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Will the Justices Bite the Bullet?
Tony Mauro
Legal Times
11-24-2003
For more than six decades, the Supreme Court has ducked the opportunity to examine the real meaning of the Second Amendment's promise of the right to "keep and bear arms."
Now, some advocates of gun rights are hoping the Supreme Court will finally bite the bullet and grant review in Silveira v. Lockyer, No. 03-51, a challenge to California's strict 1999 assault weapon ban. The case is one of dozens the justices are set to discuss at their private conference Wednesday. A decision by the Court whether to grant review could be announced as soon as Dec. 1. The Court also meets in conference Dec. 5.
The Silveira case, brought by a group of "California gentlemen," according to their brief, asks the Court to reverse a December 2002 ruling by the 9th U.S. Circuit Court of Appeals that upheld the state law, first enacted in 1989 and broadened in 1999. In an extensive section of the ruling on the Second Amendment, Judge Stephen Reinhardt found the amendment "does not establish an individual right to own or possess firearms for personal or other use." Reinhardt's liberal rulings are often scrutinized and reversed by the Court.
When the 9th Circuit was asked to review the ruling en banc, the majority said no -- and four judges wrote dissents to that decision.
"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 Alex Kozinski wrote in a dissent, referring to Reinhardt's lengthy discussion of the Second Amendment.
The last time the Supreme Court expressed a formal view on the meaning of the Second Amendment was in the 1939 case United States v. Miller. Although the meaning of the ruling in Miller is still debated, it framed the discussion of the Second Amendment right in terms of the needs of organized militias, not individuals. Ever since, the Court has denied review in cases that would force it to re-examine its stance.
Gary Gorski, a solo practitioner from Fair Oaks, Calif., filed the petition with the Supreme Court, asserting that lower courts are in "serious conflict" over the meaning of the Second Amendment. Gorski cites the 5th Circuit's 2001 ruling United States v. Emerson, which upheld a federal gun control statute -- but also stated that "the Second Amendment, like other parts of the Bill of Rights, applies to and protects individual Americans."
Gorski is backed by the North Fort Myers, Fla.-based gun rights group Keep and Bear Arms. "We must settle the 'question' of the Second Amendment sooner rather than later," the group states on its Web site devoted to the case, keepandbeararms.com/Silveira/.
The late D.C. lawyer Roy Lucas helped write the Gorski brief. Lucas, who died earlier this month, was best known as an early pro-abortion rights strategist. Lucas, who as a law student helped craft the winning privacy argument that led to Roe v. Wade in 1973, filed the first abortion rights lawsuit in New York state in 1969, according to a New York Times obituary published Nov. 7. Lucas never owned a firearm, but in recent years researched the Miller case and came to the conclusion that the Second Amendment protects an individual right to bear arms. He was 61 when he died.
Other factions in the gun rights legal community have not been as enthusiastic about Silveira, and there was considerable debate over whether it should have been pressed before the 9th Circuit or appealed to the Supreme Court.
The National Rifle Association opposed the Silveira plaintiffs at the circuit level, arguing they did not have standing. Now that the case is before the Supreme Court, the NRA has filed an amicus brief supporting Supreme Court review.
Gun rights supporter David Kopel, co-author of a new book on the Supreme Court's firearms decisions, "Supreme Court Gun Cases," says Silveira is not the best vehicle for a full-scale examination of the Second Amendment. At the case's earlier stages, Kopel says, taking a Second Amendment case to the 9th Circuit was like "bringing a 1946 test case on racial segregation in a Mississippi court."
Kopel is confident that the Supreme Court, if it takes the case and ultimately rules on it squarely, will take an "individual right" view of the Second Amendment. "The country will go nuts" in protest if the Court does not take such an approach, says Kopel. "The Court won't spend political capital to read the Second Amendment out of the Constitution."
