From: [p--uc--r] at [ccnet.com] (Peter Boucher)
Newsgroups: talk.politics.guns
Subject: 9Th Circuit: 2nd is a "states-right!"
Date: 9 Apr 1996 14:05:35 -0700
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FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
DOUGLAS RAY HICKMAN,
Plaintiff-Appellant,
v.
SHERMAN BLOCK; CLAUDE L.
FARRIS; PATRICK G. LEONARD; No. 94-55836
CITYOF LOS ANGELES; DARRYL
GATES, Police Chief; ROBERT D.C. No.
TALCOTT; HERBERT BOEKMANN; CV-91-05594-RMT(Bx)
REVA B. TOOLEY; SAMUEL L. OPINION
WILLIAMS; STEPHEN D. YSLAS;
WILLIAM COWDIN; FRANK E.
PIERSOL; DOMINICK J. RIVETTI;
CITYOF SAN FERNANDO;
COUNTYOF LOS ANGELES,
Defendants-Appellees.
Appeal from the United States District Court
for the Central District of California
Robert M. Takasugi, District Judge, Presiding
Argued and Submitted
November 13, 1995--Pasadena, California
Filed April 5, 1996
Before: Cynthia Holcomb Hall and John T. Noonan, Jr.,
Circuit Judges, and William B. Shubb,* District Judge.
Opinion by Judge Hall
_________________________________________________________________
*Hon. William B. Shubb, United States District Judge for the Eastern
District of California, sitting by designation.
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SUMMARY
_________________________________________________________________
4164
_________________________________________________________________
COUNSEL
Richard R. Hopkins, Law Office of Richard Hopkins, Simi
Valley, California, for the plaintiff-appellant.
Randel L. Ledesma, Greines, Martin, Stein & Richland, Bev-
erly Hills, California, for defendants-appellees County of Los
Angeles and Sherman Block.
Donna Weisz Jones, Deputy City Attorney, Los Angeles, Cal-
ifornia, for defendant-appellee City of Los Angeles.
4165
Kevin H. Louth, Arthur G. Lesmez, and Joseph Zamora, Lieb-
man, Reiner, Nashison & Walsh, Los Angeles, California, for
defendants-appellees City of San Fernando and Rivetti.
Don B. Kates, Benenson & Kates, Novato, California, for the
amici.
_________________________________________________________________
OPINION
HALL, Circuit Judge:
Douglas Ray Hickman appeals from an order granting sum-
mary judgment in favor of the appellees, who denied Hick-
man a concealed weapons permit. He complains, among other
things, that the appellees' permit issuance policy violated his
Second Amendment right to bear arms. We have jurisdiction
over his timely appeal pursuant to 28 U.S.C. section 1291,
and affirm on the basis that Hickman lacks standing to sue for
a violation of the Second Amendment.
I
Hickman owns and operates a responding security alarm
company.1 He is also a federally licensed arms dealer. Wish-
ing to break into the lucrative field of "executive protection,"
Hickman submitted a string of applications for a concealed
firearms permit to the appellee municipal authorities. When
the authorities denied Hickman's applications, he filed this
suit for damages and injunctive relief, arguing several theories
of liability under 42 U.S.C. sections 1983 and 1985(3). We
considered and rejected in a unpublished memorandum dispo-
sition all of Hickman's various arguments save one: his claim
for relief under section 1983 based on a violation of the Sec-
ond Amendment. This issue we now address. Only appellees
_________________________________________________________________
1 Under California law, this entitles Hickman to carry an exposed
fire-
arm while he is in uniform. See Cal. Penal Code S 12031(d).
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County of Los Angeles, City of San Fernando, and their
named officials remain as parties to the action.
The appellees issue concealed firearms permits under the
authority of a California statute which provides, in relevant
part:
The sheriff of a county or the chief or other head of
a municipal police department of any city or city and
county, upon proof that the person applying is of
good moral character, that good cause exists for the
issuance, and that the person applying is a resident
of the county, may issue to that person a license to
carry a pistol, revolver, or other firearm capable of
being concealed upon the person . . .
Cal. Penal Code S 12050(a)(1) (emphasis added). The County
and San Fernando share in common a policy concerning the
requirements of "good cause." Under the policy, good cause
is shown by:
convincing evidence of a clear and present danger to
life . . . which cannot be adequately dealt with by
existing law enforcement resources, and which dan-
ger cannot be reasonably avoided by alternative
measures, and which danger would be significantly
mitigated by the applicant's carrying of a concealed
firearm.
