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Supreme Court Challenge Looming for California Assault Weapons Ban
Associated Press ^ | May 6, 2003 | David Kravets Associated Press Writer

Posted on 05/06/2003 6:47:44 PM PDT by Z-28

SAN FRANCISCO (AP) - A federal appeals court on Tuesday refused to reconsider its ruling that Americans don't have the constitutional right to own firearms, setting up the possibility of a Supreme Court ruling on the Second Amendment.

The 9th U.S. Circuit Court of Appeals upheld California's assault weapons ban in a 2-1 ruling last December. On Tuesday, a majority of the circuit's 25 active judges declined to rehear the case.

The 9th Circuit's ruling conflicts with a 2001 decision from the 5th U.S. Circuit Court of Appeals that said individuals have a constitutional right to guns. The man who challenged California's weapons ban promised an appeal to the nation's highest court.

"I'll have this filed by the end of the week," attorney Gary Gorski said.

California enacted the nation's first assault weapons ban in 1989 after a gunman fired into a Stockton school yard, killing five children. Several states and the federal government later passed similar or more strict bans.

State and federal laws barring assault and other types of weapons are routinely upheld on grounds that they are rational governmental approaches to combat violence. The Second Amendment has had little, if any, impact on those court decisions - except in the California case.

In dismissing the bulk of Gorski's challenge, the 9th Circuit panel said the Second Amendment was not adopted "to afford rights to individuals with respect to private gun ownership or possession."

The decision was written by Judge Stephen Reinhardt, who noted the Supreme Court's guidance on whether the Second Amendment offers individuals the right to bear arms was "not entirely illuminating." The high court, he said, has never directly said whether the personal right to possess weapons was a constitutional guarantee.

Larry Pratt, executive director of the 300,000-member Gun Owners of America, said he wants the Supreme Court to overturn Reinhardt's decision.

"If Judge Reinhardt prevails, the American people could become subjects of the government," Pratt said.

---

On the Net:

9th Circuit: http://www.ce9.uscourts.gov

AP-ES-05-06-03 1915EDT


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TOPICS: Breaking News; News/Current Events
KEYWORDS: 2ndamendment; banglist
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Comment #41 Removed by Moderator

Comment #42 Removed by Moderator

To: Josef Stalin
One can't have too many guns. :O)
43 posted on 05/06/2003 10:24:33 PM PDT by Mad_Tom_Rackham (Open the pod bay door HAL.)
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To: Joe Brower
I'll do the same, flag you to my *Bang_List pings.
44 posted on 05/06/2003 11:14:33 PM PDT by Travis McGee (----- www.EnemiesForeignAndDomestic.com -----)
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To: JudgeAmint
Longest post? Not even close! But a nice effort, and I read it all. Thanks.
45 posted on 05/06/2003 11:16:45 PM PDT by Travis McGee (----- www.EnemiesForeignAndDomestic.com -----)
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To: Badray
"A federal appeals court on Tuesday refused to reconsider its ruling that Americans don't have the constitutional right to own firearms, setting up the possibility of an xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx uprising by otherwise ordinary law abiding citizens."

46 posted on 05/06/2003 11:20:37 PM PDT by Travis McGee (----- www.EnemiesForeignAndDomestic.com -----)
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To: Dead Corpse
The Second Amendment was written to secure an individual right, against any federal infringement. The contrary dicta from Ninth Circuit's decision is wrong but irrelevant.

Asserting that the decision will necessitate review by the United States Supreme Court because of an alleged conflict with the 5th Circuit is nonsense.

As 5th Circuit Judge Robert M. Parker pointed out in his concurring opinion in United States v. Emerson, "The determination whether the rights bestowed by the Second Amendment are collective or individual is entirely unnecessary to resolve this case and has no bearing on the judgment we dictate by this opinion."

Would you like to make a prediction on what the Supreme Court will do?

