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Plain Meaning Of The 2nd Amendment
www.freepatriot.com ^ | 4 21 04 | Judge Alex Kozinski, Ninth Circuit Court of Appeals

Posted on 04/25/2004 7:51:09 AM PDT by freepatriot32

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.

The majority falls prey to the delusion -- popular in some circles -- that ordinary people are too careless and stupid to own guns, and we would be far better off leaving all weapons in the hands of professionals on the government payroll. But the simple truth -- born of experience -- is that tyranny thrives best where government need not fear the wrath of an armed people. Our own sorry history bears this out: Disarmament was the tool of choice for subjugating both slaves and free blacks in the South. In Florida, patrols searched blacks' homes for weapons, confiscated those found and punished their owners without judicial process. See Robert J. Cottrol & Raymond T. Diamond, The Second Amendment: Toward an Afro-Americanist Reconsideration, 80 Geo. L.J. 309, 338 (1991). In the North, by contrast, blacks exercised their right to bear arms to defend against racial mob violence. Id. at 341- 42. As Chief Justice Taney well appreciated, the institution of slavery required a class of people who lacked the means to resist. See Dred Scott v. Sandford, 60 U.S. (19 How.) 393, 417 (1857) (finding black citizenship unthinkable because it would give blacks the right to "keep and carry arms wherever they went"). A revolt by Nat Turner and a few dozen other armed blacks could be put down without much difficulty; one by four million armed blacks would have meant big trouble.

All too many of the other great tragedies of history -- Stalin's atrocities, the killing fields of Cambodia, the Holocaust, to name but a few -- were perpetrated by armed troops against unarmed populations. Many could well have been avoided or mitigated, had the perpetrators known their intended victims were equipped with a rifle and twenty bullets apiece, as the Militia Act required here. See Kleinfeld Dissent at 5997-99. If a few hundred Jewish fighters in the Warsaw Ghetto could hold off the Wehrmacht for almost a month with only a handful of weapons, six million Jews armed with rifles could not so easily have been herded into cattle cars.

My excellent colleagues have forgotten these bitter lessons of history. The prospect of tyranny may not grab the headlines the way vivid stories of gun crime routinely do. But few saw the Third Reich coming until it was too late. 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. However improbable these contingencies may seem today, facing them unprepared is a mistake a free people get to make only once.

Fortunately, the Framers were wise enough to entrench the right of the people to keep and bear arms within our constitutional structure. The purpose and importance of that right was still fresh in their minds, and they spelled it out clearly so it would not be forgotten. Despite the panel's mighty struggle to erase these words, they remain, and the people themselves can read what they say plainly enough: A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

The sheer ponderousness of the panel's opinion -- the mountain of verbiage it must deploy to explain away these fourteen short words of constitutional text -- refutes its thesis far more convincingly than anything I might say. The panel's labored effort to smother the Second Amendment by sheer body weight has all the grace of a sumo wrestler trying to kill a rattlesnake by sitting on it -- and is just as likely to succeed.

-// posted by The Free Patriot @ 3:49 PM content of this post © the respective author.//-


TOPICS: Constitution/Conservatism; Crime/Corruption; Culture/Society; Editorial; Extended News; Front Page News; Government; News/Current Events; Philosophy; Politics/Elections; US: California
KEYWORDS: 2nd; amendment; bang; banglist; billofrights; california; conspiracy; constitutionlist; control; govwatch; gun; libertarians; meaning; noteworthy; of; philosophytime; plain; the; traitorlist

1 posted on 04/25/2004 7:51:09 AM PDT by freepatriot32
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To: freepatriot32
Gun culture in America is so prevalent that anti gun politicos could not kill gun ownership over night even if the 2A didn't exist. So, instead, they chip away incrementally, all the while believing the 2A is not an individual right. We need a reaffirmation from SCOTUS that the 2A is an individual right. Once this is done, all laws should be reviewed and judged on this basis. Then the debate will be whether or not the country wants the 2A ammended.
2 posted on 04/25/2004 8:09:59 AM PDT by umgud (speaking strictly as an infidel,,,,,,,,,,,,,,,,)
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To: freepatriot32
It's good to know that judges like this are on the bench.

L

3 posted on 04/25/2004 8:22:05 AM PDT by Lurker ("Freedom begins when you tell Mrs. Grundy to go fly a kite"-Robert Heinlein)
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To: freepatriot32
Judge Alex Kozinski, Ninth Circuit Court of Appeals

Hmmm, with all the wacky decisions coming out of the 9th Circus (sic), I can only surmize that they keep this guy locked up in a broom closet most of the time?

