Ready, Fire, Aim: The Ninth Circuit misses its mark, the Second Amendment

Wall Street Journal ^ | December 9, 2002 | BRENDAN MINITER

[Joe Brower]

The U.S. Ninth Circuit Court of Appeals has given gun-control advocates an early Christmas gift--a comprehensive, historically based argument that undermines an individual's right to own firearms. This is a gift the antigun crowd sorely needed after the revelation that Michael Bellesiles's book "Arming America"--which claimed guns were rare in early America--was a work of slipshod scholarship if not outright fraud.

[Joe Brower]

I, for one, am sick and tired of the seemingly endless debate on a topic that would not even be an issue in a rational and honest society. The fact that the term of art, "the people", coult be falsely construed to mean anything other than each individual citizen as it does in the rest of the Bill of Rights is a sad testament to the intellectual dishonesty of our day.

So now the Supreme Court has a chance to display either it's trademark cowardice on this issue, or exhibit some newfound courage in taking these two opposing rulings, one from the 5th and now one from the 9th, and make their own determination. It's long past overdue.

[tet68]

Now is the time for us to consider our actions should the
Supreme Court side with the Ninth Circuit.
What alternatives do we have? Civil disobedience/protest?
Appeals, and to whom?

Am off to work, will check in later this eve.

[harpseal]

I for one hope the Supreme Court does take a case on the Second and resolve the issue one way or the other. They should realize that they must decide for the individual right or for a civil war there is no middle ground.

Stay well - Stay safe - Stay armed - Yorktown

[RollingThunder]

Unfortunately, This ruling does not suprise me by the 9th Circuit Court. About the only thing in our favor, is that it is also the most overturned Circuit Court in the nation.

And we see that our old friend Judge Stephen Reinhardt, again shows his socialist colors. And remember, his wife is the Southern California ACLU Head, so you could actually see something like this comming.

[aruanan]

Ready, Fire, Aim: The Ninth Circuit misses its mark, the Second Amendment

Or "Ready, Aim, Misfire: The Ninth Circuit...."

[wku man]

"I for one hope the Supreme Court does take a case on the Second and resolve the issue one way or the other."

Absolutely. I'd like to hear the SCOTUS clear up the mess and ambiguity left by the Miller decision, and slap down the gun grabbers once and for all. Of course, if the Supremes cave to the Commies, that'd be fine, too...we'd at least know where we stood, and what we'd have to do to clean up the mess.

Scouts Out! Cavalry Ho!

[wku man]

"What alternatives do we have? Civil disobedience/protest? Appeals, and to whom?"

Using the Second Amendment for what it was intended?

Scouts Out! Cavalry Ho!

[szweig]

It was pointed out in a past post that this might be a last-ditch-effort by the grabbers to get SCOTUS to hear the case before Bush can get some straight-thinkers in there. WHo knows? SSZ

[Basil Duke]

It will never end. The gun grabbers will keep at it until they regulate firearms out of existence. With most young people educated in an increasingly illiberal public school system that preaches the victim disarmament sermon ad nauseum, and the inevitable dying off of the older folks who support gun ownership, it's only a matter of time before a sizeable enough group of the public comes to believe the Sarah Brady/Chuck Schumer line. It may take another hundred years, but this scum is persistent. They know they can rely on the schools, the media, and much of the judiciary to push the agenda.

[wku man]

Could be. I personally don't relish the thought of having to rely on O'Connor's decision to uphold my RKBA. But I'd feel a heckuva lot better if this case was decided by a Thomas or Scalia court, with at least five solid constructionists sitting on it.

Scouts Out! Cavalry Ho!

[bvw]

Not just the Second being recast as only a collectivist right, but the First too:

Book Review: DEMOCRACY AND THE PROBLEM OF FREE SPEECH

Contemporary interpreters of First Amendment law have lost sight of the primary rationale behind freedom of expression, in Sunstein's view, namely the principle of "government by discussion." ...

The First Amendment, understood in this light, is not so much a matter of protecting rights as ensuring sound public judgment through the process of public deliberation. The true meaning of the law should therefore be determined, and limited, by matters having to do with the political process (broadly defined). Political speech should be encouraged since it is essential to the functioning of democracy, while non-political speech should be less fully protected ...

