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.

[michigander]

The Supreme Court’s Thirty-five Other Gun Cases: What the Supreme Court Has Said about the Second Amendment

[FreeRadical]

Thanks for including me. I'll welcome your pings.

IMHO: FreeRepublic.com has a wealth of good gun info for good guys and I feel rewarded trying to read, ping and post with intent of maximizing this as a resource.

[Atlas Sneezed]

Time to feed the hogs?

[harpseal]

I am aware of the four judge rule for cert. But it is even less likely for someone to know the minds of the right four justices. :^)

[Atlas Sneezed]

The court has teed up the ball, so that the SCCOTUS can take a swing and hammer it down the fairway. Will they?

At least we have in the dissent all the reasoning needed, from some skilled legal minds, to ensure that the SCOTUS appeal will be as sound as possible.

(Not to undermine the scrappy lawyer who has handled this thus far, but at this point one needs all the help he can get.)

[Atlas Sneezed]

From a KeepAndBearArms.com email alert:

Silveira v. Lockyer case headed to Supreme Court

Correct Second Amendment Ruling at Stake

KeepAndBearArms.com

May 6, 2003

The best possible outcome any of us could have hoped for
has happened in the 9th Circuit Court. The Silveira v. Lockyer
lawsuit is headed for the Supreme Court -- with four judges on
the 9th Circuit stating that the Second Amendment is indeed
an INDIVIDUAL RIGHT.

The naysayers who've criticized KeepAndBearArms.com for
funding this potentially historic lawsuit can scratch their heads
once again. Maybe now they'll help us continue this fight -- or
at least shut up while we do their heavy lifting.

This is national headline material -- as will be evidenced by
numerous newspapers tomorrow. New York Times has already
contacted KeepAndBearArms.com. Silveira attorney Gorski's
telephone has been ringing off the hook. See what Mr. Gorski
has to say about this development. Read the following link for
some of the best Second Amendment news in a long time:
http://KeepAndBearArms.com/silveira/enbanc.asp

One of the judges on our side of this crucial lawsuit wrote a
6-part pro-Second-Amendment opinion that contains 114
footnotes. Find out what he has to say about your rights.
Having such advocacy coming out of the liberal 9th Circuit
Court is indeed a breath of fresh air.

Please let your friends and allies know about this important
development. The future of gun rights in America may hinge
on this very case -- and we have good reason to believe it
will.

We've established an escrow account to raise funds for this
lawsuit. We've invested every penny raised so far -- directly
into supporting the lawsuit -- and every penny raised will be
used ONLY for this lawsuit.

Give online here:
http://KeepAndBearArms.com/donations

Or give by mail here:
http://KeepAndBearArms.com/silveira/mail.htm

More information about the case is here:
http://KeepAndBearArms.com/silveira/scotus.asp

PAY ATTENTION TO THIS:

"The fundraising by KeepAndBearArms.com is essential to
Silveira v. Lockyer and has my backing 100%.”
— Gary Gorski, Attorney for Plaintiffs, Silveira v. Lockyer

[Atlas Sneezed]

From Keepandbeararms:

Silveira attorney Gary Gorski offers the following input on this development:

"Succinctly, this is the best thing that could have happened! 1) It keeps Reinhardt's opinion intact, which can be easily discredited. 2) The dissents will carry a lot of weight.

"The dissents lend credence to the idea that this is too important of a case not to be accepted --- it is their way of telling the Supreme Court, ' we need help here in the 9th'."

When asked when we'd be appealing to the Supreme Court, now that the court has refused a rehearing, Gorski said, "as soon as possible!"

[Travis McGee]

That is some GREAT writing!

[Redcloak]

The AP story on this has been posted here...

http://www.freerepublic.com/focus/news/906743/posts

[Travis McGee]

With the 5th and 9th circuits in direct conflict now, what case is likely to go to SCOTUS

intention.

[Travis McGee]

I mangled that.

Which case the SCOTUS chooses to hear will tell us a lot about their intentions regarding the 2nd amd.

[Joe Brower]

Done!

[Joe Brower]

Done!

[45Auto]

Judge Kleinfeld's dissent is spectacular. His analyses is flawless and very detailed. One of his points just amuses me to no end. He says that the idea of who is included in the unorganized militia is about the same people who are eligible for jury duty! I don't know if the US SC will agree to hear this case; but I was also not aware of just how deep and how thorough is the scission between members of the 9th Circuit. The criticism of the Reinhardt clique by these dissenting judges is awesome.

The dissenters also make a pretty good case for the incorporation of the 2nd under the 14th, so that states like California won't be able to simply deny Constitutional rights on the basis of personal whim of the governor/legislature. A quote form Kleinfeld: "About 20% of the Amercian population, those who live in the ninth circuit, have lost one of the ten amendments in the Bill of Rights."

That seems to me to be a really good challenge to the US SC. Let's hope they pick up the gantlet and do the right thing.

[El Gato]

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

A more up to date analogy might be "The Reset Button of the Constitution".

[El Gato]

Ya gotta love that "rattlesnake" reference!

Do you suppose it would be like one of these?

Or this one, which continues in use, prior to 9/11/01 by the USS Kittyhawk as the ship with the longest total activeservice, but since then by Navy ships fleetwide.

[NovemberCharlie]

One of the judges on our side of this crucial lawsuit wrote a 6-part pro-Second-Amendment opinion that contains 114 footnotes.

I do hope he wasn't the same one who attacked the majority for using excess verbiage.

[NovemberCharlie]

Whew. He wasn't.