Pennsylvania's one man 'minority' merely accentuates the fact that opinion favoring a personal right to arms independent of the militia remained highly marginal in state conventions outside of New Hampshire." Uviller & Merkel, supra, at 486. n48 In sum, a careful review of the ratification debates demonstrates beyond question that opponents of the new Constitution sought amendment of the Militia Clauses in order to preserve the people's right to maintain an effective military force for their self-defense, and not to afford individuals a constitutional right to possess weapons. n49

d. The First Congress and the Second Amendment

By the conclusion of the process by which the Constitution was ratified, there were already countless proposals for altering the new governing charter; the Virginia convention alone offered forty. Finkelman, supra, at 216. Madison, who was responsible for many of the compromises reached at the Constitutional Convention, as well as for many of The Federalist Papers, represented Virginia in the First Congress, which met in New York in April, 1789. He deftly pre-empted Anti-Federalist efforts to change fundamentally the new Constitution by introducing twelve proposed amendments soon after the new legislature convened. Uviller and Merkel, supra, at 498-99. Madison was unenthusiastic about the idea of upsetting the delicate balances achieved by the delegates in Philadelphia by importing new concepts into the document. He sought to ensure that the amendment process left the "structure and stamina of the Govt. as little touched as possible." Letter from James Madison to Edmund Randolph (June 15, 1789) (quoted in Finkelman, supra, at 220); see also Paul Finkelman, James Madison and the Bill of Rights: "A Reluctant Paternity", 1990 SUP. CT. REV. 301, 309 (1991). The amendments Madison proposed sought to eliminate ambiguities in the document that had been ratified, or to enumerate principles that he believed were implicit within it. Id. n50

The debates of the First Congress regarding Madison's proposed Second Amendment, like the debates at the Constitution's ratifying conventions, support the view that the amendment was designed to ensure that the people retained the right to maintain effective state militias, the members of which could be armed by the states as well as by the federal government. Otherwise, the anti-Federalists feared, the federal government could, by inaction, disarm the state militias (and thus deprive the people of the right to bear arms). No one in the First Congress was concerned, however, that federal marshals might go house-to-house taking away muskets and swords from the man on the street or on the farm. Notably, there is not a single statement in the congressional debate about the proposed amendment that indicates that any congressman contemplated that it would establish an individual right to possess a weapon. See Rakove, supra, at 210-11. Moreover, in other public fora, some of the framers explicitly disparaged the idea of creating an individual right to personal arms. For instance, in a highly influential treatise, John Adams ridiculed the concept of such a right, asserting that the general availability of arms would "demolish every constitution, and lay the laws prostrate, so that liberty can be enjoyed by no man -- it is a dissolution of the government." 3 JOHN ADAMS, A DEFENCE OF THE CONSTITUTIONS OF GOVERNMENT OF THE UNITED STATES 475 (1787). n51

Equally important, almost all of the discussion in the First Congress about the proposed amendment related to the conscientious objector provision, which, as we noted earlier, was ultimately removed. See 5 THE FOUNDER'S CONSTITUTION 210-12 (Philip B. Kurland & Ralph Lerner, eds., 1987) (minutes of congressional debate). The fact that the overwhelming majority of the debate regarding the proposed Second Amendment related to the conscientious objector provision demonstrates that the congressmen who adopted the amendment understood that it was concerned with the subject of state militias. A right not to bear arms due to conscientious objection can only mean a right not to be compelled to carry arms that the government seeks to make one bear -- to perform military service that one is unwilling to perform. There is no possible relevance of the term "conscientious objection" to a constitutional amendment guaranteeing a private right to possess firearms. Thus, if the Second Amendment was in fact designed to establish an individual right, the debate over the conscientious objector provision would have been entirely purposeless. n52

In sum, our review of the historical record regarding the enactment of the Second Amendment reveals that the amendment was adopted to ensure that effective state militias would be maintained, thus preserving the people's right to bear arms. The militias, in turn, were viewed as critical to preserving the integrity of the states within the newly structured national government as well as to ensuring the freedom of the people from federal tyranny. Properly read, the historical record relating to the Second Amendment leaves little doubt as to its intended scope and effect.

