9th Cir Judge Reinhardt: Carrying a gun is 2nd Amendment Right

[Luger_carbine]

This isn't a 2A case, it's a death penalty murder case before the 9th cir.

Here is the link:

http://www.ca9.uscourts.gov/datastor...3/08-99017.pdf

The interesting part is where Judge Reinhardt says in his dissent:

Carrying a gun, which is a Second Amendment right, also cannot legally lead to a finding that the individual is likely to murder someone; if it could, half or even more of the people in some of our states would qualify as likely murderers.

The main part being "Carrying a gun, which is a Second Amendment right..."

Bottom line is that this is the United States Court of Appeals for the Ninth Circuit, and it is Judge Reinhardt.

[Aguila Blanca]

Nice ... but it's in the dissenting opinion, which means the other side sets the precedent.

[MagicAnimal]

I realize this is the Nineth, but out of curiosity is Reinhardt usually considered pro-2nd Amendment?

[Crankgrinder]

please have patience with me, but i find it rather sticky that one must obtain a permit to exercise a 2a right and thats only if the state theyre in allows it. Isnt that like saying "you have such rights as long as I say so"? Im glad one judge sees it the way he does, but it seems a great many others do not.

[Gary L. Griffiths]

i find it rather sticky that one must obtain a permit to exercise a 2a right and thats only if the state theyre in allows it.

I agree with you completely. Requiring a permit in order to exercise a Constitutional right is certainly nothing if not an infringement on that right. In Heller, though, the Court gave deference to long-standing prohibitions on concealed carry, so the issue isn't ripe for a court challenge yet. Perhaps in the future, as more and more states adopt so-called "Constitutional Carry" laws and the streets don't run red with blood.....

[Luger_carbine]

I realize this is the Nineth, but out of curiosity is Reinhardt usually considered pro-2nd Amendment?

I think it's fair to say that many people viewed Judge Reinhardt as hostile to the RTKBA. This is the first time Judge Reinhardt has ever acknowledged in an opinion, that carrying a gun is a Second Amendment right.

In perspective, this isn't Moore/Shepard v Madigan, not even a 2A case and as Aguila Blanca points out - it's the dissenting opinion.

I can't help but wonder though, if Judge Reinhardt has come to this conclusion by interpreting what SCOTUS has said in Heller and McDonald, wouldn't that same message have gotten through to Judges Posner, Williams and Flaum?

[KyJim]

I think Reinhardt was just tweaking the other two judges on the panel.

Based on a speed read:

The defendant Dickens was convicted of murder and sentenced to death in Arizona state court for his participation in a robbery and murder. He didn't pull the trigger but was considered a "major participant" which is a prerequisite for the death penalty. This was based, in part, on the fact he was aware of the robbery, drove the car to the store, and either was aware of or provided the gun to the triggerman. He also knew the triggerman had beaten up a nurse, often carried guns, twice pointed a gun at defendant Dickens' head, and bragged about other murders. The state court noted this helped prove Dickens' reckless indifference to human life when he helped with the robbery. This is the context in which Reinhardt referred to the Second Amendment and the fact a large number of people in some states carry guns. It is as if he is lumping all those who carry in with the piece of trash who pulled the trigger.

The federal courts review the state's findings and application of constitutional law under a very highly deferential standard which the majority applied here. Reinhardt is legendary for writing habeas opinions which the Supreme Court reverses.

[Aguila Blanca]

I think Reinhardt has the right view of the overall case here, but the 2nd Amendment comment is a throw-away. While it refers to (and thus acknowledges) the 2nd Amendment as a right, it doesn't enter into any discussion of the degree to which said right may Constitutionally be regulated. All he's saying is the obvious: "Carrying a gun is not prima facie evidence of intent to commit murder." That should be a truism, just as "Renting a U-Haul truck is not proof of intent to blow up a Federal office building."

[Jim March]

David Kopel comments on this case:

http://www.volokh.com/2012/08/05/wha...nhardt-missed/

[KyJim]

I think Reinhardt has the right view of the overall case here, but the 2nd Amendment comment is a throw-away. While it refers to (and thus acknowledges) the 2nd Amendment as a right, it doesn't enter into any discussion of the degree to which said right may Constitutionally be regulated. All he's saying is the obvious: "Carrying a gun is not prima facie evidence of intent to commit murder." That should be a truism, just as "Renting a U-Haul truck is not proof of intent to blow up a Federal office building."

As the OP mentioned, this is not a 2A case. I don't think the state courts (and the majority of the federal court panel) viewed carrying a gun as prima facie evidence of an intent to commit murder. It was simply a relatively minor factor which would allow any reasonable person to know that there was a substantial possibility the trigger man would end up shooting someone in an armed robbery in which the defendant actively participated. I've mentioned the other factors like the guy beating up a nurse, pointing guns at a person's head, and the armed robbery itself. Reinhardt's view of the entire case is wrong.

The federal court is constrained in what it can review. Did the state courts unreasonably apply settled U.S. Supreme Court precedent or did they unreasonably find facts. The U.S. Supreme Court reads this to mean "no reasonable jurist" would conclude what the state courts concluded. The very fact it may be debatable means the federal courts have to defer to state courts on this issue. As I mentioned before, Reinhardt is reversed in every single capital habeas case he authors. When he authors a majority opinion in this area of the law, it's just a red flag for the U.S. Supremes to grant cert and reverse.

[thallub]

I realize this is the Nineth, but out of curiosity is Reinhardt usually considered pro-2nd Amendment?

IMO: Folks are reading too much into Reinharts statement. Judge Reinhart is not a friend of our Second Amendment rights. Reinhardt is a died in the wool far left judicial activist. He is the most often reversed federal judge:

http://www.weeklystandard.com/Conten...yss.asp?page=2

http://blogs.wsj.com/law/2011/01/19/...-courts-wrath/

http://en.wikipedia.org/wiki/Stephen_Reinhardt

Then there is this:

http://rense.com/general32/9thUScircuitcourt.htm

"

The debates of the founding era demonstrate that the second of the first 10 amendments to the Constitution was included in order to preserve the efficacy of the state militias for the people's defense -- not to ensure an individual right to possess weapons," Judge Stephen Reinhardt wrote.

[BlueTrain]

You don't have to get a permit to vote, do you?

[MLeake]

Sadly, BT, the high school dropout meth-head down the street has the same vote as you or I do.

[BlueTrain]

I think you missed my point.

[NJgunowner]

You don't have to get a permit to vote, do you?

You have to register to vote, which is basically like getting a permit.

[BlueTrain]

Thank you for the clarification. With some exceptions, voting rights exist at the state level. And just like owning guns, there are those who want to place heavy restrictions on voting. Because, just like with guns, you can never tell what a person might go out and do.

[MLeake]

No, BT, I didn't. I simply avoided the potential argument, while trying to imply that while I often disagree with you, I at least respect your intelligence.

Unfortunately, the system rewards the lowest common denominator approach.

But if you really want to go into restrictions on rights as opposed to privileges, or into whether requiring photo ID to vote is today's Jim Crow, we can argue either point. Lay on, MacDuffer...

[Tom Servo]

You have to register to vote, which is basically like getting a permit.

Yep, but voting and self-defense are two different kinds of rights.

The 2nd Amendment protects a natural right, guaranteed to anyone on US soil, and codified in the Bill of Rights.

Voting is a civil right, which is generally restricted to citizens and can be regulated.