Tuesday - April 06, 2004

Category Image Ninth Circuit Court, Dissenter


Here is a dissenting opinion regarding the Second Amendment from the Ninth Circuit Court of Appeals. It is actually written in strong, understandable, mostly jargon-free English. It needs no further comments from me, You'll enjoy this, and it gives me hope for the future of our nation, and lawyers in general.

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

Russell Allen et al, Plaintiffs-Appellants, v. Mary V. King, et al, Defendants-Appellees

No. 99-17551
D.C. No. CV-99-04389-MJJ Northern Distsrict of California, San Francisco

Filed April 5, 2004

Before: Arthur L Alarcón, Diarmuid F. O'Scannlain, and Ronald M. Gould, Circuit Judges

Order

(I've excised the order, and skipped straight to the first dissent)

KLEINFELD, Circuit Judge, dissenting from denial of rehearing en banc:

I respectfully dissent. I join in Judge Gould's superb dissent, which explains coherently and most admirably why the Second Amendment guarantees an individual right to keep and bear arms.

Our court has erased 10% of the Bill of Rights for 20% of the American people. No liberties are safe if courts can so easily erase them, and no lover of liberty can be confident that an important right will never become so disfavored in popular or elite opinion as to being discarded like the Second Amendment.

I have spelled out in great detail why our court's view of the SEcond Amendment is indefensible, in my dissent from denial of rehearing en banc in Silveira v. Lockyer. Judge Gould has graciously noted some of the points in that dissent, and I will not restate them here.

Our court and the Fifth Circuit take opposite views. In United States v. Emerson, the Fifth Circuit reads the Second Amendment to establish an individual right to keep and bear arms. Our court reads it not to. Our court takes what to me is a position verging on droll legal humor, that the right is a "collective" right belonging to state government, meaning that it is enforceable only by the state, even when the state is the violator.

Whether the Second Amendment guarantees an individual right is more likely to affect the outcome in this case than in Silveira, the challenge was to California's ban on assault weapons. Reasonable regulation of the individual right guaranteed by the Second Amendment might well have led to the same result, no relief, as the result reached by the panel using the "no individual right" argument. In this case, by contrast, the result might well have been different if we had not erased the Second Amendment. The ordinance at issue, subject to narrow exceptions, criminalizes any and all possession of firearms on county property. The case before the panel was about apparently law-abiding persons wanting to hold a gun show at a fairgrounds.

Some people think that the Second Amendment is an outdated relic of an earlier time. Doubtless some also think that constitutional protections of other rights are outdated relics of earlier times. We The People own those rights regardless, unless and until We The People repeal them. For those who believe it to be outdated, the Second Amendment provides a good test of whether their allegiance is really to the Constitution of the United States, or only to their preferences in public policies and audiences. The Constitution is law, not vague aspirations, and we are obligated to protect, defend, and apply it. If the Second Amendment were truly an outdated relic, the Constitution provides a method for repeal. The Constitution does not furnish the federal courts with an eraser.

(The rest of the document, both the decision and the dissents are worth reading. Go to this link to download a pdf file of the decision.)

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