The policy also requires some proof of firearms training.
Finally, the policy provides that "[n]o position or job classifi-
cation in itself should constitute good cause for the issuance
or denial of a license." Each application is to be reviewed
individually for cause.
Hickman first applied for a permit in 1988. He applied to
each of the appellees in turn, stating that he required a permit
in order to work as a private bodyguard. The County and San
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Fernando denied his applications on the grounds that Hick-
man, having cited no "clear and present danger" to personal
safety, had failed to show good cause. Hickman next
attempted to obtain a permit in 1989 by joining a reserves unit
for the San Fernando police department.2 For reasons not clear
in the record, San Fernando denied him admission to the
reserves and blocked this approach to a permit. 3
Hickman submitted his final round of permit applications
in 1991, following two incidents which, he felt, amounted to
a showing of good cause. First, Hickman reported being
"approached" by two "Hispanic men" while he loaded ammu-
nition into his car. He frightened them away by raising an
unloaded pistol. Second, Hickman recited an isolated threat
by a disgruntled ex-employee, who allegedly said:"I know
where you live;" "You will have to look over your shoulder
for the rest of your life;" and "I will get you and it won't even
be me." On the force of these incidents Hickman reapplied to
the County and San Fernando. The County denied Hickman's
application for failure to show cause and San Fernando appar-
ently failed to respond.
Hickman next went to court; he filed this lawsuit in Octo-
ber 1991. In March 1992 the district court granted the Coun-
ty's motion to dismiss Hickman's action to the extent that it
was based upon a violation of the Second Amendment. It also
_________________________________________________________________
2 At oral argument, Hickman's attorney denied that his client had
attempted to join the reserves to obtain a permit. However, in his
1991
permit re-application to the County, Hickman stated that his "ulterior
motive" for applying to the reserves had been to obtain a permit.
Police
officers obtain their concealed weapons authorization under a separate
statute, which does not demand a showing of good cause. See Cal. Penal
Code S 12031(b). Hickman does not attack the preferential access of
police officers to concealed weapons permits in this lawsuit.
3 According to Hickman, the San Fernando Police cited a potential con-
flict of interest between Hickman's private security operation and
his offi-
cial duties. San Fernando maintains that it rejected Hickman's
application
after uncovering his ulterior motive.
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denied his section 1985(3) conspiracy claim. The City of Los
Angeles, having been a party only to the conspiracy claim,
was then dismissed as a party to the suit. In July 1992 the
County moved for summary judgment on the remaining
claims. Discovery ensued. San Fernando joined in the Coun-
ty's motion. In May 1994 the district court entered its final
order granting summary judgment for the remaining appel-
lees: the County, San Fernando and their respective municipal
officers.
II
[1] The Second Amendment to the United States Constitu-
tion states: "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." U.S. Const. amend. II.
Hickman argues that the Second Amendment requires the
states to regulate gun ownership and use in a "reasonable"
manner. The question presented at the threshold of Hickman's
appeal is whether the Second Amendment confers upon indi-
vidual citizens standing to enforce the right to keep and bear
arms. We follow our sister circuits in holding that the Second
Amendment is a right held by the states, and does not protect
the possession of a weapon by a private citizen. We conclude
that Hickman can show no legal injury, and therefore lacks
standing to bring this action.
Article III of the Constitution restricts the federal courts to
adjudicating actual "cases" or "controversies." This limitation
"defines with respect to the Judicial Branch the idea of sepa-
ration of powers on which the Federal Government is
founded." Allen v. Wright, 468 U.S. 737, 750 (1984). Among
the cluster of doctrines that ensure our adherence to the case-
or-controversy requirement, the "doctrine that requires a liti-
gant to have `standing' to invoke the power of a federal court
is perhaps the most important." Id. Article III standing is a
jurisdictional prerequisite. See id. at 754. Thus, we are bound
to address the standing issue at the threshold of the case.
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The party invoking federal jurisdiction has the burden to
establish his standing to sue. Lujan v. Defenders of Wildlife,
112 S.Ct. 2130, 2136 (1992). To do so, a litigant must satisfy
three elements which constitute the "irreducible constitutional
minimum" of Article III standing. Id. First, the plaintiff must
have suffered injury to a legally protected interest. Id. This
injury must be both "concrete and particularized," id. (citing
Warth v. Seldin, 422 U.S. 490, 508 (1975); Sierra Club v.
