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Posted: 5/6/2003 2:29:27 PM EDT
A panel of the Ninth Circuit Court earlier heared Silviera v. Lockyer (a challenge to the Calif. assault weapons ban) and ruled against Silviera, saying that the Second Amendment was a collective right. Silviera petitioned the entire circuit court to hear the case again, en banc. The Ninth Circuit refused to hear the case en banc. What is very interesting is that six judges have dissented, saying that the Ninth Circuit has effectively erased the Second Amendment and needs to hear the case again to set it right. Some commentary is at: [url]http://appellateblog.blogspot.com/2003_05_01_appellateblog_archive.html#200250615[/url] The decision is at: [url]http://www1.law.ucla.edu/~volokh/blog_data/silveira.pdf[/url] Interesting reading. Justice Kozinski is awesome. Some choice quotes:
The majority falls prey to the delusion—popular in some circles—that ordinary people are too careless and stupid to own guns, and we would be far better off leaving all weapons in the hands of professionals on the government payroll. But the simple truth—born of experience—is that tyranny thrives best where government need not fear the wrath of an armed people. Our own sorry history bears this out: Disarmament was the tool of choice for subjugating both slaves and free blacks in the South.
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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 reelection and silences those who protest; where courts have lost the courage to oppose, or can find no one to enforce their decrees. However improbable these contingencies may seem today, facing them unprepared is a mistake a free people get to make only once.
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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.
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And a quote from another judge:
...restricting the Second Amendment to a “collective rights” view and ignoring the individual right of the people to keep and bear arms is inconsistent with the Second Amendment’s language, structure, and purposes, and weakens our Nation against recurrent internal and external threats that may undermine individual liberty.
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And this is from the Ninth Circuit Court, the most liberal federal court in the land! I think that we are seeing the last days of the collective right phantom.
Link Posted: 5/6/2003 2:37:20 PM EDT
Link Posted: 5/6/2003 2:38:37 PM EDT
cool. I do beleve that the Supremes get to read both the majority and all of the dissents when they review a case, correct?
Link Posted: 5/6/2003 2:39:09 PM EDT
Somebody pinch me!
Link Posted: 5/6/2003 2:43:01 PM EDT
2nd Amend. is null & void where explicity or implicitly prohibited, and especially in the state of Kalifornia!
Link Posted: 5/6/2003 2:44:57 PM EDT
Now is the time to financially contribute to the Silviera case! A little money now will be well spent and could ensure our rights for generations to come. Please consider contributing as much as you can afford: [url]http://www.keepandbeararms.com/silveira/enbanc.asp[/url]
Link Posted: 5/6/2003 2:45:38 PM EDT
but let us not lose sight that the people saying these things are in the MINORITY and as such, we were ruled AGAINST because, i'd be willing to bet that in the grand scheme of things, for every person that knows their head from their ass, theres probably two that dont
Link Posted: 5/6/2003 2:53:00 PM EDT
Originally Posted By TexRdnec: but let us not lose sight that the people saying these things are in the MINORITY and as such, we were ruled AGAINST because, i'd be willing to bet that in the grand scheme of things, for every person that knows their head from their ass, theres probably two that dont
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How many were on the panel? 11? or 15? Big difference that.
Link Posted: 5/6/2003 2:57:11 PM EDT
Originally Posted By ckapsl: Now is the time to financially contribute to the Silviera case! A little money now will be well spent and could ensure our rights for generations to come. Please consider contributing as much as you can afford: [url]http://www.keepandbeararms.com/silveira/enbanc.asp[/url]
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bb b bbbut but shouldn't we ww wwait until Pres. Bush can stack the SC with contitutionalists? California be damned? Isn't that why the NRA isn't helping out here?
Link Posted: 5/6/2003 3:01:06 PM EDT
Silviera Vs Lockyer. What was the case EXACTLY about? I am getting conflicting stories...anyone have the link or a summary on it?
Link Posted: 5/6/2003 3:04:47 PM EDT
Originally Posted By Red_Beard: bb b bbbut but shouldn't we ww wwait until Pres. Bush can stack the SC with contitutionalists? California be damned? Isn't that why the NRA isn't helping out here?