3. Text, History, and Precedent All Support the Collective Rights View of the Amendment.

We reaffirm our earlier adherence to the collective rights interpretation of the Second Amendment, although for reasons somewhat different from those we stated in Hickman. Hickman rested on a canvass of our sister circuits and a summary evaluation of Miller. Miller did not, however, definitively resolve the nature of the right that the Second Amendment establishes. As we observed earlier, the relevant statements in Miller are all expressed in negative terms. Although those negative statements rule out the traditional individual rights model, the Court took no specific affirmative position as to what rights the amendment does protect. Thus, our decision regarding the nature of the rights guaranteed by the Second Amendment must be guided by additional factors -- the text and structure of the amendment, an examination of the materials reflecting the historical context in which it was adopted, and a review of the deliberations that preceded the enactment of the amendment -- considered in a manner that comports with the rationale of Miller.

After conducting our analysis of the meaning of the words employed in the amendment's two clauses, and the effect of their relationship to each other, we concluded that the language and structure of the amendment strongly support the collective rights view. The preamble establishes that the amendment's purpose was to ensure the maintenance of effective state militias, and the amendment's operative clause establishes that this objective was to be attained by preserving the right of the people to "bear arms" -- to carry weapons in conjunction with their service in the militia. To resolve any remaining uncertainty, we carefully examined the historical circumstances surrounding the adoption of the amendment. Our review of the debates during the Constitutional Convention, the state ratifying conventions, and the First Congress, as well as the other historical materials we have discussed, confirmed what the text strongly suggested: that the amendment was adopted in order to protect the people from the threat of federal tyranny by preserving the right of the states to arm their militias. The proponents of the Second Amendment believed that only if the states retained that power could the existence of effective state militias -- in which the people could exercise their right to "bear arms" -- be ensured. The historical record makes it equally plain that the amendment was not adopted in order to afford rights to individuals with respect to private gun ownership or possession. Accordingly, we are persuaded that we were correct in Hickman that the collective rights view, rather than the individual rights models, reflects the proper interpretation of the Second Amendment. Thus, we hold that the Second Amendment imposes no limitation on California's ability to enact legislation regulating or prohibiting the possession or use of firearms, including dangerous weapons such as assault weapons. Plaintiffs lack standing to assert a Second Amendment claim, and their challenge to the Assault Weapons Control Act fails.

C. The AWCA's Provisions Regarding Off-Duty Police Officers Do Not Offend The Fourteenth Amendment; However, There Is No Rational Basis For the Retired Officer Exemption.

Plaintiffs contend that the privileges that are afforded to off-duty and retired peace officers under the AWCA violate the Equal Protection Clause of the Fourteenth Amendment to the Constitution. Specifically, they contend that the pertinent provisions afford benefits to off-duty and retired officers that are unavailable to the plaintiffs, and that there is no rational reason that they and other law-abiding citizens should be treated differently than off-duty and retired peace officers. n53 The district court held that both the off-duty provision and the retired officers exception comport with the requirements of the Equal Protection Clause. We affirm the district court's decision with respect to the off-duty provision, but reverse as to the exception for retired peace officers.

1. The Applicable Standard of Equal Protection Review

When a state statute burdens a fundamental right or targets a suspect class, that statute receives heightened scrutiny under the Fourteenth Amendment's Equal Protection Clause. Romer v. Evans, 517 U.S. 620, 631, 134 L. Ed. 2d 855, 116 S. Ct. 1620 (1996). Statutes that treat individuals differently based on their race, alienage, or national origin "are subjected to strict scrutiny and will be sustained only if they are suitably tailored to serve a compelling state interest." City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 440, 87 L. Ed. 2d 313, 105 S. Ct. 3249 (1986). Statutes infringing on fundamental rights are subject to the same searching review. See, e.g., Zablocki v. Redhail, 434 U.S. 374, 54 L. Ed. 2d 618, 98 S. Ct. 673 (1978) (right to marry); Shapiro v. Thompson, 394 U.S. 618, 22 L. Ed. 2d 600, 89 S. Ct. 1322 (1969) (right to interstate travel). However, if a legislative act neither affects the exercise of a fundamental right, nor classifies persons based on protected characteristics, then that statute will be upheld "if the classification drawn by the statute is rationally related to a legitimate state interest." Schweiker v. Wilson, 450 U.S. 221, 230, 67 L. Ed. 2d 186, 101 S. Ct. 1074 (1981).