Morton, 405 U.S. 727, 740-41 (1972)), and "actual or
imminent" rather than "conjectural or hypothetical." Id.
(citing Whitmore v. Arkansas, 495 U.S. 149, 155 (1990)
(quoting Los Angeles v. Lyons, 461 U.S. 95, 102 (1983))
(internal quotations omitted)). Second, "there must be a causal
connection between the injury and the conduct complained
of." Id. (citing Simon v. Eastern Kentucky Welfare Rights
Org., 426 U.S. 26, 41-42 (1976)). Third, the injury must be
redressable by a favorable judicial decision. Id. (citing Simon,
426 U.S. at 38).4
[2] This case turns on the first constitutional standing ele-
ment: whether Hickman has shown injury to an interest pro-
tected by the Second Amendment. We note at the outset that
no individual has ever succeeded in demonstrating such injury
in federal court. The seminal authority in this area continues
to be United States v. Miller, 307 U.S. 174 (1939), in which
the Supreme Court upheld a conviction under the National
Firearms Act, 26 U.S.C. S 1132 (1934), for transporting a
sawed-off shotgun in interstate commerce. The Court rejected
the appellant's hypothesis that the Second Amendment pro-
tected his possession of that weapon. Consulting the text and
history of the amendment, the Court found that the right to
keep and bear arms is meant solely to protect the right of the
states to keep and maintain armed militia. In a famous pas-
sage, the Court held that
_________________________________________________________________
4 In addition to its constitutional components, standing doctrine also
includes several "judicially self-imposed" constituents, grounded in
com-
ity and prudence. Wright, 468 U.S. at 751. We need not address these
ele-
ments here, however.
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[i]n the absence of any evidence tending to show that
the possession or use of a "shotgun having a barrel
of less than eighteen inches in length" at this time
has some reasonable relationship to the preservation
or efficiency of a well-regulated militia, we cannot
say that the Second Amendment guarantees the right
to keep and bear such an instrument.
307 U.S. at 178.5 The Court's understanding follows a plain
reading of the Amendment's text. The Amendment's second
clause declares that the goal is to preserve the security of "a
free state;" its first clause establishes the premise that well-
regulated militia are necessary to this end. Thus it is only in
furtherance of state security that "the right of the people to
keep and bear arms" is finally proclaimed.6
[3] Following Miller, "[i]t is clear that the Second Amend-
ment guarantees a collective rather than an individual right."
United States v. Warin, 530 F.2d 103, 106 (6th Cir.), cert.
denied 96 S.Ct. 3168 (1976); see also Thomas v. Members of
City Council of Portland, 730 F.2d 41, 42 (1st Cir. 1984)
(same, citing Warin); United States v. Johnson, 497 F.2d 548,
550 (4th Cir. 1974) (cited with approval in Lewis, 445 U.S.
at 65 n.8) (same). Because the Second Amendment guarantees
_________________________________________________________________
5 The Supreme Court has not revisited the meaning of the Second
Amendment except to cite Miller for the proposition that federal
restric-
tions on the use of firearms by individuals do not "trench upon any
consti-
tutionally protected liberties." Lewis v. United States, 445 U.S. 55,
65 n.8
(1980) (upholding 18 U.S.C. App. S 1202(a)(1)).
6 The Constitution provided for armed militia because "[t]he sentiment
of the time strongly disfavored standing armies . . . ." Miller, 307
U.S. at
179. Under the resultant constitutional scheme, Congress had power to
raise an army if circumstances required, however "the common view was
that adequate defense of country and laws could be secured through the
Militia -- civilians primarily, soldiers on occasion." Id.; see also
Perpich
v. Dept. of Defense, 496 U.S. 334, 340 (1990) (discussing
constitutional
compromise of state sovereignty, individual liberty and necessity of
com-
mon defense which resulted in provision for both a national army and
state
militia).
4171
the right of the states to maintain armed militia, the states
alone stand in the position to show legal injury when this right
is infringed.