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Or maybe the NRA realizes that case law isn’t made by [b]dissenting[/b] judges?? [:D]
Link Posted: 5/6/2003 3:10:05 PM EDT
Despite the panel’s mighty struggle to erase these words, they remain, and the people themselves can read what they say plainly enough: A well regulated Militia, being necessary to the security of a free State, [i]the right of the people to keep and bear Arms, shall not be infringed.[/i]
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Amen.
Link Posted: 5/6/2003 3:20:41 PM EDT
bb b bbbut but shouldn't we ww wwait until Pres. Bush can stack the SC with contitutionalists?
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That is not always true. Some judges that fit in that mold do not believe the second amendment is an individual right.
Link Posted: 5/6/2003 3:28:05 PM EDT
[Last Edit: 5/6/2003 3:28:34 PM EDT by magnum_99]
Fuckin communists in the Ninth Circuit. They forgot THE most basic concept associated with the Bill of Rights: that the rights enumerated are merely guaranteed by the Constitution, and do not emanate from it. That is, our rights devolve from God as the natural consequence of humanity, and were not created by mere government or the U.S. Constitution. The Constitution instead proscribes the government from placing unreasonable restrictions on those rights. The whole collectivist theory seems to depend upon the notion that either the states or some collective body of citizens were given the right by the document. Typical of the Marxists who inhabit the left-coast.
Link Posted: 5/6/2003 3:41:31 PM EDT
First news story on it. [url]http://sfgate.com/cgi-bin/article.cgi?f=/news/archive/2003/05/06/state1755EDT7903.DTL[/url] 9th Circuit rules individuals have no right to bear arms DAVID KRAVETS, Associated Press Writer Tuesday, May 6, 2003 (05-06) 14:55 PDT SAN FRANCISCO (AP) -- A divided federal appeals court on Tuesday declined to reconsider its December ruling that the Second Amendment affords Americans no personal right to own firearms. The December decision by the 9th U.S. Circuit Court of Appeals upheld California's law banning certain assault weapons and revived the national gun ownership debate. With Tuesday's action, the nation's largest federal appeals court cleared the way for an appeal to the U.S. Supreme Court, which has never squarely ruled on the issue. "I'll have this filed by the end of the week, it's already drafted," said attorney Gary Gorski, the attorney who challenged California's ban on 75 high-powered, rapid-fire weapons. California lawmakers passed the nation's first law banning such weapons in 1989, after a gunman fired a semiautomatic weapon into a Stockton school yard, killing five children and injuring 30. Following California's lead, several states and the federal government passed similar or more strict bans. In originally dismissing the bulk of Gorski's challenge, a three-judge panel of the San Francisco-based appeals court, ruled 2-1 that the Second Amendment was not adopted "to afford rights to individuals with respect to private gun ownership or possession." That December decision was written by Judge Stephen Reinhardt, an appointee of President Carter who also signed on with the court's decision in June declaring the Pledge of Allegiance an unconstitutional endorsement of religion when recited in public schools. The pledge case is pending before the high court. On Tuesday, a majority of the circuit's 25 active judges declined to rehear the case, as Gorski had requested. Only six judges publicly said they wished to reconsider. Circuit Judge Alex Kozinski urged his colleagues to rehear the case with a panel of 11 judges, arguing that without individual Second Amendment protections, the government could ban the public's only recourse against tyranny. "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 in papers released Tuesday. The court's decision -- which said weapons were properly allowed for the states to maintain militias -- conflicts with a 2001 decision from the New Orleans-based 5th U.S. Circuit Court of Appeals that said individuals had a constitutional right to guns. Reinhardt, appointed in 1980, noted in the December ruling that the Supreme Court's guidance on whether the Second Amendment offers individuals the right to bear arms was "not entirely illuminating." The high court, he said, has never directly said whether the personal right to possess weapons was a constitutional guarantee. State and federal laws barring assault and other types of weapons are routinely upheld in the courts on grounds that the prohibitions are rational governmental approaches to combat violence. The Second Amendment has had little, if any, impact on those decisions, except in the California case. Attorney General John Ashcroft has said he believes the Second Amendment grants individuals the right to bear arms, but that the right is not absolute. In a 2001 memo to federal prosecutors, Ashcroft said the Justice Department "will vigorously enforce and defend existing firearms laws." Larry Pratt, executive director of the 300,000-member Gun Owners of America, said he wants the Supreme Court to overturn Reinhardt's decision. "If Judge Reinhardt prevails, the American people could become subjects of the government," Pratt said. The case is Silveira v. Lockyer, 01-15098.
