Don Kates on Silveira v. Lockyer

NRA Members' Councils of California ^ | 10/06/2003 | Don B. Kates

[Mike Haas]

NRA Members' Councils of California

Please Distribute Widely To All Gun Owners/Groups
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NRA MEMBERS' COUNCILS OF CALIFORNIA
10/07/2003
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Don B. Kates on Silveira v. Lockyer

SILVEIRA: SECOND AMENDMENT SUICIDE
By Don B. Kates

There is enormous controversy over the attempt to get the U.S. Supreme Court to review the disastrous Silveira case. (Silveira v. Lockyer, 328 F.3d 567; 9th Cir. 2003). I have very strong views on the subject which I shall have to state somewhat simplistically because of word limitations.

The Unsophisticated View and the Wrong View

There are two quite different ideas that are expressed by people who think we should want to have the Supreme Court review Silveira. There are some who naively believe that all we need is one big Supreme Court victory and gun control will go away forever. That is not the way constitutional litigation works at all.

The way it actually works is illustrated by the Jehovah's Witnesses cases of the 1930s and 1940s. In those days the JWs were subject to enormous antagonism because they are pacifists and reject anything they interpret as idolatry to the state. This includes JW schoolchildren refusing to salute the flag, recite the pledge of allegiance, etc. All kinds of laws and police practices were directed against them. They brought not one case but a series of cases to the Supreme Court; and those cases established our modern doctrines of freedom of religion. The first victorious case was a vital first step, but had they only brought that case they would still have been subject to endless harassment under laws that differed from the one that first victorious case overthrew.

In sum, it is hopelessly unsophisticated to believe that one Supreme Court victory is going to make gun control go away...
Read the rest at:
http://NRAMembersCouncils.com/kates/

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[Atlas Sneezed]

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[gbunch]

Good, concise analysis. Thanks for posting it!

[Atlas Sneezed]

Posted October 6, 2003

SILVEIRA: SECOND AMENDMENT SUICIDE
By Don B. Kates

There is enormous controversy over the attempt to get the U.S. Supreme Court to review the disastrous Silveira case. (Silveira v. Lockyer, 328 F.3d 567; 9th Cir. 2003). I have very strong views on the subject which I shall have to state somewhat simplistically because of word limitations.

The Unsophisticated View and the Wrong View

There are two quite different ideas that are expressed by people who think we should want to have the Supreme Court review Silveira. There are some who naively believe that all we need is one big Supreme Court victory and gun control will go away forever. That is not the way constitutional litigation works at all.

The way it actually works is illustrated by the Jehovah's Witnesses cases of the 1930s and 1940s. In those days the JWs were subject to enormous antagonism because they are pacifists and reject anything they interpret as idolatry to the state. This includes JW schoolchildren refusing to salute the flag, recite the pledge of allegiance, etc. All kinds of laws and police practices were directed against them. They brought not one case but a series of cases to the Supreme Court; and those cases established our modern doctrines of freedom of religion. The first victorious case was a vital first step, but had they only brought that case they would still have been subject to endless harassment under laws that differed from the one that first victorious case overthrew.

In sum, it is hopelessly unsophisticated to believe that one Supreme Court victory is going to make gun control go away. What is needed is one really strong first case, followed by another, followed by another, followed by another, followed by another, followed by another, and so on. With the constitutional law thus established we can go on to apply it ever more expansively.

In contrast to the Unsophisticated View, the Wrong View acknowledges that it will take multiple decisions to establish our Second Amendment rights. But its proponents see making an "assault weapon" case like Silveira the first Second Amendment case decided by the Court as a shortcut. They believe (all-too-rightly) that if the Supreme Court will invalidate an AW ban, it will invalidate virtually any other gun control. The problem is that the converse is far more likely: If the Court is given an AW case first, it is very unlikely to decide the case our way and its decision will doom other challenges to other kinds of gun control.

As far as today's judiciary is concerned, AWs are like land mines – things no decent, sane civilian has any reason to own or would want to own. And if their first crack at the right to arms is an AW case they are very likely to decide that there is no such right.

