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An activist's views on Silveira v. Lockyer
Occasionally I see internet email from the people promoting the Silveira v. Lockyer case - they ask for money to help move this case forward, reminding me that they are "down to the bottom of the barrel". Accordingly, I've tried to formulate an opinion of my own on this effort vying for USSC cert.
The result? I could not. I quickly realized that I am not qualified to determine the merits (or lack thereof) of this case which may affect the firearms rights of all gun-owners now and in the future. The issues that arise in such venues are complex by any standard, and the interpretation of relevant facts and their presentation to the USSC are crucial to the outcome. It would take great experience with the USSC and a firm foundation in the history of our beloved amendment to accurately determine the answer I searched for.
Naturally, I turned to those experts who have proven themselves over many years of dealing with gun-rights issues successfully, Individuals I have come to trust without question, names such as Stephen Halbrook, Dave Kopel and Chuck Michel. I consider these professionals beyond reproach in their dedication to our freedoms and greatly respect their analytical skills in such matters. Well, in such highly-respected scholars I found sufficient information on which to form my own lay-person opinion.
I learned that virtually every credible Second Amendment expert has fundamentally (and some very vocally) expressed that Silveira is very bad case law on which to base the future of the Second Amendment. The case has been promoted by RKBA neophytes and if granted cert, stands likely to irrecoverably damage the Second Amendment. I constantly remind myself that there is no appeal to a USSC decision.
Some links for your edification...
- Dave Kopel: The Silveira Threat
- NRA/CRPA Attorney Chuck Michel on Silveira
- CRPA Supports Appropriate 2nd Amendment Cases. Silveira Is Not The Right Case
- CRPA Files Amicus Brief In Ninth Circuit Second Amendment Case
"...Silveira v. Lockyer is a Second Amendment lawsuit which has, according to Gun Week (Sept. 1) "gained almost cult status among gun owners." This status is mostly to the benefit of the gun-prohibition lobby, for Silveira has already seriously harmed Second Amendment rights, and the damage may not be over..."
"...The complaint blew its credibility on at the very beginning, opening with a fabricated quote attributed to Hitler. The quote has been circulating among gun activists for years, but scholars who have examined German newspapers... have found no evidence that the quote was actually uttered... the quote is phony..."
"...The Silveira complaint further damaged its credibility by shoe-horning an overwhelming number of claims into the suit, including a challenge to the California system for discretionary issuance of concealed-weapons permits. Courts often consider such scattershot complaints as the mark of cranks, and not as persuasive legal argument...."
"...the attorney who filed [Silveira v. Lockyer] said he felt it was necessary because the NRA was not doing anything to fight the "assault-weapon" law. Aside from the fact that NRA and California Rifle and Pistol Association unsuccessfully sued against the ban in 1990-92 (Fresno Rifle & Pistol Club v. Van de Kamp), a new NRA-CRPA-supported lawsuit was being prepared when the Silveira lawsuit was filed... It has survived two attempts by the DOJ to have it dismissed, and is now moving toward trial..."
"...According to Chuck Michel, a former Los Angeles district attorney who now specializes in firearms law, when he and other attorneys experienced in Second Amendment litigation learned of the Silveira case, they contacted Gorski. They informed Gorski of the pending Fresno district-attorney lawsuit to challenge the "assault-weapon" ban. They also advised Gorski about the notorious institutional hostility to the Second Amendment in the overwhelmingly leftist Ninth Circuit. They explained that there was a nationwide strategy by the pro-self-defense community to advance the Second Amendment and fight repressive gun-control laws. The expert attorneys urged Gorski to dismiss the Silveira case, but he refused..."
"...Many of the Silveira plaintiffs - mostly rugby buddies of Gorski - may not have had a legally sufficient interest in the issues presented to have legitimate "standing" to bring the case in the first place... the antigun trial judge took the marvelous opportunity created by the Silveira case to render an opinion that would harm the Second Amendment..."
"...portions [of Silveira v. Lockyer] are fanciful, at best, such as Gorski's argument that because the California constitution explicitly recognizes the United States Constitution as "the supreme law of the land," California "thereby incorporated the Second Amendment into its own Constitution."..."
"...Factual arguments about the non-dangerousness of "assault weapons" often appeared without supporting citation - even though there are many books and law-journal articles which could have cited..."
"...Not all of the Silveira appellate brief was written in standard English: ...whether the state of California can ban all firearms, and confiscate those in possession of its citizens, such as what just happened in Australia. Understandably, there is no citation for "such as what just happened in Australia," because Australia has banned and confiscated only some firearms, not all firearms. The phrasing might be acceptable in a letter to the editor of a gun magazine, but is not appropriate in a federal appellate court brief which expects to be taken seriously...."
"...The California Department of Justice filed its opposition brief. Then, Gorski did not file a reply brief in response to the DOJ's brief, although he was entitled to do so...."
"...the Silveira attorney led with his (and our) chins. He brought a foolish case, and persisted even when it was clear that he had no reasonable chance of success on appeal. His failure to file a reply brief was terrible. The fruit of his labor is a horrendous Ninth Circuit opinion which will harm the Second Amendment for years to come..."
"...Silveira and cases like it are worse than playing Russian Roulette with our freedoms, and the freedoms of our heirs. With Russian roulette, the odds of not getting harmed are 5/6. The odds are much worse in Silveira, with the only question being the type of self-inflicted damage...."
"...In the coming decades and centuries, our children and our children's children will not care if the Supreme Court decisively vindicates the Second Amendment in 2004 or 2008. They will care only if we win, whenever it happens. But if the wrong case results in a devastating Supreme Court decision, future generations will live with the consequences, and they will justifiably blame the men who ended up helping the gun-prohibition lobby..."
In the face of such overwhelming condemnation by well-respected Second Amendment scholars, I have concluded that the Second Amendmnt is best served if Silveira v. Lockyer does not appear before the Supreme Court of the United States, and that such matters are best left to those empowered and trusted by the fireams community at large.
Mike Haas
NRA Benefactor Member
CA NRA volunteer
Author, Haas' Guide to Small Arms Ammunition
http://AmmoGuide.com/
Mike Haas is an NRA Benefactor Member and Senior Software Engineer by trade. Volunteer efforts include: creator and webmaster of NRAWinningTeam.com; webmaster, NRAMembersCouncils.com; past member of the NRA Nominating Committee; NRA-ILA Election Volunteer Coordinator (EVC) for CA 7th Congressional district; president of the NRA Members' Council of West Contra Costa County; administrator of the California NRA Members' Councils email list.