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Silveira case, breaking news: ever wanted to see a PISSED OFF JUDGE!?

Discussion in 'Legal' started by Jim March, May 6, 2003.

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  1. Jim March

    Jim March Member

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    HOLY BLEEP!

    Attorney Gary Gorski asked for an "En Banc Hearing" before 11 judges in the 9th Circuit, appealing his loss before Judge Reinhardt and two others. The Reinhardt-penned decision was so unutterably bad, some friends of mine want Congress to impeach him over it (not impossible, if the legislators don't like his "vote against God" in the pledge case). So I penned "Reinhardt’s Silveira Decision: Impeachable Offenses, A Bill Of Particulars", available with petition forms at:

    http://www.americanminutemen.org/reinhardt.htm

    Anyways, back to poor Gary: the 9th Circuit has turned down his request, so his next and final stop is the Nine Robes In DC.

    En Banc denial orders are usually short, adding up to "no".

    THIS one is 44 pages - four judges dissented and just...holy...LAMBASTED the rest! One guy in particular was so furious it's like nothing I've ever seen in a judicial decision...I'm going to quote it in it's entirety:

    ---------------
    KOZINSKI, Circuit Judge, dissenting from denial of rehearing en banc:

    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). When a particular right comports especially well with our notions of good social policy, we build magnificent legal edifices on elliptical constitutional phrases —or even the white spaces between lines of constitutional text. See, e.g., Compassion in Dying v. Washington, 79 F.3d 790 (9th Cir. 1996) (en banc), rev’d sub nom. Washington v. Glucksberg, 521 U.S. 702 (1997). But, as the panel amply demonstrates, when we’re none too keen on a particular constitutional guarantee, we can be equally ingenious in burying language that is incontrovertibly there.

    It 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. As guardians of the Constitution, we must be consistent in interpreting its provisions. If we adopt a jurisprudence sympathetic to individual rights, we must give broad compass to all constitutional provisions that protect individuals from tyranny. If we take a more statist approach, we must give all such provisions narrow scope. Expanding some to gargantuan proportions while discarding others like a crumpled gum wrapper is not faithfully applying the Constitution; it’s using our power as federal judges to constitutionalize our personal preferences.

    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. Indeed, to conclude otherwise, they had to ignore binding precedent. United States v. Miller, 307 U.S. 174 (1939), did not hold that the defendants lacked standing to raise a Second Amendment defense, even though the government argued the collective rights theory in its brief. See Kleinfeld Dissent at 6011-12; see also Brannon P. Denning & Glenn H. Reynolds, Telling Miller’s Tale: A Reply to David Yassky, 65 Law & Contemp. Probs. 113, 117-18 (2002). The Supreme Court reached the Second Amendment claim and rejected it on the merits after finding no evidence that Miller’s weapon—a sawed-off shotgun—was reasonably susceptible to militia use. See Miller, 307 U.S. at 178. We are bound not only by the outcome of Miller but also by its rationale. If Miller’s claim was dead on arrival because it was raised by a person rather than a state, why would the Court have bothered discussing whether a sawed-off shotgun was suitable for militia use? The panel majority not only ignores Miller’s test; it renders most of the opinion wholly superfluous. As an inferior court, we may not tell the Supreme Court it was out to lunch when it last visited a constitutional provision.

    The majority falls prey to the delusion—popular in some circles—that ordinary people are too careless and stupid to own guns, and we would be far better off leaving all weapons in the hands of professionals on the government payroll. But the simple truth—born of experience—is that tyranny thrives best where government need not fear the wrath of an armed people. Our own sorry history bears this out: Disarmament was the tool of choice for subjugating both slaves and free blacks in the South. In Florida, patrols searched blacks’ homes for weapons, confiscated those found and punished their owners without judicial process. See Robert J. Cottrol & Raymond T. Diamond, The Second Amendment: Toward an Afro-Americanist Reconsideration, 80 Geo. L.J. 309, 338 (1991). In the North, by contrast, blacks exercised their right to bear arms to defend against racial mob violence. Id. at 341- 42. As Chief Justice Taney well appreciated, the institution of slavery required a class of people who lacked the means to resist. See Dred Scott v. Sandford, 60 U.S. (19 How.) 393, 417 (1857) (finding black citizenship unthinkable because it would give blacks the right to “keep and carry arms wherever they wentâ€). A revolt by Nat Turner and a few dozen other armed blacks could be put down without much difficulty; one by four million armed blacks would have meant big trouble.

