I received permission from Don B. Kates to post his recent comments regarding the Silveira and Nordyke cases to this list.
Rich
Subj: NEW DECISIONS: THE 2d AM IN THE 9th CIRCUIT
Date: 4/6/2004 11:27:49 AM Eastern Standard Time
A few months ago, in a lengthy, fallaciously reasoned,decision in the Silveira case, a panel of the 9th Circuit federal court of appeals held that the 2d Am. is a mere "collective right," a phrase oxymoronically used to claim that it is no right at all, and serves no purpose (other than separating the Fiirst Amendment from the Third). Once a panel decision of that type is made it is binding on all other Ninth Circuit cases unless oveturned by an en banc decision which involves a special review by 11 judges of the circuit (as opposed to the regular 3-judge panels.).
At that point my friend Donald Kilmer, whom I was assisting, was before a panel of the 9th Circuit in an entirely different case. (Silveira was an "assault weapon" case foolishly brought and maintained by people w/ more passion than good sense. Donald's case, Nordyke, challenged a local county ban on gun shows.) We had already lost the Nordyke case before our panel but were seeking a rehearing. More or less on a lark, Donald decided to throw in a request to let us brief the 2d Am. , which we had not previously raised -- even though at that point our panel could not decide the 2d Am. issue in our favor, given the contrary Silveira ruling.
To our astonishment our panel not only agreed to our briefing the issue, but ordered briefing by the other side -- and then decided the case in our favor -- to the extent it could. That is to say, the majority opinion flatly stated that because of the prior Silveira decision it could not decide in our favor but indicated that it would have done so had it been free to do so. A lengthy concurring opinion limned the history of the 2d Am., and concluded that Silveira had been wrongly decided.
Our panel also recommended that the 9th Circuit convene a special en banc review on the issue, even though the 9th Circuit had just refused to do that in Silveira. Today (4/5/04) the 9th Circuit rejected that request, but to this there were a number of judges who dissented, as had also been the case in Silveira.
Judge Kleinfeld wrote: "Our court has [just] erased 10% of the Bill of Rights for 20% of the American people. No liberties are safe if courts can so easily erase them, and no lover of liberty can be confident that an important right will never become so disfavored in popular or elite opinion as to be vulnerable to being discarded like the Second Amendment. ...
"Some people think that the Second Amendment is an outmoded relic of an earlier time. Doubtless some also think that constitutional protections of other rights are outdated relics of earlier times. We The People own these rights regardless, unless and until We the People repeal them. For those who believe it to be outdated the Second Amendment provides a good test of whether their allegiance is really to the Constutution of the United States, or only to their preferences in public policies and audiences. The Constitution is law, not vague aspirations, and we are obligated to protect, defend and apply it. If the Second Amendment were truly an outdated relic, the Constitution provides a method for repeal. The Constitution does not furnish the federal courts with an eraser." To this dissent, Judge Gould, and four others (including Kleinfeld) added an eloquent and lengthy further dissent summarizing the unanswerable evidence that the 2d Am. is an individual right.
Lest readers be mislead, it should be noted that both dissenting opinions indicate that the 2d Am. is not an outmoded relic. (For those interested in reading the dissents they are available at the 9th Circuit website http://caselaw.lp.findlaw.com/data2/circs/9th/9917551p.pdf.)
Several further observations are in order: The 9th Circuit has been called the most "liberal" federal court in the nation. But while the Silveira panel judges generally are "liberals," so are the judges who dissented in favor of the 2d Am. in both Silveira and Nordyke. (These, again, are dissents from the denial of en banc review.)
This brings us to a very important point: to the extent that the nonsense "collective right" position is endorsed by any scholars, these scholars are people who are anti-gun, i.e., their personal views are dictating their analysis. In dramatic contrast, the overwhelming number of scholars who accept the individual right view of the 2d Am. (which both sides describe as "the standard model") include many who are personally opposed to gun ownership, but are too honest and scholarly to ignore the evidence which establishes the standard model view beyond all question.
E.g., Harvard Law School's Alan Dershowitz, a former ACLU national board member who is as liberal as anyone in academic is likely to be. Declaring that he "hates" guns, and wishes to see the Second Amendment repealed, Dershowitz nevertheless condemns "Foolish liberals who are trying to read the Second Amendment out of the Constitution by claiming it's not an individual right or that it's too much of a safety hazard don't see the danger in the big picture. They're courting disaster by encouraging others to use the same means to eliminate portions of the Constitution they don't like."
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