4 posted on 04/25/2004 8:23:42 AM PDT by Condor51 ("Diplomacy without arms is like music without instruments." -- Frederick the Great)
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To: **California; *NOTEWORTHY; *bang_list; *libertarians; *gov_watch; *Constitution List; ...
ping
5 posted on 04/25/2004 8:29:48 AM PDT by freepatriot32 (today it was the victory act tomorrow its victory coffee, victory cigarettes...)
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To: freepatriot32
Ninth Circuit hmmm... Perhaps the majority should have applied their own rules regarding plain language interpretations:
“[i]n the statute at issue, Congress left no gap, no silence, no ambiguity, so ‘we must give effect to the plain language that Congress chose.’" Orca Bay Seafoods v. Northwest Truck Sales, 32 F.3d 433, 437 (9th Cir. 1994).
And,
"It is one thing to construe the statutory language "to see whether one construction makes more sense than the other as a means of attributing a rational purpose to Congress." Longview Fibre Co. v. Rasmussen, 980 F.2d 1307, 1311 (9th Cir. 1992). It is quite another to treat the purpose, and not the operative words of the statute, as the law. ... We would be writing a different statute, not just construing it, by "treating the words as having no meaning and looking instead to the values underlying the language to be construed so that we can create law effectuating those values." United States v. Martinez-Cano, 6 F.3d 1400, 1405 (9th Cir. 1993) (dissent); Ocra Bay at 436.
6 posted on 04/25/2004 8:44:10 AM PDT by Abogado
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To: Abogado
As Chief Justice Taney well appreciated, the institution of slavery required a class of people who lacked the means to resist. See Dred Scott v. Sandford, 60 U.S. (19 How.) 393, 417 (1857) (finding black citizenship unthinkable because it would give blacks the right to "keep and carry arms wherever they went"). -Judge Alex Kozinski

The majority on this decision (the targets of Kozinski's dissent) might as well be slavers. Impeach them.

7 posted on 04/25/2004 9:12:44 AM PDT by NutCrackerBoy
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To: freepatriot32
The sheer ponderousness of the panel's opinion -- the mountain of verbiage it must deploy to explain away these fourteen short words of constitutional text -- refutes its thesis far more convincingly than anything I might say.

"If you can't dazzle them with brilliance, baffle them with bullshit."

How true of many courts and lawyers.

FMCDH

8 posted on 04/25/2004 9:18:31 AM PDT by nothingnew (KERRY: "If at first you don't deceive, lie, lie again!")
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To: freepatriot32
Thanks for the post. Adios
9 posted on 04/25/2004 9:34:13 AM PDT by neverdem (Xin loi min oi)
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To: freepatriot32
The best argument I have heard yet, in defending the plain language interpretation of the Second Amendment, went something like this:

"The people" who have the right to keep and bear arms, are the same "people" as in "We the people", as in the right of "the people" peaceably to assemble, as in the right of "the people to be secure in their persons, houses, papers, and effects," etc.

To suggest that only the Militia or the Government has the right to keep and bear arms, is to suggest that only the Govt or the Militia has the right to peaceably assemble, or to be secure in their homes, etc., which even the most liberal Judges would be forced to see as an absurdity.

The rule of parallel construction demands the plain language interpretation.

FWIW
10 posted on 04/25/2004 9:38:50 AM PDT by moonhawk (Actually, I'm voting FOR John Kerry....Before I vote AGAINST him.)
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To: *bang_list
BANG
11 posted on 04/25/2004 9:41:52 AM PDT by thackney (Life is Fragile, Handle with Prayer)
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To: freepatriot32
"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."
12 posted on 04/25/2004 10:07:06 AM PDT by BenLurkin (LESS government please, NOT more.)
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" . . . tyranny thrives best where government need not fear the wrath of an armed people."
13 posted on 04/25/2004 10:08:05 AM PDT by BenLurkin (LESS government please, NOT more.)
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"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. However improbable these contingencies may seem today, facing them unprepared is a mistake a free people get to make only once. "

Wow!

This Justice understands! The other may also - maybe they dislike the idea of a free people fighting to remain free.

14 posted on 04/25/2004 10:10:41 AM PDT by BenLurkin (LESS government please, NOT more.)
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To: BenLurkin; Beelzebubba
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.

Man, this guy is a fabulous writer!


15 posted on 04/25/2004 10:19:13 AM PDT by Travis McGee (----- www.EnemiesForeignAndDomestic.com -----)
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To: BenLurkin
Wow! What a perfect quote!
16 posted on 04/25/2004 10:42:55 AM PDT by inquest (The only problem with partisanship is that it leads to bipartisanship)
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To: umgud
So, instead, they chip away incrementally, all the while believing the 2A is not an individual right.

