Will The Supreme Court Hear Silveira v. Lockyer?


May 15, 2003, 07:16 AM

Will The Supreme Court Hear Silveira v. Lockyer?

By Carl F. Worden

Anyone who has been paying attention at all, knows the United States Supreme Court has carefully dodged every opportunity to decide, once and for all, whether the Second Amendment to the U.S. Constitution confers an individual right to keep and bear arms, or a collective right of the states to maintain independent and armed state militias.

Look, come off it: Every honest scholar, and a few flaming liberals who have studied the issue, including Laurence Tribe, know the Founding Fathers deliberately intended for the citizens to be individually guaranteed the right to arms as a last resort -- a tool with which to successfully revolt and defend against a future government that might seize power and violate the Constitution at will – you know, like the present – like, right now??

For you mindless Bush-lovers, get with the program: Your guy is one of the worst offenders of the United States Constitution who has ever occupied the Oval Office, bar none, and that includes that most fiendish replica of an American citizen and president, William Jefferson Clinton. If you haven’t figured that out yet, then you are even more stupid that those mindless crazies who worshipped Clinton no matter what he did. In fact, you are worse, because you know better!

So we have this crisis looming on the horizon of American jurisprudence that threatens the powers that be. The last time the U.S. Supreme Court had the opportunity to rule straight up or down on the Second Amendment was the Emerson Case. The Fifth Circuit Court of Appeals ruled overwhelmingly that an individual had the right to keep and bear arms under the Second Amendment. But that Court also ruled that Emerson could be denied his right to arms under the circumstances of the case. As a result, Emerson asked the U.S. Supreme Court to rule on the issue, which the Supremes predictably rejected and let the lower court decision stand.

Now, how is it that Carl Worden can state the Supreme Court was entirely predictable in refusing to review the Emerson Case on pure Second Amendment grounds? Hey, it was easy: Just look back.

The Supreme Court of the United States has had many opportunities to finally settle the question of the Second Amendment, but they have always nibbled away at the edges of the issue, without diving in, eating the whole thing and getting it over with. Why? Well, we have this here situation where the controlling government is walking a tightrope. They don’t want the Supremes to rule that the individual has the right to keep and bear arms, because that would strip states like New York, and even closer to home, the District of Columbia, of the authority to ban virtually all personal, let alone concealed, handguns. In our controlling government’s opinion, the more state-sponsored sanctions against guns in one form or another, the better for them, because then it’s not the federal government banning those weapons – it’s the states. That’s where the looming decision involving Silveira v. Lockyer comes in. Here we have the Fifth Circuit ruling in the Emerson Case that the individual most certainly is guaranteed the right to personal arms, while the Ninth Circuit ruled the Second Amendment is a “collective” right only for the state militia in the Silveira v. Locker Case.

The Supreme Court of the United States has handily avoided a straight up-or-down decision on the Second Amendment, because if and when they are pushed up against the wall and forced to produce, they will rule against our individual right to possess guns.

They will make that ruling, not on the basis of all those hundreds of supporting documents and comments written by the Founding Fathers to the contrary, but to preserve and protect the existing and controlling government of the United States. When they issue that ruling, if and when they must, they know they are risking an armed revolt on the spot, but they are hoping the American population will absorb the shock. Up to that point, the Supremes intend to avoid an up-or-down ruling on the Second Amendment indefinitely – and now you know why.

If it were my money on the table, I would think it safe.

But you never know. A Supreme Court decision contrary to the plain understanding of the Second Amendment, even if it was a 5-4 decision, could spark an armed revolt. It didn’t happen when God and prayer were kicked out of school. It didn’t happen when it became legal for a woman to kill her unborn baby for no better reason than personal convenience. But when it comes to manly play-toys like guns, hey, Katie bars the door!

In my dreams! Our gutless, spineless and perverse citizens in 2003?? No, I don’t think so. The only thing that gets the average American off the couch nowadays is pizza delivery.

The Silveira v. Lockyer case will be the Supreme Court decision of the century – IF the Supreme Court decides to hear it. The basis of the lawsuit is that states like California do not have the right to usurp federal constitutional law with regard to their citizen’s right to bear arms. If they refuse to rule on the case, the Supreme Court will have stated that the states have the right to prohibit the citizens from bearing arms by state authority over that of the Constitution itself. Crazier things have happened.

No, I don’t know how this mess is going to turn out, but I suspect that the Supreme Court will do one of two things in response to this imminent challenge: They will either refuse to hear the case, letting California’s authority to override the federal Constitution stand, or they will hear the case, and rule that the individual does not have the right to personal arms under the Second Amendment.

I sincerely hope I am wrong on both counts. Call me crazy.

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May 15, 2003, 12:08 PM
ok...youre crazy

May 15, 2003, 02:18 PM
There is, IMHO, a surer way to cause the SCOTUS to hear this case. It is unlikely to occur because it would involve a large mass of gunowners protesting in DC in front of the Court building during the time when they are considering hearing the case.

I think 50,000 people would do it but 200,000 or 300,000 would definately do it.

The signs carried would have to all but actually threaten armed revolt if the SCOTUS decided either not to hear the case or hear it and rule against Silveira in favor of the state of Kalifornication.

But if that many Americans show up down there holding signs like "Don't make me come back down here" or "The next time I come to DC I won't be holding a sign." etc. I think that would send a clear message that it is time to act and it is time to do the right thing which is confirm that the 2A applies to individuals and is higher than all State laws.