Here, plaintiffs assert that because their Second Amendment rights are fundamental, any statute allowing some persons to exercise those rights differently from others should be subject to strict scrutiny. Because we conclude in Section B, supra, that plaintiffs have no constitutional right to own or possess weapons, heightened scrutiny does not apply. Thus, we apply rational-basis review to plaintiffs' claims that the AWCA provisions violate the Equal Protection Clause.

2. General Principles of Rational-Basis Review.

The Supreme Court has observed that the rational-basis test is "a relatively relaxed standard reflecting the Court's awareness that the drawing of lines that create distinctions" is primarily a task for legislatures. Mass. Bd. of Retirement v. Murgia, 427 U.S. 307, 314, 49 L. Ed. 2d 520, 96 S. Ct. 2562 (1976). Nevertheless, several general principles may be distilled from the several (and sometimes contradictory) cases in which the Supreme Court has applied the test.

First, in order for a state action to trigger equal protection review at all, that action must treat similarly situated persons disparately. City of Cleburne, 473 U.S. at 439; Nordlinger v. Hahn, 505 U.S. 1, 10, 120 L. Ed. 2d 1, 112 S. Ct. 2326 (1992) ("The Equal Protection Clause . . . keeps governmental decisionmakers from treating differently persons who are in all relevant respects alike."); Dillingham v. INS, 267 F.3d 996, 1007 (9th Cir. 2001).

Second, when assessing the validity of legislation under the rational-basis test, "the general rule is that legislation is presumed to be valid and will be sustained if the classification drawn by the statute is rationally related to a legitimate state interest." City of Cleburne, 473 U.S. at 439; see also Dandridge v. Williams, 397 U.S. 471, 485, 25 L. Ed. 2d 491, 90 S. Ct. 1153 (1970); McGowan v. Maryland, 366 U.S. 420, 426, 6 L. Ed. 2d 393, 81 S. Ct. 1101 (1961).

Third, there must exist some rational connection between the state's objective for its legislative classification and the means by which it classifies its citizens. Although rational-basis review is undoubtedly deferential -- indeed, a "paradigm of judicial restraint," FCC v. Beach Communications, 508 U.S. 307, 314, 124 L. Ed. 2d 211, 113 S. Ct. 2096 (1993) -- it is nevertheless our duty to scrutinize the connection, if any, between the goal of a legislative act and the way in which individuals are classified in order to achieve that goal. "The search for the link between classification and objective gives substance to the Equal Protection Clause; it provides guidance and discipline for the legislature, which is entitled to know what sorts of laws it can pass . . . ." Romer, 517 U.S. at 632; see also Nordlinger, 505 U.S. 1, 31, 120 L. Ed. 2d 1, 112 S. Ct. 2326 (1992) ( Stevens, J., dissenting) ("Deference is not abdication and "rational-basis scrutiny" is still scrutiny."); Peoples' Rights Org. v. City of Columbus, 152 F.3d 522, 532 (6th Cir. 1998) ("Rational-basis review, while deferential, is not 'toothless.' " (quoting Matthews v. Lucas, 427 U.S. 495, 510, 49 L. Ed. 2d 651, 96 S. Ct. 2755 (1976)).

Finally, the burden falls upon the party attacking a legislative classification reviewed under the rational-basis standard to demonstrate that there is no reasonable basis for the challenged distinction. When a statute is reviewed under the rational-basis test, "the burden is on the one attacking the legislative arrangement to negative every conceivable basis which might support it." Heller v. Doe, 509 U.S. 312, 320, 125 L. Ed. 2d 257, 113 S. Ct. 2637 (1993) (citation and quotation marks omitted); see also Lucas, 427 U.S. at 510. The legislative record need not contain empirical evidence to support the classification so long as the legislative choice is a reasonable one. Beach Communications, 508 U.S. at 315; Nordlinger, 505 U.S. at 15 ("The Equal Protection Clause does not demand for purposes of rational-basis review that a legislature or governing decision-maker actually articulate at any time the purpose or rationale supporting its classification.") (citation omitted). Although the government is relieved of providing a justification for a statute challenged under the rational-basis test, such a justification must nevertheless exist, or the standard of review would have no meaning at all. "Even in the ordinary equal protection case calling for the most deferential of standards, we insist on knowing the relation between the classification adopted and the object to be attained." Romer, 517 U.S. at 632.

With these general principles in mind, we turn to the two provisions that plaintiffs challenge under the Equal Protection Clause.

