[2dogs]

http://www.keepandbeararms.com/Silveira/SCtReq.asp

U.S. Supreme Court "Requests" Response from State of California in Silveira v. Lockyer Lawsuit

September 25, 2003

KeepAndBearArms.com -- Another interesting turn of events has occurred in the Silveira v. Lockyer Second Amendment lawsuit. Our legal experts advise that this new development suggests that the Supreme Court will probably be granting certiorari in this case -- that they will most likely be hearing the case for which KeepAndBearArms.com is the fundraiser.

On September 22, the Court issued a "Request for Response" to the Petition for a Supreme Court hearing of this true Second Amendment case -- a "request" that was sent to California attorney general Bill Lockyer and copied to lead Silveira attorney Gary Gorski. (See U.S. Supreme Court docket for Silveira v. Lockyer.) Why is this intriguing? Why does it suggest that the Justices are seriously considering hearing this case?

Let's quickly review the timeline of events surrounding the appeal of the Silveira case to the Supreme Court:

July 3, 2003: Petition for writ of certiorari filed. (Response due August 7, 2003)
July 30 - Aug 7: Amicus Briefs filed by Pink Pistols, Women Against Gun Control, Jews for the Preservation of Firearms Ownership, Second Amendment Sisters, Inc., National Rifle Association and Doctors for Sensible Gun Laws, in that order.
Aug 7, 2003: Waiver of right of respondent Bill Lockyer, Attorney General of California to respond filed.
Aug 20 2003: Petition DISTRIBUTED for Conference of September 29, 2003.
Sep 22, 2003: Response Requested [from California, who already waived the right to respond]. (Due October 22, 2003)

California waived their right to respond to the Petition, in essence saying "we'll let this play out without saying anything." One week before the Justices were to have their "Conference" on the case, they told California to respond anyway. They are asking California's attorney general, "Hey, do you agree with this opinion by your judge Reinhardt, or not? What is your position on the arguments in this Certiorari Petition. We're taking this seriously. So should you. Take a position. You've got one month to do so."

The Justices could simply have denied the Silveira petition, like they did in Emerson and Bean. But they didn't. By all appearances, they are thinking, seriously, about granting certiorari.

Disclaimer: Of course it's not a done deal until the Supreme Court says they'll hear the case. Another possibility could be that they want to give California a chance to convince them not to hear it. Or that they want to give an appearance of giving the case serious consideration even though they don't plan to hear it. But why go to that much trouble when they don't have to?

The Silveira legal team believes, as they have for quite some time, that this case will be granted a hearing -- and that the case will be won on at least the two fundamental questions presented. If they are correct, history is about to be made.


The case is a true, pure Second Amendment case that requires answers to two fundamental questions about the Second Amendment:
1) Is the Second Amendment a bar against infringements by the States?

2) Does the Second Amendment confer an individual right?

We already know the truth. The answer to both questions is an unequivocal YES. But these questions need to be answered squarely by the Supreme Court (rather than in mere dicta). Unlike the other Second Amendment cases petitioned to the Supreme Court by "gun rights leaders" since 1939, there's no wiggle room to avoid answering those questions; they must be answered if this case is heard. Liberty is on the line. Does the rule of law still apply, or has the federal government nullified the Bill of Rights? We may soon find out. And it's about time.

[keederdag]

WOW.......:eek:

[tommytrauma]

Intrestinger and interestinger. This show's gonna require both popcorn and a seatbelt.

[Intune]

2D, what happens after Oct 22 even if CA remains mum? What kinda time frame on this one?

P.S. Sorry about that other thread getting so hot. :o

[Gordon Fink]

Can’t the U.S. Supreme Court simply rule that the California ban is unconstitutional but leave the federal ban and other gun-control “laws” in place?

~G. Fink

[rock jock]

Another possibility could be that they want to give California a chance to convince them not to hear it. Or that they want to give an appearance of giving the case serious consideration even though they don't plan to hear it.
..or, that they can make sure Kali has a decent argument so they can hear the case and side with the antis.

[2dogs]

P.S. Sorry about that other thread getting so hot.

No problem, just ignore me when I lose control.;) :D

As for what will happen 10/22- I'll defer to the legal eagles, of which we have many.

[Brett Bellmore]

The anti's don't need a decent argument at this point, the Supremes are just deciding whether to take the case. If they do grant certiori, the state will certainly have the oportunity to defend it's position.