At that point we will have to be prepared to follow through with the "or else" because if the SCOTUS finds in favor of Lockyer our rights are almost doomed. Better join the Free State Project at that point and get ready to move because for the rest of America, it's over.

May 15, 2003, 02:26 PM
a large mass of gunowners protesting in DC

If it were a case involving abortion "rights" I'll bet the liberals could muster them out in short order- I've yet to see a "large mass" of gunowners in this country do anything but hunt.:confused:

May 15, 2003, 04:50 PM
I believe 2Dogs has summed up the general attitude of gun owners.

That will have to change unless you want to hand them in folks. Either your rights mean something to you or they don't. It's time to defecate or get off the pot.

May 15, 2003, 05:24 PM
The problem is we don't have a common banner to gather under, there are all these 100's of 'pro-gun' organizations that can't agree on much of anything. NRA sponsors something, the JPFO folks will not go...etc....etc.. (just an example of course).

We have a common enemy, but many folks are going to pretend he's not the enemy cause he's a Republican...

I have a feeling that if the SHTF, there would be a lot of unity amongst pro-gun folks, until then.....

May 15, 2003, 06:19 PM
They're a court. They're supposed to be removed from the influence of public opinion. If they're influenced by protestors, they're not doing their duty.

I'll wait to see if they hear it, and if they do hear it, whether they make the right decision.

Brett Bellmore
May 15, 2003, 07:00 PM
It's my understanding that the NRA opposes any such march, on the theory that you get THAT many people together, something nasty is bound to happen. (Even if the anti-gunners have to arrange it.) And that, while if something nasty happens at an anti-gun march, it'll be swept under the rug, if something nasty happens at a pro-gun march, it's the only thing that would be reported about it.

While I admit there's something to this, I think they're mostly rationalizing, and have other motives for opposing marches. Such as the fact that with a half million NRA members marching in Washington, it would be darned difficult for them to control what got said to reporters...

Bruce H
May 15, 2003, 07:53 PM
If the supreme court were to hear a 2A case and rule it to mean what we think it does look out. Just imagine all those who would be out of a job. What need would there be for the NRA, GOA, VPC, the Brady Bunch and all the rest that have alliances on both sides. If there was nothing to protest the funding these organizations take in would dry up post haste. I reallydon't look for any 2A cases to go to SCOTUS. The feds may pass legislation removing some of the more ignorant laws on the books, but sweeping change, no.

Standing Wolf
May 15, 2003, 09:09 PM
I sincerely hope I am wrong on both counts. Call me crazy.

I sincerely hope he's wrong, too, but wouldn't bet on it. I don't know whether he's crazy, but he's definitely a poor writer.

Jim March
May 16, 2003, 12:32 AM
Here's what I think will happen:

The 9th Circuit is going to AGREE to hear Nordyke (the gun show case out of Alameda County) En Banc. I'm about 99% sure of that. Doing so will at a minimum signal to the USSC that the issue is still "tied up" at the circuit level and isn't yet ripe for a USSC decision (stall tactic while the 9th screws around).

The 9th will do one of two things (in addition to stalling):

1) Rule that there's a "very weak" individual right that can be largely "infringed". This would be somewhat like what the 5th Circuit did in Emerson, although the 9th would try for a "weaker situation" than in the 5th (which didn't specify very well).

This would give the USSC an excuse not to rule, saying that the lower courts are sorting it out. Or it'll give the USSC the ammo to do a "very weak individual right".

2) The 9th will try and clean up the gross flaws in Silveira, Hickman and Fresno Rifle and try and bolster a "collective right" argument that they hope will fly at the USSC.

For an overview of the grotesque flaws in Silveira, Hickman and Fresno Rifle, see also:


While all this is mostly bad at the 9th Circuit, the good news is, even under the weakest possible "individual right" California's CCW system is in trouble with a capital "T" (and the other remaining "discretionary" systems with it).

May 16, 2003, 12:57 AM
Are there any circumstances that would force the SC to hear a case? I mean something where they HAVE to hear it and issue a ruling or lose their jobs.
Also, considering what Jim said, is it likely the SC and the Circuits are trying to keep such a case away from the SC?

Jim March
May 16, 2003, 02:10 AM
Well the 9th Circuit most definately doesn't want to see the USSC deal with this.

All three RKBA cases that have been decided by three-judge panels in the 9th since 1990 (Fresno Rifle, Hickman and Silveira) have been just riddled with errors. Silveira directly contradicts the other two in major ways. It's a total mess. If the USSC decides anything based on those three cases as they stand now, the 9th Circuit is going to look like the freakshow it is.

That's why they'll hear Nordyke En Banc, to try and turn out something that at least looks sane at first glance :rolleyes:.

Again, if you want to understand how ridiculous those three cases are, see also:


Zak Smith
May 16, 2003, 12:13 PM
Brett Bellmore,

It's my understanding that the NRA opposes any such march, on the theory that you get THAT many people together, something nasty is bound to happen. (Even if the anti-gunners have to arrange it.)

You can bet on it:

Shariar Ghalam, a gun-toting activist, fought a war and smuggled his family from tyranny to freedom. He's seen people hang for their beliefs. He thought he'd seen it all, until last week.

Ghalam-locked and loaded with a Sig Sauer 9mm semi automatic-was attacked by a peace protester while awaiting a Charlton Heston speech.

Get this: The aggressor was Robert Howell, vice president of the Boulder Chapter of the Bell Campaign, which lobbies for gun laws and peace.

Original thread contains full article and discussion. I was at the event in question.


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