3. The Validity of the Two AWCA Provisions

a. The Off-duty Officer Provision

The appellants' attack on the AWCA provision applicable to off-duty peace officers is easily resolved. It is manifestly rational for at least most categories of peace officers to possess and use firearms more potent than those available to the rest of the populace in order to maintain public safety. The off-duty officer exception provides that an off-duty officer permitted to possess and use the assault weapons must do so only for "law enforcement purposes." § 12280(g). We presume that off-duty officers may find themselves compelled to perform law enforcement functions in various circumstances, and that in addition it may be necessary that they have their weapons readily available. Thus, the provision is designed to further the very objective of preserving the public safety that underlies the AWCA. Consequently, there is a rational basis for the provision, and it comports with the requirements of the Fourteenth Amendment. n54

b. The Retired Officer Exception

In contrast, the retired officer exception has no such clearly rational basis. The amendments to the AWCA provide that the California agencies listed at note 6, supra, may sell or transfer assault weapons to a sworn peace officer upon the retirement of that officer. § 12280(h). The exception does not require that the transfer be for law enforcement purposes, and the possession and use of the weapons is not so limited. n55

Initially, we observe that allowing residents of California to obtain assault weapons for purposes unrelated to law enforcement is wholly contrary to the legislature's stated reasons for enacting restrictions on assault weapons. As set forth more fully above, the legislature found that "the proliferation and use of assault weapons poses a threat to the health, safety, and security of all citizens in this state." n56 When the legislature first passed the AWCA, the entire Assembly, sitting as the Committee of the Whole, heard testimony from the California Attorney General, the chiefs of police of several local jurisdictions, public health experts, and the relatives of crime victims about the devastating effects of assault weapons on California communities. See 1 CAL. ASSEMBLY J., at 435-59 (Feb. 13, 1989). In light of the unequivocal nature of the legislative findings, and the content of the legislative record, there is little doubt that any exception to the AWCA unrelated to effective law enforcement is directly contrary to the act's basic purpose of eliminating the availability of high-powered, military-style weapons and thereby protecting the people of California from the scourge of gun violence. n57 See United States Dep't of Agric. v. Moreno, 413 U.S. 528, 534, 37 L. Ed. 2d 782, 93 S. Ct. 2821 (1973) ("The challenged statutory classification . . . is clearly irrelevant to the stated purpose of the Act.").

However, our inquiry cannot end here. We must attempt to identify any hypothetical rational basis for the exception, whether or not that reason is in the legislative record. See id. In response to a request from this court for supplemental briefing on the question of whether there is a rational basis for the retired officer exception, the state offered three justifications for the exception. None is in any way persuasive.

First, the state argues that because a similar exception exists in the federal assault weapons law enacted in 1994, the provision "ostensibly withstood the rational basis test federally." However, the mere existence of the same distinction in a federal statute is not probative evidence that the provision is rational. Although we must presume that the legislative classification challenged in this case has a rational basis, Schweiker v. Wilson, 450 U.S. 221, 230, 67 L. Ed. 2d 186, 101 S. Ct. 1074 (1981), that presumption cannot be bolstered by the fact that the same classification exists in another jurisdiction's statute. An unconstitutional statute adopted by a dozen jurisdictions is no less unconstitutional by virtue of its popularity.

Second, the state argues that because some peace officers receive more extensive training regarding the use of firearms than do members of the public, allowing any retired officer to possess assault weapons for non-law enforcement purposes is reasonable. This justification is basically inconsistent with the legislative purpose of the AWCA; it bears no reasonable relationship to the stated legislative purpose of banning the possession and use of assault weapons in California, except for certain law enforcement purposes. The object of the statute is not to ensure that assault weapons are owned by those most skilled in their use; rather, it is to eliminate the availability of the weapons generally. Not only is the retired officers exception contrary to the purpose of the AWCA, its relationship to any legitimate state goal "is so attenuated as to render the distinction arbitrary or irrational." City of Cleburne, 473 U.S. at 446.

