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9th Circuit Skirmish Over Second Amendment
Law.com/The recorder ^ | 05-07-2003 | Jason Hoppin

Posted on 05/08/2003 12:26:39 PM PDT by nickcarraway

Despite sniping by six colleagues, Reinhardt's gun ruling stands

With six judges dissenting, the 9th U.S. Circuit Court of Appeals on Tuesday let stand a controversial ruling that found the Second Amendment doesn't give individuals a right to bear arms.

Among the six who argued that the case should be reheard by an 11-judge en banc panel was the staunchly liberal Judge Harry Pregerson. But the yeoman's work in dissent was done by Judge Andrew Kleinfeld, who defended an individual's right to bear arms using the same means Judge Stephen Reinhardt employed in December to shoot it down: by weaving together scholarship, grammar and historical analysis.

"Where the Constitution establishes a right of the people, no organ of the government, including the courts, can legitimately take that right away from the people," Kleinfeld wrote. "All of our rights, every one of them, may become impediments to the efficient functioning of our government and our society from time to time, but fortunately they are locked in by the Constitution against permanent loss because of temporary impediments."

Judge Reinhardt's original opinion in Silveira v. Lockyer, 312 F.3d 1052, clashes with a 2001 ruling from the 5th Circuit, raising the possibility the U.S. Supreme Court will see the need to interpret the Second Amendment and its bearing on gun-control laws.

Like Reinhardt's opinion, Tuesday's main dissent from Kleinfeld exhaustively examined many of the Founding Fathers' words and concepts -- including who, exactly, "the people" referred to throughout the Constitution are -- and the role of the militia.

Kleinfeld argued that the Second Amendment shouldn't be construed narrowly, as that would invalidate many of the Constitution's individual protections.

"If we used the panel's methodology, taking each word according a right in the Bill of Rights in the narrowest possible sense, then we would limit the freedom of 'speech' protected by the First Amendment to oral declamations," he wrote.

Eugene Volokh, a UCLA constitutional law professor and outspoken proponent of the Second Amendment, called Kleinfeld's opinion "very careful and detailed." He pointed out that up until the 5th Circuit engaged in a similarly exhaustive analysis and decided that the Constitution guaranteed an individual, rather than a collective, right to bear arms, no court had ever taken on the task.

The high court declined to review the 5th Circuit's opinion in United States v. Emerson, 270 F.3d 203, and Volokh thinks it will likewise steer clear of the 9th Circuit ruling. Since Reinhardt's opinion came in a challenge to California's assault-weapons ban, overruling it would require the high court to strike down the law, something Volokh doubts the court would do.

But, said Volokh, "Now we really have a debate on the issue."

Pregerson's short, separate dissent said he would have upheld the assault-weapons ban without construing the Second Amendment as just a collective right.

The rhetorical star of the dissenters was Judge Alex Kozinski, who chided Reinhardt's panel for endorsing individual rights in a selective manner.

"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."

Kozinski, who as a child fled Romania when it was under the grip of dictator Nikolai Ceausescu, wrote that American slaves and Holocaust victims could have fought back had they been allowed to own guns.

"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 re-election and silences those who protest; where courts have lost the courage to oppose, or can find no one to enforce their decrees," Kozinski wrote.

"However improbable these contingencies may seem today, facing them unprepared is a mistake free people get to make only once."

He also said the effort Reinhardt expended in doing away with an individual right to bear arms is evidence itself that he was headed down the wrong path. "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."


TOPICS: Activism/Chapters; Constitution/Conservatism; Extended News; Government; Politics/Elections; US: California
KEYWORDS: bang; banglist; constitutionallaw; courts; secondamendment; secondammendment

1 posted on 05/08/2003 12:26:40 PM PDT by nickcarraway
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To: nickcarraway
Read more about this landmark event and support the cause. http://www.keepandbeararms.com/silveira/enbanc.asp

* Click to read the full story and donate *

2 posted on 05/08/2003 12:32:26 PM PDT by CHICAGOFARMER (Citizen Carry)
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To: nickcarraway
That Bastard Reinhardt needs to be impeached.
3 posted on 05/08/2003 12:38:46 PM PDT by Dan from Michigan ("Son, your ego is writing checks your body can't cash!")
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To: nickcarraway
What is the Supreme Court's record on RKBA?
4 posted on 05/08/2003 12:53:46 PM PDT by RonF
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To: nickcarraway
..."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 re-election and silences those who protest; where courts have lost the courage to oppose, or can find no one to enforce their decrees," Kozinski wrote...



I'll have to ask my wife's family about Kosinski.

They too, escaped from Romania and Ceausecu.
Great story.

He sounds like a good man.
5 posted on 05/08/2003 12:53:54 PM PDT by the gillman@blacklagoon.com
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To: nickcarraway
The high court declined to review the 5th Circuit's opinion in United States v. Emerson, 270 F.3d 203, and Volokh thinks it will likewise steer clear of the 9th Circuit ruling. Since Reinhardt's opinion came in a challenge to California's assault-weapons ban, overruling it would require the high court to strike down the law, something Volokh doubts the court would do.