    All too many of the other great tragedies of history - Stalin’s atrocities, the killing fields of Cambodia, the Holocaust, to name but a few—were perpetrated by armed troops against unarmed populations. Many could well have been avoided or mitigated, had the perpetrators known their intended victims were equipped with a rifle and twenty bullets apiece, as the Militia Act required here. See Kleinfeld Dissent at 5997-99. If a few hundred Jewish fighters in the Warsaw Ghetto could hold off the Wehrmacht for almost a month with only a handful of weapons, six million Jews armed with rifles could not so easily have been herded into cattle cars.

    My excellent colleagues have forgotten these bitter lessons of history. The prospect of tyranny may not grab the headlines the way vivid stories of gun crime routinely do. But few saw the Third Reich coming until it was too late. The Second Amendment is a doomsday provision, one designed for those exceptionally rare circumstances where all other rights have failed—where the government refuses to stand for reelection and silences those who protest; where courts have lost the courage to oppose, or can find no one to enforce their decrees. However improbable these contingencies may seem today, facing them unprepared is a mistake a free people get to make only once.

    Fortunately, the Framers were wise enough to entrench the right of the people to keep and bear arms within our constitutional structure. The purpose and importance of that right was still fresh in their minds, and they spelled it out clearly so it would not be forgotten. Despite the panel’s mighty struggle to erase these words, they remain, and the people themselves can read what they say plainly enough:

    A well regulated Militia, being necessary to the
    security of a free State, the right of the people to
    keep and bear Arms, shall not be infringed.
    [Ed: yes, those italics are in the dissent, in that fashion!]

    The sheer ponderousness of the panel’s opinion—the mountain of verbiage it must deploy to explain away these fourteen short words of constitutional text—refutes its thesis far more convincingly than anything I might say. The panel’s labored effort to smother the Second Amendment by sheer body weight has all the grace of a sumo wrestler trying to kill a rattlesnake by sitting on it—and is just as likely to succeed.
    ---------------

    :eek:

    So what now?

    United States Supreme Court, guys. This sucker is going all the way.

    <scratches head>

    The only extra trick the 9th could pull would be to AGREE to hear Don Kilmer's Nordyke case En Banc (he's already requested). Nordyke also has "pure 2A elements" and if they supported that with an "individual rights subject to limits" decision but dumped Gary, it might be an excuse for the USSC to stay out of it. But I just don't see that happening, it would mean the 9th isn't "internally consistent" and they're *admitting* it.

    No, I think they're gonna dump Nordyke too. And then...well, we'll see, won't we?

    :uhoh:
     
  2. Geech

    Geech Member

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    Very nice read.

    I have an openly liberal college professor who believes that the second amendment guarantees a collective right because of the grammar. I almost want to email this to him with a little "This guy doesn't think so" note.
     
  3. Wildalaska

    Wildalaska member

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    Jim that is the most stinging dissent I have ever seen from a Fed Judge...and I have seen a lot of them..

    Can you post the entire decision?
     
  4. Frohickey

    Frohickey Member

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    Here is the 9th Circus Court of Appeal denying en banc hearing courtesy of Eugene Volokh.

    I've read a few bits and pieces, and its a great read, as far as the dissenting parts are.

    It mentions 'The Second Amendment is a doomsday provision, one designed for those exceptionally rare circumstances where all other rights have failed?where the government refuses to stand for reelection and silences those who protest'.

    It mentions Nazi Germany, Stalin, Warsaw Ghetto.... lots of stuff. The SCOTUS needs to give this a hearing... with a capital NEED!

    I like the 'sumo wrestler trying to kill a rattlesnake by sitting on it'... reminds me of the Gadsen flag.
     
  5. Shamaya

    Shamaya member

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    HTML version, with quotes from attorney.

    http://keepandbeararms.com/silveira/enbanc.asp

    There is a LOT going on behind the scenes in this case that leads us to believe it will be heard. If it's heard, U.S. v. Miller is going down.
     
  6. tyme

    tyme Member

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  7. DJJ

    DJJ Member

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    And that's precisely why it won't be heard.

    Any bets? I wish I were wrong about this; I really do. But the gov't and the judiciary have invested too much effort and have ignored the elephant in the room too long to suddenly admit it's there.
     
  8. Frohickey

    Frohickey Member

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    Hmm... sounds like **********'s assault weapons ban, banning features such as bayonet lugs is contrary to federal law about the bayonet provision. I think the politi-critters that voted for this bill should be charged with treason. :cuss:
     
  9. Kharn

    Kharn Member

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    Here's another goodie, copied from: http://www.freerepublic.com/focus/f-news/906659/posts

    "The most thorough of the dissents is by Judge Kleinfeld. Kleinfeld writes...

