Potentially Historic Second Amendment Lawsuit Petitioned to Supreme Court (Silveira)

KeepAndBearArms.com ^ | July 3, 2003 | KeepAndBearArms.com

[mvpel]

Silveira v. Lockyer lawsuit could settle decades of controversy

FOR IMMEDIATE RELEASE July 3, 2003

CONTACTS: Gary Gorski, Attorney for Plaintiffs Cell: (916) 276-8997 Office: (916) 965-6800 Fax: (916) 965-6801 Angel Shamaya, director, KeepAndBearArms.com Office: (928) 522-8833

A Second Amendment lawsuit was petitioned to the U.S. Supreme Court today -- just in time for Independence Day. The case Silveira v. Lockyer, which originated in the U.S. District Court for the Eastern District of California, was previously appealed to the U. S. Ninth Circuit Court of Appeals, resulting in a deeply divided ruling. The lawsuit seeks to address at least two specific aspects of the Second Amendment, namely: does the Second Amendment apply to the states in the same way that the First, Fourth, and Fifth amendments apply, and does it guarantee an individual right, in the same manner as those other amendments to the Bill of Rights.

The case began when several plaintiffs in California decided to challenge a state gun control law, enacted by the Democrat-controlled legislature of that state, that affected their freedom to own and use certain firearms.

Lead attorney for the lawsuit, Gary W. Gorski, says the law clerks and Justices will note the care, depth, and thoroughness that went into preparing the Petition for Writ of Certiorari. "Hundreds of hours went into this Petition,” says Mr. Gorski. “Centuries of legal scholarship tell us that our Bill of Rights is primarily a document protecting individual rights.” He added, "It's time to put an end to the flawed jurisprudence stemming from blatant disregard for our right to own and use firearms. We believe the Court must finally do the right thing by hearing this vital case."

Gorski says the National Rifle Association is not involved in the lawsuit. He praises another national grassroots organization for great help in preparing the case. "KeepAndBearArms.com's director Angel Shamaya and two key Advisors, David Codrea and Brian Puckett, deserve appreciation for their extensive help in getting us to this point." Gorski also benefited from "amazing constitutional scholarship and knowledge of appellate law" from a "gifted attorney who prefers to remain anonymous."

Gorski filed the Silveira v. Lockyer certiorari petition just before July 4th, as he believes Independence and the Second Amendment are cousins. "Our nation's Founders knew exactly what they were doing when they put the 'gun clause' right next to the 'free speech and religion' clause," says the California-based attorney. "After fighting a bloody war for freedom, of course they meant 'the people' when they penned the Second Amendment. Unfortunately, many politicians today no longer understand the importance of freedom. And millions of innocent Americans face potential prison sentences for merely exercising their constitutional right, and their natural right of self-defense. We think the Justices will review our Petition and realize that this hearing is long overdue."

The last time the Supreme Court ruled on a Second Amendment case was in 1939, in United States. v. Miller.

Gorski believes the high court will announce in early October whether or not it will hear this case. "Until then," he says, "we've have a great deal of work to do to prepare our brief and oral arguments. This is one of the most important things I've ever been involved in -- I'm committed to doing it right, and doing it well."

[Atlas Sneezed]

"Oh, OK. Well, I'll keep an eye on the paintball courses, then. Sounds series."

You might think this is cute, but notice how your Freeper humor fell like a lead balloon.

PS: Why does your breath smell like jackboot polish?

[Garrisson Lee]

The Republic would be doomed.

Would be?

Where have you been?

[Atlas Sneezed]

"When was the last time someone got away from a SWAT team surrounding them?"

Probably not often, but then again, when was the last time SWAT team members worried every time they walked from their cars to their front doors, "feeling the cross hairs on their backs"?

(Paraphrased from "Enemies Foreign and Domestic")

[Atlas Sneezed]

"And just when we're seeing _some_ progress, as with the Minnesota CCW law just passed."

Right. The Legislature rules for the peoples' rights (increasing fees and bureaucracy). The bureaucrats and other elected officials openly plan to violate the law, and the judicial branch can be counted on to ignore the law, and uphold the rights of the bureaucrats.

[Atlas Sneezed]

"Has not that right already been taken from you?"

You misunderstand what is a "right."

A right may be infringed (such as when the SWAT team kills an innocent person) but that person was not without the right to life, any more than I have the right to my property, even if a burglar violates it.

And the means to SECURE FREEDOM (the two most important word roots in the second amendment) have not yet been fully denied. But wise citizens know that the time to defend your liberty is before you have lost the means to do so.

[45Auto]

Perhaps I should rephrase that - The Repubic has been replaced by a mutant Socialist Welfare state in which "All animals are equal, except some animals are more equal than others." I should have used a time-frame to qualify my response - the Republic is going to hell at 100 mph instead of 55 mph. And these Scotus decisions are taking us there faster.

