[ Back | Home ]
[Cite as Hickman v. Block, 81 F.3d 98 (9th Cir.
Douglas Ray HICKMAN v. Sherman BLOCK; Claude L. Farris; Patrick G. Leonard;
City of Los Angeles; Darryl Gates, Police Chief; Robert Talcott; Herbert
Boekmann; Reva B. Tooley; Samuel L. Williams; Stephen D. Yslas; William Cowdin;
Frank E. Piersol; Dominick J. Rivetti; City of San Fernando; County of Los
United States Court of Appeals, Ninth Circuit.
Argued and Submitted Nov. 13, 1995.
Richard R. Hopkins, Law Office of Richard Hopkins,
Simi Valley, California, for plaintiff-appellant.
Randel L. Ledesma, Greines, Martin, Stein & Richland, Beverly
Hills, California, for defendants-appellees County of Los Angeles and Sherman
Donna Weisz Jones, Deputy City Attorney, Los Angeles, California, for
defendant-appellee City of Los Angeles.
Kevin H. Louth, Arthur G. Lesmez, and Joseph Zamora, Liebman, Reiner,
Nashison & Walsh, Los Angeles, California, for defendants-appellees City of
San Fernando and Rivetti.
Don B. Kates, Benenson & Kates, Novato, California, for
Appeal from the United States District Court for the Central District
of California Robert M. Takasugi, District Judge, Presiding. No.
Before: HALL and NOONAN, Circuit Judges, and SHUBB,[*] District
CYNTHIA HOLCOMB HALL, Circuit Judge:
Douglas Ray Hickman appeals from an order granting summary judgment
in favor of the appellees, who denied Hickman 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
Hickman owns and operates a responding security
alarm company. He is also a federally licensed arms dealer. Wishing 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and rejected in a unpublished memorandum disposition all of Hickman's various
arguments save one: his claim for relief under section 1983 based on a violation
of the Second Amendment. This issue we now address. Only appellees County of Los
Angeles, City of San Fernando, and their named officials remain as parties to
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 (p.100)that
person a license to carry a pistol, revolver, or other firearm capable of
being concealed upon the person ...
Cal.Penal Code § 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
convincing evidence of a clear and present danger
to life ... which cannot be adequately dealt with by existing law enforcement
resources, and which danger 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 classification
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 Fernando denied his applications on the
grounds that Hickman, 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. For
reasons not clear in the record, San Fernando denied him admission to the
reserves and blocked this approach to a permit.
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
ammunition 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 apparently failed to respond.
Hickman next went to court; he filed this lawsuit in October 1991. In
March 1992 the district court granted the County's motion to dismiss Hickman's
action to the extent that it was based upon a violation of the Second Amendment.
It also 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
County's motion. In May 1994 the district court entered its final order granting
summary judgment for the remaining appellees: the County, San Fernando and their
respective municipal officers.
The Second Amendment to the United States
Constitution 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 individual citizens standing to
enforce the right to (p.101)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 separation
of powers on which the Federal Government is founded." Allen v.
Wright, 468 U.S. 737, 750, 104 S.Ct. 3315, 3324, 82 L.Ed.2d 556
(1984). Among the cluster of doctrines that ensure our adherence to the
case-or-controversy requirement, the "doctrine that requires a litigant 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, 104 S.Ct. at 3326. Thus, we
are bound to address the standing issue at the threshold of the case.
The party invoking federal jurisdiction has the burden to establish
his standing to sue. Lujan v. Defenders of Wildlife, 504
U.S. 555, 559-61, 112 S.Ct. 2130, 2136, 119 L.Ed.2d 351 (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, 95 S.Ct. 2197, 2210, 45
L.Ed.2d 343 (1975); Sierra Club v. Morton, 405 U.S.
727, 740-41, 92 S.Ct. 1361, 1368-69, 31 L.Ed.2d 636 (1972)), and "actual
or imminent" rather than "conjectural or hypothetical." Id. (citing Whitmore v. Arkansas, 495 U.S. 149, 155, 110 S.Ct. 1717, 1723,
109 L.Ed.2d 135 (1990) (quoting Los Angeles v. Lyons, 461
U.S. 95, 102, 103 S.Ct. 1660, 1665, 75 L.Ed.2d 675 (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, 96 S.Ct. 1917, 1925-26, 48 L.Ed.2d 450 (1976)). Third, the injury
must be redressable by a favorable judicial decision. Id.
(citing Simon, 426 U.S. at 38, 96 S.Ct. at
This case turns on the first constitutional standing element: whether
Hickman has shown injury to an interest protected 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, 59 S.Ct. 816, 83
L.Ed. 1206 (1939), in which the Supreme Court upheld a conviction under
the National Firearms Act, 26 U.S.C. § 1132 (1934), for
transporting a sawed-off shotgun in interstate commerce. The Court rejected the
appellant's hypothesis that the Second Amendment protected 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 passage, the Court held
[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
307 U.S. at 178, 59 S.Ct. at
818. 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 a (p.102)"well-regulated militia"
is 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.