The state's third argument fails also. The state contends that the retired officers exception is rational because it allows retiring peace officers to keep their duty weapons, which in some cases the officer may have purchased with his own funds. However, the retired officer provision contains no such limitation; indeed, on its face the statute would permit the transfer of any number of assault weapons to any peace officer, regardless of whether that officer had ever come into contact with the weapons being acquired. Indeed, in contrast to the off-duty officer provision, under the retired officers' exception the retiree may possess and use assault weapons for any purpose whatsoever. n58

We may not complete our evaluation of the statute's validity merely by examining the state's proffered justifications for the law. Rather, we must determine whether any reasonable theory could support the legislative classification. Heller, 509 U.S. at 320. An exception to the assault weapons law for retired officers might arguably be rational if California required its retired peace officers to participate as reserves in the event of an emergency. However, there is no such requirement in California. Moreover, even if there were such a requirement, a statute that permitted retired peace officers -- at their discretion -- to obtain assault weapons and use them for unlimited purposes, and in an unregulated manner, would not reasonably advance the objective of establishing a reserve force of retired officers prepared to act in emergencies.

We thus can discern no legitimate state interest in permitting retired peace officers to possess and use for their personal pleasure military-style weapons. Rather, the retired officers exception arbitrarily and unreasonably affords a privilege to one group of individuals that is denied to others, including plaintiffs.

In sum, not only is the retired officers' exception contrary to the legislative goals of the AWCA, it is wholly unconnected to any legitimate state interest. A statutory exemption that bears no logical relationship to a valid state interest fails constitutional scrutiny. The 1999 AWCA amendments include, however, a severability provision providing that should any portion of the statute be found invalid, the balance of the provisions shall remain in force. Accordingly, because the retired officers' exception is an arbitrary classification in violation of the Fourteenth Amendment, we sever that provision, § 12280(h)-(i), from the AWCA.


Plaintiffs assert three additional constitutional claims that we can dispose of readily. First, Plaintiffs who own assault weapons contend that the AWCA violates the takings clause of the Fifth Amendment because it reduces the value of those weapons. It is well-established, however, that a government may enact regulations pursuant to its broad powers to promote the general welfare that diminish the value of private property, yet do not constitute a taking requiring compensation, so long as a reasonable use of the regulated property exists. Am. Sav. & Loan Ass'n v. County of Marin, 653 F.2d 364, 368 (9th Cir. 1981) ("If the regulation is a valid exercise of the police power, it is not a taking if a reasonable use of the property remains."); see Andrus v. Allard, 444 U.S. 51, 66, 62 L. Ed. 2d 210, 100 S. Ct. 318 (1979) ("A reduction in the value of property is not necessarily a taking."). Here, plaintiffs who owned assault weapons prior to the enactment of the AWCA are protected by a grandfather clause that permits them to use the weapons in a number of reasonable ways so long as they register them with the state. In light of the substantial safety risk posed by assault weapons that prompted the passage of the AWCA, any incidental decrease in their value caused by the effect of that act does not constitute a compensable taking. Am. Sav. & Loan Ass'n, 653 F.2d at 368.

Second, plaintiffs challenge the registration provisions of the AWCA as violative of their informational privacy rights. Although there does exist an "individual interest in avoiding [government] disclosure of personal matters," Whalen v. Roe, 429 U.S. 589, 599-600, 51 L. Ed. 2d 64, 97 S. Ct. 869 (1977), that right "is not absolute; rather, it is a conditional right which may be infringed upon a showing of proper governmental interest." Crawford v. United States Tr., 194 F.3d 954, 959 (9th Cir. 1999) (citing Doe v. Attorney Gen., 941 F.2d 780, 796 (9th Cir. 1991)). Here, applying the factors set forth in Doe, we conclude that the government's goal in establishing a public registry of those who possess assault weapons is a proper governmental interest, and the plaintiffs' interests in maintaining confidential the fact of their assault weapon ownership are minimal. Accordingly, we affirm the dismissal of this claim.

Finally, plaintiffs contend that the retired and off-duty officer provisions of the statute require association with law enforcement officers in order to obtain the benefits of the provisions. Thus, plaintiffs argue, the statute violates their First Amendment rights. This claim has no merit; even aside from the fact that we have directed that the retired officer provision be severed, the statute plainly requires no person to associate with any other person. The district court therefore correctly dismissed this claim as well.



AFFIRMED in part, REVERSED in part, and REMANDED.

MAGILL, Circuit Judge, Special Concurrence:

I join parts I, II-C, and III of the court's opinion. Respectfully, I cannot join parts II-A and II-B, but I do concur in the judgment. Parts II-A and II-B consist of a long analysis involving the merits of the Second Amendment claims and the Ninth Circuit's adoption of the collective rights theory of the Second Amendment. As discussed below, this analysis seems unnecessary.

