I thought this op-ed would be of interest.
Rich
Tuesday, December 02, 2003
Copyright � Las Vegas Review-Journal
EDITORIAL: Dodging a bullet
Supreme Court ducks opportunity to clarify gun rights
Monday, the U.S. Supreme Court failed to clarify one of the nation's most contentious civil-rights controversies: whether the Second Amendment to the Constitution guarantees the rights of individuals to keep and own firearms.
The justices have steered clear of any definitive Second Amendment rulings since the 1939 U.S. v. Miller case, in which the court said that the right to bear arms related only to those weapons that had "military usefulness" to the militia ... but that the "militia," as envisioned by the founders, includes every able-bodied citizen. It comprises neither the National Guard nor the active-duty armed forces, but every individual.
The Miller case has been either ignored or misinterpreted dozens of times since then, by lawmakers and judges alike, particularly because the Supreme Court never said, in so many words, "Individuals have the right to own guns." Gun-control advocates continue to argue, incorrectly, that only members of the militia -- which anti-gun groups define as a state-sanctioned, formally trained military force -- can legally possess firearms without government supervision.
The Supreme Court was asked to reconcile the divergent views of gun ownership handed down by two federal appellate courts.
The court refused to review a decision from a three-judge panel of the 9th U.S. Circuit Court of Appeals, which stated in Silveira v. Lockyer that "the Second Amendment does not confer an individual right to own or possess arms," and that it applies only to the federal government, giving states a good deal of room to regulate gun ownership.
The decision was widely ridiculed by Second Amendment supporters. Even 9th Circuit Judge Alex Kozinski, who didn't sit on the three-judge panel, said the decision'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."
The justices' refusal to intervene was surprising, particularly since the 9th Circuit's twisted interpretation of the Second Amendment was the exact opposite of that held by the 5th Circuit in a 2001 case, in which that court stated firearms possession is an individual right which cannot be set aside for trivial reasons. When two federal circuits come to disparate conclusions about a matter of constitutional rights, the high court typically moves to settle the dispute.
Litigator Don Kates, legal scholar David Kopel and other legal minds who are sympathetic to the Second Amendment have suggested the court's failure to act is not a bad thing for gun owners. Silveira is not a good test case for gun rights, they say, because it attempts to toss out decades of federal and state laws ... and the justices are loath to take such dramatic measures unless there's overwhelming popular support for the cause.
Mr. Kates and Mr. Kopel argue that it'll take a series of small but successful challenges to gun-control laws and regulations before the Second Amendment is restored to its proper place in the Bill of Rights.
Find this article at:
http://www.reviewjournal.com/lvrj_home/2003/Dec-02-Tue-2003/opinion/22704251.html
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