Yes, the point needs to be emphasized that the Second Amendment guarantees an individual's RKBA that NO government may infringe.

The Second Amendment applies to State and local governments as well as Federal.

17 posted on 04/25/2004 11:09:59 AM PDT by Ken H
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To: freepatriot32
We need a lot more judges like that.
18 posted on 04/25/2004 11:28:44 AM PDT by Larry Lucido
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To: Jeff Head; Travis McGee
Ping
19 posted on 04/25/2004 11:57:29 AM PDT by Paul Ross (Since when is FLATTENING Fallujah a bad idea?)
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To: moonhawk
The rule of parallel construction demands the plain language interpretation.

It IS plain enough. "shall not be infringed" is very clear. Relying on the introductory phrase to be part of the ammendment and to be a restricting part is not a valid English usage. A similar construction might be:
"The dependence of all living things on photosynthesss being recognized, the right of the people to enjoy the fruits and benefits of photosysthesis shall not be infringed."

In this case it would not matter that all living things don't need photosysthesis, (there are microbes that exist without light). The right to enjoy the benefits of photosynthesis is nevertheless still invoked.

20 posted on 04/25/2004 12:30:20 PM PDT by KC_for_Freedom (Sailing the highways of America, and loving it.)
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To: KC_for_Freedom
Well, I was just tryin' to help. Seems every valid point we can make is a good thing...:0)
21 posted on 04/25/2004 4:17:37 PM PDT by moonhawk (Actually, I'm voting FOR John Kerry....Before I vote AGAINST him.)
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To: freepatriot32
The problem with the 9th Circuit, is there are to many
liberal appointed judges dominated by Carter and Clinton.
The result has been clearly embarrassing. Since the
9th is the largest, I recommend it get split and form
the 14th, of Arizona, Nevada, Idaho, and Montana. As
example: The California election, being ruled
unanimously by a 3 judge panel, then being unanimously
overturned by en banc panel. Wacko, wacko, wacko.
22 posted on 04/25/2004 7:39:42 PM PDT by Smartass (BUSH & CHENEY 2004 - THE BEST GET BETTER)
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To: freepatriot32
Great to know there are some thinking judges out there.
23 posted on 04/26/2004 7:39:34 AM PDT by Triple (All forms of socialism deny individuals the right to the fruits of their labor)
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To: freepatriot32
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).

Click Here

24 posted on 04/26/2004 9:59:56 AM PDT by MileHi (Go, Thune, Go!)
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To: BenLurkin
All the judges sitting on the Federal bench understand what the Second means; its simply that the majority don't like the idea of an armed citzenry having the power to overthrow the government which is their employer. The majority of federal (and most states) judges are corrupt when it comes to the 2nd. I fear they will continue down the same road until the citizens will take no more of their BS. I don't know when this might become the case, but I do think we have passed the point of no return. And its not just the 2nd, but the whole direction of the 'culture war' which is really a civil war that has not yet "gone hot".
25 posted on 04/26/2004 10:09:03 AM PDT by 45Auto (Big holes are (almost) always better.)
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To: Travis McGee
And english is not even his native language!
Kozinski, Alex
Born 1950 in Bucharest, Romania

Federal Judicial Service:
U. S. Court of Appeals for the Ninth Circuit
Nominated by Ronald Reagan on June 5, 1985, to a new seat created by 98 Stat. 333; Confirmed by the Senate on November 7, 1985, and received commission on November 7, 1985.

Education:
University of California, Los Angeles, A.B., 1972

University of California, Los Angeles, School of Law, J.D., 1975

Professional Career:
Law clerk, Hon. Anthony Kennedy, U.S. Court of Appeals, Ninth Circuit, 1975-1976
Law clerk, Chief Justice Warren Burger, Supreme Court of the United States, 1976-1977
Private practice, Los Angeles, California, 1977-1979
Private practice, Washington, DC, 1979-1981
Deputy legal counsel, Office of the Preident-Elect, Washington, DC, 1980-1981
Assistant counsel, Office of Counsel to the President, Washington, DC, 1981
Special counsel, Merit Systems Protection Board, Washington, DC, 1981-1982
Chief judge, U.S. Court of Claims, Washington, DC, 1982-1985


Race or Ethnicity: White

Gender: Male

26 posted on 04/26/2004 4:36:25 PM PDT by TERMINATTOR (Sic semper tyrannis! (Thus always to tyrants!) -John Wilkes Booth)
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