One more huge problem with the Ninth Circuit's decision -- and it has nothing to do with the Second Amendment. It has to do with the court's handling of the law's exception for retired peace officers. (You can find the court's discussion at pages 64 through 68 of the opinion.)

The ban on assault weapons made an exception for sales to peace officers on their retirement. The court said that allowing such sales was entirely contrary to the legislative purpose for the weapons ban, and that the exception further had no conceivable rational purpose. Thus, the exception failed even the most lenient constitutional test -- the "rational basis" test under the Equal Protection Clause.

The court then noted that the law had a "severability" provision. (This is a provision that says if a court thinks one section of the statute is unconstitutional, it should "sever" that section -- i.e., just strike down that section rather than the whole statute.) Thus, because the exception is an "arbitrary classification," the court would sever it and strike it down.

But wait. The court purported to sever an exception to a criminal law. Thus, retired peace officers who bought weapons in reliance on that exception were immediately converted into felons by the court's judgment. Moreover, the court extended criminal liability to a group of people that the legislature thought shouldn't be deemed criminals. That intrudes into the prerogatives of the legislature.

As one might expect, there is much precedent saying that a court cannot sever an exception to a criminal statute. See DONALD T. KRAMER, 16 AM.JUR.2D CONSTITUTIONAL LAW § 218 (2000) (citing numerous cases). Here are some cases:

• The Supreme Court has said that when an “excepting proviso is found unconstitutional the substantive provisions which it qualifies cannot stand,” for “to hold otherwise would be to extend the scope of the law . . . so as to embrace [situations] which the legislature passing the statute had, by its very terms, expressly excluded.” Frost v. Corporation Comm'n of Okla., 278 U.S. 515, 525 (1929).
  
  
• Davis v. Wallace, 257 U.S. 478, 484 (1922) (“Where an excepting provision in a statute is found unconstitutional, courts very generally hold that this does not work an enlargement of the scope or operation of other provisions with which that provision was enacted, and which it was intended to qualify or restrain.”).
  
  
• Connolly v. Union Sewer Pipe Co., 184 U.S. 540, 565 (1902) (holding that an unconstitutional exception could not be severed).
  
  
• In cases involving content discriminatory statutes or discriminatory taxes -- i.e., where a legislature unfairly discriminates by making exceptions for certain speakers or taxpayers -- the Supreme Court typically invalidates the statute wholesale rather than severing the exception so as to subject more individuals to criminal liability or taxation. See, e.g., Carey v. Brown, 447 U.S. 455 (1980); Police Dept. of Chicago v. Mosley, 408 U.S. 92 (1972); Arkansas Writers’ Project, Inc. v. Ragland, 481 U.S. 221 (1987); Armco, Inc. v. Hardesty, 467 U.S. 638 (1984).
  
  
• When the Third Circuit faced a case involving a sign ordinance with content-based exceptions, it addressed the severability question thus: “Eliminating the offending exception would mean that we would be requiring the State to restrict more speech than it currently does. All existing restrictions would apply, plus there would be a restriction on signs advertising local industries and meetings. To our knowledge, no court has ever mandated issuance of an injunction such as that, and we decline to be the first.” Rappa v. New Castle County, 18 F.3d 1043, 1072-73 (3d Cir. 1994).
  
  
• Brown v. Scott, 602 F.2d 791, 795 n.6 (7th Cir. 1979) (holding that a “labor dispute exception is not severable from the remainder of the statute because its excision would subject a group of persons to criminal sanctions that the Illinois General Assembly did not intend to subject to those sanctions . . . .”).
  
  
• Kendall-Jackson Winery, LTD v. Branson, 82 F. Supp.2d 844, 868 (N.D. Ill. 2000) (holding that enforcing “an Act without an invalid exemption limiting the scope of its application would, in effect, create a new law. . . . This would amount to a delegation of legislative powers to the courts, which is contrary to article III of the constitution . . . .”) (internal quotes and citations omitted).
  
  
• American Booksellers Ass’n, Inc. v. Webb, 654 F. Supp. 503, 504 (N.D. Ga. 1987) (noting the “general rule providing that where, as here, an exception to a criminal statute is invalid, the entire criminal statute must be struck. . . . The reason for this is simple: by enacting an exception, a legislature manifests an intent to exempt a protected class from criminal liability”).

So what should the court have done? This may sound like tough medicine, but when a court thinks that a legislature made an unconstitutional exception to a criminal statute, it has to strike down the whole statute and let the legislature start over. There is simply no basis for a court unilaterally extending criminal liability by striking down an exception to a criminal law.

And as for the retired peace officers, if any of them should be prosecuted following the Ninth Circuit's decision, I would think they would have an excellent Due Process defense.

NOTE: I should point out that I cut-and-pasted some citations I previously collected for a pro bono brief. I don't have time to do this level of legal research for a blog posting!

UPDATE: Nice to see that Eugene and one of his co-bloggers Orin Kerr generally agree.