I am unsure this is true the court could remand for evidentiary hearings to determine if the so called assualt weapons conform to the Second Ammendment guarantee as domething suitable for use by a military force which the citizen militia is.

6 posted on 05/08/2003 2:15:12 PM PDT by harpseal (Stay well - Stay safe - Stay armed - Yorktown)
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To: nickcarraway
The high court declined to review the 5th Circuit's opinion in United States v. Emerson, 270 F.3d 203, and Volokh thinks it will likewise steer clear of the 9th Circuit ruling. Since Reinhardt's opinion came in a challenge to California's assault-weapons ban, overruling it would require the high court to strike down the law, something Volokh doubts the court would do.

But, said Volokh, "Now we really have a debate on the issue."

Great, just great. Here we have a Circuit Court which has jurisdiction over 20% of the people in this country stating that the 2nd Amendment is a "collective right" (WTF is that?), and that no individual citizen can ever challenge a gun control law by relying upon the 2nd, because they will lack standing to do so - and screw the facts. This is in complete opposition to the Supreme Court's own Miller decision in 1939 (where the MERITS of the case were hashed out, which by itself indicates that an individual citizen DOES have standing), yet the Supremes won't hear this case because it might mean striking down a law? What? Excuse me? Well, what if the law said that anyone practicing X faith was to be drawn and quartered without a trial - would the Supremes fail to take the case because they might have to strike down a law???

It seems to me that one of the primary things that the Supreme Court should do is to strike down unconstitutional laws. What good is the Court if it won't do that?

Oh, but we get to have a "debate." You all know what this means - lying anti-gunners (/oxymoron) spreading false information about both guns and gun owners in an attempt to defame the latter and cloud the debate on the former; sensationalist press conferences, "news" reports showing full auto weapons when the topic is SEMI-autos, etc. THAT will be the debate, because that has always been the debate, ever since at least the 1930's when machine guns were first regulated.

I really hope that Volokh is wrong, and that the Supremes take the case.

7 posted on 05/08/2003 2:42:13 PM PDT by Ancesthntr
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To: harpseal
See my #7 - comments? And if your scenario occurs, how do you think that the 9th Circus wiggles its way out of showing that the weapons banned are "unsuitable for militia use?" I'd love it if they said that the weapons in question were unsuitable because they weren't full auto or burst weapons like the armed forces have (thus opening up the possibility of buying machine guns without restrictions), but not even the 9th is THAT stupid.
8 posted on 05/08/2003 2:46:31 PM PDT by Ancesthntr
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To: *bang_list
Bang
9 posted on 05/08/2003 4:38:09 PM PDT by Atlas Sneezed (NEO-COMmunistS should be identified as such.)
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To: Ancesthntr
"lying anti-gunners (/oxymoron)"

I think you mean:
lying anti-gunners (/redundancy)
10 posted on 05/08/2003 4:59:38 PM PDT by Atlas Sneezed (NEO-COMmunistS should be identified as such.)
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To: Ancesthntr
"I really hope that Volokh is wrong, and that the Supremes take the case."

I think they just might, because they can rule on the individual right issue without any immediate practical consequences. They simply reverse the dismissal for lack of standing, and let the plaintiff's argue that the ban is a violation of the RKBA. They will lose at trial, and with the 9th, then the SCOTUS can ignore the case because there is no conflict among the circuits,


11 posted on 05/08/2003 5:02:28 PM PDT by Atlas Sneezed (NEO-COMmunistS should be identified as such.)
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To: nickcarraway
Since Reinhardt's opinion came in a challenge to California's assault-weapons ban, overruling it would require the high court to strike down the law, something Volokh doubts the court would do.

That doesn't sound correct. It seem the Supremes could rule that the Second Amendment is an individual right and send the case back to the ninth circuit, then again I am no lawyer, but that statement just doesn't seem correct.

12 posted on 05/08/2003 5:09:57 PM PDT by Always Right
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To: RonF
What is the Supreme Court's record on RKBA?

See THE SUPREME COURT'S THIRTY-FIVE OTHER GUN CASES: WHAT THE SUPREME COURT HAS SAID ABOUT THE SECOND AMENDMENT

13 posted on 05/08/2003 6:27:36 PM PDT by El Gato
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To: Ancesthntr
I really hope that Volokh is wrong, and that the Supremes take the case.

You better not have hope. The supreme court has on numerious occasions just thrown the constitution out the window, and nothing has been done about it. I fear without one more conservative, it would effectivly kill the second amendment forever in practise. I don't trust O'Connor on this. We need at least one more, possibly even 2 to guarantee. If Roe vs. Wade, and affirmative action are still the law of the land, then you should know nothing is sacred to them.

