Silveira case, breaking news: ever wanted to see a PISSED OFF JUDGE!?

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The short list of what's wrong with Miller vs. US:

1. It upheld an unconstitutional law and has been used to uphold countless others. It conferred upon the U.S. government powers denied it by the Constitution.

2. It accepts the premise that the 2nd Amendment allows the government to ban weapons which are not for use in the militia. That ain't what it says. If the Founders had meant that, they'd have written "A Well-Regulated Militia being necessary to the security of a free State, the Right of the People to keep and bear arms intended and suitable for use in that militia shall not be infringed."

3. It ignored the nose-on-your-face obvious implications of its own test. The test used in Miller proposed that if it were proven or "within judicial notice" that the weapons banned by a law were "suitable for use in the militia or military" then the law was void. The GCA '34 did not only ban short shotguns, remember? It also banned (sorry, "taxed") fully-automatic weapons of any type. There were no fully-automatic weapons in civilian hands at the time that were NOT originally developed for and used by the military! BARs, Browning machine guns, Gatlings, Maxims, Thompsons--no sane person could argue that these weapons were not "suitable for use by the militia." Indeed, that was about the only thing they were ever good for, other than turning money into noise in a fun way.


When people say that Miller is better than you think, what they are really saying is that it has been misquoted and used to justify abuses far beyond its actual scope. That's true as far as it goes, but it doesn't make Miller a good or desirable thing.

Having Miller's test followed strictly and honestly would be better than the situation we have today.

However, the Miller decision did not follow the Miller test honestly in the first place--and if it had, it would still have been unconstitutional. Having it struck down would be far better than having it followed more honestly, even though either would be better than our current predicament.
 
Depends. You fairly young?

Theoretically, according to it's own normal rules, the Supremes ought to take the appeal because of the conflict between the circuits between the 9th and the 5th. As a practical matter, if they don't want to take a 2nd amendment case, nobody can force them to.

And if they wanted to take a 2nd amendment case? They've had their opportunities in recent years, and passed 'em all up.

And the truth is that the circuit conflict in this instance is more verbal than practical. In the 9th circuit they say you don't have any 2nd amendment rights, and uphold every gun control law on earth. In the 5th circuit they say you do have 2nd amendment rights, and uphold every gun control law ANYWAY. That's not the kind of "conflict" the Supreme court has a pressing need to resolve. The Supreme court's not going to feel compelled to tackle this issue until one of the circuit courts actually strikes down a gun law on 2nd amendment grounds, instead of saying, "Yes, but...".

Frankly, I think the D.C. gun ban case that CATO is pursuing is far more likely to see the Supreme court. No "incorporation" issues involved there to muddy the water, and it's the strictest ban on the face of the planet. If that one isn't "unconstitutional", you can shred the 2nd amendment and use it for mulch, they're never going to admit any gun law goes too far.
 
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
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I'm sure even the leftist extremists haven't forgotten the Second Amendment: they're simply hoping we're too stupid to read and understand plain English.
 
I'm more interested in Silveira v Lockyer. Heaven forbid if I ever end up in D.C., a repeal of that gun ban would be more useful, but otherwise I'm very much interested in and very much more affected by whether the SCOTUS is going to finally acknowledge the 2nd but ignore the 14th and let States do whatever they want. That's just as bad. States ban knives, firearms, clubs...

Who has standing to challenge executive orders that only affect imporation? Can only a licensed importer challenge them?
 
Brett and Don are both very sharp and studied. Don, there are things about Miller that make it worse than you said -- you were kind. Brett, the CATO suit may have a better chance, but if it's heard, it still won't apply 2A to the states, which does no good for people in CA, NYC, MA, NJ, MD, etc. I know you know that, but that's why we need a case like Silveira -- we need 2A incorporated.The other gentleman (starts with a "T" but I didn't write it down) said:
So no matter what happens,we're talking years or not at all.
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Best of all worlds could have cert. granted in October. We have until August 4 to file and have discussed filing on July 4, for obvious reasons. Amicus brief will be due 30 days after we file. Herr Lockyer will probably get an extension, because he's special. Earliest likely (wishful thinking) grant or denial of cert, therefore, is circa October. But they can sit on it for a while and ponder, check the barometer, whatever, and drag it into their next session if they want to -- and they probably will.

If they did, it'd be a blessing on our end as far as figuring out how to fund things like flights to woo amici, flights to prep for oral argument, yada yada. SAF spent roughly $150K fighting Emerson and it wasn't heard. We've raised and spent $30K and have had a little more donated today. So we get to create some cash to do what needs to be done and welcome the extra time.

