9th Circuit Calif. Assault Weapons Ban - Petition for Panel Rehearing En Banc

Attorney for Appellant | Dec 15, 2002 | Gary W. Gorski, Esq.

[Atlas Sneezed]

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

APPEAL No.: 01-15098

CASE No.: CIV S 00 411 WBS/JFM

On Appeal from the United States District Court

Eastern District of California

APPELLANTS’ PETITION FOR REHEARING EN BANC

SEAN SILVEIRA; JACK SAFFORD; PATRICK OVERSTREET; DAVID K. MEHL; SGT. STEVEN FOCHT; SGT. DAVID BLALOCK; MARCUS DAVIS; VANCE BOYES; KEN DEWALD,

Appellants/Plaintiffs,

vs.

BILL LOCKYER Attorney General, State of California; GRAY DAVIS, Governor, State of California.

Appellees/Defendants.

STATEMENT OF COUNSEL AND ISSUES PRESENTED

Pursuant to Fed. R. App. P., Rule 35 and 9^th Cir. Rule 35.2.4, the Panel’s decision beginning on page 23 of the panel decision, entitled, "Appellants Lack Standing to Challenge the Assault Weapons Control Act on Second Amendment Grounds", merits en banc reconsideration of this case since "the opinion of the panel directly conflicts with an existing opinion" by the Fifth Circuit Court of Appeals in the case of United States v. Emerson, 270F.3d 203 (5^th Cir. 2001), cert. denied, 122 S. Ct. 2362 (2002), contradicts Footnote 7, of United States v. Gomez, 92 F.3d 770 (9^th Cir. 1996), and "substantially affects a rule of national application in which there is an overriding need for national uniformity." Circuit Rule 35-1.

The panel decision in this case holds that the Second Amendment to the United States Constitution confers a "collective" state right to maintain a militia, in complete contradiction to United States v. Emerson, 270F.3d 203 (5^th Cir. 2001), cert. denied, 122 S. Ct. 2362 (2002) and the Framers intent of conferring an individual right to keep and bear arms, as it is specifically enumerated in the Bill of [Individual] Rights.

With all due respect to the wise and sagacious Panel, it is Appellants’ belief that the panel allowed national politics to influence their decision and disregard their obligation in upholding the specific intent of the Second Amendment, that "No free man shall ever be debarred the use of arms." Thomas Jefferson, Proposed Virginia Constitution (1776), Jefferson Papers at 344, J. Boyd, ed., (New York, N.Y.:Putnam, 1896). "On every question of construction [of the Constitution] let us carry ourselves back to the time when the Constitution was adopted, recollect the spirit manifested in the debates, and instead of trying what meaning may be squeezed out of the text, or invented against it, conform to the probable one in which it was passed." Thomas Jefferson, Letter to William Johnson, June 12, 1823, The Complete Jefferson, p 322.

True today, as it was at the framing of the Constitution, "[t]here are more instances of the abridgment of the freedom of the people by gradual and silent encroachment of those in power than by violent and sudden usurpations." James Maddison. Is this Court prepared to be the one responsible for the eventual enslavement of the very people it was created to protect? "I ask, Who are the militia? They consist now of the whole people, except a few public officers . . . . To disarm the people is the best and most effectual way to enslave them." [emphasis added] George Mason, During Virginia's ratification convention, (1788), in The Debates of the Several State Conventions on the Adoption of the Federal Constitution, Jonathan Elliot (New York, Burt Franklin: 1888).