47 posted on 05/07/2003 1:15:02 AM PDT by Roscoe
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To: Z-28
Bump for later..
48 posted on 05/07/2003 2:59:25 AM PDT by Drammach
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To: Tench_Coxe; visualops
It should leave no doubt in one's mind why folks like Schumer are attempting to obstruct the appointment of judges to the Federal level. He holds the same view of people that the judges in the majority decision do-mainly, that Americans are serfs, and that average person's 'rights' are only those which their betters suffer them to exercise.

We should also remember that these self-same federal judges pushed for HR 1752 in the 106th Congress, which "preempts state firearm laws by permitting Justice officers of the United States to carry a firearm without a state permit".

So, all 800-odd active federal judges are members of an American elite class who can carry wherever they feel like, but us peasants can't protect ourselves.

A well regulated Militia, being necessary to the security of a free State, the right of the people 800 federal judges to keep and bear Arms, shall not be infringed.

49 posted on 05/07/2003 5:34:59 AM PDT by an amused spectator
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To: Roscoe
Check my 2nd Amendment re-write in post #49. I think we got a winner. ;-)
50 posted on 05/07/2003 5:36:12 AM PDT by an amused spectator
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To: Roscoe
Ah yes.... your old oft shot down canard about the BOR not applying to State regulations. So, when do you Californians vote slavery back in?
Sorry I couldn't help that last one...

As for what I expect out of the USSC... not much. They wouldn't DARE upset the apple cart as much as it needs to be. The CORRECT ruling would be that the 2A protects an individual Right against all infringement. Period. Not just for sportin purposes, not just for personal self-defense, but also as a last line of defense against government tyranny. As stated in several judges dissenting opinions. Due process in criminal proceedings is the only way to strip someone of their Rights, as explcitly stated in the Constitution.

What they will probably do is come up with a decision half way between what people like you want, IE; unrestricted power to ban firearms at the State and local levels, while still trying to maintain the fiction that they believe it is an individual Right.

Pretty piss poor Right if any little tin-horn Mayor can strip that Right from you wit hthe stroke of a pen. It's a top down system that isn't written in greek. Plain language "supreme Law of the Land" and "shall not be infringed" are pretty darn unambiguous.

51 posted on 05/07/2003 5:39:49 AM PDT by Dead Corpse (For an Evil Super Genius, you aren't too bright are you?)
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To: JudgeAmint
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.

It is at this point we start "Voting from the rooftops".

52 posted on 05/07/2003 6:06:12 AM PDT by asformeandformyhouse
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To: Roscoe
As 5th Circuit Judge Robert M. Parker pointed out in his concurring opinion in United States v. Emerson, "The determination whether the rights bestowed by the Second Amendment are collective or individual is entirely unnecessary to resolve this case and has no bearing on the judgment we dictate by this opinion."

I agree with your point that SCOTUS will try to avoid ruling on the individual rights question but also think that issue is much harder to avoid for the 9th Circuit case than it would be for the Emerson case.

53 posted on 05/07/2003 6:15:53 AM PDT by Stop Legal Plunder ("When words are many, sin is not lacking." -- Proverbs 10:19a)
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To: an amused spectator
So, all 800-odd active federal judges are members of an American elite class who can carry wherever they feel like, but us peasants can't protect ourselves.

I'd love to see a Congressman attach a rider to a bill this session that would lift the exemption of federal judges that vote against an individual right. It probably wouldn't fly under equal protection grounds, but the furor over the provision alone would be helpful for pointing out the hypocracies of the left in the debate.

54 posted on 05/07/2003 6:26:46 AM PDT by Stop Legal Plunder ("When words are many, sin is not lacking." -- Proverbs 10:19a)
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To: JMack
No problemo!

Re:

"On this, didn't I hear Ginsburg is getting near retiring? And how old is Stevens?"

I can't say, but the sooner these buggers are history, the better!

55 posted on 05/07/2003 6:37:09 AM PDT by Joe Brower (http://www.joebrower.com/)
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To: tarawa
Wow, tarawa -- that's great! Thanks! Jim March and Angel Shamaya, among others, are truly great patriots in this day and age.

That URL is worth repeating. Check it out, folks!

http://www.thehighroad.org/showthread.php?s=&threadid=21491


56 posted on 05/07/2003 6:52:44 AM PDT by Joe Brower (http://www.joebrower.com/)
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To: Travis McGee
My God, there is hope for the Ninth Circuit....

