Posted on 05/06/2003 1:12:16 PM PDT by 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.
The decision should come a few weeks later in June or early July, unless their decision in Silveira influences the Nordyke case. Hopefully it won't.
It's interesting and encouraging that the research of Jews for the Preservation of Firearms Ownership regarding the impact of gun control laws in Nazi Germany and other totalitarian regimes has gained such currency in the gun control debate that it's alluded to by a Federal District Judge.
HOO YAH!!!!!
But..but ...but, that's why we have a government! To protect us from tyranny! /liberal whining off :-)
That is the only avenue of appeal left open but the big question is "Will the Supreme Court hear this case?" Anyone who says the know is merely spouting meaningless words. It would require intimate knowledge of the thoughts of a majority of the courts justices.
2nd amendment is the doomsday provision in the constitution...
sumo wrestler trying to kill a rattlesnake by sitting on it...
RKBA proponents... this is a fun read.
If they do not, perhaps reliance on the wisdom of the quote in #22 might be in order.
Semper Fi
L
It is wrong to use some constitutional provisions as springboards for major social change while treating others like senile relatives to be cooped up in a nursing home until they quit annoying us.
Indeed.
The Writings of Benjamin Franklin: Philadelphia, 1726 - 1757On the Transportation of Felons to the Colonies
On Transported Felons
From Virginia we hear, that six Convicts, who were transported for fourteen Years, and shipp'd at Liverpool, rose at Sea, shot the Captain, overcame and confin'd the Seamen, and kept Possession of the Vessel 19 Days; that coming in Sight of Cape Hatteras, they hoisted out the Boat to go on shore; when a Vessel passing by, a Boy they had not confin'd, hail'd her, and attempted to tell their Condition, but was prevented; and then the Villains drove a Spike up thro' his under and upper Jaws, and wound Spunyarn round the End that came out near his Nose, to prevent his getting it out: They then cut away the Sails from the Yards, left the Ship, and went ashore. But a New-England Sloop coming by soon after, and seeing a Ship driving in the Sea in that Manner, boarded her, found Things as above mentioned, and carried her into North-Carolina; from whence a Hue and Cry went after the Villains, who had stroll'd along to Virginia; they were taken at Norfolk, and one of them confess'd the Fact; upon which they were order'd up, about two Weeks since, to Williamsburgh, for Trial as Pyrates.
From Maryland we hear, that a Convict Servant, about three Weeks since, went into his Master's House, with an Ax in his Hand, determin'd to kill his Mistress; but changing his Purpose on seeing, as he expressed it, how d ------ d innocent she look'd, he laid his Left-hand on a Block, cut it off, and threw it at her, saying, Now make me work, if you can.
N. B. 'Tis said this desperate Villain is now begging in Pennsylvania, and 'tis thought has been seen in this City; he pretends to have lost his Hand by an Accident: The Publick are therefore caution'd to beware of him.
From Bucks County we hear, that a Convict Servant, one John McCaulefd, imported here last Fall, has broke open and robb'd several Houses, of Goods to a considerable Value; but being apprehended at a Ferry, is committed to Prison.
Yesterday the Trial of Samuel Saunders, for the Murder of Simon Girtie, came on at the Supream Court, when the Jury return'd their Verdict Manslaughter.
"When we see our Papers fill'd continually with Accounts of the most audacious Robberies, the most cruel Murders, and infinite other Villainies perpetrated by Convicts transported from Europe, what melancholly, what terrible Reflections must it occasion! What will become of our Posterity! -- These are some of thy Favours, BRITAIN! Thou art called our MOTHER COUNTRY; but what good Mother ever sent Thieves and Villains to accompany her Children; to corrupt some with their infectious Vices, and murder the rest? What Father ever endeavour'd to spread the Plague in his Family! -- We do not ask Fish, but thou givest us Serpents, and worse than Serpents! -- In what can Britain show a more Sovereign Contempt for us, than by emptying their Jails into our Settlements; unless they would likewise empty their Jakes on our Tables? -- What must we think of that B ----- d, which has advis'd the Repeal of every Law we have hitherto made to prevent this Deluge of Wickedness overwhelming us; and with this cruel Sarcasm, That these Laws were against the Publick Utility, for they tended to prevent the IMPROVEMENT and WELL-PEOPLING of the Colonies! -- And what must we think of those Merchants, who for the sake of a little paltry Gain, will be concern'd in importing and disposing of these abominable Cargoes?"
The Pennsylvania Gazette, April 11, 1751
Rattle-Snakes for Felons
To the Printers of the Gazette.