Article III of the Constitution requires that federal courts adjudicate only actual "cases" or "controversies." E.g., Allen v. Wright, 468 U.S. 737, 750, 82 L. Ed. 2d 556, 104 S. Ct. 3315 (1984). This requirement "defines with respect to the Judicial Branch the idea of separation of powers on which the Federal Government is founded." Id. Among the doctrines that ensure federal courts only resolve "cases" or "controversies," Article III standing "is perhaps the most important." Id. The requirement of Article III standing "aids the federal judiciary to avoid intruding impermissibly upon the powers vested in the executive and legislative branches, by preventing courts from issuing advisory opinions not founded upon the facts of a controversy between truly adverse parties." Scott v. Pasadena Unified Sch. Dist., 306 F.3d 646 (9th Cir. 2002) (citing United Pub. Workers v. Mitchell, 330 U.S. 75, 89-90, 91 L. Ed. 754, 67 S. Ct. 556 (1947)). "Article III standing is a jurisdictional prerequisite." Hickman v. Block, 81 F.3d 98, 101 (9th Cir. 1996). "Without jurisdiction the court cannot proceed at all in any cause. Jurisdiction is the power to declare the law, and when it ceases to exist, the only function remaining to the court is that of announcing the fact and dismissing the cause." Ex parte McCardle, 74 U.S. (7 Wall.) 506, 514, 19 L. Ed. 264 (1868).

It is well established that, as a threshold matter, this court must determine whether the plaintiffs have standing to assert their claim. E.g., Scott, 306 F.3d 646 (stating that "we must establish jurisdiction before proceeding to the merits of the case"); Bird v. Lewis & Clark Coll., 303 F.3d 1015 (9th Cir. 2002) (recognizing that before reaching the merits of the case, the court must determine the threshold issue of standing); Hickman, 81 F.3d at 101 (discussing that the court is "bound to address the standing issue at the threshold of the case"). "In essence the question of standing is whether the litigant is entitled to have the court decide the merits of the dispute or of the particular issues." Warth v. Seldin, 422 U.S. 490, 498, 45 L. Ed. 2d 343, 95 S. Ct. 2197 (1975). The plaintiffs in this case are simply not entitled to standing and thus I cannot join the court's discussion of the merits of their Second Amendment claims.

Here, the court claims that "although in every case we are required to examine standing issues first, . . . here an examination of that question requires us as a first step to conduct a thorough analysis of the scope and purpose of the Second Amendment. Only after determining the amendment's scope and purpose can we answer the question whether individuals, specifically the plaintiffs here, have standing to sue." Maj. Op. at 23-24 n.17 (internal citation omitted). Respectfully, I disagree. Previously, this court decided the scope and purpose of the Second Amendment. We are bound by that precedent.

In Hickman, this court announced that the Second Amendment guarantees a collective right, not an individual right. 81 F.3d at 102. As such, this court held that an individual plaintiff lacks standing to enforce the right to keep and bear arms because "the states alone stand in the position to show legal injury when this right is infringed." Id. As recognized by my colleague Judge Reinhardt, we have no power to overrule Hickman; only an en banc panel may do so. See Maj. Op. at 22 n.15 (citing Morton v. De Oliveira, 984 F.2d 289, 292 (9th Cir. 1993)). Thus, we are bound by the Hickman decision, and resolution of the Second Amendment issue before the court today is simple: plaintiffs lack standing to sue for Second Amendment violations because the Second Amendment guarantees a collective, not an individual, right and thus plaintiffs are unable to establish injury in fact. See Scott, 306 F.3d 646("In order to establish standing, a plaintiff must first show that she has suffered an 'injury in fact.' " (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 119 L. Ed. 2d 351, 112 S. Ct. 2130 (1992) (internal quotation marks omitted))). Precedent mandates that we affirm the district court's dismissal of these claims for lack of standing. Accordingly, it is unnecessary and improper to reach the merits of the Second Amendment claims or to explore the contours of the Second Amendment debate.

Consequently, I join parts I, II-C, and III of the court's opinion and concur in its judgment that plaintiffs lack standing to challenge the AWCA.

FOOTNOTES IN Silveira v. Lockyer III