If cert. is denied, all the original work done for the case will be applied to another 2A case. The Justices can't avoid 2A forever, no matter who says they can. Ideally, if they crap out on this one, we'll find a case and get a law thrown out in a state as a violation of 2A -- as Brett suggested. But this one is hot, now, so we're planning for the best knowing that there's always a possibility that the robes will screw our Plaintiffs like the screwed Emerson and Bean.
 
Associated Press Online

May 6, 2003 Tuesday 8:38 PM Eastern Time

SECTION: DOMESTIC NEWS

LENGTH: 400 words

HEADLINE: Supreme Court Ruling Possible on Weapons

BYLINE: DAVID KRAVETS; Associated Press Writer

DATELINE: SAN FRANCISCO

BODY:
A federal appeals court on Tuesday refused to reconsider its ruling that Americans don't have the constitutional right to own firearms, setting up the possibility of a Supreme Court ruling on the Second Amendment.

A panel of the 9th U.S. Circuit Court of Appeals upheld California's assault weapons ban in a 2-1 ruling last December. On Tuesday, a majority of the circuit's 25 active judges declined to rehear the case.

The 9th Circuit's ruling conflicts with a 2001 decision from the 5th U.S. Circuit Court of Appeals that said individuals have a constitutional right to guns. The man who challenged California's weapons ban promised an appeal to the nation's highest court.

"I'll have this filed by the end of the week," attorney Gary Gorski said.

California enacted the nation's first assault weapons ban in 1989 after a gunman fired into a Stockton school yard, killing five children. Several states and the federal government later passed similar or more strict bans.

State and federal laws barring assault and other types of weapons are routinely upheld on grounds that they are rational governmental approaches to combat violence. The Second Amendment has had little, if any, impact on those court decisions - except in the California case.

In dismissing the bulk of Gorski's challenge, the 9th Circuit panel said the Second Amendment was adopted not "to afford rights to individuals with respect to private gun ownership or possession," but to allow states to maintain militias.

The decision was written by Judge Stephen Reinhardt, who noted the Supreme Court's guidance on whether the Second Amendment gives individuals the right to bear arms was "not entirely illuminating." The high court, he said, has never directly said whether there is a constitutionally guaranteed right to possess weapons.

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.

A spokeswoman for California Attorney General Bill Lockyer said he was "pleased that the court has upheld this important California law regulating assault weapons."

The 9th Circuit covers Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon and Washington.



On the Net:

9th Circuit: http://www.ce9.uscourts.gov
 
Shamaya,

I just sent my donation to the SAF. I've waited must of my adult life for the issue to get to the supreme court, and I don't want to see your efforts fail for lack of funds.

You can count on more in the future.
 
SkunkApe:
Shamaya,

I just sent my donation to the SAF. I've waited must of my adult life for the issue to get to the supreme court, and I don't want to see your efforts fail for lack of funds.

You can count on more in the future.
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That's great. SAF does some really good work. But SAF isn't funding this lawsuit. We asked for help. They declined to help financially but said they'd submit an amicus brief once we file the certiorari petition. I am a Life Member of SAF. When they were running the fundraising front lines for Emerson, I sent them $150, and our organization urged anyone who could to send them money, too.

But if you gave them money to help this lawsuit, my friend, it's not going to come this way.

Regardless, thank you. I got a note from a man today who sent us five dollars with an apology for not being able to send more. That kind of stuff gets me teary eyed. All I want is our rights restored. I have a son who is just shy of 7 months old. When he's a man, he will have better RKBA than we do -- I'll fight until I drop to make that happen. If I was a multi-gajillionaire like the people who fund VPC, Brady, etc., I'd fund the whole thing myself and feel very good about it.
 
Oops! A typo on my part. I sent the donation to the link you posted, KeepAndBearArms.com. I clicked on the "make a donation" link.

Sorry for the confusion.
 
One more thing. I'm a little concerned that the NRA and the SAf aren't supporting this case, and I wonder why.

This thread caught my attention because it was started by Jim March. I have the highest respect for Jim March's activism.

I'm sure you know that members of gun groups are constantly innundated by requests for money for alledgly dire situations. Heck, just last week someone started a thread on this forum criticizing me (gun owners in general) for not donating to an organization of which I'd never even heard. Out of all the pro-gun groups and causes, I'd like to be assured that this is the big one. Its sounds like it may be.

Jim March, is this the big one?
 
Lets get ready to litigate!