STATEMENT OF JURISDICTION

The District Court had jurisdiction over the original federal question matter under 28 U.S.C. § 1331 which provides for original jurisdiction of this court involving actions brought pursuant to 42 U.S.C. § 1983. This court has jurisdiction over the appeal from a final order and judgment granting dismissal to Appellees and against Appellants, under 28 U.S.C. § 1291, filed on December 13, 2000. (CR 26, ER 52) Judgment was entered the same day. (CR 27, ER 68) On January, 11, 2001, Appellants filed a timely notice of appeal. (CR 28, ER 69)

STATEMENT OF THE CASE

Appellants Sean Silveira, Jack Safford, Patrick Overstreet, David K. Mehl, Sgt. Steven Focht, Sgt. David Blalock, Marcus Davis, Vance Boyes, and Ken Dewald filed a First Amended Complaint (CR 11, ER 1) with the District Court under 28 U.S.C. §§ 1331 which provides for original jurisdiction of this court and all actions authorized by 42 U.S.C. § 1983 for violations of constitutional rights by state actors. All relevant causes of action are addressed in the District Court’s Order of filed on December 13, 2000. (CR 26, ER 52) Judgment was entered the same day, (CR 27, ER 68) dismissing Appellants’ First Amended Complaint.

On December 5, 2002, the panel opinion of this Court affirmed the District Court’s Order, Panel Decision p. 23-60, entitled "Appellants Lack Standing to Challenge the Assault Weapons Control Act on Second Amendment Grounds." Appellants request a rehearing en banc to review that portion of the panels decision beginning on page 23 of the panel decision, entitled, "Appellants Lack Standing to Challenge the Assault Weapons Control Act on Second Amendment Grounds".

STATEMENT OF FACTS

Plaintiffs/Appellants’ filed a civil rights action under 42 U.S.C. Section 1983 challenging the constitutionality of the Roberti-Roos Assault Weapons Control Act ("the AWCA") in 1989. See 1989 Cal. Stat. ch. 19, § 3, at 64, codified at CAL. PENAL CODE § 12275 et seq, and amendments thereto, under the Second Amendment.

STANDARD OF REVIEW

This Court reviews de novo a grant of a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6). Stone v. Travelers Corp., 58 F.3d 434, 436-37 (9^th Cir. 1995).

Dismissal for lack of subject matter jurisdiction is reviewed de novo. See United States ex rel. Newsham v. Lockheed Missiles & Space Co., 171 F.3d 1208, 1213 (9^th Cir.); Kruse v. State of Hawaii, 68 F.3d 331, 333 (9^th Cir. 1995); Harris v. Provident Life and Accident Ins. Co., 26 F.3d 930, 932 (9^th Cir. 1994).

SUMMARY OF ARGUMENT

The assumption that respect for the judiciary can be won by shielding judges from published criticism wrongly appraises the character of American public opinion. For it is a prized American privilege to speak one's mind, although not always with perfect good taste, on all public institutions. And an enforced silence, however limited, solely in the name of preserving the dignity of the bench, would probably engender resentment, suspicion, and contempt much more than it would enhance respect.

Bridges v. California, 314 U.S. 252, 270-271 (1941).

Though this Petition may be characterized, by some, as a criticism of the Panel’s decision in Silveira v. Lockyer (9^th Circ. 2002), it is actually a supplication to uphold the Constitution and the Second Amendment, and set aside public opinion in this Circuit. "Can a democratic assembly who annually revolve in the mass of the people, be supposed steadily to pursue the public good? Nothing but a permanent body can check the imprudence of democracy. Their turbulent and changing disposition requires checks." Alexander Hamilton (1787). Today, Hamilton’s statement is more aptly applied to this Country’s judiciary, as they (you) are appointed for life and should not be influenced by the winds of public opinion and outcry. If the public wants to disarm, the method by which the people can disarm themselves and become slaves of the state is by repealing the Second Amendment, which, as this court is aware, requires a three-fourths ratification, and not a simple majority. U.S. Constitution, Article V. The Framers were wise enough to realize, and predict, that "the People" would be willing to give up certain freedoms for a little transitory safety (i.e. Homeland Security Bill and the Patriot Act, to name a few). However, the check against drastic and unwarranted revocation of rights is by and through constitutional amendment only, and not the judiciary. If guns are so ruinous and detrimental to society as a whole in this country, then have "the People" muster up enough support to repeal the Second Amendment, similar to the ill-advised and misguided Prohibitionist movement.