But how far the Court goes in protecting that right will be up to Justices Sandra Day O'Connor and Anthony Kennedy, he says. Both justices, Kopel adds, could be swayed to take a limited view of the Second Amendment by "the people they meet at parties in Georgetown" because the case involves unpopular assault weapons.
But Lucas, in an essay posted on the Keep and Bear Arms Web site weeks before his death, said the Silveira case is a good one for the Supreme Court to review, since it involves noncriminals and the pro-gun rights position won the support of the dissenting 9th Circuit judges. "Silveira has the makings of a huge national success," wrote Lucas.
Also filing briefs urging the Court to review the case are a range of gun rights groups, including Women Against Gun Control, Jews for the Preservation of Firearms Ownership, and Pink Pistols, which advocates for the right of self-defense for gay, lesbian, bisexual and transgendered firearms owners.
The state of California in its brief defends the law and says the Second Amendment does not even apply to state laws. While most of the rest of the Bill of Rights has been interpreted to restrict state as well as federal action, California Attorney General Bill Lockyer says the Second Amendment should be an exception. "Since the Second Amendment was designed to ensure the states' ability to thwart invasion and protect against federal encroachment, it would be especially ironic to include it among the provisions selectively incorporated against state power."
For their part, organizations in support of gun control are eyeing Silveira warily. None has filed a brief in the case yet.
Silveira "could be" a pivotal Second Amendment case, says Brian Siebel, senior attorney at the Brady Center to Prevent Gun Violence. But he adds that if the high court wants to avoid the Second Amendment issue as it has in the past, it could well deny review.
Mathew Nosanchuk, litigation director of the Violence Policy Center, thinks it is likely the Supreme Court will not review the case. He says there is no substantial circuit split, and he doubts that the Court will want to examine the Second Amendment in the "politically sensitive" context of assault weapons. The Bush administration has defended the federal assault weapon law in court, he notes.
"These are the weapons used to kill one out of five police officers, used in the Stockton and Columbine school shootings, and by the D.C-Maryland-Virginia snipers," says Nosanchuk.
Will the Justices Bite the Bullet?
Tony Mauro
Legal Times
11-24-2003
For more than six decades, the Supreme Court has ducked the opportunity to examine the real meaning of the Second Amendment's promise of the right to "keep and bear arms."
Now, some advocates of gun rights are hoping the Supreme Court will finally bite the bullet and grant review in Silveira v. Lockyer, No. 03-51, a challenge to California's strict 1999 assault weapon ban. The case is one of dozens the justices are set to discuss at their private conference Wednesday. A decision by the Court whether to grant review could be announced as soon as Dec. 1. The Court also meets in conference Dec. 5.
The Silveira case, brought by a group of "California gentlemen," according to their brief, asks the Court to reverse a December 2002 ruling by the 9th U.S. Circuit Court of Appeals that upheld the state law, first enacted in 1989 and broadened in 1999. In an extensive section of the ruling on the Second Amendment, Judge Stephen Reinhardt found the amendment "does not establish an individual right to own or possess firearms for personal or other use." Reinhardt's liberal rulings are often scrutinized and reversed by the Court.
When the 9th Circuit was asked to review the ruling en banc, the majority said no -- and four judges wrote dissents to that decision.
"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 Alex Kozinski wrote in a dissent, referring to Reinhardt's lengthy discussion of the Second Amendment.
The last time the Supreme Court expressed a formal view on the meaning of the Second Amendment was in the 1939 case United States v. Miller. Although the meaning of the ruling in Miller is still debated, it framed the discussion of the Second Amendment right in terms of the needs of organized militias, not individuals. Ever since, the Court has denied review in cases that would force it to re-examine its stance.
Gary Gorski, a solo practitioner from Fair Oaks, Calif., filed the petition with the Supreme Court, asserting that lower courts are in "serious conflict" over the meaning of the Second Amendment. Gorski cites the 5th Circuit's 2001 ruling United States v. Emerson, which upheld a federal gun control statute -- but also stated that "the Second Amendment, like other parts of the Bill of Rights, applies to and protects individual Americans."