[Atlas Sneezed]

"The "out of my cold, dead hands" folks scare the crap out of me. They alienate the very group of people we need to keep our firearms with their poisonous rhetoric. It's not that group who are working to pass laws like the new CCW laws in Minnesota."

You may be right, but there is some benefit (which the founders must have intended) that those who wield power have it in the backs of their minds that there are undoubtedly a significant few who indeed are willing to take the untimate risk to deter or respond to tyranny. It might even affect the Supreme Court's decision (see my earlier post.)

[MineralMan]

"Over ten million hunters armed with scoped deer rifles take to the woods every Autumn. Something to think about."

Including me. Something to think about. Your little T-shirt is an insult to our right to vote. I am not impressed.

[Atlas Sneezed]

"I prefer to have every politician worry that 100,000 may sneak into Washington DC over night."

You don't need to think so grandly. The British Empire was hobbled for decades by less than 100 IRA fighters.

[Atlas Sneezed]

"If you say "out of my cold dead hands" often enough, someone might start thinking about taking you at your word."

You mean a potential tyrant might fear the consequences and be deterred by tyranny.

[45Auto]

TEN REASONS WHY THE SUPREME COURT SHOULD HEAR
SILVEIRA V. LOCKYER and DECIDE THERE IS AN INDIVIDUAL
RIGHT TO KEEP AND BEAR ARMS UNDER THE SECOND AND
FOURTEENTH AMENDMENTS

May 28, 2003

KeepAndBearArms.com — Some people argue that the U.S. Supreme Court will refuse to hear the
Second Amendment case Silveira v. Lockyer, which will be appealed from the Ninth Circuit Court in
California. Here are ten (and more) reasons why we think they are wrong, and why you should support
the Silveira case as a rare and important opportunity for success.

(1) The Supreme Court has not heard a case on the fundamental right to keep and bear arms
since United States v. Miller in 1939 — 64 years ago. The Court hears First, Fourth, Fifth,
and Sixth Amendment cases virtually every year. And if only four of the nine Justices decide
to hear the case, it will be heard.

(2) There are conflicts between federal circuit courts that need to be resolved by the Supreme
Court. The Ninth Circuit Court's ruling in Silveira is directly contrary to the Second
Amendment findings in the Emerson case from the Fifth Circuit Court. Furthermore, six Ninth
Circuit Court judges dissented in Silveira because they thought Judge Reinhardt's ruling on
the Second Amendment was wrong. Six dissents are rare and a huge factor in the U.S.
Supreme Court deciding to grant certiorari (to hear the case). Those six votes in Silveira may
be the most important votes for the individual right to keep and bear arms in the entire past
one hundred years.

(3) The conflict of circuits is long-standing, another factor in granting certiorari. Emerson
conflicts with the First, Second, Third, Fourth, Sixth, Seventh, Eighth, Tenth, and Eleventh
federal US Courts of Appeal. The Supreme Court may have refused to hear Emerson because
the certiorari petition (the formal request that the Supreme Court hear a case) focused
primarily on the commerce clause, instead of the Second Amendment right to keep and bear
arms.

(4) The certiorari petition in Silveira is thorough and complete but for minor edits and
additions. Hundreds and hundreds of careful hours of research and writing have gone into this
important project. It cleanly presents the clear Second and Fourteenth Amendment rights of
individuals to keep and bear arms for family, home, business, and community defense. It is a
civil case, not a messy criminal defense. And it does not have wasteful side arguments that
clutter other firearms litigation.

(5) Extensive modern scholarship suggests that Emerson and the dissenting views in Silveira
have the better argument regarding the meaning of the Second Amendment. The Silveira
certiorari petition references over twenty of the relevant books and articles, and develops the
points succinctly.

(6) Since 1939 the Miller case has been cited to support negative decisions in every federal
circuit but the Fifth in Emerson. The Silveira cert petition exposes the poor reasoning of
Miller thoroughly and asks that those parts of it that are historically and constitutionally wrong
be overruled.

(7) Silveira presents the Supreme Court with an opportunity to write on a clean slate, to
overrule Miller, and to overrule Presser v. Illinois, which refused to apply the Second
Amendment to the States. There is an overwhelmingly powerful argument on our side: the
Fourteenth Amendment, and the fact that most of the "individual right" amendments have
been ruled as applying to the states. For example, Massachusetts cannot deny its citizens
freedom of the press, because they are protected by the First Amendment; nor Wyoming
force its citizens to testify against themselves, because they are protected by the Fifth
Amendment.

(8) The lower court decision in Silveira was written by the most-reversed federal circuit
judge, Stephen Reinhardt, a notorious liberal activist judge. The dissents, however, were
written by several very well respected circuit judges: Kozinski, Kleinfeld, and Gould, and
joined in by an unusually large group of additional dissenters. They send a strong message to
the Supreme Court to hear Silveira and reverse Reinhardt.