This guy gets it and this bears repeating, as he is smacking the majority between the eyes with a big stick for their intellectual dishonesty. (It is about as close as a judge can get to calling another judge a dipshit.)

KOZINSKI, Circuit Judge, dissenting from denial of rehearing en banc:

Judges know very well how to read the Constitution broadly when they are sympathetic to the right being asserted. We have held, without much ado, that "speech, or . . . the press" also means the Internet, see Reno v. ACLU, 521 U.S. 844 (1997), and that "persons, houses, papers, and effects" also means public telephone booths, see Katz v. United States, 389 U.S. 347 (1967). When a particular right comports especially well with our notions of good social policy, we build magnificent legal edifices on elliptical constitutional phrases—or even the white spaces between lines of constitutional text. See, e.g., Compassion in Dying v. Washington, 79 F.3d 790 (9th Cir. 1996) (en banc), rev’d sub nom. Washington v. Glucksberg, 521 U.S. 702 (1997). But, as the panel amply demonstrates, when we’re none too keen on a particular constitutional guarantee, we can be equally ingenious in burying language that is incontrovertibly there.

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. As guardians of the Constitution, we must be consistent in interpreting its provisions. If we adopt a jurisprudence sympathetic to individual rights, we must give broad compass to all constitutional provisions that protect individuals from tyranny. If we take a more statist approach, we must give all such provisions narrow scope. Expanding some to gargantuan proportions while discarding others like a crumpled gum wrapper is not faithfully applying the Constitution; it’s using our power as federal judges to constitutionalize our personal preferences.

The able judges of the panel majority are usually very sympathetic to individual rights, but they have succumbed to the temptation to pick and choose. Had they brought the same generous approach to the Second Amendment that they routinely bring to the First, Fourth and selected portions of the Fifth, they would have had no trouble finding an individual right to bear arms. Indeed, to conclude otherwise, they had to ignore binding precedent. United States v. Miller, 307 U.S. 174 (1939), did not hold that the defendants lacked standing to raise a Second Amendment defense, even though the government argued the collective rights theory in its brief. See Kleinfeld Dissent at 6011-12; see also Brannon P. Denning & Glenn H. Reynolds, Telling Miller’s Tale: A Reply to David Yassky, 65 Law & Contemp. Probs. 113, 117-18 (2002). The Supreme Court reached the Second Amendment claim and rejected it on the merits after finding no evidence that Miller’s weapon—a sawed-off shotgun—was reasonably susceptible to militia use. See Miller, 307 U.S. at 178. We are bound not only by the outcome of Miller but also by its rationale. If Miller’s claim was dead on arrival because it was raised by a person rather than a state, why would the Court have bothered discussing whether a sawed-off shotgun was suitable for militia use? The panel majority not only ignores Miller’s test; it renders most of the opinion wholly superfluous. As an inferior court, we may not tell the Supreme Court it was out to lunch when it last visited a constitutional provision.

It is nice to see a Judge that has both balls and intellectual integrity.

57 posted on 05/07/2003 6:56:46 AM PDT by Abundy
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To: JudgeAmint; Squantos; Travis McGee; harpseal
Time to get giddy, and time to reach in our pockets. This may be the case of the century, and these attorneys need all the help they can get.
58 posted on 05/07/2003 7:14:11 AM PDT by TEXASPROUD
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To: JudgeAmint
wow, great post! ....too bad law suits cannot be filed against fed.judges. Criminal charges would be even better. sue every judge who has violated our constitutional rights! ....... or would it be quicker to post all there names and addresses plus the make and model of their cars?.......j/k :]
59 posted on 05/07/2003 7:15:28 AM PDT by gdc61 (the right to keep and bear arms shall not be infringed.)
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To: Abundy
Yessir, that's good writing. Too bad it's in the minority.
60 posted on 05/07/2003 7:25:12 AM PDT by Travis McGee (----- www.EnemiesForeignAndDomestic.com -----)
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