Less than three months ago, the Center for Individual Freedom took aim at the latest misfire from über liberal Judge Stephen Reinhardt and the U.S. Court of Appeals for the 9th Circuit -- namely, 69 pages of anti-gun propaganda masquerading as a constitutional decision in which the oft-overturned judge opined that "[t]he historical record makes it ... plain that the [Second] Amendment was not adopted in order to afford rights to individuals with respect to private gun ownership or possession." To read more about "Judge Reinhardt's Ricochet," click here. Now, even Reinhardt's own judicial colleagues on the West Coast are unwilling to remain silent in the face of his tendency to substitute personal political prejudices for the rule of law.
In a new Second Amendment ruling issued by the 9th Circuit on Tuesday, three of Reinhardt's brethren, Judges Arthur L. Alarcón, Ronald M. Gould and Diarmuid F. O'Scannlain, took the highly unusual step of criticizing a fellow sitting jurist in a published legal opinion for the entire world to see. The judges forcefully reminded Reinhardt that even life-tenured federal jurists cannot exercise unlimited power and are bound to follow precedent, at the very least. These legal warning shots reduced Reinhardt's freshly published musings about the Second Amendment to mere "dicta" because "[t]here was simply no need for [his] panel's broad digression."
The new case, Nordyke v. King, No. 99-17551 (9th Cir. Feb. 18, 2003), would have passed wholly unnoticed if it were not for Reinhardt's judicial activism a few months earlier. After all, the Nordyke panel didn't need to break any new constitutional ground to affirm an Alameda County, California, ban on the possession of guns on county property, which had the effect of preventing gun shows from using the public fairgrounds. Instead, the panel only had to follow past precedent. Nevertheless, Reinhardt had refused to do the same just a few months prior on the very same issue, so the judges took the opportunity to put him back in his place.
In a "passing" footnote weighty and lengthy enough to span good parts of 2 pages in the concise 10-page decision, the judges took apart Reinhardt's analysis of the Second Amendment, noting it was "both unpersuasive and, even more importantly, unnecessary." Reinhardt's "decision to re-examine the scope and purpose of the Second Amendment was improper" since his "panel was [already] bound" by prior 9th Circuit precedent established six years earlier in 1996, the judges explained.
The footnote went as far as judges ever do in accusing Reinhardt of taking the law into his own hands. The Reinhardt panel's "rather lengthy reconsideration of [a 9th Circuit precedent] was neither warranted nor constitutes the binding law of this circuit," the judges wrote, reminding the activist judge that "'only the court sitting en banc may overrule a prior decision of the court.'"
In non-legal speak, the oh-so-polite footnote admonished Reinhardt that a renegade judge out to further his own political mission cannot single-handedly rewrite the law. Instead, under the rules of the appellate court, only the 9th Circuit judges sitting "as a whole," or "en banc," could change a legal rule established in a prior decision.
The judges also took aim at the merits of Reinhardt's political maneuvering designed to reduce the Second Amendment to little more than a historical curiosity. Openly inviting the full 9th Circuit or the Supreme Court to finally recognize that the Second Amendment protects an individual's right "keep and bear arms," Judges O'Scannlain and Alarcón praised the 5th Circuit's decision in United States v. Emerson as a "very thoughtful and extensive review of both the text and historical record surrounding the enactment of the Second Amendment."
Judge Gould went even farther in his own special concurrence, explicitly refuting Reinhardt's historical and constitutional twisting of the Second Amendment. "I conclude that an 'individual rights view' of the Second Amendment is most consistent with the Second Amendment's language, structure, and purposes, as well as colonial experience and pre-adoption history," Judge Gould wrote, while at the same time urging that prior 9th Circuit precedent subscribing to the collective rights theory "can be discarded by our court en banc or can be rejected by the Supreme Court."
It seems there's a gun fight out West -- a Second Amendment showdown in the 9th Circuit cloakroom.February 20, 2003
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