Might say "Okay, what's political?", but that misses the bigger point -- the government determines what is political speech, and any provision for categorizing this speech as "political" and that speech as "not political" will be coopted and used to supress speech that is distasteful to Establishment at the time -- and that will come to include critiques, complaints, plaints, and petitions of any sort.

Restraints on speech are fundamentally wrong -- excepting only clear, immediate public risk and danger ("Fire" in a crowed theater), and the most grevious, obvious slanders. Yet in many areas -- restraints have made great headway, from the 501c3 tax code gags on "political" speech, politically correct speech policies enforced in large corporations, governmentr bureaus, schools and colleges, to expansive interpretations of copyright, expansive slander and libel restriants, and now with logic this Sunstein 1993 work is typical of -- restirctions on political speech itself as given legal effect in the Campaign Finance Reform Acts.

The total restraints -- the loss of Liberty -- we have on our speech may be as great in effect and force as all the restraints now being suffered regarding the right to bear arms.

[coloradan]

Restraints on speech are fundamentally wrong -- excepting only clear, immediate public risk and danger ("Fire" in a crowed theater), and the most grevious, obvious slanders.

But that restraint isn't applied before the fact by gagging people, but rather only after the fact by pressing charges. However, gun prohibitions are before-the-fact suppressions of gun rights, as opposed to, say, laws against armed robbery, which are applied after the fact for criminal gun misuse. Those who would shout Fire! in a crowded theater have the same opportunity to do wrong as those who would hold up liquor stores, but for the gun grabbers this isn't good enough, and additional restrictions on gun owners are always sought.

[sistergoldenhair]

ping

[bvw]

Try putting up a anti-homosexuality billboard in New York City! Or running an ad on certain topics in the local newspaper. Now the second is a private-private thing, the first is not -- for the City has taken legal action against some people who did, and the people who own billboards then refuse to allow certain messages for fear of governmental reprisal or direct legal action against them.

Or try getting a conservative speaker at a public university in some places -- prior restraint in all effect!

Registration, licensing? Try making a claim about the medical or psychological benefit of some new device, food, or preparation -- that's speech too. Gee whiz -- the FDA will be all over you -- and not for clear fraud either -- rather both "truth" and the process to find it are *owned* by FDA dicta! Far better the old "Reg PA Dept of Agriculture" -- the FDA is a tyrant and there is no alternative. Guilty until proven innocent.

Still, you have a point, and have shed a light on real differences. The prior restraints on bearing and keeping arms are more rampant.

[upcountryhorseman]

Lock and Load!

[facedown]

Rarely have 27 words written out in a plain sentence caused so much confusion amongst seemingly intelligent people.

Pseudointellectual collectivist "useful idiots".

[Billthedrill]

Every time I hear a liberal express horror that Bush is going to pack the Supreme Court with "activist judges" I ask them if if they're afraid that conservatives will do to them what they've been doing to everyone else for the past four decades. And every one of them knows perfectly well what I'm talking about.

[Ancesthntr]

I'm not so sure that it is necessary to raise the issue of conflict between the 5th and 9th Circuits in order to get this case heard by the Supremes. The losing parties could simply appeal, based upon the fact that their 2nd Amendment rights have been violated. It only buttresses their argument to state that the extraordinarily well-researched and well-reasoned dicta of the Emerson case backs an individual right.

[aristeides]

Like the Pledge decision, this is another in-your-face that Stephen Reinhardt is behind (in the Newdow pledge decision, he has been getting his colleague Goodwin to sign the opinions, but he signed this 2nd Amendment decision.) As in the Pledge case, the proper decision for the panel would have been to find that the plaintiff(s) had no standing, and to dismiss the case. As Judge Magill's concurrence in the 2nd Amendment case makes clear, under governing 9th Circuit precedent the plaintiffs had no standing, and that was the reason the district court had dismissed the case. All the 9th Circuit panel had to do was to simply affirm that decision. Reinhardt went out of his way to make sweeping statements on the 2nd Amendment (as the panel he was on in the Pledge case went out of its way to make sweeping statements on the Pledge.)