[wordup] 9th Circuit Skirmish Over Second Amendment

[Adam Shand]

From: http://www.law.com/jsp/article.jsp?id=1051121848326

9th Circuit Skirmish Over Second Amendment

Jason Hoppin
The Recorder
05-07-2003

With six judges dissenting, the 9th U.S. Circuit Court of Appeals on 
Tuesday let stand a controversial ruling that found the Second Amendment 
doesn't give individuals a right to bear arms.

Among the six who argued that the case should be reheard by an 11-judge 
en banc panel was the staunchly liberal Judge Harry Pregerson. But the 
yeoman's work in dissent was done by Judge Andrew Kleinfeld, who 
defended an individual's right to bear arms using the same means Judge 
Stephen Reinhardt employed in December to shoot it down: by weaving 
together scholarship, grammar and historical analysis.

"Where the Constitution establishes a right of the people, no organ of 
the government, including the courts, can legitimately take that right 
away from the people," Kleinfeld wrote. "All of our rights, every one of 
them, may become impediments to the efficient functioning of our 
government and our society from time to time, but fortunately they are 
locked in by the Constitution against permanent loss because of 
temporary impediments."

Judge Reinhardt's original opinion in Silveira v. Lockyer, 312 F.3d 
1052, clashes with a 2001 ruling from the 5th Circuit, raising the 
possibility the U.S. Supreme Court will see the need to interpret the 
Second Amendment and its bearing on gun-control laws.

Like Reinhardt's opinion, Tuesday's main dissent from Kleinfeld 
exhaustively examined many of the Founding Fathers' words and concepts 
-- including who, exactly, "the people" referred to throughout the 
Constitution are -- and the role of the militia.

Kleinfeld argued that the Second Amendment shouldn't be construed 
narrowly, as that would invalidate many of the Constitution's individual 
protections.

"If we used the panel's methodology, taking each word according a right 
in the Bill of Rights in the narrowest possible sense, then we would 
limit the freedom of 'speech' protected by the First Amendment to oral 
declamations," he wrote.

Eugene Volokh, a UCLA constitutional law professor and outspoken 
proponent of the Second Amendment, called Kleinfeld's opinion "very 
careful and detailed." He pointed out that up until the 5th Circuit 
engaged in a similarly exhaustive analysis and decided that the 
Constitution guaranteed an individual, rather than a collective, right 
to bear arms, no court had ever taken on the task.

The high court declined to review the 5th Circuit's opinion in United 
States v. Emerson, 270 F.3d 203, and Volokh thinks it will likewise 
steer clear of the 9th Circuit ruling. Since Reinhardt's opinion came in 
a challenge to California's assault-weapons ban, overruling it would 
require the high court to strike down the law, something Volokh doubts 
the court would do.

But, said Volokh, "Now we really have a debate on the issue."

Pregerson's short, separate dissent said he would have upheld the 
assault-weapons ban without construing the Second Amendment as just a 
collective right.

The rhetorical star of the dissenters was Judge Alex Kozinski, who 
chided Reinhardt's panel for endorsing individual rights in a selective 
manner.

"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."

Kozinski, who as a child fled Romania when it was under the grip of 
dictator Nikolai Ceausescu, wrote that American slaves and Holocaust 
victims could have fought back had they been allowed to own guns.

"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 re-election and silences those 
who protest; where courts have lost the courage to oppose, or can find 
no one to enforce their decrees," Kozinski wrote.

"However improbable these contingencies may seem today, facing them 
unprepared is a mistake free people get to make only once."

He also said the effort Reinhardt expended in doing away with an 
individual right to bear arms is evidence itself that he was headed down 
the wrong path. "The panel'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."