Link Posted: 5/6/2003 3:50:18 PM EDT
[img]http://www.latimes.com/includes/ramirez/ramirez_20020630.gif[/img] Cant Ashcroft still send this to SCOTUS and get the "the people" issue settled once and for all...before the hildabeast or someone like her is installed as POTUS The second is no more a collective issue than is the first fourth or ninth....and they know it... The second was the founders final stopgap in case the worst happend...the feds seized power...and we returned to the same state we were in under King George and his despotic rule...imo
Link Posted: 5/6/2003 3:51:57 PM EDT
So it looks like there are 25 judges on the panel. Still, the dissents are pretty strong. If the Supreme Court decides to hear the case, the dissents will count for something.
Link Posted: 5/6/2003 4:05:57 PM EDT
Originally Posted By Paul: The United States Consititution might well apply in the state of California once again by God's will.
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Ahh, "god's will". I like that one. Is that the Religious Right's way of saying "I'll just let somebody else fight for my right's today"? Very clever. [;D] The People's California will only be free of anti-gun tyranny when Californians stand up for their rights and demand real change, through the ballot boxes or through armed struggle.
Link Posted: 5/6/2003 4:28:49 PM EDT
Originally Posted By 9divdoc: Cant Ashcroft still send this to SCOTUS and get the "the people" issue settled once and for all...before the hildabeast or someone like her is installed as POTUS The second is no more a collective issue than is the first fourth or ninth....[red]and they know it...[/red] The second was the founders final stopgap in case the worst happend...the feds seized power...and we returned to the same state we were in under King George and his despotic rule...imo
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Of course they know it. No one wants to see the 2nd affirmed as an individual right!! Not the politicians, not the judges, not the President, not the NRA. They each have different reasons, but they all form a combine to make sure the issue stands unresolved......
Link Posted: 5/6/2003 4:33:39 PM EDT
Wow, I thought they were all idiots.
Link Posted: 5/6/2003 5:12:43 PM EDT
[Last Edit: 5/6/2003 5:20:41 PM EDT by hanko]
A longer quotation from the dissenting judge is at [url]http://calguns.net/6/ubb.x?a=tpc&s=888602736&f=545600176&m=1506076213[/url] A very bief summary of Silveira is [b]Plaintiffs in this case are nine ndividuals, some of whom lawfully acquired weapons that were subsequently classified as assault weapons under the amended AWCA.7 They filed this action in February, 2000, one month after the 1999 AWCA amendments took effect. Plaintiffs who own assault weapons challenge the AWCA requirements that they either register, relinquish, or render inoperable their assault weapons as violative of their Second Amendment rights. Plaintiffs who seek to purchase weapons that may no longer lawfully be purchased in California also attack the ban on assault weapon sales as being contrary to their rights under that Amendment. Additionally, plaintiffs who are not active or retired California peace officers challenge on Fourteenth Amendment Equal Protection grounds two provisions of the AWCA: one that allows active peace officers to possess assault weapons while off-duty, and one that permits retired peace officers to possess assault weapon they acquire from their department at the time of their retirement.[/b] Case itself is at [url]http://news.findlaw.com/hdocs/docs/gunlawsuits/silvlckyr120502opn.pdf[/url] Google -hanko
Link Posted: 5/6/2003 5:40:23 PM EDT
Wasn't this the case where the NRA was playing both sides of the fence, and was soliciting funds saying they were defending the 2nd Amendment, and the Plaintiff's attorney called them on it?
Link Posted: 5/6/2003 5:49:30 PM EDT
While in school, I went to a talk given by Kozinski. If only our native born lawyers were as sensible.
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