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Kozinski dissent from Silveira v. Lockyer

Very entertaining to read, especially the last paragraph... (btw, my stance on gun control is complicated, not worth going into now...)

Judges know very well how to read the Constitution
broadly when they are sympathetic to the right being asserted.
We have held, without much ado, that “speech, or . . . the
press� also means the Internet, see Reno v. ACLU, 521 U.S.
844 (1997), and that “persons, houses, papers, and effects�
also means public telephone booths, see Katz v. United States,
389 U.S. 347 (1967). When a particular right comports espe-cially
well with our notions of good social policy, we build
magnificent legal edifices on elliptical constitutional phrases
—or even the white spaces between lines of constitutional
text. See, e.g., Compassion in Dying v. Washington, 79 F.3d
790 (9th Cir. 1996) (en banc), rev’d sub nom. Washington v.
Glucksberg, 521 U.S. 702 (1997). But, as the panel amply
demonstrates, when we’re none too keen on a particular con-stitutional
guarantee, we can be equally ingenious in burying
language that is incontrovertibly there.

It is wrong to use some constitutional provisions as spring-boards
for major social change while treating others like
senile relatives to be cooped up in a nursing home until they
quit annoying us. As guardians of the Constitution, we must
be consistent in interpreting its provisions. If we adopt a juris-prudence
sympathetic to individual rights, we must give broad
compass to all constitutional provisions that protect individu-als
from tyranny. If we take a more statist approach, we must
give all such provisions narrow scope. Expanding some to
gargantuan proportions while discarding others like a crum-pled
gum wrapper is not faithfully applying the Constitution;
it’s using our power as federal judges to constitutionalize our
personal preferences.

The able judges of the panel majority are usually very sym-pathetic
to individual rights, but they have succumbed to the
temptation to pick and choose. Had they brought the same
generous approach to the Second Amendment that they rou-tinely
bring to the First, Fourth and selected portions of the
Fifth, they would have had no trouble finding an individual
right to bear arms. Indeed, to conclude otherwise, they had to
ignore binding precedent. United States v. Miller, 307 U.S.
174 (1939), did not hold that the defendants lacked standing
to raise a Second Amendment defense, even though the gov-ernment
argued the collective rights theory in its brief. See
Kleinfeld Dissent at 6011-12; see also Brannon P. Denning &
Glenn H. Reynolds, Telling Miller’s Tale: A Reply to David
Yassky, 65 Law & Contemp. Probs. 113, 117-18 (2002). The
Supreme Court reached the Second Amendment claim and
rejected it on the merits after finding no evidence that Miller’s
weapon—a sawed-off shotgun—was reasonably susceptible
to militia use. See Miller, 307 U.S. at 178. We are bound not
only by the outcome of Miller but also by its rationale. If Mil-ler’s
claim was dead on arrival because it was raised by a per-son
rather than a state, why would the Court have bothered
discussing whether a sawed-off shotgun was suitable for mili-tia
use? The panel majority not only ignores Miller’s test; it
renders most of the opinion wholly superfluous. As an inferior
court, we may not tell the Supreme Court it was out to lunch
when it last visited a constitutional provision.

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. See Robert J. Cottrol &
Raymond T. Diamond, The Second Amendment: Toward an
Afro-Americanist Reconsideration, 80 Geo. L.J. 309, 338
(1991). In the North, by contrast, blacks exercised their right
to bear arms to defend against racial mob violence. Id. at 341-
42. 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, 60 U.S. (19 How.) 393,
417 (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 Holo-caust,
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. See Kleinfeld Dissent
at 5997-99. 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 constitu-tional
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 moun-tain
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 rat-tlesnake
by sitting on it—and is just as likely to succeed.

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This page contains a single entry by Robert W. Rose published on May 7, 2003 12:41 PM.

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