    About twenty percent of the American population, those who live in the Ninth Circuit, have lost one of the ten amendments in the Bill of Rights. And, the methodology used to take away the right threatens the rest of the Constitution. The most extraordinary step taken by the panel opinion is to read the frequently used Constitutional phrase, “the people,†as conferring rights only upon collectives, not individuals. There is no logical boundary to this misreading, so it threatens all the rights the Constitution guarantees to “the people,†including those having nothing to do with guns. I cannot imagine the judges on the panel similarly repealing the Fourth Amendment’s protection of the right of “the people†to be secure against unreasonable searches and seizures, or the right of “the people†to freedom of assembly, but times and personnel change, so that this right and all the other rights of “the people†are jeopardized by planting this weed in our Constitutional garden."

    Knowing the Supreme Court's love of smacking the Ninth Circuit around, I agree with Jim that this sucker is going all the way.

    Kharn
     
  10. Desertdog

    Desertdog Member

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    I think we need this particular judge nominated to the SCOTUS

    We could also use a lot more like him.
     
  11. Frohickey

    Frohickey Member

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    to DJJ...

    To quote Sgt Oddball (Donald Sutherland) in Kelly's Heroes...
    "Why don't you knock it off with them negative waves? Why don't you dig how beautiful it is out here?" :neener:
     
  12. Shamaya

    Shamaya member

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    Doomers and Gloomers, oh my!

    Our organization has already bet nearly $30,000 on it, Mr. Defeatist.

    A law review article we funded on the U.S. v. Miller ruling is complete. It brings out information (evidence) you've never seen. It's already been submitted to numerous journals. As soon as one of them publishes it, we'll release it, too. When you read it, and when you read our Certiorari Petition and our Brief, you will have a harder time hanging on to your "all is lost" attitude.

    But we won't deprive you of your pessimism if you really must luxuriate in it thereafter. :D

    Frohickey, I'm glad at least one person around here is living in the realm of Possibility. Thanks.
     
  13. Kharn

    Kharn Member

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    Shamaya:
    Are you saying that US v. Miller going down a good thing, or a bad thing?

    Kharn
     
  14. Zak Smith

    Zak Smith Moderator Emeritus

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    Shamaya,
    I don't understand what you mean by "going down." It won't change what happened to Miller himself, and we all know the principles and tests proposed in Miller rather strongly support the right to own an M16 - it's the misrepresentation of Miller that supports gun-control.

    Do you mean that you think the USSC will rule against the 2A?

    -z
     
  15. DigitalWarrior

    DigitalWarrior Member

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    I was gonna buy a Kimber

    I was gonna buy a Kimber this weekend, but it looks like I should spend the money making sure WinstonSmith will be able to buy a Kimber.
     
  16. Shamaya

    Shamaya member

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    U.S. v. Miller was a complete miscarriage of justice, for so many reasons it takes a law review article to expose them all. It must be overturned. Some people want to keep it to try to salvage some semblance of good out of it. But it's a pathetic excuse of a ruling from a poor excuse of a moron Justice. U.S. v. Miller must die, sooner the better. NFA '34 was then and is now unconstitutional. It must be repealed in whole. Same goes for EVERY federal gun law and 99.5% of ALL gun laws.

    OOOPS. Edited to close my quote.
     
  17. Shamaya

    Shamaya member

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    No. S.Ct., if they hear this case, will overturn Miller -- or at least correctly interpret it. Yes, it contains shreds of help for our side, but the entire case and its results must be dispatched due to the many problems with the case. Be patient and we'll show you exactly why -- in a way that the liberals on the High Court will agree with, too.

    Bear in mind that the legal genius helping us on this case behind the scenes is a former liberal. Read up on him here: http://KeepAndBearArms.com/lucas/roy.asp

    If I could do a mind meld with you -- a Spock thang -- you'd be asking your friends to pitch in for this case.
     
  18. Kharn

    Kharn Member

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    Shamaya:
    I'll definitely have to read your article in order to believe that US v. Miller is bad case law. From what I have read of it, the only bad part in the entire case was when the Court noted that they did not know if a shotgun was standard military equipment or not, and they did not bother to do further research on the issue. US v. Miller is exactly what the Second Amendment is about: Civilians have a right to own military-style arms.

    Regardless, this thread is getting way off topic, how about starting a new thread for discussing your article against US v. Miller?