The Curse of the AW

We are not living in 1953 or 1963 or even 1973. Of course, by the last of those years, the military and anything associated with it was in bad repute with many Americans. Nevertheless, the judiciary had at least an elementary working knowledge of firearms. Virtually every judge had been in the service. Most had been in WWII and/or Korea or Vietnam. They knew what an M1 was and an M2 and an M3, and a "Tommy Gun," a BAR, etc. You could not have fed them the atrocious line of demonizing falsehoods about AWs that have been endlessly drilled into today's judges. As many as 90% of today's judges have little or no experience with firearms. And the remaining 10% are knowledgeable only about the guns they own and use – skeet guns, sporting clays guns, etc. As far as they are concerned the only reason one would have an AW is to go on a school playground and shoot down kindergarten children.

Nor am I just spinning some theory here. I am talking about the outcome of actual cases. Of course every lawyer with a long career has lost cases. But until I started litigating AW cases I had a virtually unblemished record, including having invalidated the San Francisco handgun ban in 1982. Since the late 1980s I have been involved in litigating AW cases; half a dozen in California and individual cases in Colorado and Connecticut. Every one has been an utter disaster.

Unlike California, Colorado, Connecticut, Ohio and Oregon used to have right to arms clauses in their state Constitutions. Unlike the phony controversy about the federal Second Amendment, these state right to arms clauses clearly did guarantee an individual right. But in each of those states AW bans were enacted by state or local law and well-meaning lawyers (including me) challenged those AW bans under the clear state constitutional right clauses. Because the clauses were so clear the judges were faced with a clear choice: they could either hold that AWs are constitutionally protected or they could read the right to arms clauses out of the state constitution. And that is what they did. The people of Colorado, Connecticut, Ohio and Oregon still have their state constitutional right to arms, of course – but only as long as no legislative body seeks to ban and confiscate their guns. If a ban is passed as to any kind of gun in Colorado, Connecticut, Ohio and Oregon the likely result of any constitutional attack on that ban is that it will be upheld on the same false reasoning that was used to uphold the AW bans.

Conclusion

The anti-gun lobby has used its falsified hysteria over AWs to incredible advantage. Vast numbers of people, including judges, who recognize the right to choose to keep a handgun in your house for self-defense regard owning an AW as only slightly less looney than insisting you need a bazooka to resist burglars or home invasion robbers.

I am not saying that AW bans can never be overturned under the Second Amendment. But that will only come after a solid basis of Second Amendment law has been established by many prior Supreme Court cases. Leading with an AW case is like "leading with your jaw." It is Second Amendment suicide.

Don B. Kates

[coloradan]

Unfortunately, winning case after case after case seems pretty tough to do, when they won't hear clear cut-and-dried cases like Emerson.

Additionally, the NRA is getting in the way of at least one such case being heard, which is precisely the "keeping a handgun in your house for self-protection." Namely, the CATO case against the Washington, DC, handgun ban. The NRA is supporting a law that overturns the present DC law - hence, the lawsuit will be mooted and no Second Amendment decision forthcoming.

[El Gato]

In sum, it is hopelessly unsophisticated to believe that one Supreme Court victory is going to make gun control go away...

Of course not. But you have to have that first clear victory on the actual issue of the second amendment, not on vageness or even on 4th amendment issues. You have to put that first thread to get the sweater to unravel.

It doesn't really matter at this point if Silveria is the best possible, or even a very good case, it's most likely going to be heard by the Supreme Court. Thus it's time to at least get ready to pitch in to make sure that we win it, and to stop arguing about wether it should have been brought.

There is one large difference between the second amendment and those first amendment cases mentioned. Large fractions, most likely a hefty majority, of the population believes that they have the right to keep and bear arms, while a large majority did not believe that people could use their religion to justify "disloyalty", many still don't. If we can't get the highest court to at least affirm that the second amendment is an individual right, and that the 14th amendment applies it against the states it will be "time". (or alternately that it was applied against the states all along, as several state courts, most noteably the Georgia Supreme Court in Nunn v. State, 1 Kelly 243 (Ga. 1846) had found in the antebellum period.

Later cases can determine what sorts of arms, other than the sorts involved in Silveria of course, are included in the meaning of "arms" in the second amendment. They can also cover under what sorts of "due process" that the right can be denied, and to what extent.

