Another Reason Why the 9th Circuit Court Abandoned Professor Michael Bellesiles

January 31, 2002

by Michael Pelletier
mvpel@firearmsfreedom.net

KeepAndBearArms.com -- The 9th Circuit Court of Appeals recently amended a ruling in the Silveira v. Lockyer gun rights lawsuit -- to delete and replace references to debunked professor Michael Bellesiles. Silveira attorney Gary Gorski's en banc petition for a hearing of his clients' case by the full court was considered a likely spark that caused the amendment.

And there's at least one more brushfire that surely had direct bearing on the turn away from Bellesiles: California attorney Don Kilmer, in the Nordyke v. King gun show ban case that's also now before the Ninth Circuit, filed a request for judicial notice of Bellesiles' academic fraud in the citations of his work in the Silveira case:

Cover Letter to Court Clerk

REQUEST FOR JUDICIAL NOTICE:
ACADEMIC FRAUD COMMITTED BY AUTHORS OF AUTHORITIES CITED IN SILVEIRA v. LOCKYER

Background on Nordyke Gun Show Case

You may recall the article published here on KABA in February of 2002, reporting on the California Supreme Court hearing on two cases involving the ban of sale, or the ban of possession of firearms on county property, specifically targeted at making gun shows (usually held on county fairgrounds) impossible. 

Don Kilmer is the attorney representing Russ & Sally Nordyke, the promoters of the T&S Gun Show, in their lawsuit against the Alameda County ordinance banning possession of firearms on county property. 

The ruling was a disappointment. In effect, the California Supreme Court came to the conclusion that since "licensing" and "registration" were the only two areas of firearms regulation specifically preempted by the legislature, that those were the only two areas off-limits to county and city ordinances, thus opening the door to the creation of a crazy-quilt patchwork of gun laws across the state. 

Once the California Supreme Court rendered its decision on the preemption question, the Nordyke v. King case went back to the Ninth Circuit Court for consideration on the First Amendment commercial free speech issues. It is now before another three-judge panel of the Ninth Circuit. 

The Second Amendment was not originally at issue in this case, because of the Hickman "collective right" precedent later reiterated in the Silveira decision. 

But one of the keys to successful litigation is the skillful use of motions, and Don Kilmer executed a flawless maneuver to slip the Second Amendment into the case after the fact. 

In light of the Fifth Circuit's individual right decision in the Emerson case, and the adoption of an individual right stance by the Justice Department, Kilmer requested that the court allow supplemental briefing on the subject of the Second Amendment, and his request was granted over the howling protests of the Alameda County attorneys. 

His brief laid out a succinct synopsis of the history of the Second Amendment as an individual right, backed up by a full CD-ROM copy of Stephen Halbrook's book on the subject. He also managed to tie that right to the First Amendment issues in the case, using the example of Charleton Heston's "from my cold dead hands" declaration where the possession of the firearm is central to the message. He also submitted a request for judicial notice of the Emerson case individual right ruling and of the individual right position of the Justice Department. 

Suddenly, the Alameda County attorneys found themselves in a fight they hadn't expected and were utterly unprepared for -- a Second Amendment fight -- thanks to Don Kilmer's legal strategies.

The case is still pending, and the tea leaves look like they may be favorable given the generally conservative makeup of the three-judge panel to which it was assigned. A decision could come very soon. 

Don's work in defending gun shows is just one piece of his tireless work on gun rights in California. He is a past president of the Silicon Valley NRA Members' Council, and is the founder and president of California Citizens for Self-Defense, an organization dedicated to putting the right to keep and bear arms into the California Constitution through the initiative process -- an effort that will get into full swing later this year.