Looks like they want to know whether the state really doesn't mind if they accept the case, or simply blew it off because they assumed that the case would be rejected out of hand. I was fairly certain before that they'd deny cert., now I think it's about fifty-fifty, depending on how Lockyer responds.

[Standing Wolf]

Of course it's not a done deal until the Supreme Court says they'll hear the case.

Too bad we can't count on the Supreme Court always and everywhere to uphold the Constitution.

[BTR]

So, when will we hear if the court will take the case?:confused:

[Kharn]

According to one poster on FreeRepublic (he's apparently a Washington insider, I havent paid enough attention to figure out who he works for, but he's usually right on the money):

Original here (http://www.freerepublic.com/focus/f-news/990248/posts#7)
This is a VERY GOOD sign that the Supreme Court has "requested" a response from California to the Silviera Petition for Cert. In only one of my cases has the Court ever requested a response, but then not taken the case.

Although this is a "Request," AG Lockyear in California can read the handwriting on the wall. This step by the Court means that unless California files a brief NOW that satisfies the Court it should not take this case, that at least the four Justices required to vote to take the case are ready to do just that.

The Silveira case has just jumped from the average odds of one chance in 200 that the Court will take your case, to 95 chances in 100 that the Court WILL take the case. I'd call that real progress.

Congressman Billybob

I'm not sure if the case is being delayed until 10/22, or if they're going to discuss it at their conference on 9/29, only time will tell now. But I'd put my money on a delay until either Lockyer sends a brief or another 'I'm busy, bug off' note.

Kharn

[Don Galt]

Do we want the court to rule that the 2nd trumps state laws?

I always read the constitution to be a limit on federal power, not state... and generally believed that was what we wanted (as people are closer to state politicians and can vote with their feet.)

If the second trumps state law, then the federal government has too much power. I think the pro-constitution position would be that the state can ban guns (as much as I think banning guns is wrong).

Maybe a pure second ammendment case would be one that addresses the federal bans.

Please feel free to enlighten me if I'm confused, but don't take this as an anti-rkba position.

[Gray Peterson]

Do we want the court to rule that the 2nd trumps state laws?

The rest of your post.... :cuss: :cuss: :cuss:

What you suggest is we go back to U.S. v. Cruikshank. We'd have no first, fourth, fifth, or eigth amendment protection against state actions. Also, if the Supremes take the case, and make it unequivical that the second amendment that is an individual right and incorporated to the states, then the carry bans in the remaining states as well as the discretionary issue states, like Maryland, New Jersey, and New York are in deep doo doo.

The "states rights" people seriously need to keep out of this particular issue. Just because the Supremes gored your ox on the issue of abortion, laws regulating private consensual conduct, and so on, doesn't mean a ruling trumping states rights isn't neccesarily a bad thing. Do you really want the states to only hand out parade permits on a DISCRETIONARY basis, which is what our brothers in New York City, Los Angeles, and so on, have to do?

[Intune]

Well, I don't know Lonnie. IF the people of a state vote a certain way, then yes, I can see it trumping the FEDS view. The FEDS are gaining WAY too much power if you ask me, did you ask? If Alaska wants to allow an ounce of pot the FEDS withhold their highway allowance. That's cool with you? Not me. WE THE PEOPLE!

[Brett Bellmore]

Usually Supreme court rulings hostile to state governments hurt us, by transfering power to the federal government. In this instance, a ruling hostile to the state of California would help us, by denying a bad power to a state.

I must say that the only really plausible reason I've been able to formulate for the Supreme court suddenly being willing to take a major 2nd amendment case, given that it hasn't changed members any since it rejected Bean and Emerson, is that the anti-s on the Court are afraid that Bush will get the chance to appoint a pro-gun Justice, and want to drive the last nail into the 2nd amendment's coffin lid while they're still the majority.

This prospect doesn't really frighten me. First, it's entirely possible that if they DO take the case, at least one of the anti-gun Justices will be forced by excessive exposure to facts, like Tribe, kicking and screaming all the way, to admit the truth about what the 2nd amendment means. Stranger things have happened.

Second, even if the Court does rule against us, the backlash would destroy the Democrats in the 2004 elections, and as a result a re-elected Bush darned well WOULD be able to appoint one or more pro-gun Justices.

Once they take that case, either they give us what we want, or they wake the sleeping monster, and we take it. That's the way I see it, anyway.

[Tamara]

I always read the constitution to be a limit on federal power, not state... and generally believed that was what we wanted (as people are closer to state politicians and can vote with their feet.)