The Panel’s ruling not only strips away the right of "the People" to protect themselves from their own government (as well as others), it also usurps the amendment process of the Constitution.

This Court’s opinion grants a radical extension of state power to disarm its citizens, even though "there is a long tradition of widespread lawful gun ownership by private individuals in this country." Staples v. United States, 511 U.S. 600, 610 (1994). "Marshaling an impressive array of historical evidence, a growing body of scholarly commentary indicates that the 'right to keep and bear arms' is, as the Amendment's text suggests, a personal right. [citations omitted]" Printz v. United States, 521 U.S. 898 n. 2 (1997) (Thomas, J., concurring).

ARGUMENT

I. THE SECOND AMENDMENT CONFERS AN INDIVIDUAL, PERSONAL RIGHT TO KEEP AND BEAR ARMS, AND THIS COURT’S PANEL DECISION IS FLAWED AND DIRECTLY CONFLICTS WITH CURRENT CASE LAW

Ten days before another anniversary of the ratification of the U.S. Bill of Rights, a Panel of the Ninth Circuit held that Appellants lacked standing to continue with their lawsuit because the Second Amendment does not confer an individual right to keep and bear arms. The Panel essentially held that the state has a right to maintain a National Guard; and that is it!

The Panel’s decision is seriously flawed, and conflicts with prior opinions of the Supreme Court and the Fifth Circuit Court of Appeals in United States v. Emerson, 270F.3d 203 (5^th Cir. 2001), cert. denied, 122 S. Ct. 2362 (2002). Furthermore, in Footnote 7, of United States v. Gomez, 92 F.3d 770 (9^th Cir. 1996), this Court stated:

Indeed, 18 U.S.C. § 922(g)(1) might not pass constitutional muster were it not subject to a justification defense. The Second Amendment embodies the right to defend oneself and one's home against physical attack. Nelson Lund, The Second Amendment, Political Liberty, and the Right to Self-Preservation, 39 Ala. L. Rev. 103, 117-120, 130 (1987) (Second Amendment guarantees right to means of self-defense); see Sanford Levinson, The Embarrassing Second Amendment, 99 Yale L.J. 637, 645-46 (1989) ("It seems tendentious to reject out of hand the argument that one purpose of the [Second] Amendment was to recognize an individual's right to engage in armed self-defense against criminal conduct."). In modern society, the right to armed self-defense has become attenuated as we rely almost exclusively on organized societal responses, such as the police, to protect us from harm. See Levinson, 99 Yale L.J. at 656 ("One can argue that the rise of a professional police force to enforce the law has made irrelevant, and perhaps even counterproductive, the continuation of a strong notion of self-help as the remedy for crime."). The possession of firearms may therefore be regulated, even prohibited, because we are "compensated" for the loss of that right by the availability of organized societal protection. The tradeoff becomes more dubious, however, when a citizen makes a particularized showing that the organs of government charged with providing that protection are unwilling or unable to do so. See Lund, 39 Ala. L. Rev. at 123 ("The fundamental right to self-preservation, together with the basic postulate of liberal theory that citizens only surrender their natural rights to the extent that they are recompensed with more effective political rights, requires that every gun control law be justified in terms of the law's contribution to the personal security of the entire citizenry."). At that point, the Second Amendment might trump a statute prohibiting the ownership and possession of weapons that would be perfectly constitutional under ordinary circumstances. Allowing for a meaningful justification defense ensures that 18 U.S.C. § 922(g)(1) does not collide with the Second Amendment. [emphasis added]

In addition to a flawed legal analysis, the Panel erroneously relied upon the work of Dr. Michael Bellesiles, the disgraced Emory University historian and author of Arming America: The Origins of a National Gun Culture. (See Panel Decision which cites Bellesiles’ on pages 7 and 44) Bellesiles and his Arming America has been thoroughly discredited by historians and law school professors. In fact, had the Panel performed the most perfunctory research on Bellesiles’ work, the Panel would have quite easily determined that his work is simply not credible or trustworthy.