By a Passage in one of your late Papers, I understand that the Government at home will not suffer our mistaken Assemblies to make any Law for preventing or discouraging the Importation of Convicts from Great Britain, for this kind Reason, `That such Laws are against the Publick Utility, as they tend to prevent the IMPROVEMENT and WELL PEOPLING of the Colonies.'
Such a tender parental Concern in our Mother Country for the Welfare of her Children, calls aloud for the highest Returns of Gratitude and Duty. This every one must be sensible of: But 'tis said, that in our present Circumstances it is absolutely impossible for us to make such as are adequate to the Favour. I own it; but nevertheless let us do our Endeavour. 'Tis something to show a grateful Disposition.
In some of the uninhabited Parts of these Provinces, there are Numbers of these venomous Reptiles we call RATTLE-SNAKES; Felons-convict from the Beginning of the World: These, whenever we meet with them, we put to Death, by Virtue of an old Law, Thou shalt bruise his Head. But as this is a sanguinary Law, and may seem too cruel; and as however mischievous those Creatures are with us, they may possibly change their Natures, if they were to change the Climate; I would humbly propose, that this general Sentence of Death be changed for Transportation.
In the Spring of the Year, when they first creep out of their Holes, they are feeble, heavy, slow, and easily taken; and if a small Bounty were allow'd per Head, some Thousands might be collected annually, and transported to Britain. There I would propose to have them carefully distributed in St. James's Park, in the Spring-Gardens and other Places of Pleasure about London; in the Gardens of all the Nobility and Gentry throughout the Nation; but particularly in the Gardens of the Prime Ministers, the Lords of Trade and Members of Parliament; for to them we are most particularly obliged.
There is no human Scheme so perfect, but some Inconveniencies may be objected to it: Yet when the Conveniencies far exceed, the Scheme is judg'd rational, and fit to be executed. Thus Inconveniencies have been objected to that good and wise Act of Parliament, by virtue of which all the Newgates and Dungeons in Britain are emptied into the Colonies. It has been said, that these Thieves and Villains introduc'd among us, spoil the Morals of Youth in the Neighbourhoods that entertain them, and perpetrate many horrid Crimes: But let not private Interests obstruct publick Utility. Our Mother knows what is best for us. What is a little Housebreaking, Shoplifting, or Highway Robbing; what is a Son now and then corrupted and hang'd, a Daughter debauch'd and pox'd, a Wife stabb'd, a Husband's Throat cut, or a Child's Brains beat out with an Axe, compar'd with this `IMPROVEMENT and WELL PEOPLING of the Colonies!'
Thus it may perhaps be objected to my Scheme, that the Rattle-Snake is a mischievous Creature, and that his changing his Nature with the Clime is a mere Supposition, not yet confirm'd by sufficient Facts. What then? Is not Example more prevalent than Precept? And may not the honest rough British Gentry, by a Familiarity with these Reptiles, learn to creep, and to insinuate, and to slaver, and to wriggle into Place (and perhaps to poison such as stand in their Way) Qualities of no small Advantage to Courtiers! In comparison of which Improvement and Publick Utility,' what is a Child now and then kill'd by their venomous Bite, -- or even a favourite Lap-Dog?
I would only add, That this Exporting of Felons to the Colonies, may be consider'd as a Trade, as well as in the Light of a Favour. Now all Commerce implies Returns: Justice requires them: There can be no Trade without them. And Rattle-Snakes seem the most suitable Returns for the Human Serpents sent by our Mother Country. In this, however, as in every other branch of trade, she will have the Advantage of us. She will reap equal Benefits without equal Risque of the Inconveniencies and Dangers. For the Rattle-Snake gives Warning before he attempts his Mischief; which the Convict does not. I am
Yours, &c.
AMERICANUS.The Pennsylvania Gazette, May 9, 1751
See, how hard was that?
OMG, you mean I'm agreeing with Alan Dershowitz? Sheesh.
This is a perfect distillation of Leftist ideology, and I wholeheartedly applaud the judge who wrote it. I'm delighted to see it stated so directly in a court decision. The whole Leftist point of view is that individuals should be subservient to the collective — the state. Despite their pretense of loving civil liberties, they actually detest the individualist, entrepreneurial, liberty-loving American spirit. Our Constitution, grounded as it is in the rights of individuals over the rights of the state, is an impediment to achieving their ultimate goal: a massive super-collective (world government) that destroys and replaces the concept of nationhood.
These two opinions are at odds as to a definitive meaning to the 2nd Amendment. Both cases will be appealed to the USSC for clarification and ruling. This is the judicial showdown gun-owners have long sought. The Supremes will have to decide the issue of what "the people" clearly will mean.
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