A deeply divided U.S. Circuit Court of Appeals for the 9th Circuit last week refused to review a controversial ruling from a three-judge panel led by Judge Stephen Reinhardt that held the Second Amendment protects only a collective -- rather than an individual -- right to keep and bear arms. Consequently, unless the Supreme Court takes up the case, not only will the result leave standing a California ban on semiautomatic weapons, but it will also leave intact the panel's historical contortions concluding that the Second Amendment "was not adopted in order to afford rights to individuals with respect to private gun ownership or possession."
The 9th Circuit's decision not to hear the case en banc (as a whole) came over the dissent of six judges, several of whom vigorously noted the explicit conflict between the panel's collective rights view and the individual rights approach taken by the 5th Circuit in United States v. Emerson, 270 F.3d 203 (5th Cir. 2001), cert. denied, 536 U.S. 901 (2002), and supported by the current administration. Four of the dissenters, led by Judge Andrew Kleinfeld, argued that the case should be reheard in order to rectify the conflict. "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," Judge Kleinfeld wrote.
These dissenters also noted that Judge Reinhardt and the other judges on his panel -- who routinely take generous approaches to other parts of the Constitution -- read the Second Amendment with absurd restrictiveness. "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," Judge Kleinfeld wrote.
Even noted liberal Judge Harry Pregerson disagreed with the Reinhardt panel's insistence that the Second Amendment was designed only to protect state-regulated militias. "The panel misses the mark by interpreting the Second Amendment right to keep and bear arms as a collective right, rather than as an individual right," he wrote. "Because the panel's decision abrogates a constitutional right, this case should have been reheard en banc."
But the strongest words of reprimand came from Judge Alex Kozinski, who fled Romania under the dictatorship of Nicolae Ceausescu. Writing from his own experience, Judge Kozinski explained that history could have been vastly different had American slaves or European Jews been able to arm themselves and fight back against the governments that oppressed them.
"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," he wrote in dissent. "However improbable these contingencies may seem today, facing them unprepared is a mistake a free people get to make only once."
Judge Kozinski also made special note of the interpretive inconsistency of the judges on the Reinhardt panel given their usual proclivity to find individual rights when the Constitution uses the words "people" or "person." "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," he wrote.
The refusal of the 9th Circuit to rehear the case, Silveira v. Lockyer, 312 F.3d 1052 (9th Cir. 2002), clears the way for an appeal to the U.S. Supreme Court, which has not confronted the protections of Second Amendment for more than 60 years.
To read more about Judge Reinhardt's Ricochet, click here.May 15, 2003
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