The Emory Wheel, the official university newspaper of Emory University, published a story by Sarah Mendola, Staff Writer, on November 19, 2002. The story read in part that "[b]y January, Professor of History Michael Bellesiles will not have a job at Emory. And after last month's scathing report from an Emory-appointed outside panel, he may lose the awards for his 2000 book on early American gun culture, too." "Last month, Bellesiles resigned from Emory, effective at the end of the year. Emory announced Bellesiles' resignation along with the findings of an independent panel that evaluated accusations Bellesiles engaged in research misconduct for Arming America." "Although Arming America was at first praised [by the gun control] community, many scholars soon became skeptical about the accuracy of the book when Bellesiles' research could not be duplicated. In the face of escalating charges of research fraud, Emory began an internal inquiry last February, the first in Emory's history to investigate claims that a College professor engaged in research misconduct."

Then, on December 13, 2002, the Columbia University Board of Trustees issued a press release, which read in part:

Columbia University's Trustees have voted to rescind the Bancroft Prize awarded last year to Michael Bellesiles for his book Arming America: The Origins of a National Gun Culture. The Trustees made the decision. Based on a review of an investigation of charges of scholarly misconduct against Professor Bellesiles by Emory University and other assessments by professional historians. They concluded that he had violated basic norms of scholarship and the high standards expected of Bancroft Prize winners. The Trustees voted to rescind the Prize during their regularly scheduled meeting on December 7, 2002 and have notified Professor Bellesiles of their decision. [emphasis added]

Moreover, had the Panel simply looked at the historical context of the Declaration of Independence, the war for independence, and the framing of the U.S. Constitution as outlined in Appellants’ Opening Brief and in Emerson, the simplest historical analysis would have uncovered that arms were not only necessary for hunting and defending ones home, but arms were also an essential check against government.

Thomas Jefferson wrote in the Declaration of Independence that

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.--That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, --That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.

How would an unarmed citizenry "alter" or "abolish" a government that controls the military? How would an unarmed citizenry be "safe" from its own government? As it was obvious then, as it is today, an armed citizenry serves as a check against government’s abridgement of "the People’s" civil liberties. Nevertheless, the Panel Decision states that it is acceptable for the state to disarm "the People."

The Panel characterized the Second Amendment as "this relatively obscure constitutional provision attract[ing] little judicial or scholarly attention." P. 11. Quite simply, the Second Amendment "attracted little judicial and scholarly attention" for decades because, in the beginning, for decades, there was a wide spread, common understanding that the Second Amendment did in fact guarantee an individual right to keep and bear arms. The long time absence of case decisions about the meaning of the Second Amendment is strongly suggestive that "there is a long tradition" of the Second Amendment conferring an "personal right" of firearm ownership. See Staples v. United States, 511 U.S. 600, 610 (1994); " Printz v. United States, 521 U.S. 898 n. 2 (1997) (Thomas, J., concurring)("Marshaling an impressive array of historical evidence, a growing body of scholarly commentary indicates that the 'right to keep and bear arms' is, as the Amendment's text suggests, a personal right. [citations omitted]")

The Panel’s decision also conflicts with this Court’s holding in Fresno Rifle Club v. Van de Kamp, 965 F.2d 723 (9^th Cir. 1992) which this court held that "[u]ntil such time as Cruikshank and Presser are overturned, the Second Amendment limits only federal action, and we affirm the district court's decision ‘that the Second Amendment stays the hand of the National Government only.’ Fresno Rifle, 746 F.Supp. at 1419." The Panel Decision exceeded the holding in Fresno Rifle Club and completely ignored prior Supreme Court opinions which recognized that the Second Amendment is in a stream of other Amendments which confer an individual right to keep and bear arms.

For instance, in Planned Parenthood v. Casey, 505 U.S. 833, 847 (1992), the Supreme Court declared that by the express provisions of the "first eight amendments" to the Constitution, rights were "guaranteed to the individual" "which the government may not enter." The 2nd Amendment is within "the first eight amendments."

