U.S. Supreme Court "Requests" Response from State of California in Silveira v. Lockyer Lawsuit

Keep and Bear Arms ^ | 25 September 2003

[45Auto]

Another interesting turn of events has occurred in the Silveira v. Lockyer Second Amendment lawsuit. Our legal experts advise that this new development suggests that the Supreme Court will probably be granting certiorari in this case -- that they will most likely be hearing the case.

On September 22, the Court issued a "Request for Response" to the Petition for a Supreme Court hearing of this true Second Amendment case -- a "request" that was sent to California attorney general Bill Lockyer and copied to lead Silveira attorney Gary Gorski. (See U.S. Supreme Court docket for Silveira v. Lockyer.) Why is this intriguing? Why does it suggest that the Justices are seriously considering hearing this case?

Let's quickly review the timeline of events surrounding the appeal of the Silveira case to the Supreme Court:

July 3, 2003: Petition for writ of certiorari filed. (Response due August 7, 2003) July 30 - Aug 7: Amicus Briefs filed by Pink Pistols, Women Against Gun Control, Jews for the Preservation of Firearms Ownership, Second Amendment Sisters, Inc., National Rifle Association and Doctors for Sensible Gun Laws, in that order. Aug 7, 2003: Waiver of right of respondent Bill Lockyer, Attorney General of California to respond filed. Aug 20 2003: Petition DISTRIBUTED for Conference of September 29, 2003. Sep 22, 2003: Response Requested [from California, who already waived the right to respond]. (Due October 22, 2003)

California waived their right to respond to the Petition, in essence saying "we'll let this play out without saying anything." One week before the Justices were to have their "Conference" on the case, they told California to respond anyway. They are asking California's attorney general, "Hey, do you agree with this opinion by your judge Reinhardt, or not? What is your position on the arguments in this Certiorari Petition. We're taking this seriously. So should you. Take a position. You've got one month to do so."

The Justices could simply have denied the Silveira petition, like they did in Emerson and Bean. But they didn't. By all appearances, they are thinking, seriously, about granting certiorari.

Disclaimer: Of course it's not a done deal until the Supreme Court says they'll hear the case. Another possibility could be that they want to give California a chance to convince them not to hear it. Or that they want to give an appearance of giving the case serious consideration even though they don't plan to hear it. But why go to that much trouble when they don't have to?

The Silveira legal team believes, as they have for quite some time, that this case will be granted a hearing -- and that the case will be won on at least the two fundamental questions presented. If they are correct, history is about to be made.

Use the menu system in the upper left margin of this page to navigate the Silveira-related pages on this website. The case is a true, pure Second Amendment case that requires answers to two fundamental questions about the Second Amendment:

1) Is the Second Amendment a bar against infringements by the States?

2) Does the Second Amendment confer an individual right?

We already know the truth. The answer to both questions is an unequivocal YES. But these questions need to be answered squarely by the Supreme Court (rather than in mere dicta). Unlike the other Second Amendment cases petitioned to the Supreme Court by "gun rights leaders" since 1939, there's no wiggle room to avoid answering those questions; they must be answered if this case is heard. Liberty is on the line. Does the rule of law still apply, or has the federal government nullified the Bill of Rights? We may soon find out. And it's about time.

[45Auto]

Interesting development.

[Dog Gone]

We need a case which extends the Second Amendment to the states. This would be an excellent case for that purpose.

[freedomcrusader]

So when do they decide whether to take the case?

[BCR #226]

Bump for a read... very interesting...

Mike

[ambrose]

ping

[Kadric]

The SC has got to take the case due to a conflict between 2 Circuit Courts the 5th in Emerson declared the 2nd Amendment a individual right now the 9th has declared it is not. This is the basic job of the SC to resolve conflicts in judgments of the various circuits. If the SC does not hear the case then they open the door for someone to challenge on the grounds that the laws are confusing and not easily under stood.

I'm not about to guess what their ruling would be in the case though.

[Congressman Billybob]

This is a VERY GOOD sign that the Supreme Court has "requested" a response from California to the Silviera Petition for Cert. In only one of my cases has the Court ever requested a response, but then not taken the case.

Although this is a "Request," AG Lockyear in California can read the handwriting on the wall. This step by the Court means that unless California files a brief NOW that satisfies the Court it should not take this case, that at least the four Justices required to vote to take the case are ready to do just that.

The Silveira case has just jumped from the average odds of one chance in 200 that the Court will take your case, to 95 chances in 100 that the Court WILL take the case. I'd call that real progress.

Congressman Billybob

Latest column, "Lessons for Iraq from General Washington, Major Andre, and Der Fuhrer Adolf Hitler," discussion thread on FR. Article is also on ChronWatch.

[Sender]

Well I'll take this as good news, although I will be trembling if the SC actually takes this one on. It could result in a mixture of good and bad.

For instance, I expect that the SC will find that the 2nd does indeed confer an individual right. This would be terrific. But they may also have to respond to the ludicrous examples the left will throw at them such as the right to own tanks, missiles, bazookas etc. They may then find that the states have the right to some sort of "reasonable restrictions" that the left can use to go right back on "assault weapons" etc.