Following Miller, "[i]t is clear that the Second Amendment
guarantees a collective rather than an individual right." United States v. Warin, 530 F.2d 103, 106 (6th Cir.),
cert. denied 426 U.S. 948, 96 S.Ct. 3168, 49 L.Ed.2d 1185
(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, 100 S.Ct. at 921 n.8) (same). Because the Second Amendment
guarantees 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.
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 armed
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
See, e.g., People v. Blue, 190 Colo. 95, 544
P.2d 385 (1975) (en banc) (citing Colo. Const. art. II, §
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, § 11) (same proposition);
State v. Krantz, 24 Wash.2d 350, 164 P.2d 453 (1945)
(citing Wash. Const. art I, § 24) (same
proposition); Akron v. Williams, 113 Ohio App. 293, 177
N.E.2d 802 (1960) (citing Ohio Const. art. I, § 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,
98 S.Ct. 1493, 55 L.Ed.2d 521 (1978) (technical membership in
state militia insufficient to show legal injury under Second Amendment); Warin, 530 F.2d at 106 (same
with respect to individual "subject to enrollment" in state militia); United States v. Hale, 978 F.2d 1016, 1019 (8th (p.103)Cir. 1992) (same, citing Warin); United States v. Graves, 554 F.2d 65, 66 n.2 (3rd. Cir.
1977) (en banc) (narrowly construing the Second Amendment "to guarantee
the right to bear arms as a member of a militia").
Hickman's claim amounts to a "generalized grievance" regarding the
organization and training of a state militia. See Lujan, 504 U.S. at 575, 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. 1, 10, 93 S.Ct. 2440, 2446
(1973). "[I]t is difficult 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. See
Because the right to keep an armed militia is a
right held by the states alone, Hickman has failed to show "injury" as required
by constitutional standing doctrine. Accordingly, we have no jurisdiction to
hear his appeal.
The judgment is AFFIRMED.
[*] Hon. William B. Shubb, United States District Judge for the
Eastern District of California, sitting by designation.
 Under California law, this entitles Hickman to carry an exposed
firearm while he is in uniform. See Cal. Penal Code §
 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 §
12031(b). Hickman does not attack the preferential access of police
officers to concealed weapons permits in this lawsuit.
 According to Hickman, the San Fernando Police cited a potential
conflict of interest between Hickman's private security operation and his
official duties. San Fernando maintains that it rejected Hickman's application
after uncovering his ulterior motive.
 In addition to its constitutional components, standing doctrine
also includes several "judicially self-imposed" constituents, grounded in comity
and prudence. Wright, 468 U.S. at 751, 104 S.Ct. at
3324. We need not address these elements here, however.
 The Supreme Court has not revisited the meaning of the Second
Amendment except to cite Miller for the proposition that federal
restrictions on the use of firearms by individuals do not "trench upon any
constitutionally protected liberties." Lewis v. United
States, 445 U.S. 55, 65 n.8, 100 S.Ct. 915, 921 n.8, 63 L.Ed.2d 198 (1980)
(upholding 18 U.S.C.App. § 1202(a)(1)).
 The Constitution provided for armed militia because "[t]he
sentiment of the time strongly disfavored standing armies ...." Miller, 307 U.S. at 179, 59 S.Ct. at
818. 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, 110 S.Ct.
2418, 2422-23, 110 L.Ed.2d 312 (1990) (discussing constitutional
compromise of state sovereignty, individual liberty and necessity of common
defense which resulted in provision for both a national army and state
 Although Congress may do so. See U.S. Const. art. I, § 8, cls. 15-16 (Militia Clauses); Miller, 307 U.S. at 178, 59
S.Ct. at 818 (discussing division of power over the militia between Congress and
the states); Perpich, 496 U.S. at 340, 110 S.Ct. at
2422-23 (same); Select Draft Law Cases, 245 U.S.
366, 383, 38 S.Ct. 159, 163, 62 L.Ed. 349 (1918) (same).
 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, 59 S.Ct.
at 818. To ensure the readiness of their militias, 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, 59 S.Ct. at
818-19. 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
requiring universal self-armament for men of appropriate age. Perpich, 496 U.S. at 341, 110 S.Ct. at
2423 (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, 110 S.Ct.
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, 110 S.Ct. at
2429 (citing 32 U.S.C. § 109(c) (1990)).
 For similar reasons we do not involve ourselves in
nonjusticiable areas of social policy. Amici argued at length that widely
diffused gun ownership is good social policy. We are in no position to accept or
reject this claim.
 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 against the states. Fresno Rifle & Pistol Club, Inc. v. Van De Kamp, 965 F.2d 723
(9th Cir. 1992).