14 posted on 05/08/2003 6:30:01 PM PDT by Sonny M ("oderint dum metuant".)
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To: Ancesthntr
Likewise I hope the Supreme Court will take this case but I have no idea if they will. This is the whole reason the Supreme Court exists. However, by ruling on the standing issue and affirming a right to keep and bear arms by individuals they could avoid striking down teh AWB allowing the ninth circuit to rule that this is a reasonable restriction on that right. They would then have the option of defining the AWB as similar to the prohibiting the shouting of fire in a crowded theatre.
15 posted on 05/08/2003 6:42:16 PM PDT by harpseal (Stay well - Stay safe - Stay armed - Yorktown)
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To: harpseal
Major thing no one sees:

If SCOTUS ruled there was no individual right to bear arms, they would be rewriting the Constitution.

It occurs to me that the power to remove tyrannical government is one of the first things granted to us as US citizen.

If they nuke the 2nd, its time for the Big One and a restart.
16 posted on 05/08/2003 7:43:06 PM PDT by Stopislamnow (A Religion? yah. right.)
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To: harpseal
They would then have the option of defining the AWB as similar to the prohibiting the shouting of fire in a crowded theatre.

If they were intellectually dishonest that is. In reality they are no way similar. Laws that have existed since before the Consitution, laws against murder, rape, robbery, etc, are similar to prohibiting shouting "FIRE!" in a crowded theater. There is no prior restraint on exercise of one's freedom of speech involved, only upon the misue of that freedom. To be similar to the AWB, or any other "gun control", the laws would have to specify that you must undergo a background check before entering the theater, and to have your mouth duct taped shut while watching the movie. The former to "ensure" that you aren't the type that might shout "FIRE" when there is no fire, and the tape to "ensure" that you don't get a "wild hair" and do it anyway.

17 posted on 05/08/2003 7:50:15 PM PDT by El Gato
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To: harpseal
I don't think anyone has tried to ban ugly black vocal cords yet though. Leastwise I saw Al Sharpton shooting his mouth off on TV the other day.
18 posted on 05/08/2003 8:00:27 PM PDT by TERMINATTOR (Don't tread on me!)
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To: El Gato; Stopislamnow
Since when has the court system most especially the ninth circuit been concerned with being intellectually honest.

Now clearlt IMHO if the Supreme Court were to rule there is no individual right to keep and bear arms then I would state that armed resistance to the government was a moral response for someif not many. In short such a ruling by the Supreme Court would be grounds for a Civil War.

19 posted on 05/08/2003 8:01:41 PM PDT by harpseal (Stay well - Stay safe - Stay armed - Yorktown)
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To: nickcarraway
using the same means Judge Stephen Reinhardt employed in December to shoot it down: by weaving together scholarship, grammar and historical analysis.

Reinhardt and "scholarship" in the same sentence?

I think the author of the article might need to look a little closer on the topic of the bona fides that Reinhardt references... er, or originally referenced, like the Bellesiles reference that he pulled in a revision of the decision. Gee, wonder why...

20 posted on 05/08/2003 8:28:09 PM PDT by SteveH
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To: El Gato
the tape to "ensure" that you don't get a "wild hair" and do it anyway.

And the analogy to "gun control" goes farther. Not only could you not shout "FIRE" if there were no fire, you couldn't shout "FIRE" if there was a fire, with the attendent undesirable consequences.

21 posted on 05/08/2003 8:31:02 PM PDT by El Gato
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To: nickcarraway
Eugene media bump.
22 posted on 05/08/2003 8:37:25 PM PDT by Law
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To: nickcarraway
Since Reinhardt's opinion came in a challenge to California's assault-weapons ban, overruling it would require the high court to strike down the law, something Volokh doubts the court would do.

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 re-election and silences those who protest; where courts have lost the courage to oppose, or can find no one to enforce their decrees," Kozinski wrote

Okay then. Eugene Volokh, UCLA constitutional law professor, thinks the Supreme Court is a pack of cowards. We shall soon see how much courage the Supreme Court has.

23 posted on 05/08/2003 10:12:38 PM PDT by Lancey Howard
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To: nickcarraway
This is just another brain fart by a hyper-left wing mongrel. Their graves should be marked as such so that future generations will know where to piss.
24 posted on 05/08/2003 10:43:11 PM PDT by lwoodham
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To: El Gato
I've never seen a law that you cant yell fire in a crowded theatre. That would be nonsense because if there were a fire someone should shout it.... However to shout fire and cause a disturbence with no fire in its self would be illegal, not the word fire.....
25 posted on 05/08/2003 11:50:18 PM PDT by lotus
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To: El Gato
Laws that have existed since before the Consitution, laws against murder, rape, robbery, etc, are similar to prohibiting shouting "FIRE!" in a crowded theater. There is no prior restraint on exercise of one's freedom of speech involved, only upon the misue of that freedom.

Thank you. I get tired of having to point that simple fact out everytime someone trots out that idiotic "Fire" argument.

26 posted on 05/09/2003 5:00:58 AM PDT by RogueIsland
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