The Supreme Court also adopted the Harlan dissent in Poe v. Ullman 367 U.S. 497, 541 (1961) that: ". . . ‘liberty’ is not a series of isolated points . . . in terms of the taking of property; the freedom of speech, press and religion; the right to keep and bear arms; the freedom from unreasonable searches and seizures . . . It is a rational continuum which . . . includes a freedom from all arbitrary impositions . . . " [emphasis added] (Notice no reference to any state right or government militia.) See also U.S. v. Verdugo, 494 U.S. 259, 265 (1990), Duncan v. Louisiana, 391 U.S. 145, 147-148, 165, 167 (1968); Johnson v. Eisentrager, 339 U.S. 763, 784 (1950); Staples v. United States, 511 U.S. 600, 610 (1994).

In sum, it is apparent that by avoiding prior Supreme Court references to the Second Amendment conferring an individual right, the Panel simply looked in areas that supported the decision, by avoiding areas that conflicted with its true intent (i.e. gun control)

It is Appellants’ position that Ninth Circuit precedent and the Panel holding in this case is flawed and needs to be reevaluated in light of Gomez, prior Supreme Court rulings mentioning the Second Amendment as an individual right, and United States v. Emerson, 270F.3d 203 (5^th Cir. 2001), cert. denied, 122 S. Ct. 2362 (2002), which also happens to be the most thorough ruling to date regarding the Second Amendment conferring an individual personal right to keep and bear arms.

When deciding this case, the Court must not lose sight of the fact that the militia system was formed before there was a National Guard. The National Guard, as it is today, is nothing more than the reserve component for the federal military, and can be federalized at anytime. If the Federal Government can federalize and seize a state military force, and thereby control and seize the arms in the possession of the state’s militia, then what is the Second Amendment protecting if "the right of the people to keep and bear Arms" means a state military force that can be seized by the federal government?

The Panel decision also acknowledged that Barron v. Baltimore 32 U.S. 243 (1833) is "now-rejected" in which the Supreme Court previously held that the U.S. Bill of Rights was not applicable to the States. Therefore, the ruling essentially holds that the Second Amendment is applicable to the States, without qualification. In addition, the Panel also conceded that "One point about which we are in agreement with the Fifth Circuit is that Cruikshank and Presser rest on a principle that is now thoroughly discredited." Nevertheless, Cruikshank and Presser is what the State of California and this Court relied upon in support of the states gun bans.

It is hard to fathom that the Ninth Circuit, which has gone out of its way to protect individual rights in the past, would strip "the People" of their personal and individual right to keep and bear arms, even though "there is a long tradition of widespread lawful gun ownership by private individuals in this country." Staples v. United States, 511 U.S. 600, 610 (1994).

If the time shall ever come (which Heaven avert), when men shall be placed in the supreme tribunal of the country, who entertain opinions hostile to the just powers of the Constitution, we shall then be visited by an evil defying all remedy. Our case will be past surgery. From that moment the Constitution is at an end. . . . If I live to see that day come, I shall despair of the country. . . . I know of no security against the possibility of this evil, but an awakened public vigilance. I know of no safety, but in that state of public opinion which shall lead it to rebuke and put down every attempt . . . to dilute the Constitution by creating a court which shall construe away its provisions. . . . Let us hope that we shall never see the time when . . . the government shall be found in opposition to the Constitution, and when the guardians of Union shall become its betrayers.

Daniel Webster, Excerpts from a speech delivered at a public dinner in New York on March 10, 1831.

CONCLUSION

Appellants should have been given an opportunity to litigate their very substantial claim against Appellees in this matter. However, the panel decision dismissed Appellants’ Second Amendment claim in its entirety by rewriting the Second Amendment.

Wherefore, it is respectfully requested that the Panel Decision, beginning on Page 23 and ending on Page 60, entitled, "Appellants Lack Standing to Challenge the Assault Weapons Control Act on Second Amendment Grounds" be reversed, and that the case be remanded to District Court for entry of judgment.