So a state can pass a law establishing Wicca as the state religion, allowing torture of suspects, granting state troopers the power to make summary roadside tribunals and executions, or whatever, and still remain part of the Union, or is the Constitution the highest law of the land? One can't have it both ways... :uhoh:

[Gray Peterson]

Well, I don't know Lonnie. IF the people of a state vote a certain way, then yes, I can see it trumping the FEDS view. The FEDS are gaining WAY too much power if you ask me, did you ask? If Alaska wants to allow an ounce of pot the FEDS withhold their highway allowance. That's cool with you? Not me. WE THE PEOPLE!

This is an issue of fundamental rights being abridged by a state, an EXPRESSLY STATED right. The issue of marijuana is something that's completely different.

About the federal with holding of highway funds..my opinion is, there shouldn't be such, and the states should not be forced into blackmail, but that's just me.

[Intune]

Lonnie, re the posts by Tam & Brett. I am of the old school, I guess. Our forefathers were some smart mofos. Incredibly so. Follow the rule of law, it is a truly amazing thing. Those who seek to deviate from it.... Hmmm, watch out!

[Delmar]

The Federal Constitution defines the duties and powers of the federal government. The Amendments, specifically the first 10, define the limits of power.
The Constitution does prohibit the states from trumping what is written in the constitution.

From Article 6:This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.

[clange]

About the federal with holding of highway funds..my opinion is, there shouldn't be such, and the states should not be forced into blackmail, but that's just me.
States rights are dead. "Do this or you dont get money". First of all, our money shouldnt go to the ????-heads in the federal governemnt, it should go to the state. Taxes should go to the state. If your state cant pay for ????, too bad, get involved and change stuff. Our states should have a fully functional guard, with all the tools the national guard (AKA army reserve) have. The feds should NEVER be able to blackmail the states into doing something. IMO, thats as vile as attacking free speech.

[Pendragon]

The whole issue with pot should fall under the - oh crap, is it the 14th or the 10th?

Anyway - powers not specifically given to the government are retained by the states and the people, etc.

RKBA, free speech, freedom from unreasonable search and siezure, the right to a speedy trial, bail, no cruel and unusual punishment, etc - these are fundamental human rights that are non negotiable - unless you live in one of about 6 states.

The whole game of "play ball, get money" started with what - Johnson or Nixon as a way to strongarm states by extorting them to go along to get "federal funds". Its dirty pool, but in some ways its akin to giving your 30 year old live in kid a curfew. If you dont like the house rules, go support yourself. Actually, its more like intercepting his paycheck so he cant move out, then imposing a curfew ;)

[clange]

Actually, its more like intercepting his paycheck so he cant move out, then imposing a curfew
Exactly, and it ????ing disgusts me. There is no reason the IRS should be getting all of our money. If i'm going to pay taxes it should at least go to the state. *** is wrong with people nowadays that they dont realize this? Are they that dumb? That apathetic?

[Intune]

Yep. Both. Sad, eh?

[Gray Peterson]

The Constitution does prohibit the states from trumping what is written in the constitution.

That would be correct, due to 14th Amendment. See below:

Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

and

Section 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.

The State of California, and it's Governor and Attorney General is guilty of the following crimes against the liberty and the property of it's residents:

1. Prohibited the possession of weapons protected by U.S. v. Miller, under the definition the Miller court adopted from the TN State Supreme Court case of State v. Aymette.

2. Passed laws requiring a person to get a permit to carry a handgun, requiring "good cause" which has been used by anti-gun jurisdictions as a way of not giving out permits to anyone.

3. Requires a handgun safety test before you can recieve a handgun safety certificate, which is the only way to buy a handgun legally in the state (violation of property interest, due process, and prior restraint on the RKBA).

Need I go on? Then if you're still objecting to the Supreme Court hearing this case in that declaring the CA AWCA unconstitutional is a violation of states rights, and that the courts don't have any authority to declare laws unconstitutional by a state (Along the same token, we'd have no recourse when the feds pass a law either that violates our rights), then what do we have? A bunch of bliss ninny's running rampant in a few states destroying the liberties of a minority, which in case you haven't noticed, includes gun owners in California. You have pro-gun people being backed into a wall there.

[Delmar]

Well, it hasn't happened yet, but if SCOTUS will interpret the 2A properly, if at all, it does seem that most of the gun laws in the country are done for. The NFA, and a whole lot of the 20K+ gun laws are going to the curb. I'll gladly chip in my share for the gallons of white-out it will take!
My hopes and prayers are going with Justice Scalia and Thomas on this one, based on statements attributed to them in the past.

