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Silveira v. Lockyer

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Keep and Bear Arms

Keep and Bear Arms

Overview of
Silveira v. Lockyer

This page last updated: November 19, 2003

“The fundraising by is essential to Silveira v. Lockyer and has my backing 100%.”

— Gary Gorski, Attorney for Plaintiffs, Silveira v. Lockyer

Silveira v. Lockyer was filed in the Eastern District Court in California in the year 2000, by California attorney Gary Gorski. It argues for the individual right of the people to keep and bear arms under the Second and Fourteenth Amendments. The case seeks to overturn California's arbitrary ban on semi-automatic rifles -- a gun ban based on the ergonomic and safety features the firearms possess.

The Silveira lawsuit lost in the Eastern District court and was appealed to the Ninth Circuit, where it naturally also lost. That loss included a lengthy, wildly inaccurate rant from an often-overturned judge who reiterated the absurd notion that "the right of the people" is a right of the States. The plaintiffs then sought an en banc (full court) rehearing in the Ninth Circuit. While it failed to get that rehearing, six dissents were included, in support of the individual right of the people to keep and bear arms. The case was then appealed to the U.S. Supreme Court -- on July 3, 2003 -- and is now being considered for review.

You can see all pleadings, from the original complaint to present, on the Status Page -- and see exactly where the case stands.

The wording of the Questions Presented to the Supreme Court in the Certiorari Petition filed the day before Independence Day are as follows:


I.   Whether the Court of Appeals erred in denying standing for Petitioner firearms owners and collectors to challenge under the Second & Fourteenth Amendments State statutes restricting such ownership, where Petitioners are: (A) seriously affected by the statutes, (B) in the zone of interests impacted, and (C) would risk prosecution and confiscation by further purchase, sale, transfer, or other noncompliance?

II.   Whether the Second and Fourteenth Amendments protect the rights of individual persons to keep and bear arms for family, home, business and community defense, without the threat of forcible state confiscation, compulsory registration, or state-decreed monopolization?

A.   Whether the right to keep and bear arms should be substantially incorporated into the Fourteenth, applied to the States, and Presser v. Illinois (US 1886) limited or overruled?

B.   Whether the Second Amendment should be held to be part of the Fourteenth Amendment protected privileges and immunities of citizens, as the documentary history suggests, and Saenz v. Roe (US 1999), applied. Then, whether United States v. Cruikshank (US 1876), and the Slaughterhouse Cases (US 1873), should be limited or overruled?

III.   Whether the heavily criticized and ambiguous decision of Justice McReynolds in United States v. Miller (US 1939), decided without argument or counsel for Miller, should be limited or overruled after these 64 years, in favor of a comprehensive opinion from this Court recognizing as fundamental the individual right of family, home, business, and community defense under the Second and Fourteenth Amendment right to keep and bear arms?

IV.   Whether a heightened standard of review should be applied to a State statute that specifically impacts fundamental rights expressly protected by the Second Amendment and incorporated into the Fourteenth for additional reasons of family, home, business, and community defense that further emerged after the Civil War with the forced disarming of the freedmen and oppression of their families and entire communities based upon race, as in the Colfax and New Orleans massacres?

V.   Whether the judgment of the Court of Appeals should be reversed and the case remanded for trial on the merits, and a record of expert and factual testimony developed concerning the Second Amendment and the specific firearms and factual issues involved in this case?

VI.   Whether for remand this Court should order assessment of §1988 interim litigation expenses and counsel fees for Petitioners prior to trial on the merits of the remaining factual and legal questions?

Those are the Questions for the Justices to hear and decide, should this case be granted a Supreme Court hearing. They can agree to hear all, some or none of them.  See the Petition for Writ of Certiorari on the Status Page for the full text of the Petition. On that page you will also find links to California's response to the Petition and the Reply to their opposition to the case.

Conference is set for Wednesday, November 26. See the Supreme Court docket for the upcoming order revealing whether or not the Justices will hear this true Second Amendment case. Or stay tuned to and join our free email list to be notified as soon as we find out. Join the list from the upper left of our home page.


No man's life, liberty, or property are safe while the legislature is in session. — Mark Twain

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