Ninth Circuit denies appeal in Silveira (But 4 judges write impressive dissents!)

The Ninth Circuit Court of Appeals ^ | 5-6-2003 | Various

[Redcloak]

The Ninth Circuit has issued an en banc denial for a rehearing in Silveira v. Lockyer. This was a challenge to the CA Assault Weapons ban.

That the most liberal circuit court in the land would deny a hearing is no surprise. What is surprising is that 4 of the court's judges, including Judge Pregerson, whom Eugene Volokh calls "one of the most liberal judges on the Ninth Circuit -- and perhaps in the whole country", would issue such stinging dissents.

The most thorough of the dissents is by Judge Kleinfeld. Kleinfeld writes...

About twenty percent of the American population, those who live in the Ninth Circuit, have lost one of the ten amendments in the Bill of Rights. And, the methodology used to take away the right threatens the rest of the Constitution. The most extraordinary step taken by the panel opinion is to read the frequently used Constitutional phrase, “the people,” as conferring rights only upon collectives, not individuals. There is no logical boundary to this misreading, so it threatens all the rights the Constitution guarantees to “the people,” including those having nothing to do with guns. I cannot imagine the judges on the panel similarly repealing the Fourth Amendment’s protection of the right of “the people” to be secure against unreasonable searches and seizures, or the right of “the people” to freedom of assembly, but times and personnel change, so that this right and all the other rights of “the people” are jeopardized by planting this weed in our Constitutional garden.

Judge Kozinski writes in his dissent...

My excellent colleagues have forgotten these bitter lessons of history. The prospect of tyranny may not grab the headlines the way vivid stories of gun crime routinely do. But few saw the Third Reich coming until it was too late. The Second Amendment is a doomsday provision, one designed for those exceptionally rare circumstances where all other rights have failed—where the government refuses to stand for reelection and silences those who protest; where courts have lost the courage to oppose, or can find no one to enforce their decrees. However improbable these contingencies may seem today, facing them unprepared is a mistake a free people get to make only once.

Fortunately, the Framers were wise enough to entrench the right of the people to keep and bear arms within our constitutional structure. The purpose and importance of that right was still fresh in their minds, and they spelled it out clearly so it would not be forgotten. Despite the panel’s mighty struggle to erase these words, they remain, and the people themselves can read what they say plainly enough:

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.

The sheer ponderousness of the panel’s opinion—the mountain of verbiage it must deploy to explain away these fourteen short words of constitutional text—refutes its thesis far more convincingly than anything I might say. The panel’s labored effort to smother the Second Amendment by sheer body weight has all the grace of a sumo wrestler trying to kill a rattlesnake by sitting on it—and is just as likely to succeed.

[Redcloak]

Ya gotta love that "rattlesnake" reference!

[Redcloak]

BANG!

[TheDon]

"The Second Amendment is a doomsday provision, one designed for those exceptionally rare circumstances where all other rights have failed—where the government refuses to stand for reelection and silences those who protest; where courts have lost the courage to oppose, or can find no one to enforce their decrees. However improbable these contingencies may seem today, facing them unprepared is a mistake a free people get to make only once."

What a good phrase, "The Second Amendment is a doomsday provision"

[Redcloak]

For your ping list...

[BlueOneGolf]

The American center for Law and Justice is a conservative law group that specializes in Constitutional Law but they mainly focus on religious issues. I sure wish they'd join us and fight for the 2nd Amendment and this case in particular.

http://www.aclj.org

[coloradan]

What a good phrase, "The Second Amendment is a doomsday provision"

Seconded!

[Redcloak]

I'm surprised that we aren't seeing liberal groups joining in. Was it Alan Dershowitz who warned that tortured logic on the 2nd Amendment could harm the others? Undermining the 2nd Amendment with legalistic weasel words invites similar mistreatment of the other 10 Amendments in the Bill of Rights. If "the people" means the states in the 2nd, then why not apply that same definition to the 1st or the 4th? Wishing away one part of the Constitution could get the whole thing wished away. You'd think that liberals would be aware of that.

[Dead Corpse]

"People" hell. Will they ever figure out what "infringed" really means?

[Joe Brower]

I am compiling a list of FreeRepublic folks who are interested in RKBA topics. If you want off my ping-list, just let me know.

Conversely, FReepmail me if you want to be added.

And my apologies for any redundant pings.

[Puppage]

Add me, JB.

[Redcloak]

By redefining what "the people" means, the court never has to get to what "infringed" really means.

[jimkress]

What's the next step in this process? Will it be appealed to the USSC?

[rudypoot]

"People" hell. Will they ever figure out what "infringed" really means?"

Maybe they should learn what a "right" really means.

[Shooter 2.5]

Thanks for the ping.

Hint to California:

STOP DIGGING!

[PhilDragoo]

Alex Kozinski
9th U.S. Circuit Court of Appeals

[Feiny]

I am fairly sure it will be....and with the 9th record for being overturned.....

[Joe Brower]

Done!

[skeeter]

Now the justices are on an anti-tyrant kick. Their epiphany will last just as long as it takes for a democrat to retake the White House.

[metalurgist]

Ping for later. I've got to go rebuild a carb now.