Ya think its over in the Supreme Court...naaaahhh...theres a whole new world for the lawyers to explore...more shills for fundraising, more debate, more battles...

Because heres the bottom line, right from the dissent...the same thing myself and other "non absolutists" have been harping on:

"Like any right, it is not absolute. Just
as the right to freedom of speech is subject to limitations for
defamation, threats, conspiracy, and all sorts of other traditional
qualifications, so is the right to keep and bear arms.
Indeed, the word “infringed†in the Second Amendment suggests
that the right, such as it is, may not be “encroached upon,â€
rather than that it, unlike all the other rights in the Bill of
Rights, is absolute. The one thing that is absolute is that the
Second Amendment guarantees a personal and individual
right to keep and bear arms, and prohibits government from
disarming the people."

I hope that Steve Halbrook files amicus curiae for the NRA or some other group, then I will feel real good about it.

Let the games begin.

WilddontgivemoneytoanonymouslawyersAlaska
 
I'm a little concerned that the NRA and the SAf aren't supporting this case, and I wonder why.
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NRA/CRPA's attorney tried to kill the case, SkunkApe. If you read their "reasoning", it looks like the same basic reason they've invaded the CATO case -- so they can control the fight. That'd be fine if they had any successful Supreme Court litigation under their belts. But they don't. And the "reasoning" Chuck Michel used when trying to get the Silveira case dismissed ought to concern liberty advocates greatly. It's just plain whacko.

SAF, on the other hand... hard to say. When I talked to Alan Gottlieb asking for their help, I didn't take notes or record the call. As I recall, he had concerns that the case would be declined, but I may be remembering wrong. Ask him.

You can believe NRA, SAF, GOA and many other groups will be filing amicus briefs in this case. So will VPC, Brady and the rest of the groups who'd rather see a woman raped than a rapist shot. But the standard of excellence will be set by Silveira's lead attorney, with the powerful Supreme Court litigant Roy Lucas' work being applied. Mr. Lucas has more Supreme Court experience than all the other gun rights attorneys combined, as far as I can tell. He's won unanimous decisions in S.Ct. and has victories in 11 of 12 circuit courts. Read up on him -- he's quite a tank on our side. His work is brilliant. Stunning, actually. You'll see it soon enough when we file the certiorari petition.
 
Wildalaska:
Ya think its over in the Supreme Court...naaaahhh...theres a whole new world for the lawyers to explore...
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How true. Even the best possible S.Ct. ruling will not undo any other gun laws other than the one being challenged. The rest will have to be fought, one by one. But undoing a so-called "assault weapons" ban would make lots of those battles rather elementary. Then again, there are lots of issues to fight on. Registration, background checks, magazine capacity limits, carry laws, etc. etc. Lots of work to be done, even after the ideal bestest ruling we could possibly imagine.

Still, it'd be nice to get the big battle fought and won, right?
 
Much as this has energized and encouraged me today, I just don't see us getting five robes to vote against California's AW ban. If they take the case, I think they'll rule for an individual rights interpretation (subject to reasonable restrictions, of course :rolleyes: ). That result would just hand us back the status quo where we are back in the trenches fighting tooth and nail against every "commonsense" disarmament law.

Maybe I need to stop thinking about this for today... :(

[Edit to fix the smilies]
 
That result would just hand us back the status quo where we are back in the trenches fighting tooth and nail against every "commonsense" disarmament law.
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If S.Ct. says a gun ban on mere semi-auto rifles doesn't infringe the Second Amendment, all bets are off, and there are no more rules.
 
SkunkApe: I'm honored by the vote of confidence. But realize we're way out of my depth here, I can make only scarcely well informed comments.

The reason the approach taken by Gary and company in Silveira is considered "dangerous" by SAF, NRA (Chuck Michel, Don Kates, etc) and others is that the media demonization of "assault rifles" could lead to bias on the bench. Which is what we're actually seeing in this refusal of the En Banc hearing, the 3-judge panel's decision, etc.

Sun Tzu said "attack where the enemy is weak, flee from where he's strong". Basically, "pit your strength against his weakness, and don't bash heads with the core of his strength".

While Gary Gorski's approach is legally 100% correct, methinks he's taking a dangerous approach.

But then again, he's legally right. NO question.

He's got nerves, I'll say that. :D Which way is this gonna go? Hell if I know. It's some REAL high stakes poker, that's for damnsure. Mind you, I don't know ALL the cards Gary is now holding - Angel & co. has been paying for some real high-end legal talent in DC who might be able to tip this better than the 50/50 total crapshoot it looks like. Dear GOD I hope so.

