Monday, November 26, 2007
Let's hope Souter, Breyer, Ginsburg and Stevens are paying attention
Last week, the U.S. Supreme Court agreed to hear the case of District of Columbia v. Heller. The case should settle the decades-old argument whether the Constitution's Second Amendment is an individual right, or a collective right that states may freely regulate.
In March, the U.S. Court of Appeals for the D.C. Circuit declared unconstitutional Washington, D.C.'s ban on handgun ownership. That 2-1 ruling, penned by Judge Laurence Silberman, found - as the Wall Street Journal recently opined - that when the "Second Amendment spoke of the 'right of the people,' it meant the right of 'individuals,' and not some 'collective right' held only by state governments or the National Guard."
We all know that when the Supreme Court retires to chambers to decide this case, Justices Souter, Breyer, Ginsburg and Stevens will declare that the Second Amendment is a collective -- not an individual -- right. Before they do such, they should read the following, which was posted on the Nigh Seen Creeder in September:
Exactly four years ago this week, the liberal-led U.S. Court of Appeals for the Ninth Circuit upheld the constitutionality of California’s Assault Weapons Control Act and refused to recognize an individual -- rather than a collective -- constitutional right to bear arms.
Federal Appellate Judge Alex Kozinski was one of six judges dissenting from the decision -- and his passionate and informed dissenting opinion is simply magnificent.
After boldly declaring that some anti-Second Amendment judges deliberately misread the Second Amendment in order to enforce their prejudices, Judge Kozinski finished with these ringing words that cut to the heart of why the Second Amendment is so very important to a free people:
"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. In Florida, patrols searched blacks' homes for weapons, confiscated those found and punished their owners without judicial process. In the North, by contrast, blacks exercised their right to bear arms to defend against racial mob violence. As Chief Justice Taney well appreciated, the institution of slavery required a class of people who lacked the means to resist. See Dred Scott v. Sandford, (1857) (finding black citizenship unthinkable because it would give blacks the right to "keep and carry arms wherever they went"). A revolt by Nat Turner and a few dozen other armed blacks could be put down without much difficulty; one by four million armed blacks would have meant big trouble.
"All too many of the other great tragedies of history -- Stalin's atrocities, the killing fields of Cambodia, the Holocaust, to name but a few -- were perpetrated by armed troops against unarmed populations. Many could well have been avoided or mitigated, had the perpetrators known their intended victims were equipped with a rifle and twenty bullets apiece, as the Militia Act required here. If a few hundred Jewish fighters in the Warsaw Ghetto could hold off the Wehrmacht for almost a month with only a handful of weapons, six million Jews armed with rifles could not so easily have been herded into cattle cars.
"My excellent colleagues have forgotten these bitter lessons of history. The prospect of tyranny may not grab the headlines the way vivid stories of gun crime routinely do. But few saw the Third Reich coming until it was too late. 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.
"Fortunately, the Framers were wise enough to entrench the right of the people to keep and bear arms within our constitutional structure. The purpose and importance of that right was still fresh in their minds, and they spelled it out clearly so it would not be forgotten. 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, the right of the people to keep and bear Arms, shall not be infringed.'
"The sheer ponderousness of the panel's opinion -- the mountain of verbiage it must deploy to explain away these fourteen short words of constitutional text -- refutes its thesis far more convincingly than anything I might say. 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."
Judge Kozinski knows, from personal experience, the helplessness of unarmed people in the face of brutal tyranny -- a native of Romania, he fled that country to escape the dictatorship of Nicolae Ceausescu.
There are two federal circuits in conflict over the meaning of the Second Amendment (the Ninth and the Fifth). The stage may be set for a momentous Supreme Court decision at some point in the very near future.
The full text of Judge Kozinski's dissent can be found here -- it starts on page 2, and ends on page 6 of this pdf file:
http://www.ca9.uscourts.gov/ca9/newopinions.nsf/019661EF3BAAF4C488256D1D00793D3A/$file/0115098o.pdf?openelement
In March, the U.S. Court of Appeals for the D.C. Circuit declared unconstitutional Washington, D.C.'s ban on handgun ownership. That 2-1 ruling, penned by Judge Laurence Silberman, found - as the Wall Street Journal recently opined - that when the "Second Amendment spoke of the 'right of the people,' it meant the right of 'individuals,' and not some 'collective right' held only by state governments or the National Guard."
We all know that when the Supreme Court retires to chambers to decide this case, Justices Souter, Breyer, Ginsburg and Stevens will declare that the Second Amendment is a collective -- not an individual -- right. Before they do such, they should read the following, which was posted on the Nigh Seen Creeder in September:
Exactly four years ago this week, the liberal-led U.S. Court of Appeals for the Ninth Circuit upheld the constitutionality of California’s Assault Weapons Control Act and refused to recognize an individual -- rather than a collective -- constitutional right to bear arms.
Federal Appellate Judge Alex Kozinski was one of six judges dissenting from the decision -- and his passionate and informed dissenting opinion is simply magnificent.
After boldly declaring that some anti-Second Amendment judges deliberately misread the Second Amendment in order to enforce their prejudices, Judge Kozinski finished with these ringing words that cut to the heart of why the Second Amendment is so very important to a free people:
"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. In Florida, patrols searched blacks' homes for weapons, confiscated those found and punished their owners without judicial process. In the North, by contrast, blacks exercised their right to bear arms to defend against racial mob violence. As Chief Justice Taney well appreciated, the institution of slavery required a class of people who lacked the means to resist. See Dred Scott v. Sandford, (1857) (finding black citizenship unthinkable because it would give blacks the right to "keep and carry arms wherever they went"). A revolt by Nat Turner and a few dozen other armed blacks could be put down without much difficulty; one by four million armed blacks would have meant big trouble.
"All too many of the other great tragedies of history -- Stalin's atrocities, the killing fields of Cambodia, the Holocaust, to name but a few -- were perpetrated by armed troops against unarmed populations. Many could well have been avoided or mitigated, had the perpetrators known their intended victims were equipped with a rifle and twenty bullets apiece, as the Militia Act required here. If a few hundred Jewish fighters in the Warsaw Ghetto could hold off the Wehrmacht for almost a month with only a handful of weapons, six million Jews armed with rifles could not so easily have been herded into cattle cars.
"My excellent colleagues have forgotten these bitter lessons of history. The prospect of tyranny may not grab the headlines the way vivid stories of gun crime routinely do. But few saw the Third Reich coming until it was too late. 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.
"Fortunately, the Framers were wise enough to entrench the right of the people to keep and bear arms within our constitutional structure. The purpose and importance of that right was still fresh in their minds, and they spelled it out clearly so it would not be forgotten. 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, the right of the people to keep and bear Arms, shall not be infringed.'
"The sheer ponderousness of the panel's opinion -- the mountain of verbiage it must deploy to explain away these fourteen short words of constitutional text -- refutes its thesis far more convincingly than anything I might say. 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."
Judge Kozinski knows, from personal experience, the helplessness of unarmed people in the face of brutal tyranny -- a native of Romania, he fled that country to escape the dictatorship of Nicolae Ceausescu.
There are two federal circuits in conflict over the meaning of the Second Amendment (the Ninth and the Fifth). The stage may be set for a momentous Supreme Court decision at some point in the very near future.
The full text of Judge Kozinski's dissent can be found here -- it starts on page 2, and ends on page 6 of this pdf file:
http://www.ca9.uscourts.gov/ca9/newopinions.nsf/019661EF3BAAF4C488256D1D00793D3A/$file/0115098o.pdf?openelement
# posted by Joltin' Django @ Monday, November 26, 2007 