[4] Nevertheless, Hickman argues that under the Second
Amendment, individuals have the right to complain about the
manner in which a state arms its citizens. We fail to see the
logic in this argument. The Second Amendment creates a
right, not a duty. It does not oblige the states to keep an armed
militia,7 or to arm their citizens generally, although some
states do preserve, nominally at least, a broad individual right
to bear arms as a foundation for their state militia.8 See, e.g.,
People v. Blue, 54 P.2d 385 (Colo. 1975) (en banc) (citing
Colo. Const. art. II, S 13) (recognizing individual right to bear
arms under state constitution); State v. Amos, 343 So.2d 166,
168 (La. 1977) (citing La. Const. art I, S 11) (same proposi-
_________________________________________________________________
7 Although Congress may doso. See U.S. Const. art. I, S 8, cls. 15-16
(Militia Clauses); Miller, 307 U.S. at 178 (discussing division of
power
over the militia between Congress and the states); Perpich, 496 U.S.
at
340 (same); Select Draft Cases, 245 U.S. 366, 383 (1918) (same).
8 Originally, in the American Colonies of the 17th Century, "as in
England, the militia system was based on the principle of the assize
of
arms. This implied the general obligation of all adult male
inhabitants to
possess arms, and, with certain exceptions, to cooperate in the work
of
defense." Miller, 307 U.S. at 179-80. To ensure the readiness of
their mili-
tias, the colonies enacted laws "intended to assure the possession of
arms
and ammunition by all who would be subject to military service." Id.
at
180. The Second Amendment preserved the right of the new American
states to continue this practice.
Likewise, in the early days of the Republic, Congress passed a statute
to establish "an Uniform Militia throughout the United States" by
requir-
ing universal self-armament for men of appropriate age. Perpich, 496
U.S.
at 341 (discussing 1 Stat. 271). In practice the command was ignored,
and
so in 1901 President Theodore Roosevelt and the Congress embarked on
the establishment of the modern National Guard system. Id. at 341-43.
Today, federal law continues to assure that "in addition to its
National
Guard, a State may provide and maintain at its own expense a defense
force that is exempt from being drafted into the Armed Forces of the
United States." Id. at 352 (citing 32 U.S.C. S 109(c) (1990)).
4172
tion); State v. Krantz, 164 P.2d 453 (Wash. 1945) (citing
Wash. Const. art I, S 24) (same proposition); Akron v. Wil-
liams, 177 N.E.2d 802 (Ohio Ct. App. 1966) (citing Ohio
Const. art. I, S 4) (same proposition). Even in states which
profess to maintain a citizen militia, an individual may not
rely on this fact to manipulate the Constitution's legal injury
requirement by arguing that a particular weapon of his admits
some military use, or that he himself is a member of the
armed citizenry from which the state draws its militia. United
States v. Oakes, 564 F.2d 384, 387 (10th Cir. 1977), cert.
denied, 435 U.S. 926 (1978) (technical membership in state
militia insufficient to show legal injury under Second Amend-
ment); Warin, 530 F.2d at 106 (same with respect to individ-
ual "subject to enrollment" in state militia); United States v.
Hale, 978 F.2d 1016, 1019 (8th Cir. 1982) (same, citing
Warin); United States v. Graves, 554 F.2d 65, 66 n.2 (3rd.
Cir. 1977) (en banc) (narrowly construing the Second Amend-
ment "to guarantee the right to bear arms as a member of a
militia").
[5] Hickman's claim amounts to a "generalized grievance"
regarding the organization and training of a state militia. See
Lujan, 112 S.Ct. at 2144. We do not involve ourselves in such
matters. As the Supreme Court has observed, "decisions as to
the composition, training, equipping, and control of a military
force are essentially professional military judgments," and as
such are nonjusticiable. Gilligan, 413 U.S. at 10. "[I]t is diffi-
cult to conceive of an area of governmental activity in which
the courts have less competence." Id. For this reason, among
others, we leave military matters to the elected branches of
government.9 See id.
_________________________________________________________________
9 For similar reasons we do not involve ourselves in nonjusticiable
areas
of social policy. Amici argued at length that widely diffused gun
owner-
ship is good social policy. We are in no position to accept or reject
this
claim.
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III
[6] Because Hickman has not sued to defend the state's
right to keep an armed militia, he has failed to show "injury"
as required by constitutional standing doctrine. Accordingly
we have no jurisdiction to hear his appeal.10
The judgment is AFFIRMED.
_________________________________________________________________
10 Moreover, even if we determined that Hickman had standing to sue
for violation of the Second Amendment, his suit would nevertheless
fail
because the Second Amendment is not incorporated into the Bill of
Rights.
Fresno Rifle & Pistol Club, Inc. v. Van De Kamp, 965 F.2d 723 (9th
Cir.
1992).
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the end