(9) Specific detailed issues about different kinds of firearms, i.e., what the anti-gun crowd
mendaciously calls "assault weapons", are reserved for trial by the Silveira certiorari petition,
since there has been no trial to determine facts as yet. The Supreme Court is not a trial court
and will only hear the fundamental constitutional questions raised by the Silveira certiorari
petition — that is, does the Second Amendment, like so many other Amendments, apply to
the states? And is it an individual right, like all the other rights spoken about in the Bill of
Rights? These questions have become extremely important in both legislation and in politics in
the last few years. The Court will have to deal with them -- and we believe they will deal with
them now, rather than later.

(10) The certiorari petition, brief and other materials in Silveira make a deliberate, carefully
crafted effort to persuade all nine Supreme Court Justices of the need to recognize a strong
individual Second Amendment right to keep and bear arms. Arguments are being developed
that should resonate with the various viewpoints held by the different Justices. The individuals
working on Silveira have decades of experience in Bill of Rights litigation before the Supreme
Court with a great deal of success in other very difficult areas of law. Earlier Second
Amendment activists largely slept through the civil rights movement and made no progress at
all for individual Second Amendment rights until Emerson. Every effort is being made to
present the Silveira arguments in ways that maximize prospects for success.

[Atlas Sneezed]

"...the right to travel freely is part of the right to pursuit of happiness."

I disagree. It is about liberty. I understand that the "pursuit of happiness" referred to the chance to try to prosper and generate wealth and confort.

[mvpel]

Right now, the SCOTUS would almost certainly rule with the 9th Circuit, based on the arguments presented in that case. I could almost guarantee it.

The Ninth Circuit ruled that "the people" means "the National Guard," and said that individuals don't have standing to bring Second Amendment challenges. The depth of reasoning in the Ninth is a backyard puddle, when compared to Second Amendment reasoning in the Fifth.

I think this case has a shot, even though I don't think it was the best one to bring to the SCOTUS, on the basis of the traditional weakness of the Ninth's judicial reasoning, which was also reflected in their opinion on this case..

[Atlas Sneezed]

"The Liberator" Now, there you go. A tin pistol that takes ten seconds to load a single round. The "Liberator." A mass-produced zip gun more likely to injure the holder than the target. Sheesh! What a useless little tin toy. Surely you can do better than that.

Point thoroughly missed! The Liberator is an example of how even the worst tool is better than none, and was considered worthy to sow in an opressed nation to help the fight for freedom. Reconsider the name.

Read this:
What good can a handgun do against an Army?http://www.freerepublic.com/focus/news/659714/posts

[Atlas Sneezed]

"Of those 1,000,000 manufactured, I wonder just how many were ever used."

You talking about MX cruise missles?

[Atlas Sneezed]

"I'm not willing to charge headlong into deadly armed conflict with the government"

Can you imagine the circumstances when you would? If so, make a commitment to yourself. Otherwise, cowardice will be too compelling.

[MineralMan]

"You may be right, but there is some benefit (which the founders must have intended) that those who wield power have it in the backs of their minds that there are undoubtedly a significant few who indeed are willing to take the untimate risk to deter or respond to tyranny. It might even affect the Supreme Court's decision (see my earlier post.)"

I doubt that very much. I suspect that the Justices are not afraid of being shot. I suspect further that they will not hear this case at all, nor any other case that requires them to rule on a basic interpretation of the 2A.

Instead, I suspect they'll pass on this case, making the 9th Circuit's decision re: California's "Assault" weapon laws stand as it is. They don't have to rule. The CA law stays in force, and things stay as they are.

That's my opinion of what they'll do. If they do take the case, however, your side will lose once and for all. While they may, indeed rule that there is an individual right, rather that a collective right, they'll also rule that states may restrict that right in certain ways. That will leave the CA law in place. Again, no change, and things stay as they are.

However, consider what might happen if they simply upheld the 9th Circuit's decision and denied that there is an individual right to bear arms. Then, we all lose. There would be no violent overthrow...there aren't enough people who care enough to carry it out.

This is a bad case brought to the court at a bad time.

[mvpel]

Yes, I can imagine the circumstances. I just don't make a point of yakking about them in public.

[MineralMan]

"Point thoroughly missed! The Liberator is an example of how even the worst tool is better than none, and was considered worthy to sow in an opressed nation to help the fight for freedom. Reconsider the name. "

I could find no reference to any actual use of the Liberator. Not a single one. Do you know of one?

[mvpel]

One interesting possibility that a friend of mine puts forth, though he's admittedly biased, is that the Ninth Circuit could agree to hear en banc the Nordyke v. King case and reverse the Hickman decision on the Second Amendment issue, and then moot the Silveira case.

There's a lot of possible paths from here on out.