[El Gato]

I am not saying that AW bans can never be overturned under the Second Amendment. But that will only come after a solid basis of Second Amendment law has been established by many prior Supreme Court cases.

If the Second Amendment doesn't guarantee the right own militarily usefull individual weapons, it guarantees nothing at all. It certainly doesn't guarantee a "sporting arm", and even the right to keep and bear an arm for "individual self defense", such as a short barrelled shotgun" or a concealable handgun, isn't going to be a bit easier to justify, since those too have been pretty well demonized.

As to the judges being more sympathetic and understanding in the 60s and 70s, (or even earlier when considering the NFA) where was the NRA then? They were doing the same thing as now, working the politicians and neglecting the courts, except on the peripher of the issue. It's a failed strategy. Yes this case may fail as well, chances are pretty fair that it will, but at least we'll know where we stand. If this case fails, and the AW ban is renewed, or the "enhanced version" is passed, we'll know that none of the three branches of the federal government (nor the "national level of the fourth estate either) is on the side of freedom and the Constitution. Then we'll have to proceed based on that knowledge.

[Shooter 2.5]

The last two Supreme Court Justices were confirmed during the Clinton years. Anyone who wishes a preview of this case only has to look at how the Ohio Supreme Court ruled toward the Concealed Handgun Ban.

[Shooter 2.5]

The NRA fought the Morton Grove handgun ban and when it went before the U.S. Supreme Court, they refused to hear the case.

[KeepAndBearArms]

Kates is going to regret this almost as much as Kopel's going to regret his ignorant, snide rant of two weeks ago.

AW issues are not presented to the S Ct. Only a few basic constitutional questions are presented -- the very questions he wants answered. AWs are for later and trial. Silveira is a first step. Kates is mistating what Silveira is about in a few ways and going from there. And it will go down in history as such, after Silveira is heard and won.

Mike Hass. You're pathetic. If this is the best you ladies can do, the forthcoming reply to Kopel will sail right over your pea brain.

[KeepAndBearArms]

El Gato, who is smarter by a longshot than Mike "trust without question" Haas, said:

"or even earlier when considering the NFA) where was the NRA then?"

The NRA was supporting NFA, my friend. I proved that by use of their own words some time ago:

NRA Supported the National Firearms Act of 1934

A bunch of NRA apologists of Mike Haas' ilk attacked me -- for telling the plain truth. Go figure.

The next report will drive it home even further, using scanned copies of official documents from Congressional Testimony, as found in the Library of Congress by the author of the Silveira certiorari petition.

Keep asking good questions, El Gato. You're head and shoulders above the blind following sheep.

[oldfart]

Bump to keep track of this thread.

[Atlas Sneezed]

Kates is going to regret this almost as much as Kopel's going to regret his ignorant, snide rant of two weeks ago.

AW issues are not presented to the S Ct. Only a few basic constitutional questions are presented -- the very questions he wants answered.

---

Yes, Kates and Kopel are right in principle on Constitutional strategy, but wrong to suggest that this case is the wrong one, or biting off too big of a chunk.

The key is that SCOTUS can rule that it is an individual right, without ruling on whether the ban is an acceptable restriction or a prohibited infringement. California courts will rule that it IS an acceptable infringement, and the Supremes will not take an appeal of that ruling, because there is no forcing conflict among the circuits.

THEN, we win some other local cases elsewhere showing that egregious total bans are an infringement (like DC - cue racial heartstrings.)

Then, with that easier precedent, one can fight the AWBs in certain states, setting up AWB conflicts that force the issue on SCOTUS, which would finally clarify Miller.

I would wager that Kates and Kopel would advise against appealing those later CA losses to the USSC, since the chances of being granted cert are nil, and would create a tiny advantage for the antis in future state AWB cases, by emboldening anti judges.

Scenario:
In 20 years we will probably end up with more legal "freedom", but in a much more strict police state on gun transfers and possession. They may rule that a $200 transfer tax, background check, etc. are acceptable for ALL firearms ownership and possession, and felony prison terms for possessing a gun not so registered. But they might overrule VM 1986, making new machine guns cheap and legal again. "You can have anything you want, but we get a piece of the action, and we know where every gun is for future confiscation if we opt to do that."