"Those who would give up essential Liberty to obtain a little temporary Safety deserve neither Liberty nor Safety." Benjamin Franklin

Respectfully submitted,

Date: December 15, 2002

REQUEST FOR ATTORNEY FEES

Appellants hereby notify the court of their intention to request attorney fees on appeal under the Ninth Circuit’s discretion to award attorney fees under its general equitable powers.

[Atlas Sneezed]

[some formal matter and personal contact information is omitted for brevity]

[Atlas Sneezed]

Notice how Bellesisles, cited in the panel's opinion, is thoroughly skewered!

[Robert357]

Please remember that the 9th Circuit is the most overturned appeals court in the land because it has historically been ultra-liberal. It is my hope that now that Republicans control the house and senate and the whitehouse, that conservative judges can be appointed to all federal courts so that things balance out.

I don't hold out much hope that the 9th Ciruit Court will consider what the Constitution really says as opposed to what they would like it to say.

[IronJack]

The gist of the Court's decision seems to be that the appellants lack standing to bring the case, since rights under the Second Amendment vest entirely in some collective entity variously described as "a well-regulated militia", "the State", or "the government." Since the appellants do not assert any agency on behalf of any of those entities, they have no legal presence in this matter and the Court is not obligated to hear their arguments.

By ruling so, the Court is not obligated to overturn their arguments or rule on their validity. They can cast a ruling -- and defy the ruling precedent -- without ever considering the "evidence." It is a clear distortion of jurisprudence to waylay the Truth before it even has a chance to speak. That this Court would establish a ruling of this magnitude by such underhanded means speaks volumes about the Court's lack of ethics and their embarrassing absence of courage. It demonstrates clearly that they are ruled not by conscience or reason, and that this is a purely political decision.

[Vic3O3]

ping

[harpseal]

The above brief is the logical next step for getting this case before the US Supreme Court. If the Ninth Circuit refuses an en-banc hearing or upholds the original ruling of the three judge pannel then the way is clear. In fact then the appelants have no other judicial recourse.

Stay well - Stay safe - Stay armed - Yorktown

[humblegunner]

EEEEvil assault weapon ping.

[Abundy]

And if the panel refuses to hear this appeal the ONLY issue going up to SCOTUS will be whether the Second Amendment is an individual right....which means SCOTUS might actually take it...

[harpseal]

Please correct me if I am wrong. If the Supreme Court of the USA took up this case I believe they could rule that the Second does guarantee an individual right without making any ruling on the actual merits of the assault weapons ban thereby avoiding any direct overturning of that ban by just remanding it back to the lower court. Further if there were multiple concurring opinions in say a 7-2 decision it could be unclear that such a ban is truly unconstitutional thereby avoiding the crucial issue but seeming to address it. Hey an amicus brief to the Supreme Court could even cite Charles Scummy, I mean Schummer, stating he believed the Second applied to individual rights.

Given that the court does not like to make some of the really difficult decisions I think that if my view of what they could rule then such would be why they just might take this case.

Stay well - Stay safe - Stay armed - Yorktown

[wcbtinman]

I don't mean to ask for an epic reply, but what could the ripple effect of a USSC decision that upholds an individual right be?

Could such a decision eventually get to a re-visit of the Miller case?

[harpseal]

If initially the court merely remanded the case back to the district court for a ruling on the merits by declaring that standing existed because the Second guaranteed an individual right to keep and bear arms then there would be a relatively long delay IMHO before the NFA would be sucessfully challenged but it would eventually work its way back up I think.

Stay well - Stay safe - Stay armed - Yorktown

[Atlas Sneezed]

"If the Supreme Court of the USA took up this case I believe they could rule that the Second does guarantee an individual right without making any ruling on the actual merits of the assault weapons ban thereby avoiding any direct overturning of that ban by just remanding it back to the lower court."

I believe that there is a good chance they could rule that there is an individual right to bear arms, but the 9th did not need to deny this to find the California ban permissible.

