Silveira v. Lockyer
Silveira v. Lockyer, 312 F.3d 1052 (9th Cir. 2002), is a decision by the United States Court of Appeals for the Ninth Circuit holding that the Second Amendment to the United States Constitution does not guarantee individuals the right to bear arms. The case involved a challenge to the Constitutionality of the Roberti-Roos Assault Weapons Control Act (AWCA); California legislation banned the manufacture, sale, transportation, or importation of specified semi-automatic firearms. The plaintiffs alleged that various provisions of the AWCA infringed upon their constitutionally guaranteed right to keep and bear arms as individuals.
Judge Stephen R. Reinhardt wrote the opinion of the court. The court engaged in an extensive analysis of the history of the Second Amendment and its attendant case law, and it ultimately determined that the Second Amendment does not guarantee individuals the right to keep and bear arms. Instead, the court concluded that the Second Amendment provides "collective" rights, which is limited to the arming of state militia. The Ninth Circuit refused to hear the case en banc but issued a set of dissenting opinions to the denial to take the case en banc which included a notable opinion by Judge Alex Kozinski. The U.S. Supreme Court denied review.
This decision disagreed with the holding of the Fifth Circuit in United States v. Emerson and, more recently, that of the Supreme Court of the United States in District of Columbia v. Heller 554 US 570 (2008). As such, the opinion in Silveira v. Lockyer has been nullified by the Supreme Court of the United States, which held in Heller that the right to keep and bear arms is in fact a right of individuals. The Supreme Court also later held in McDonald v. Chicago, 2010, that the 2nd Amendment is an incorporated right, meaning that it is applicable to state governments as well as the Federal government.
- 124 S. Ct. 803 (2003)
- "The Second Amendment, Incorporated". The American Spectator. Retrieved 7 July 2013.