Gorski is backed by the North Fort Myers, Fla.-based gun rights group Keep and Bear Arms. "We must settle the 'question' of the Second Amendment sooner rather than later," the group states on its Web site devoted to the case, keepandbeararms.com/Silveira/.
The late D.C. lawyer Roy Lucas helped write the Gorski brief. Lucas, who died earlier this month, was best known as an early pro-abortion rights strategist. Lucas, who as a law student helped craft the winning privacy argument that led to Roe v. Wade in 1973, filed the first abortion rights lawsuit in New York state in 1969, according to a New York Times obituary published Nov. 7. Lucas never owned a firearm, but in recent years researched the Miller case and came to the conclusion that the Second Amendment protects an individual right to bear arms. He was 61 when he died.
Other factions in the gun rights legal community have not been as enthusiastic about Silveira, and there was considerable debate over whether it should have been pressed before the 9th Circuit or appealed to the Supreme Court.
The National Rifle Association opposed the Silveira plaintiffs at the circuit level, arguing they did not have standing. Now that the case is before the Supreme Court, the NRA has filed an amicus brief supporting Supreme Court review.
Gun rights supporter David Kopel, co-author of a new book on the Supreme Court's firearms decisions, "Supreme Court Gun Cases," says Silveira is not the best vehicle for a full-scale examination of the Second Amendment. At the case's earlier stages, Kopel says, taking a Second Amendment case to the 9th Circuit was like "bringing a 1946 test case on racial segregation in a Mississippi court."
Kopel is confident that the Supreme Court, if it takes the case and ultimately rules on it squarely, will take an "individual right" view of the Second Amendment. "The country will go nuts" in protest if the Court does not take such an approach, says Kopel. "The Court won't spend political capital to read the Second Amendment out of the Constitution."
But how far the Court goes in protecting that right will be up to Justices Sandra Day O'Connor and Anthony Kennedy, he says. Both justices, Kopel adds, could be swayed to take a limited view of the Second Amendment by "the people they meet at parties in Georgetown" because the case involves unpopular assault weapons.
But Lucas, in an essay posted on the Keep and Bear Arms Web site weeks before his death, said the Silveira case is a good one for the Supreme Court to review, since it involves noncriminals and the pro-gun rights position won the support of the dissenting 9th Circuit judges. "Silveira has the makings of a huge national success," wrote Lucas.
Also filing briefs urging the Court to review the case are a range of gun rights groups, including Women Against Gun Control, Jews for the Preservation of Firearms Ownership, and Pink Pistols, which advocates for the right of self-defense for gay, lesbian, bisexual and transgendered firearms owners.
The state of California in its brief defends the law and says the Second Amendment does not even apply to state laws. While most of the rest of the Bill of Rights has been interpreted to restrict state as well as federal action, California Attorney General Bill Lockyer says the Second Amendment should be an exception. "Since the Second Amendment was designed to ensure the states' ability to thwart invasion and protect against federal encroachment, it would be especially ironic to include it among the provisions selectively incorporated against state power."
For their part, organizations in support of gun control are eyeing Silveira warily. None has filed a brief in the case yet.
Silveira "could be" a pivotal Second Amendment case, says Brian Siebel, senior attorney at the Brady Center to Prevent Gun Violence. But he adds that if the high court wants to avoid the Second Amendment issue as it has in the past, it could well deny review.
Mathew Nosanchuk, litigation director of the Violence Policy Center, thinks it is likely the Supreme Court will not review the case. He says there is no substantial circuit split, and he doubts that the Court will want to examine the Second Amendment in the "politically sensitive" context of assault weapons. The Bush administration has defended the federal assault weapon law in court, he notes.
"These are the weapons used to kill one out of five police officers, used in the Stockton and Columbine school shootings, and by the D.C-Maryland-Virginia snipers," says Nosanchuk.