[El Gato]

NRA Supported the National Firearms Act of 1934

That they did... However they had a good, if misguided, reason for doing so. They supported the restrictions on machine guns in exhange for the removal from the law, on the same sorts of restrictions on *handguns*. If they hadn't gotten that concession, there'd be no IPSC, no CAS, no PPC, nada, zip, no formal handgun competion. Sure people could afford the $200 tax on a $1000 pistol (but probably not on a $200 .22 pistol, and most especially not on a $100 "Saturday Night Special", aka an affordable self defense tool). However, handguns would be as demonized as machine guns are now. Chances are they'd have been banned for thee and me about the same time new production machine guns were.

While their reason is understandable, IMHO it was a mistake then, and similar "compromises" which gain nothing, but merely lose less than would have otherwise been lost, are not a viable long term tactic. In the end, we still lose.

OTOH, if they'd banned/restricted handguns in '34, they might very well have made it "Time" then or in '39, just as loss of this case coupled with renewal of the AW ban, most especially if it's the "new improved" and much more restrictive version, it may yet become "Time" in the near future.

Kates, Kopel, et. al. are correct in that the risk of the Silveira case is that if we lose, and the chances are fair that we might, it will open the floodgates for new and more restrictive legislation.

Still it would have been nice if the NRA had supported poor old "Miller" back in the late '30s, and at least submitted an Amicus brief, so that the government's side would not be the only side "heard" by the Court. At least this time they've done that much, although I've not read it. Does anyone have links to the various Amicus briefs in the case?

[KeepAndBearArms]

El Gato:

"Does anyone have links to the various Amicus briefs in the case?"

http://KeepAndBearArms.com/Silveira/ is the home page for the entire case -- with a menu system on the left side to navigate.

The Briefs page is here:  http://KeepAndBearArms.com/Silveira/briefs.asp

 

[tpaine]

Conclusion
The anti-gun lobby has used its falsified hysteria over AWs to incredible advantage. Vast numbers of people, including judges, who recognize the right to choose to keep a handgun in your house for self-defense regard owning an AW as only slightly less looney than insisting you need a bazooka to resist burglars or home invasion robbers.
I am not saying that AW bans can never be overturned under the Second Amendment. But that will only come after a solid basis of Second Amendment law has been established by many prior Supreme Court cases. Leading with an AW case is like "leading with your jaw." It is Second Amendment suicide.
Don B. Kates

---

Conclusion:

Kates is indeed claiming "that AW bans can never be overturned under the Second Amendment."

He, and the NRAs' appreasment group, have in effect bought into the anti-gun lobbys falsified hysteria over AWs. He claims that there are:

"Vast numbers of people, including judges, who recognize the right to choose to keep a handgun in your house for self-defense, ---
[yet they,] -- regard owning an AW as only slightly less looney than insisting you need a bazooka to resist burglars or home invasion robbers."

This is rank bulls**t, and hype of the highest order..
With 'friends' like this in the NRA, who needs enemies?

[El Gato]

Thanks, I looked awhile ago, and somehow missed that. I particularly wanted to read the NRA's brief. I'm impressed. They even put forth the so called (by statists) "insurrectionist theory".

I'd start being a little more pleasant in regards to them, were I you, whether they deserve it or not. That doesn't mean you have to agree with them, but disagreements should remain amicable, IMHO of course. I know it can be hard to put aside old animosities, but as Franklin said, "We must all hang together, or assuredly we shall all hang separately". And they are the 800 pound gorilla of the pro arms rights movement and can be a big help, if they choose to be.

[neverdem]

Could you please translate IPSC, CAS and PPC? Thank you. Adios

[El Gato]

Could you please translate IPSC, CAS and PPC? Thank you. Adios

You would ask!
IPSC International Practical Shooting Confederation
CAS Cowboy Action Shooting
PPC Police Pistol Competition (Although originally concieved by NRA as part of its long standing Law Enforcement Training, it's not just for police anymore. It's primarily revolver shooting.

There are other widespread handgun shooting sports, including in the Olympics. I've never done any of the above..yet, and probably won't, the only person I enjoy competing against is me.