Of course I'm not a lawyer and don't know anything. If the SC ever agreed with the collective right/state militia position over individual rights, they know they'd have a riot on their hands, so hopefully we are safe on the most important point.

[45Auto]

This is what I said on another thread anout this case:

"The 2nd has already been so compromised by the judiciary that they cannot now do the right thing without seriously putting all 20,000 state and federal gun laws under the microscope. Still, a ruling from the US SC that would put the idea that the government MUST demonstrate a "compelling interest" into what the lawyers call "boilerplate", before enacting further gun control would stop a lot of the nonsense that goes on in California and other state legislatures today. The burden of proof would be on the state, not on the RKBA advocates.

When one looks at the case law involving the 2nd or the RKBA that has accumulated over the last century, one is struck by the total unwillingness of the judiciary to define the last four words, i.e., "...shall not be infringed." To my mind, these are the most powerful words in the entire Constitution. They say to me that NO gun control law is constitutional. Even the dicta in Emerson which is pretty good for the RKBA does not address these words. The court cannot define these words in any official capacity - it would negate every gun law on the books. So in my opinion, they will try to stay on the middle ground, if they do agree to hear Silveira. I just don't think they have the guts to take it, nor to rule on the individual right that is the 2nd. The courts including the US SC have been very clever at skirting the heart of many issues; witness the University of Michigan ruling vis-a-vis racial quotas; the court ruled on something other than the Constitution in that one. That ruling essentially nullified the 14th Amendment 'equal protection' clause.

I don't think that even Ginsburg could rule with a straight face that the 2nd refers to a "collective right"; such a thing does not exist in the Constitution, nor anywhere else in founding documents. Therefore, Reinhardt's rambling, constitutionally flawed dicta in Silveira cannot stand. To rule that the 2nd refers to the 'right' of the government to arm the government and not to "infringe" the right of government to be armed by the government is totally nuts. Such a ruling would destroy the entire Bill of Rights and the Republic with it. The ramifications would be so staggering that government could not govern at all.

The piecemeal fashion with which the courts so blithely dismiss the liberty of the Constitution leads to, at best, disdain for the law and, at worst, total contempt and widespread disregard for the law. At the extreme, open rebellion becomes a possibility. Nobody wins in such a case, including the lefties, who must be either very short-sighted, or really stupid: if the 2nd goes, so goes the 4th and 5th.

The ACLU is going to find itself really out on a limb with its @ss in a wringer by its lack of support for the 2nd, indeed, for the entire Bill of Rights because, sooner or later, a ruling that would set in motion a gun confiscation plan would run smack dab into the 4th. What the heck do they think they can do then? The macabre humor of that little scenario tickles me to no end: the ACLU hung out to dry, hoisted on its own petard.

Because the US SC has no guts, they are caught in a dilemma: on the one hand, they cannot rule that the 2nd "shall not be infringed"; on the other, they cannot rule that there is no individual right to keep and bear. So I think they will rule (if they take a true 2nd case) that there is a right to keep and sometimes bear some (but not all) guns.

[therut]

I think this is most interesting. Can't wait to see what the talk will be from Kopel,the NRA, and Eugene Volich(sp) Will have to keep an eye on the Blog sites and see what the gossip is. VERY INTERESTING. Is it wrong to pray for the outcome of a USSC Case???? Well I can ask in good faith I guess.

[45Auto]

There may be some good things to come out of this if the US SC does take the case: One is that I'd like to see that moron, Bill Lockyer, squirm a bit. He (and that dufus governor of ours) has taken the position (and stated it publicly and in writing) that there is no individual right to keep and bear arms.

They used that lie to further their anti-gun agenda in passing unconstitutional gun laws over the last 5 years in Cal. I sure do want to see that jerk b*tch-slapped by the SC! I want to see the official state of California DOJ brief that says there is no individual right. It will be interesting to watch this unfold.

I have some reservations about this case; Dave Kopel and others have opined that it could be bad for the RKBA if the court decides to be tyrannical about it. On the other hand, a decision is long overdue - this issue has been "ripe" for some time. States like California and New Jersey and Illinois simply operate as if there is no Constitutional protection for the ownership of firearms. They pass law after stupid law restricting the ability of the lawabiding to acquire the most effective means of self defense. Once on the books, these laws are almost impossible to repeal. That is why I'd like to see the US SC rule that the states must show "compelling interest" why such laws should be passed. That way the burden of proof would be on the states, not on the RKBA advocates.

[coloradan]

That is why I'd like to see the US SC rule that the states must show "compelling interest" why such laws should be passed. That way the burden of proof would be on the states, not on the RKBA advocates.

