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9th Circuit Court opinion (Silveira v Lockyer) dismisses 2nd Amendment argument
US Court of Appeals 9th ^ | filed 12/5/2002 | Judge Reinhardt

Posted on 12/05/2002 2:34:24 PM PST by Sender

Opinion regarding California AW ban:

...Because the Second Amendment does not confer an individual right to own or possess arms, we affirm the dismissal of all claims brought pursuant to that constitutional provision."

FULL TEXT


TOPICS: Constitution/Conservatism
KEYWORDS: bang; banglist; guns; rkba
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To: FreedomCalls
Yes, the act had a severability clause.
41 posted on 12/05/2002 11:29:03 PM PST by Mini-14
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To: The KG9 Kid
IMO, I wouldn't call this an ideal case. This was a challenge to the gun control statute in California regarding the possession, use and transfer of "assault weapons".

Reinhardt dismissed the plaintiffs' claims "Because the Second Amendment does not confer an individual right to own or possess arms...". The challenge could have involved muskets and the ruling would have been the same -- you don't have the right to "own or possess" any weapon.

Here's the problem. If this goes to SCOTUS, the gun control freaks are going to make this case about the right to own "assault weapons" (the original case) rather than an individual's RKBA.

42 posted on 12/06/2002 6:17:54 AM PST by robertpaulsen
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To: The KG9 Kid
I think you are right, this is a very fundamental test that will have to be taken up by the Supreme Court. That doesn't keep me from worrying about it though.
43 posted on 12/06/2002 6:30:53 AM PST by Sender
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To: Leisler; mvpel
Wow, thanks for posting all the info on past decisions and for adding some real legal thinking here. I'm not a lawyer. I'm just a guy who knows what the Second Amendment means. Gee, that makes me smarter than Judge Reinhardt!
44 posted on 12/06/2002 6:36:48 AM PST by Sender
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To: Bluntpoint
Hey, IMO, the 9th Circuit just did us a big favor - they are gonna force SCOTUS to take on this case and overturn the ruling, thereby establishing precedent that the 2nd A does in fact confer individual rights. Had the 9th Circuit come up with a blander way to impose gun control viewpoints, SCOTUS could have just deflected the issue away like they are prone to do with 2nd A cases.
45 posted on 12/06/2002 7:19:36 AM PST by dirtboy
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To: dirtboy
Hey, IMO, the 9th Circuit just did us a big favor - they are gonna force SCOTUS to take on this case and overturn the ruling, thereby establishing precedent that the 2nd A does in fact confer individual rights. Had the 9th Circuit come up with a blander way to impose gun control viewpoints, SCOTUS could have just deflected the issue away like they are prone to do with 2nd A cases.

Which do you prefer, Emerson or a test of a right to own assault weapons? Had the Bush administration chosen to pursue Emerson, this ruling would never have happened. Considering that, how satisfied are you that the Solicitor General is going to give this case its due?

46 posted on 12/06/2002 7:28:06 AM PST by Carry_Okie
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To: Carry_Okie; Congressman Billybob; Abundy
Which do you prefer, Emerson or a test of a right to own assault weapons?

I prefer to have the most liberal (and overturned) circuit court in the nation parrot the claims of gun-control groups, and in a one-sided flawed decision proclaim that the 2nd Amendment does NOT confer individual rights. I would also like it if all the gun-control groups hitch their wagons to this ruling - so it can pull the collective lot over a cliff when SCOTUS overturns it. The 9th Circuit basically left SCOTUS no choice with the blunt language in this ruling.

Had the Bush administration chosen to pursue Emerson, this ruling would never have happened. Considering that, how satisfied are you that the Solicitor General is going to give this case its due?

It may not even now require the Solicitor General. Both sides are going to want both this case and Emerson appealed to SCOTUS. The long-awaited SCOTUS showdown is, IMO, finally taking shape, and will probably be heard in the 2003-04 SCOTUS session.

