Fresno Rifle and Pistol Club, Inc. v. Van de Kamp, CV F-90-097 EDP.

• Decision Date: 06 September 1990
• Docket Number: No. CV F-90-097 EDP.,CV F-90-097 EDP.
• Citation: 746 F. Supp. 1415
• Court: U.S. District Court — Eastern District of California
• Parties: FRESNO RIFLE AND PISTOL CLUB, INC., et al., Plaintiffs, v. John K. VAN de KAMP, in his official capacity as Attorney General of the State of California, Defendant.

746 F. Supp. 1415

FRESNO RIFLE AND PISTOL CLUB, INC., et al., Plaintiffs, v. John K. VAN de KAMP, in his official capacity as Attorney General of the State of California, Defendant.

No. CV F-90-097 EDP.

United States District Court, E.D. California.

September 6, 1990.

Stephen P. Halbrook, Fairfax, Va., and John Dawson, Forrest & McLaughlin, Fresno, Cal., for plaintiffs.

Daniel G. Stone, Deputy Atty. Gen., Sacramento, Cal., for defendant.

Robert C. Vanderet, O'Melveny & Myers, Los Angeles, Cal., and Don B. Kates, Jr., Beneson & Kates, San Francisco, Cal., for amicus curiae.

MEMORANDUM DECISION RE: PLAINTIFFS' MOTION FOR PRELIMINARY INJUNCTION AND DEFENDANT'S MOTION TO DISMISS

PRICE, District Judge.

The Roberti-Roos Assault Weapons Control Act became effective in California on January 1, 1990. Neither plaintiffs, defendant, nor any of the amicus curiae provided the Court with a copy of the Act. However, the Act is contained in California Penal Code sections 12275 to 12290.¹ These sections are set forth as Appendix A to this memorandum decision.

The Parties

Named as plaintiffs are groups of local, state and national organizations described as organizations interested in the use of and competition with firearms, or who are interested in legislation pertaining to the use and possession of firearms.

The individuals named, except "John Doe", are alleged to be members of one or more of the organizations named as plaintiffs.

Springfield Armory, Inc. is a federally licensed manufacturer of firearms; Heckler and Koch, Inc. is a federally licensed importer of firearms.

Each plaintiff alleges that he, she, or it will be irreparably injured by the enforcement of the Act.

John Van de Kamp is the Attorney General of California. Why he is the sole defendant is not explained.² It does not appear that the California Attorney General would initially have any duty to prosecute individual violations of the Act. That duty might arise in supervisory capacity, but is speculative at best. However, California Penal Code section 12276.5 confers special duties upon the State Attorney General concerning the suspension of the manufacture, sale, distribution, or importation into the state of assault weapons.

Plaintiff initiated this action by complaint seeking declaratory relief concerning the Act's validity and an injunction to bar its enforcement. The Attorney General of California filed a motion to dismiss.

The Court will address the several theories set forth in plaintiff's complaint, and the defendants' motion to dismiss.

I. The Rights Conferred on the Plaintiffs by Amendment II of the United States Constitution.

The Second Amendment provides:

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.

In United States v. Cruikshank, 92 U.S. 542, 553, 23 L.Ed. 588 (1876), the Supreme Court stated:

The second and tenth counts are equally defective. The right there specified is that of "bearing arms for a lawful purpose." This is not a right granted by the constitution. Neither is it in any manner dependent upon that instrument for its existence. The Second Amendment declares that it shall not be infringed; but this, as has been seen, means no more than that it shall not be infringed by Congress. This is one of the amendments that has no other effect than to restrict the powers of the National Government, leaving the people to look for their protection against any violation of their fellow-citizens of the rights it recognizes, to what is called, in City of N.Y. v. Miln, 11 Pet. 102 139 9 L.Ed. 648. the "powers which relate to merely municipal legislation, or what was, perhaps, more properly called internal police," "not surrendered or restrained" by the Constitution of the United States.

All cases that have considered the issues have universally held that the Second Amendment to the United States Constitution expresses a limitation that is applicable to the Congress and the National Government only and has no application to the States.

In Presser v. Illinois, 116 U.S. 252, 264-65, 6 S.Ct. 580, 583-84, 29 L.Ed. 615 (1886) the court stated:

We are next to inquire whether the 5th and 6th sections of article XI. of the Military Code are in violation of the other provisions of the constitution of the United States relied on by the plaintiff in error. The first of these is the Second Amendment, which declares: "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."