Old enough to remember the Berlin wall going up and never thought I'd see it come down, but wow-I think the gun control debate has so far lasted longer than the Bronze age!

[Orthonym]

The MAIN argument in Congress for passing the 14th was to insure that the recently-emancipated Negro slaves could avail themselves of the 2nd.
I concur, even though, and because, all four of my great-grandpas served honorably in the Armies of Northern Virginia and Tennessee against the ruthless hordes of the evil, tyrannical Abraham Lenin. (I hate DYs so, so, much....) Sorry, that just escaped. I AM surrounded by them here.

[Delmar]

Orthonym
Don't be too hard on DY's-after all, Sam Colt, Eli Remington and a few others have provided us all with a lot of fun, protection and a great hobby!

I know some of its kinda rough-some people from the great unwashed northern cities just don't know to leave some of that garbage they're running away from. Hafta ejukate dem.

[Ed N.]

Betcha we get a philosophical victory but a practical loss.

Like this:

The Supremes cite all the history of the second amendment, and clearly state that it is an individual right, created so that the states could form militias from the private citizenry who would appear bearing their own arms.

Hooray.

Then they state that, since the militias are under control of the state governments, the states have the power to decide which privately owned arms are suitable for militia use. They'll point out that the colonial gov'ts often specified what arms were required to be owned as well as quantities of powder and shot.

So, if California does not believe that semi-auto "assault" weapons are necessary for militia service in CA, the state is free to outlaw them, so long as the people are not entirely disarmed. Thus CA could decide that single shot .410 shotguns are all that is required for a CA militia member.

This would address the question, not conflict with the history, and effectively leave us right smack where we are.

[WvaBill]

To rule that the US Constitution trumps state law:

2nd amendment states "RKBA shall not be infringed" as opposed to the 1st amendment "Congress shall make no law..." 14th amendment should not be necessary. Shall not be infringrd implies this cannot even be claimed by the State under 10th amendment law. Of course, the 10th amendment is not much discussed in my recollection.

This should only be splitting hairs as the BOR was adopted to insure ratification. Most of the framers, in my understanding, believed a BOR was unecessary due to the inalienable nature of the preserved rights.

[spookyspiff]

Has anyone read the treatment of this case on nationalreview.com this past week? From that author's perspective, this case is a gun control lover's dream come true. This just isn't the right case for the supreme court. And it would not be a good thing to lose a case that is directly about the meaning of the 2nd amendment.

Let's just all be careful what we wish for...

[Gray Peterson]

Has anyone read the treatment of this case on nationalreview.com this past week? From that author's perspective, this case is a gun control lover's dream come true. This just isn't the right case for the supreme court. And it would not be a good thing to lose a case that is directly about the meaning of the 2nd amendment.

Kopel was pretty thoroughly debunked here. He deliberately misrepresented several facts about the case, compared Victor Quilici with Gary Gorski, and said left out something important: Who's helpin Gary Gorski.

That man is Roy Lucas.

Remember the Vietnam Black armband case? His work. Remember Roe v. Wade? His work.

The man gets results, and he's respected by the liberal wing of the SCOTUS. The liberals WILL listen to him, and are likely to be dragged into accepting the second amendment as a strong individual right much like Lawrence Tribe was.

[publius]

And it would not be a good thing to lose a case that is directly about the meaning of the 2nd amendment.

Why? Seems to me that governments at all levels already act as though restricting or outright banning firearms is perfectly OK. I think the 2nd says otherwise, but what really matters is not what I think, but how they act. The way I see it, they wouldn't act any differently under a "militia only" interpretation of the 2nd. The only difference would be that we know where we stand as citiz...er...subjects.

Which is better, standing in quicksand and thinking it's solid ground, or standing in quicksand and knowing it? There's something to be said for knowing where you stand, especially if you're in quicksand either way.

[spookyspiff]

I don't think it would be a bad thing to lose because things would get worse. I think it would be a good thing to win because things would better.

Meaning, if the Supremes ruled against an individual rights interpretation the laws would probably stay status quo. But, if they ruled in favor, there could potentially be a domino effect of falling gun control laws.

So I think you're only looking at one side. A win at the highest level would be great and it would be better to get it with the right case rather than squandering the possiblity prematurely.

I'll admit i haven't read the thread "debunking" the NRO article. Will look for that next.