Ten Reasons Why the Supreme Court Should Hear Silveira v. Lockyer and Decide Their is an Individual Right to Keep and Bear Arms Under the Second and Fourteenth Amendments

May 28, 2003

KeepAndBearArms.com — Some people argue that the U.S. Supreme Court will refuse to hear the Second Amendment case Silveira v. Lockyer, which will be appealed [was appealed, July 3, 2003] from the Ninth Circuit Court in California. Here are ten (and more) reasons why we think they are wrong, and why you should support the Silveira case as a rare and important opportunity for success.

(1) The Supreme Court has not heard a case on the fundamental right to keep and bear arms since United States v. Miller in 1939 — 64 years ago. The Court hears First, Fourth, Fifth, and Sixth Amendment cases virtually every year. And if only four of the nine Justices decide to hear the case, it will be heard.

(2) There are conflicts between federal circuit courts that need to be resolved by the Supreme Court. The Ninth Circuit Court's ruling in Silveira is directly contrary to the Second Amendment findings in the Emerson case from the Fifth Circuit Court. Furthermore, six Ninth Circuit Court judges dissented in Silveira because they thought Judge Reinhardt's ruling on the Second Amendment was wrong. Six dissents are rare and a huge factor in the U.S. Supreme Court deciding to grant certiorari (to hear the case). Those six votes in Silveira may be the most important votes for the individual right to keep and bear arms in the entire past one hundred years. 

(3) The conflict of circuits is long-standing, another factor in granting certiorari. Emerson conflicts with the First, Second, Third, Fourth, Sixth, Seventh, Eighth, Tenth, and Eleventh federal US Courts of Appeal. The Supreme Court may have refused to hear Emerson because the certiorari petition (the formal request that the Supreme Court hear a case) focused primarily on the commerce clause, instead of the Second Amendment right to keep and bear arms. 

(4) The certiorari petition in Silveira is thorough and complete but for minor edits and additions. Hundreds and hundreds of careful hours of research and writing have gone into this important project. It cleanly presents the clear Second and Fourteenth Amendment rights of individuals to keep and bear arms for family, home, business, and community defense. It is a civil case, not a messy criminal defense. And it does not have wasteful side arguments that clutter other firearms litigation. [NOTE: The certiorari petition was completed and submitted to Supreme Court since this was first published. Read it.]

(5) Extensive modern scholarship suggests that Emerson and the dissenting views in Silveira have the better argument regarding the meaning of the Second Amendment. The Silveira certiorari petition references over twenty of the relevant books and articles, and develops the points succinctly. 

(6) Since 1939 the Miller case has been cited to support negative decisions in every federal circuit but the Fifth in Emerson. The Silveira cert petition exposes the poor reasoning of Miller thoroughly and asks that those parts of it that are historically and constitutionally wrong be overruled. 

(7) Silveira presents the Supreme Court with an opportunity to write on a clean slate, to overrule Miller, and to overrule Presser v. Illinois, which refused to apply the Second Amendment to the States. There is an overwhelmingly powerful argument on our side: the Fourteenth Amendment, and the fact that most of the "individual right" amendments have been ruled as applying to the states. For example, Massachusetts cannot deny its citizens freedom of the press, because they are protected by the First Amendment; nor Wyoming force its citizens to testify against themselves, because they are protected by the Fifth Amendment. 

(8) The lower court decision in Silveira was written by the most-reversed federal circuit judge, Stephen Reinhardt, a notorious liberal activist judge. The dissents, however, were written by several very well respected circuit judges: Kozinski, Kleinfeld, and Gould, and joined in by an unusually large group of additional dissenters. They send a strong message to the Supreme Court to hear Silveira and reverse Reinhardt. 

(9) Specific detailed issues about different kinds of firearms, i.e., what the anti-gun crowd mendaciously calls "assault weapons", are reserved for trial by the Silveira certiorari petition, since there has been no trial to determine facts as yet. The Supreme Court is not a trial court and will only hear the fundamental constitutional questions raised by the Silveira certiorari petition — that is, does the Second Amendment, like so many other Amendments, apply to the states? And is it an individual right, like all the other rights spoken about in the Bill of Rights? These questions have become extremely important in both legislation and in politics in the last few years. The Court will have to deal with them -- and we believe they will deal with them now, rather than later. 

(10) The certiorari petition, brief and other materials in Silveira make a deliberate, carefully crafted effort to persuade all nine Supreme Court Justices of the need to recognize a strong individual Second Amendment right to keep and bear arms. Arguments are being developed that should resonate with the various viewpoints held by the different Justices. The individuals working on Silveira have decades of experience in Bill of Rights litigation before the Supreme Court with a great deal of success in other very difficult areas of law. Earlier Second Amendment activists largely slept through the civil rights movement and made no progress at all for individual Second Amendment rights until Emerson. Every effort is being made to present the Silveira arguments in ways that maximize prospects for success.

One final note: A real danger for us is that some messy criminal firearms case might get to the Supreme Court first — with Second Amendment issues poorly presented in a horrendous context. 

In contrast, Silveira is a clear, straightforward case that involves upstanding citizens. It has been very well and thoroughly thought out.

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