47 posted on 12/06/2002 7:34:47 AM PST by dirtboy
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To: Mini-14
Boy, I'll bet there's a lot of cops out there who are going to be really, really pissed off about this. The registration deadline is passed, they can kiss their $1,000 rifles goodbye.
48 posted on 12/06/2002 9:34:23 AM PST by mvpel
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To: dirtboy
The Emerson case was denied certorai - the Supreme Court is not going to review it except in the context of resolving the conflict between the Fifth and the Ninth.
49 posted on 12/06/2002 9:47:53 AM PST by mvpel
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To: Sender
What's also nice about this is that they've laid out all their faulty arguments for us to dissect ahead of time. When Don Kilmer briefed the Second Amendment in the Nordyke v. King case, the Ninth required the briefs to be submitted simultaneously.
50 posted on 12/06/2002 9:49:33 AM PST by mvpel
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To: mvpel
I love how this court simply glossed over the word "keep" in the Amendment that they effectively rewrote.
51 posted on 12/06/2002 9:52:15 AM PST by Dog Gone
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To: mvpel
Another thread on this decision claimed the court agreed the cops COULD keep their rifles. Smoe confusion it seems.
52 posted on 12/06/2002 10:16:44 AM PST by MileHi
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To: MileHi; mvpel
Nevermind. It seems they agreed that cops could own GUNS,just not us everyday peons.

Sorry for the cofusion on my part.

53 posted on 12/06/2002 10:20:31 AM PST by MileHi
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To: Sender
I would say that this ruling is a very good first step in starting an armed revolution
54 posted on 12/06/2002 10:22:37 AM PST by 1redshirt
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To: robertpaulsen
"... IMO, I wouldn't call this an ideal case. This was a challenge to the gun control statute in California regarding the possession, use and transfer of "assault weapons"..."

That's just the response I was waiting for. Come to think of it, I believe that you were also the one of the people whose position on the Emerson threads was that it wasn't 'the ideal case we wanted in front of SCOTUS' either.

The difference is clear: The 5th Circuit Court says that there IS, and the 9th says there ISN'T.

It's not about 'assault weapons' in California.

If not this case, then what case did you have in mind? Are you waiting for Ben and Jerry's Ice Cream to overturn the language in Vermont's state constitution that states that the 2nd Amendment is an individual right before you'd be comfortable with SCOTUS hearing it?

No, really: What did you have in mind?

55 posted on 12/06/2002 10:36:52 AM PST by The KG9 Kid
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To: The KG9 Kid
I gather that this case was argued by an attorney with no Second Amendment experience, and who didn't file supplemental or reply briefs at certain points in the course of the case.

Hopefully this ruling won't spook the Nordyke v. King panel into a poorly-concieved decision.
56 posted on 12/06/2002 10:50:31 AM PST by mvpel
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To: Beelzebubba
A quote from p. 14: "What Miller does strongly imply, however, is that the Supreme Court rejects the traditional individual rights view."

Absolute and complete cow patties.

Not only does _Miller_ say no such thing (nor "imply" it), it actually "strongly implies" the EXACT OPPOSITE.

While _Miller_ is unfortunately ambiguous in some ways (even a lot of pro-gun people misunderstand its implications), what it says is less noteworthy than what it *doesn't* say. When you look at what the Supreme Court chose to *ignore* in _Miller_, one fact is glaringly obvious: The feds in their brief tried to get the Supreme Court to throw out the whole issue on the grounds that Mr. Miller, being a private citizen, didn't even have Second Amendment standing at all, since (they argued) the Second Amendment only applies to formal militias, not individuals.

And the Supreme Court POINTEDLY IGNORED this recommendation. If it had any validity, the Supreme Court would have simply noted that Miller was a private citizen and no part of any organized militia, made a one-paragraph ruling, and knocked off early for lunch.

THEY DID NOT DO THIS.

Instead, they spent a great deal of time (and verbiage) discussing historical contexts wherein members of the *general population* were considered reserve militia members and were expected to be armed and ready for duty.

