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Wishing Our Rights, and America, Away

Joseph Pickett

June 15, 2003 -- The San Francisco Gate recently ran this blaring headline, "9th Circuit Rules Individuals Have No Right to Bear Arms."  So that's that for the 2nd Amendment?

Not quite yet. This is, after all, the 9th Circuit Court. I attach about as much meaning to the utterances of that wacky and wily bunch of judicial jihadists in San Francisco as they apparently do to the precise, elegant words of the 2nd Amendment. After all, the 9th is the most overturned circuit court in our Republic. They ruled last year that people in states in their jurisdiction can't pronounce the 'G' word in the Pledge of Allegiance in a public building. In response, the United States Senate actually voted on a resolution 99-0 that the Pledge should have 'under God' in it. It would be a 50-50 proposition that the Senate would agree the sun rises in the east, so the 9th clearly stepped in it.

In December, the 9th continued this novel approach to constitutional jurisprudence when it issued a ruling on a lawsuit that challenged the California semi-auto rifle ban on the basis of Second Amendment protection of our individual right to keep and bear arms. The court ruled there was no constitutional problem, because the 2nd Amendment does not grant individuals the right to own firearms. A few weeks ago, the 9th declined to reconsider its decision, thus the ruling held.

The joyous headline of the San Francisco Gate not withstanding, what was remarkable in the recent action was not what the majority said, but what the 6 judges said in their dissent. Each strongly objected to the ruling and maintained that individuals do indeed have a right to bear arms, and two of them produced some of the most elegant defenses of the 2nd Amendment that we have seen in decades. And this from the most liberal federal court in the nation.

One judge in dissent points out that some Americans, including certain judges, have routinely granted certain amendments in the Bill of Rights the widest possible interpretation to support rights important to them, yet ignored plainly stated constitutional principles that make them squeamish. For example, a right to abortion was found 'implied' in the nooks and crannies of the Constitution, but the right to bear arms, clearly written in ink, is ignored and disregarded by some as an anachronism.
Judge Kozinski said:

"Judges know very well how to read the Constitution broadly when they are sympathetic to the right being asserted. We have held, without much ado, that "speech, or . . . the press" also means the Internet, see Reno v. ACLU, 521 U.S. 844 (1997), and that "persons, houses, papers, and effects" also means public telephone booths, see Katz v. United States, 389 U.S. 347 (1967). is wrong to use some constitutional provisions as springboards for major social change while treating others like senile relatives to be cooped up in a nursing home until they quit annoying us.

...the able judges of the panel majority are usually very sympathetic to individual rights, but they have succumbed to the temptation to pick and choose. Had they brought the same generous approach to the Second Amendment that they routinely bring to the First, Fourth and selected portions of the Fifth, they would have had no trouble finding an individual right to bear arms.

Theirs is a tempting game. Personally, I'm not so hot about that pesky 5th Amendment; I'm getting tired of guilty-as-sin defendants retreating behind 'archaic' constitutional protections. As soon as the prosecution gets the goods on the defendant, he spouts that mumbo-jumbo about self-incrimination. Still, I recognize the need for this vital protection of American citizens, and I refuse to cherry pick the amendments I will support. I embrace all of them, because intellectual honesty requires that we view the Constitution objectively, with our political filters and personal biases removed. If we pick and choose which amendments have value, we diminish the value of them collectively.

Because Kozinski so precisely pointed out the blinders worn by the majority regarding the right to bear arms, Silveira vs. Lockyer is most likely headed to the Supreme Court. Our highest court hasn't heard a case on the 2nd Amendment since the United States vs. Miller in 1939, and there are long-standing conflicts between federal courts on the right to bear arms that need to be resolved. Also, the Silveira vs. Lockyer decision was written by the most over-turned federal court in the land, so odds are good that the Supreme Court will hear this case.

When they do, hopefully the Supreme Court will make the right decision and the 2nd Amendment will finally be recognized without a doubt to mean what the Founding Fathers intended when they wrote it in 1791. No less than every one of Americans' constitutional rights depends upon it.