We think it clear that the sections under consideration, which only forbid bodies of men to associate together as military organizations, or to drill or parade with arms in cities and towns unless authorized by law, do not infringe the right of the people to keep and bear arms. But a conclusive answer to the contention that this amendment prohibits the legislation in question lies in the fact that the amendment is a limitation only upon the power of Congress and the National government, and not upon that of the States. It was so held by this court in the case of United States v. Cruikshank, 92 U.S. 542, 553 23 L.Ed. 588, in which the Chief Justice, in delivering the judgment of the court, said, that the right of the people to keep and bear arms "is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence. The Second Amendment declares that it shall not be infringed, but this, as has been seen, means no more than that it shall not be infringed by Congress. This is one of the amendments that has no other effect than to restrict the powers of the National government, leaving the people to look for their protection against any violation by their fellow-citizens of the rights it recognizes to what is called in The City of New York v. Miln, 11 Pet. 102 139 9 L.Ed. 648, the `powers which relate to merely municipal legislation, or what was perhaps more properly called internal police' `not surrendered or restrained' by the Constitution of the United States."

See also, United States v. Warin, 530 F.2d 103, 106-07 (6th Cir.1976), cert. denied 426 U.S. 948, 96 S.Ct. 3168, 49 L.Ed.2d 1185:

It is clear that the Second Amendment guarantees a collective rather than an individual right. In Stevens v. United States, 440 F.2d 144, 149 (6th Cir.1971), this court held, in a case challenging the constitutionality of 18 U.S.C.App. § 1202(a)(1):

Since the Second Amendment right "to keep and bear Arms" applies only to the right of the State to maintain a militia and not to the individual's right to bear arms, there can be no serious claim to any express constitutional right of an individual to possess a firearm.

See also, United States v. Johnson, 497 F.2d 548, 550 (4th Cir.1974); United States v. Tot, 131 F.2d 261, 266 (3d Cir. 1942), rev'd on other grounds, 319 U.S. 463, 63 S.Ct. 1241, 87 L.Ed. 1519 (1943).

It is also established that the collective right of the militia is limited to keeping and bearing arms, the possession or use of which "at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, ...." United States v. Miller, supra, 307 U.S. 174 at 178, 59 S.Ct. 816 at 818 83 L.Ed. 1206 (1939). See also, United States v. Johnson, supra; Cody v. United States, 460 F.2d 34, 37 (8th Cir.), cert. denied, 409 U.S. 1010, 93 S.Ct. 454, 34 L.Ed.2d 303 (1972).

The fact that the defendant Warin, in common with all adult residents and citizens of Ohio, is subject to enrollment in the militia of the State confers upon him no right to possess the submachine gun in question. By statute the State of Ohio exempts "members of ... the organized militia of this or any other state, ..." (emphasis added) from the provision, "No person shall knowingly acquire, have, carry, or use any dangerous ordnance." Ohio Revised Code § 2923.17. "Dangerous ordnance" is defined to include any automatic firearm. O.R.C. § 2923.11. There is no such exemption for members of the "sedentary militia." Furthermore, there is absolutely no evidence that a submachine gun in the hands of an individual "sedentary militia" member would have any, much less a "reasonable relationship to the preservation or efficiency of a well regulated militia." Miller, supra, 307 U.S. at 178, 59 S.Ct. at 818. Thus we conclude that the defendant has no private right to keep and bear arms under the Second amendment which would bar his prosecution and conviction for violating 26 U.S.C. § 5861(d).

In Quilici v. Village of Morton Grove, 695 F.2d 261, 269 (7th Cir.1982), cert. denied, 464 U.S. 863, 104 S.Ct. 194, 78 L.Ed.2d 170, the court stated:

As we have noted, the parties agree that Presser is controlling, but disagree as to what Presser held. It is difficult to understand how appellants can assert that Presser supports the theory that the second amendment right to keep and bear arms is a fundamental right which the state cannot regulate when the Presser decision plainly states that "the Second amendment declares that it shall not be infringed, but this ... means no more than that it shall not be infringed by Congress. This is one of the amendments that has no other effect than to restrict the powers of the National government ..." Presser v. Illinois, 116 U.S. 252, 265, 6 S.Ct. 580, 584, 29 L.Ed. 615 (1886). As the district court explained in detail, appellants' claim that Presser supports the proposition that the second amendment guarantee of the right to keep and bear arms is not subject to state restriction is based on dicta quoted out of context. Quilici v. Village of Morton Grove, 532 F.Supp. at 1181-82. This argument borders on the frivolous and does not warrant any further consideration.

Plaintiff relies on the discussion in United States v. Verdugo-Urquidez, ___ U.S. ___, 110 S.Ct. 1056, 108 L.Ed.2d 222, 232-33 where the court discussed the...