NOWHERE in _Miller_ did they *ever* discuss, much less even bother to raise, the fact that Mr. Miller wasn't in the National Guard or whatever. THE JUSTICES CLEARLY CONSIDERED THIS NO IMPEDIMENT TO THE SECOND AMENDMENT'S RELEVANCE TO MILLER.

Instead, what they finally hung their decision on was whether or not Miller's firearm was merely *suitable* for militia use. (And again, they pointedly did *not* care whether it was being used *in* a militia, nor whether it was owned/used *by* a militia member.)

The whole "only in a militia" issue the anti-gun people like to claim was NEVER CONSIDERED AN ISSUE WORTH RAISING in the _Miller_ decision. The "strong implication" is that the justices thought it an invalid argument, because had it been an actual legal issue, it would have been *key* in Miller's case and certainly examined in the ruling.

Clearly, in the context of the history lesson in the earlier part of the ruling, the reason the "suitable for use in a militia" criteria was the centerpiece of the ruling was because the justices felt that any private citizen was a reserve militia member, and thus had a right to keep and bear the kinds of arms that would help them be effective if called up for such duty -- just as the founders intended, and just as we've been saying the Second Amendment was written to protect.

Incidentally, here's the part a lot of pro-gun people often get wrong: They often claim that the _Miller_ decision erroneously declared that a sawed-off shotgun was unsuitable for militia use (when it obviously is). But in fact, the Supreme Court *made no such determination*. It merely pointed out that that *was* the issue, declared that it had been given no evidence on that issue (either way), and then kicked the case back to the lower court to make a finding on that issue at a later date. The key phrase in the ruling is:

The Court can not take judicial notice that a shotgun having a barrel less than 18 inches long has today any reasonable relation to the preservation or efficiency of a well regulated militia; and therefore can not say that the Second Amendment guarantees to the citizen the right to keep and bear such a weapon.
The key phrase here is "can not say". That's *not* legalese for "we have determined it's not", that's legalese for, quite literally, "we can't say because we don't know". The "can not take judicial notice" phrase is legalese for "we can't decide on the evidence, because none was given, and the issue is not clear enough that we can decide without evidence". ("Judicial notice" is a legal term for something so indisputably true that no evidence needs to be presented for a judge to acknowledge it -- a "the sky is blue" type thing.)
57 posted on 12/06/2002 10:57:13 AM PST by Dan Day
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To: Dan Day
All this stuff is definitely starting to come to a big frothy head now. Very good point about their analysis of Miller - if he had no individual right to arms, he wouldn't have had standing to challenge the NFA in the first place, and would have lost all the way up instead of winning.
58 posted on 12/06/2002 11:22:41 AM PST by mvpel
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To: Bluntpoint
Oh, so you want to keep the gays limited to screwing in bathouses, eh? You Bigot! </sarcasm, for the sarcasm impaired>
59 posted on 12/06/2002 11:25:48 AM PST by Republic of Texas
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To: The KG9 Kid
The Emerson case dealt with federal law denying guns to those under restraining orders. If the USSC ruled in our favor, what would we get -- that a restraining order should have no bearing on an individual's right to possess guns? Whoop-dee-do. Big victory. We're just right back to where we were before 18 U.S.C. § 922(g)(8) became law.

You want Silveira v. Lockyer in front of the USSC, fine.

You know it's not about "assault weapons". I know it's not about "assault weapons". But that's exactly how Sarah Brady and the anti-gun nazis are going to frame it: "The NRA AND THE BUSH ADMINISTRATION WANT TO LEGALIZE MACHINE GUNS!!". And the press will eat it up because this is for all the marbles, isn't it?

If we lose this one, you can cry about how this wasn't about machine guns, or "assault weapons", or even semi-automatic rifles. By then it's too late.

In the future, if you really want to know what type of case I have in mind, don't patronize me with a Ben and Jerry's example.

60 posted on 12/06/2002 11:49:07 AM PST by robertpaulsen
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