[Atlas Sneezed]

"I don't mean to ask for an epic reply, but what could the ripple effect of a USSC decision that upholds an individual right be?"

It SHOULD mean that the GCA 68, 1986 machine gun freeze, and the assault weapon ban and others are illegally denying us the right to keep and bear arms of military utility. However, even the sainted conservatives on SCOTUS managed to tolerate roadblocks and stopping of random people without suspicion, to put them in jail fo being at 0.08BAC, simply because (paraphrasing) "drunk driving is a serious problem."

Don't hold out hope.

BLOAT!

[harpseal]

I absolutely do agree that is what it should mean but unfortunately I think the courts will be very slow to enforce this right. The Supreme court by accident or design is know for crypticvally stating what the Constitution says without making the hard decisions at first. This dates from Marbury vs Madison when the court ruled a law unconstitutional knowing the Jefferson admin would go along with that ruling.

Stay well - Stay safe - stay armed - Yorktown

[William Terrell]

That this Court would establish a ruling of this magnitude by such underhanded means speaks volumes about the Court's lack of ethics and their embarrassing absence of courage.

Actually, it speaks more so than you would expect about any human being that knows how to read, write and breathe. Sometimes I think they are acting out "The Devil's Advocate" by Taylor Caldwell.

[copycat]

Perhaps they stepped in it this time?

BTTT...

[Abundy]

Harpseal - Yes, that's why this is such a great case for us. SCOTUS only has to rule on whether the plaintiff's had standing - which turns on whether the Second Amendment protects an individual right. They can rule on the standing issue without touching the AWBan. Leave it to the Ninth Circus to miss the consequences of their assinine ruling. Had they allowed the suit to proceed and then ruled the AWBan constitutional, SCOTUS would have had plenty 'o wiggle room to avoid the underlying and most important issue. The Ninth Circus has basically forced the issue that no one wants to rule on.

wcb - Many, many cases and gun laws are predicated on the misreading of Miller. (the gov's brief conceded the Second Amendment protected an individual right - but no one ever cites that. Hell, I didn't know it until I read the Emerson opinion and some of the footnotes - that doesn't appear in the actual opinion)

Imagine all the lawsuits regarding these stupid laws once SCOTUS rules the right individual....

There will be litigation regarding the nature of the right - fundamental or not?

The next issue will be level of judicial review of gun laws - strict scrutiny or rational basis.

There is plenty of case law from litigation of the other enumerated rights, as well as ample historical evidence regarding the Framer's intent and their belief that it is a fundamental right. That means a strict scrutiny review, which means 95% (a guess) of the gun laws won't survive review.

"Liberal" Justices will be looking for a way to ignore their statements in other fundamental right cases and precedent set out in land mark cases like Griswold and Roe, while conservative justices will be looking for a way to allow all these "crime fighting" laws to stand. (Can you tell I'm pretty pissed at Scalia and Rhenquist right now?) But in the end, if they don't rule that the Second Amendment is a fundamental, individual right that requires a strict scrutiny review they will be skewered by Con Law experts from both sides of the political spectrum. (Liberals will be worried that conservatives will use such a ruling to re-examine Roe and it's progeny; Conservatives [real ones] will see this as a sell-out to big government. If Ann Coulter's head doesn't explode of such a ruling she'll have field day citing quotes from each Justice in prior cases that directly contradict any other ruling on this issue.)

Which is why no one wants to touch this issue....

Made that explanation as short as I could - the issues are just too damn involved. Everyone but Second Amendment Activists are afraid of a Ruling on this Issue, just for different reasons. (2A activists expect SCOTUS to avoid the issue and ultimately rule against them, so anything else is a victory.)

[MileHi]

BUMP for a thoughtful post.

Oh, and Happy New Year!

[Travis McGee]

I think SCOTUS will rule that individual Americans have the right to own flintlock rifles, but beyond that the various states may determine what they may own.

Just kidding. Sort of.

[Travis McGee]

Bang!