Unfortunately, that sets a pretty low bar. Professional liars like the VPC and Arthur Kellerman are only too happy to write "scholarly" or "educational" papers like, a gun in the home is 43 times more likely to kill friend or family than an unknown intruder, a gun in the home triples one's risk of homicide and quintpules one's risk of suicide, and last but not least, for every time a woman uses a gun to kill a criminal attacker, 140 women are killed by guns. It's easy enough to show why these papers are meaningless or deceptive, but there are enough anti-gun legislators at the state level to accept them and enact "compelling need" laws based upon them. Shifting the burden of proof to the antis wouldn't nearly accomplish what you seem to think it would.

(By the way, if "the right to keep arms shall not be infringed" doesn't mean what it says, what does it mean? Answer that, please, SCOTUS.)

[coloradan]

A new development in Silveira vs. Lockyer: The SCOTUS has requested a response from the State of California.

[Atlas Sneezed]

I expect that the SC will find that the 2nd does indeed confer an individual right. ...They may then find that the states have the right to some sort of "reasonable restrictions" that the left can use to go right back on "assault weapons" etc... Of course I'm not a lawyer and don't know anything.

---

Don't sell youself short, Mr. Non-lawyer, because you have described the very most likely scenario.

The SCOTUS will take the case, and will rule that there is an individual right (we "win"). Then, they will remand it back to the lower court to decide whether the law is an "infringment". Of course, the CA court will find it to be "reasonable", and all the appealing in the world won't get SCOTUS to hear THAT issue, until perhaps a few decades go by and a conflict is set up. (This relates to Kopel's point that one wins big wars - like the civil rights litigations of the 50s and 60s - one little well-strategized step at a time.)

SCOTUS can "appease" us without doing one damn thing to change gun laws. And Bush will smile and take some of the glow, as he reauthorizes the AWB.

The brilliance of the anti-gunners is that they have taken such an absurd view (collective right) that has been repeated for decades, knowing that it would be sacrificed some decade. So, they lose that straw man, and keep fighting as they have, having lost no ground at all.

We might as well argue a right to RPG launchers, then bargain down from there. But the NRA knows nothing about activism, and everything about staying connected to the best DC cocktail parties, and keeping the dollars flowing to pay the salaries.

[Sender]

No, it is not wrong to pray for the right outcome :) Lots of people will be praying on this one.

[Sender]

Very shrewd assessment. Well I for one will at least feel a lot better if we "win" the obvious, that the 2nd is individual.

So then the rub is what "infringe" means in this context. Merriam-Webster's dictionary has this definition:

Main Entry: in·fringe
Pronunciation: in-'frinj
Function: verb
Inflected Form(s): in·fringed; in·fring·ing
Etymology: Medieval Latin infringere, from Latin, to break, crush, from in- + frangere to break -- more at BREAK
Date: 1533

transitive senses
1 : to encroach upon in a way that violates law or the rights of another (infringe a patent)

2 obsolete : DEFEAT, FRUSTRATE

intransitive senses : ENCROACH -- used with on or upon (infringe on our rights)

synonym see TRESPASS

Since no one I know uses the word "infringe" in daily conversation (Hey, I don't want to infringe on your lunch hour), we have this fairly clear but easily malleable definition to stare at and think about. It's easy to see how defining "shall not be infringed" is wide open for interpretation and can easily be argued against at its most extreme possible forms, from either side. I can see why the SC has been reluctant to set this in stone.

My personal interpretation is that you have to look at the period in which it was written and the intent and context of the amendment at the time, then project that intent and context onto the present time, given the differences in arms available then and now. They didn't have RPGs and smart bombs and nuclear warheads back then, so of course the authors were not considering them when they penned what seems to be a perfectly sensible statement. But obviously one cannot expect that the 2nd only applies to blackpowder muskets and Bowie knives, which is what the average citizen and militiaman had then, either.

All of which leads us back to the prickly question that the left will insist on being specified, which is, how much gun is too much gun? Does restricting RPG launchers "infringe" upon the right to bear arms? An idiotic example but one which will be thrust in the face of even a sympathetic and knowledgeable judge, and one which really cannot easily be defined. You're right, we will "win" and yet will be right where we are for all practical purposes. *sigh* I need a drink.

[Neil E. Wright]

The Right to Keep and Bear Arms
REPORT
of the
SUBCOMMITTEE ON THE CONSTITUTION
of the
UNITED STATES SENATE
NINETY-SEVENTH CONGRESS
Second Session
February 1982

Printed for the use of the Committee on the Judiciary

Click here to read the report BY THE SENATE that finds an INDIVIDUAL RIGHT to keep and bear arms

"The conclusion is thus inescapable that the history, concept, and wording of the second amendment to the Constitution of the United States, as well as its interpretation by every major commentator and court in the first half century after its ratification, indicates that what is protected is an individual right of a private citizen to own and carry firearms in a peaceful manner."

±

"The Era of Osama lasted about an hour, from the time the first plane hit the tower to the moment the General Militia of Flight 93 reported for duty."
Toward FREEDOM

[Sandy]

Wow. Looks like we may finally get a definitive ruling on the 2nd Amendment by next summer. This is great news.

[Lancey Howard]

BIG BUMP

[NRA2BFree]

Thanks for explaining this! :)