- The Washington Times - Friday, May 16, 2003

Six federal appeals-court judges last week delivered an extraordinary argument for their view that the Second Amendment guarantees individuals the right to own guns.

The dissenting judges on the 9th U.S. Circuit Court criticized the circuit’s decision not to rehear a California case in which a three-judge panel ruled that the word “people” in the Second Amendment does not mean individuals.

The Supreme Court is not likely to review this December case, and the dissenters complained that the views of three judges would become legal precedent, because the six who felt otherwise could not get a majority of the circuit’s 25 judges to join their dissent.

The December panel opinion written by Judge Stephen Reinhardt said Sean Silveira and eight other plaintiffs who filed the lawsuit had too little legal stake in the issue to challenge California’s Assault Weapons Control Act.

Strong language and unusual arguments by the six dissenting judges could be influential in a request for a Supreme Court hearing, but lawyers on both sides of the debate predict the high court will pass on what one called “the black sheep of the Bill of Rights.”

“The panel opinion erases the Second Amendment from our Constitution as effectively as it can, by holding that no individual even has standing to challenge any law restricting firearm possession or use. This means that an individual cannot even get a case into court to raise the question,” the 32-page main dissent said.

It said “rights” were retained by individuals while “powers” were delegated to governments, so “the right of the people to keep and bear arms” means what it says.

A barbed postscript by Judge Alex Kozinski, writing alone, said history would be vastly different had American slaves or Jews in the Warsaw Ghetto been able to arm themselves.

“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,” wrote Judge Kozinski, a native of Romania appointed by President Reagan.

“However improbable these contingencies may seem today, facing them unprepared is a mistake a free people get to make only once,” he wrote.

His opinion took a hard swing at his perennial target on the 9th Circuit, Judge Stephen Reinhardt, a Carter appointee who wrote the panel opinion.

“Judges know very well how to read the Constitution broadly when they are sympathetic to the right being asserted,” said Judge Kozinski, who said such judges may even build on what he called “white spaces” between lines of constitutional text. “But, as the panel amply demonstrates, when we’re none too keen on a particular constitutional guarantee, we can be equally ingenious in burying language that is incontrovertibly there.”

Mathew Nosanchuk, a leading opponent of individual gun ownership, said the dissenters’ “individual policy preferences dressed up as a legal opinion” have no legal basis and thought it would be unlikely the Supreme Court would take such a case.

“I’m Jewish. I find [Judge Kozinskis reasoning] very offensive, and it does history a discredit,” said Mr. Nosanchuk, litigation director for the Washington-based Violence Policy Center. “In these times we defend ourselves with freedom of expression and a free press. The idea that we have to be armed to fend off another Warsaw Ghetto uprising is completely contorted.”

The analyses of the dissenting judges will bring the debate to a new level, said Stephen Halbrook, a constitutional scholar who said he advised the National Rifle Association on this issue.

“These kind of opinions … are going to be read by other members of the judiciary. I think this will spread the willingness of judges to come out of the closet on the Second Amendment,” said Mr. Halbrook, who called it a travesty to define “people” one way in the Second Amendment and differently in the First, Fourth, Ninth and Tenth.

Neither Mr. Halbrook nor Mr. Nosanchuk expects the Supreme Court to hear an appeal of the California case, a view shared by Sanford Levinson, a Second Amendment scholar and professor at the University of Texas Law School who describes himself as a card-carrying member of the American Civil Liberties Union.

“This issue is likely to get to the Supreme Court only when a circuit court rules against the federal government on a Second Amendment issue, probably while it defends an arrest or conviction,” Mr. Levinson said.

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