Having ruled the First Amendment to the U.S. Constitution forbids the words "under God" in the Pledge of Allegiance, the San Francisco-based U.S. Court of Appeals for the 9th Circuit last week focused its sights on the Second Amendment, declaring there is no individual right to keep and bear arms.
In a sweeping opinion penned by über liberal Judge Stephen Reinhardt for whom the U.S. Supreme Court developed its patented "Reinhardt Reversal Stamp" a three-judge panel of the 9th Circuit unanimously upheld the ban on semiautomatic weapons in California.Ê
"The 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," Reinhardt proclaimed in Silveira v. Lockyer.Ê
Historical record...?Ê Makes it plain...?Ê According to whom, Judge?Ê
The very first footnote in the 70-page opinion summons up none other than disgraced anti-gun "historian" Michael Bellesiles.Ê Perhaps Judge Reinhardt was living in an eco-friendly cave while an army of prominent academics and historians shot down Bellesiles's much politicized and trumped-up research on guns and he was forced to resign from Emory University. (see The Gun Count That Won't Add Up).Ê
If Bellesiles stands as the best witness for Judge Reinhardt and the anti-gun lobby's interpretation of the Second Amendment, America's gun owners will gleefully urge the U.S. Supreme Court to start inking its Reinhardt stamp.Ê
Judge Reinhardt is no stranger to High Court spankings, holding the ignominious record of having five decisions unanimously reversed by the Supreme Court in a single term.Ê According to Reinhardt: "We deal with a lot of important cases.Ê Some of them may get reversed, other's don't, and we can't worry about that."Ê
Of course, there is the small matter of Article VI of the U.S. Constitution to worry about.Ê That states all executive and judicial officers must consider the constitutionality of their proposed actions, which includes being bound by U.S. Supreme Court precedent.Ê Oh well, as the saying goes, never let the Constitution get in the way of your ego.
Judge Reinhardt was appointed to the bench in 1980 by President Jimmy Carter. Having joined in the controversial Pledge of Allegiance ruling, Judge Reinhardt is proud to call himself a "liberal" judge, which he defines as the belief in a "generous or expansive interpretation of the Bill of Rights."Ê
In a 1996 speech to law students at George Washington University, Reinhardt explained that liberal judges "believe that the meaning of the Constitution was not frozen in 1789.Ê That as society develops and evolves, its understanding of constitutional principles also grows."Ê
It is ironic, then, that Judge Reinhardt would so strictly interpret the Second Amendment as an archaic right that applies only to state militias.Ê How come the Constitution hasn't "evolved" on the issue of guns, Judge?Ê We have no "militias" anymore, except perhaps those that are hiding in the woods from the FBI, and yet the Second Amendment clearly states that "the right of the people to keep and bear arms shall not be infringed." (emphasis added).Ê Funny how liberal judges can so easily morph into strict-constructionists when it fits their political agendas.Ê
Judge Reinhardt's decision offers a stinging rebuke of last year's 5th Circuit Court of Appeals decision in United States v. Emerson.Ê In that Texas case, the court ruled that the Second Amendment preserves an individual's right to keep and bear arms whether or not they are in a militia or active military service or training.Ê
However, the 5th Circuit ruled "that does not mean that those rights may never be made subject to any limited, narrowly tailored ... exceptions or restrictions."Ê A distinction that the Bush Administration has adopted as the government's official position on the matter, stating: "The Second Amendment more broadly protects the rights of individuals ... to possess and bear their own firearms, subject to reasonable restrictions designed to prevent possession by unfit persons or to restrict the possession of types of firearms that are particularly suited to criminal misuse."Ê
The U.S. Supreme Court has never squarely ruled on the issue of an individual's right to bear arms.Ê As Supreme Court Justice Thomas has written: "Perhaps, at some future date, this Court will have the opportunity to determine whether Justice Story was correct when he wrote that the right to bear arms 'has justly been considered, as the palladium of the liberties of a republic.'"Ê
Judge Reinhardt's decision in Silveira v. Lockyer provides just such an opportunity, and like a ricochet in a crowded room, lawyers on both sides of the debate are jumping about wondering which side is going to get hit if and when the Supreme Court takes it up.Ê
One thing's for certain, gun owners should take solace in the fact that it is the oft-overturned Reinhardt who fired the shot.December 12, 2002