    Kharn
     
  19. tyme

    tyme Member

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    Angel, if you can, could you please elaborate on exactly what is "wrong" with U.S. v Miller that makes overturning it significant? Obviously it's not the clearest opinion in the world, and it certainly deserves some quality time in the underworld for allowing public policy to take a walk off the map. But it upheld (at least as Kleinfeld and I read it) the individual rights interpretation.
     
  20. Shamaya

    Shamaya member

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    Can't afford the time, friend. We'll release it as soon as humanly possible -- maybe even before it gets published if need be. It's just that being able to cite the article in, say, "Yale Law Review Journal" is a big deal -- better than citing it to a URL on a "gun nut" website. :rolleyes:
     
  21. Kharn

    Kharn Member

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    9th Circuit Judges moonlighting exposed:
    [​IMG]
    :evil:

    Kharn
     
  22. Intune

    Intune Member

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    The folks at Knob Creek range better clear out a bunch of land. The machinegun shoot is gonna be a LOT bigger! A whole bunch of restrictions are going to fall like dominos. If not, we know that they truly mean to oppress us.
     
  23. Brett Bellmore

    Brett Bellmore Member

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    What's wrong with US v Miller? What's wrong with it is that they didn't uphold the lower court's ruling, that's what. The lower court, which the Supreme court reversed in Miller, ruled that,

    "The National Firearms Act is not a revenue measure but an attempt to usurp police power reserved to the States, and is therefore unconstitutional. Also, it offends the inhibition of the Second Amendment to the Constitution, U.S.C.A.-'A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed."

    Whereas the Supreme court went along with the gag that this law imposing a $200 transfer "tax" on items that cost anywhere from a nickle to twenty bucks, really was a revenue measure, and not the thinly disguised, blatently unconstitutional, gun control law we all know it was. Here's the precident they cited, from SONZINSKY V. UNITED STATES :

    "Inquiry into the hidden motives which may move Congress to exercise a power constitutionally conferred upon it is beyond the competency of courts. ... They will not undertake, by collateral inquiry as to the measure of the regulatory effect of a tax, to ascribe to Congress an attempt, under the guise of taxation, to exercise another power denied by the Federal Constitution."

    In other words, 100% tax, 1,000,000% tax, who cares? As long as a law claims to be a revenue measure, we're going to ignore what Congress is REALLY trying to accomplish with it. This is the precident that really got the ball rolling on the war on drugs, by the way, which in case you didn't know is theoretically a tax program. (Except that they jail you for not paying a tax they won't let you pay, just like with new machineguns.)

    Constitutionally, whether the gun was practical for militia use or not was utterly irrelevant. Congress doesn't have the authority to ban stuff, and that's the case whether or not they pretend that they're really just taxing it. Infringing on the right of the people to keep and bear arms is something Congress is forbidden to do, even by using powers it has a legitimate claim to exercise.

    The basic problem was that by the time Miller reached the Supreme court, FDR had succeeded in breaking their will to uphold the Constitution. They'd already agreed in the case of the Harrison Narcotic Act to pretend that Congress had the authority to ban things by taxing them outrageously. All they did in US v Miller was extend that illegitimate precident to firearms.

    So, yes, US v Miller was a bad decision, but that evil was established precident by that time, and what was bad was that they skipped an oportunity to correct themselves.
     
  24. tyme

    tyme Member

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    Arguably, the U.S. Supreme Court can do anything it wants, but realistically, and within federal rules of procedure, could they have upheld the lower court's ruling given that no evidence was presented by the defense?

    Now that there's "Loyalty Day," when is a president going to declare a "FDR destroyed this country and today we must all do our part to reverse the damage that's been done Day?"
     
  25. Brett Bellmore

    Brett Bellmore Member

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    Sure, they could have. They could have simply denied cert. Declared the case moot. Or upheld the lower court's ruling without any hearing. Or solicited someone to argue Miller's side. Far less extraordinary, actually, than hearing the case with only one side present.

    The point is that they weren't going to, because at that time they'd given up the fight, and were routinely upholding every federal law to come before them, no matter how blatently unconstitutional it was. In all likelihood it wouldn't have done a bit of good if Miller had shown up, and his lawyer had waved a WWII trench gun in front of the Justices. The law would still have been upheld, and the ruling would have been uglier, because they couldn't have copped out with that "no evidence has been presented" line.

    I'd say we were actually lucky that Miller wasn't there. It resulted in us getting as positive a ruling as possible, given the 100% certainty that the law was going to be found constitutional no matter what. It was an ugly time to be arguing for constitutional limits on federal power, that's for sure.
     
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