San Diego County Gun Rights Committee v. Reno

Decision Date22 October 1996
Docket NumberNo. 95-55811,95-55811
Citation98 F.3d 1121
Parties96 Cal. Daily Op. Serv. 7760, 96 Daily Journal D.A.R. 12,811 SAN DIEGO COUNTY GUN RIGHTS COMMITTEE; Mark Bruce Skane; Henri Jon Donald Buettner; John Wallner; and San Diego Militia; Plaintiffs-Appellants, v. Janet RENO, Attorney General of the United States of America; Frank Newman, acting Secretary of the Treasury; Bureau of Alcohol, Tobacco, and Firearms, Defendants-Appellees.
CourtU.S. Court of Appeals — Ninth Circuit

Peter D. Lepiscopo, San Diego, CA, for plaintiffs-appellants.

Michael S. Raab, United States Department of Justice, Washington, DC, for defendants-appellees.

Appeal from the United States District Court for the Southern District of California, Marilyn L. Huff, District Judge, Presiding. D.C. No. CV-95-0027-MLH.

Before: FLETCHER and TASHIMA, Circuit Judges, and RESTANI, Court of International Trade Judge. *

TASHIMA, Circuit Judge:


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.


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)(1), 922(w)(1). 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)(i) & (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.


Standing and ripeness are questions of law, which we review de novo. Carson Harbor Village Ltd. 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).


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, 136 L.Ed.2d 199 (1996), 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 constitutionality 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 'authority' [a law review article]."), cert. denied, --- U.S. ----, 117 S.Ct. 264, 136 L.Ed.2d 189 (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, 530 F.2d 103, 108 (6th Cir.) (rejecting defendant's Ninth Amendment challenge because "[w]e simply do not conceive of the possession of an unregistered submachine gun as one of those 'additional fundamental rights, protected from governmental infringement, which exist alongside those fundamental rights specifically mentioned in the first eight constitutional amendments' ") (quoting Griswold v. Connecticut, 381 U.S. 479, 488, 85 S.Ct. 1678, 1684, 14 L.Ed.2d 510 (1965) (Goldberg, J., concurring)), cert. denied, 426 U.S. 948, 96 S.Ct. 3168, 49 L.Ed.2d 1185 (1976).

We join our sister circuits in holding that the Ninth Amendment does not encompass an unenumerated, fundamental, individual right to bear firearms. See William Van Alstyne, The Second Amendment and the Personal Right to Arms, 43 Duke L.J. 1236, 1248 n. 43 (1994) ("Recourse to the same materials to fashion a Ninth Amendment ('unenumerated') right is not only largely replicative of the Second Amendment inquiry, but also singularly inappropriate under the circumstances--the right to bear arms is not left to the vagaries of Ninth Amendment disputes at all."); but see Nicholas J. Johnson, Beyond the Second Amendment: An Individual Right to Arms Viewed Through the Ninth Amendment, 24 Rutgers L.J. 1 (1992). Applying the rationale of Hickman, we conclude that plaintiffs can show no legal injury under the Ninth Amendment, and thus, lack standing to challenge the Crime Control Act on that basis. 2

A. Constitutional Dimensions

Article III limits the jurisdiction of federal courts to "cases" and "controversies." Casey v. Lewis, 4 F.3d 1516, 1519 (9th Cir.1993). "Federal courts are presumed to lack jurisdiction, unless the contrary appears affirmatively from the record." Id. (citation and internal quotation marks omitted). Standing is an essential, core component of the case or controversy requirement. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 2136, 119 L.Ed.2d 351 (1992).

As the parties invoking federal jurisdiction, plaintiffs bear the burden of establishing their standing to sue. Id. at 561, 112 S.Ct. at 2136-37. To do so, they must demonstrate three elements which constitute the "irreducible constitutional minimum" of Article III standing. Id. at 560, 112 S.Ct. at 2136. First, plaintiffs must have suffered an "injury-in-fact" to a legally protected interest that is both "concrete and particularized" and "actual or imminent," as opposed to " 'conjectural' or 'hypothetical.' " Second, there must be a causal connection between their injury and the conduct complained of. Third, it must be "likely"--not merely "speculative"--that their injury will be "redressed by a favorable decision." Id. at 560-61, 112 S.Ct. at 2136 (citations...

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