Posted on 06/16/2003 7:57:33 AM PDT by ezo4
For you: a bit of philosophia from a Japanese air rifle manual, as frequently quoted by a pal of mine:
It does the operator well to remember that the screw that tightens the mechanism is also that which loosens it....
-archy-/-
WAR IS PEACE
FREEDOM IS SLAVERY
IGNORANCE IS STRENGTH
That's the nation we rose up against and defeated in battle.
We established the Second Amendment to insure our ability to rinse, repeat if necessary.
Memo to confiscators: expect ammo first.
The right of the people to keep and bear arms shall not be infringed.
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 5981 SILVEIRA v. LOCKYER 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 5982 SILVEIRA v. LOCKYER 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 5983 SILVEIRA v. LOCKYER 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.
Kozinski for Supreme Court Justice!
How different things would be if other judges were as familiar with history and the origins of our political system as this brilliant jurist.
Three years ago if you had asked me when my novel would be available, I would have said "2002."
At every stage and level, it has taken MUCH longer than I had predicted.
I sure wish I could meet this guy.
He's usually as the Knob Creek machinegun Shoot in Kentucky, not too surprisingly, and is often found around *three toes* Kent Lomont's table display, signing copies of Unintended Consequences. The next MG shoot there is in October, on the 10/11/12th. There's a middlin' fair chance he'll have prerelease copies of his next book there then, or more likely, at the Sopring shoot there next year. And he's most gracious about signing and conversations. [Ask him how his Corvette project is going; he'll chat your ear off....]
-archy-/-
It would be a worthy goal for FreeRepublic to push for his nomination to the Supreme Court.
Another Reason Judge Kozinski Is My First Pick for Supreme Court: Oral Argument in Ruby Ridge Case
-archy-/-
Allow me to unload for a moment.
Here we have a judge - on the 9th Circuit Court of Appeals for God's sake - who actually rules according to the U.S. Constitution - meaning: limited federal powers which may legitimately be used only to protect individual rights. He has a long history of doing so.
So is the national republican party supporting him? Of course not. I forgot, they are too busy pushing hispanic and female judges (who may be completely qualified, but that is not the point) in an attempt to garner demographic blocks which exit polls tell us usually vote for the opposition party. The eastern establishment republicans (that forced the Dole familiy on the nation) are afraid to admit (let alone proclaim) that the concept of Individual Rights and Capitalism is the most moral political-economic system ever devised for the organization of human activity in a social environment. By their silence and without any discussion, they hang their heads and admit that we conservatives are really mean-spirited, insensitive people but hey, we are ashamed of ourselves and really want to change. They believe that if we become racial-quota-pimps like Jesse Jackson, then we can be seen as "good people" after all and it will be OK to vote for somebody with an (R) after their name.
It's pandering, and it's appeasement. And Oh, by the way, it won't work. It never has worked, and never will work. The pubbies (as usual) assume that the opposition is as adrift philosophically as the republican party, but of course that is incorrect. The 'RATS know what they want, and it is you and me.
Until the republican party stands up for the philosophy of capitalism and all it subsumes (liberty, freedom, limited government, and judges like Alex Kozinski who understands why those concepts are moral and will uphold them), then they are nothing more than insignificant little opportunists, and much worse than the democRATS.
As always Jim, thank you for this forum where I can speak (type?) my mind.
Sadly, it seems that way to me as well.
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