As to Amicus briefs: I want somebody credible to do a real short brief basically saying nothing but "hey Judges, whatever else you do, DON'T try and say that per Cruikshank the 2A doesn't apply to the states, or use later cases to make that point which ultimately rest back on Cruikshank". We'll use Morton Grove as an example, it did exactly that (by way of Presser). We'll also point out what a racist piece of crap Cruikshank is.

The danger is that they'll retreat back to Cruikshank without noting how rotten it is. If it's pointed out what Cruikshank really was, Clarence will scream bloody murder if they try and rely on it as authority.
 
Smart man.

Howdy, Jim.
Mind you, I don't know ALL the cards Gary is now holding - Angel & co. has been paying for some real high-end legal talent in DC who might be able to tip this better than the 50/50 total crapshoot it looks like. Dear GOD I hope so.
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Count on new and different, my friend. Roy Lucas is a reformed liberal who still has liberal-leaning tendencies and understands the mind of a liberal. You'll see that the cert. petition appeals to the liberal Justices in ways that command their attention. I told you before and I'll say it again: the guy's a friggin' legal genius. The first of four times I read every word of the developing cert. petition, I cheered out loud.
As to Amicus briefs: I want somebody credible to do a real short brief basically saying nothing but "hey Judges, whatever else you do, DON'T try and say that per Cruikshank the 2A doesn't apply to the states, or use later cases to make that point which ultimately rest back on Cruikshank". We'll use Morton Grove as an example, it did exactly that (by way of Presser). We'll also point out what a racist piece of crap Cruikshank is.
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You're a sharp dude when you're not attacking me. :D How does a civil rights group catering to the African American community sound? Cruikshank is going bye-bye.
 
Angel, I'm not gonna attack you again :). The page on my site doing that is gone. All I ask is that we stick with the basics on AB1044, not drag that into another squabble. Lockyer and company are the real bad guys on that one anyways.

As to Cruikshank: you've got that covered then? Good. One less thing for me to worry about :).
 
Angel, I'm not gonna attack you again. The page on my site doing that is gone.
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I won't hold you to that, buddy. Boys will be boys. :neener:
All I ask is that we stick with the basics on AB1044, not drag that into another squabble. Lockyer and company are the real bad guys on that one anyways.
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We'll run whatever you finalize and get it out to our full CA list -- say the word. Buried in email, so if I don't respond pretty quickly, call.
As to Cruikshank: you've got that covered then? Good. One less thing for me to worry about.
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Covered in theory. We've got the group to go, just need to come up with the moola to get the work done -- and the ample time to review it thereafter to make sure it's tight. We'll get it come hell or high water (or both!). Every time another outgoing wire must happen, just enough is there to do it... so far. I can't borrow any more money, so it's up to creativity. A whole bunch of sci-fi writers are going to redshirt characters (name characters for real people) for top donors to the suit, so that should take care of at least one amicus brief -- of the six we've got lined up. Other creative stuff on fundraising happening, just not fast enough to actually breathe a sigh of relief yet. Few people realize what it takes to go to S.Ct. I sure didn't.
 
Quoting:

Covered in theory. We've got the group to go, just need to come up with the moola to get the work done -- and the ample time to review it thereafter to make sure it's tight.
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There's a way of doing it "on the cheap" if the group will go along.

I can pen a first draft, send it to Peter Mancus for final cleanup and layout, it goes in under his name for the group in question. Betcha I can get Peter to kick in for free, on the assumption that my first draft will be good enough he doesn't have to put much time in.
 
There's a way of doing it "on the cheap" if the group will go along.

I can pen a first draft, send it to Peter Mancus for final cleanup and layout, it goes in under his name for the group in question. Betcha I can get Peter to kick in for free, on the assumption that my first draft will be good enough he doesn't have to put much time in.
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Get it started, please. I'll name our six amicus filers in person if you keep it confidential. Prefer not to release it publicly for a variety of reasons.

Just let loose of the need to have the final product emulate your verbatim approach. If your legal skills and my legal skills combined were a grain of sand, Roy Lucas' skills are a few beaches. I've learned more about what it takes to get a case heard in S.Ct. in three months than most people ever know -- and my rampant legal ignorance still annoys him mightily. Subtlety goes much farther than footnotes. That's probably why I'd never make a good attorney. heh heh Put the nuts and bolts on it but save yourself the time of opinion unless it's brief and very to the point -- to make sure he gets it from an RKBA angle. The legal angle? He'll get it beyond and beyond what we think we understand.
 
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