USA: "Supreme Court Urged to Take on Gun Rights"

[cuchulainn]

from the A.P. via Fox News

http://www.foxnews.com/story/0,2933,91028,00.html

Supreme Court Urged to Take on Gun Rights

Thursday, July 03, 2003
The Associated Press

WASHINGTON — The Supreme Court (search) is being asked to overturn an appeals court ruling that said the Constitution does not guarantee people a personal right to own a gun.

The court's past rulings on Second Amendment (search) gun rights - many in the 1800s - are a mess that should be straightened out when the justices return from their summer break, an appeal being filed Thursday at the court said.

The appeal relates to one of two closely watched cases from the liberal-leaning 9th U.S. Circuit Court of Appeals (search) in San Francisco. The high court will also decide later this year whether to review a 9th Circuit ruling that banned teacher-led reciting of the Pledge of Allegiance in public schools because of the phrase "under God."

The gun case includes an unlikely group of challengers - not the National Rifle Association (search) or other organized groups, but some rugby teammates and friends. They include a police SWAT officer, a Purple Heart recipient, a former Marine sniper, a parole officer, a stockbroker and others with varied political views. They had sued the state over laws banning high-powered weapons.

"Citizens need the Second Amendment for protection of their families, homes and businesses," their attorney and rugby teammate, Gary Gorski of Fair Oaks, Calif., wrote in the appeal of a ruling that upheld California's assault weapons ban.

The Second Amendment states, "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."

The 9th Circuit panel said the amendment's intent was to protect gun rights of militias, not individuals. A more conservative appeals court in New Orleans has ruled that individuals have a constitutional right to guns.

Eugene Volokh, a constitutional law professor at the University of California, Los Angeles, said the Supreme Court's record on the Second Amendment is thin and odds are against the justices taking the case.

"The court hasn't jumped into it since 1939," he said. "At some point the Supreme Court will want to make sure it is interpreted consistently throughout the nation."

The case brings a politically charged issue to the court just before the presidential election. If justices agree to hear the case, it will be scheduled for argument next year.

Last year, gun-control advocates were dismayed by the Bush administration's endorsement of individual gun-ownership rights, in a filing at the Supreme Court that effectively reversed long-standing federal government policy on interpreting the Second Amendment.

The administration could weigh in now in this case. Mathew Nosanchuk, litigation director for the pro-gun control Violence Policy Center (search), said it's better strategy for the White House to steer clear of the issue. The California case involves a state assault weapons ban, and there is controversy over whether Congress should renew a federal assault weapons ban next year.

President Bush has said he supports extending the federal ban, but sentiment is strong in the GOP-controlled Congress to let the ban expire and Bush has not put much energy into efforts to extend it.

Some advocates on both sides probably want the justices to decline to review the 9th Circuit ruling, said gun rights attorney Stephen Halbrook. "It's a wild card. You really can't read where they'll go."

He also said the case is complicated because it involves questions about state authority to undercut gun rights and whether the challengers had standing to sue the state.
© Associated Press. All rights reserved.

 

[Diesle]

"liberal-leaning 9th"

Umm how about liberal-bent 9th or liberal-broken 9th .....

Diesle

 

[MarkDido]

After the recent Supreme Court decisions, I'm not sure I WANT them to consider the 2nd Ammendment question!

 

[Dave R]

Mark, I share your concern. I wonder if we might have a better court for this decision after the next retirement/new Justice.

OTOH, this was sharply divided in the 9th, and SCOTUS is certainly more centric that the 9th.

 

[bjengs]

Who the heck cares what the Supreme Court thinks? I didn't sign any contract making them my Gods on Mt. Olympus....sheesh...

 

[2dogs]

Regardless of what you think of the SC's decision regarding affirmative action and the finding of a "compelling state interest" in promoting "diversity"; or the SC's finding that there is a constitutional right to sodomy; you have to wonder what on earth they will do with the perfectly clear right to keep and bear arms.

 

[Dave R]

More info on the case in question

"Potentially Historic Second Amendment Lawsuit Petitioned to Supreme Court
Silveira v. Lockyer lawsuit could settle decades of controversy

FOR IMMEDIATE RELEASE
July 3, 2003

CONTACTS:
Gary Gorski, Attorney for Plaintiffs
Cell: (916) 276-8997
Office: (916) 965-6800
Fax: (916) 965-6801
Angel Shamaya, director, KeepAndBearArms.com
Office: (92 522-8833

A Second Amendment lawsuit was petitioned to the U.S.
Supreme Court today -- just in time for Independence Day.
The case Silveira v. Lockyer, which originated in the U.S.
District Court for the Eastern District of California, was
previously appealed to the U. S. Ninth Circuit Court of
Appeals, resulting in a deeply divided ruling. The lawsuit
seeks to address at least two specific aspects of the Second
Amendment, namely: does the Second Amendment apply to
the states in the same way that the First, Fourth, and Fifth
amendments apply, and does it guarantee an individual right,
in the same manner as those other amendments to the Bill of
Rights.

The case began when several plaintiffs in California decided
to challenge a state gun control law, enacted by the
Democrat-controlled legislature of that state, that affected
their freedom to own and use certain firearms.

Lead attorney for the lawsuit, Gary W. Gorski, says the law
clerks and Justices will note the care, depth, and thoroughness
that went into preparing the Petition for Writ of Certiorari.

"Hundreds of hours went into this Petition," says Mr. Gorski.
"Centuries of legal scholarship tell us that our Bill of Rights is
primarily a document protecting individual rights." He added,
"It's time to put an end to the flawed jurisprudence stemming
from blatant disregard for our right to own and use firearms.
We believe the Court must finally do the right thing by hearing
this vital case."

Gorski says the National Rifle Association is not involved in the
lawsuit. He praises another national grassroots organization for
great help in preparing the case. "KeepAndBearArms.com's
director Angel Shamaya and two key Advisors, David Codrea
and Brian Puckett, deserve appreciation for their extensive help
in getting us to this point." Gorski also benefited from "amazing
constitutional scholarship and knowledge of appellate law" from
a "gifted attorney who prefers to remain anonymous."

Gorski filed the Silveira v. Lockyer certiorari petition just
before July 4th, as he believes Independence and the Second
Amendment are cousins. "Our nation's Founders knew exactly
what they were doing when they put the 'gun clause' right next
to the 'free speech and religion' clause," says the
California-based attorney. "After fighting a bloody war for
freedom, of course they meant 'the people' when they penned
the Second Amendment. Unfortunately, many politicians today
no longer understand the importance of freedom. And millions
of innocent Americans face potential prison sentences for
merely exercising their constitutional right, and their natural
right of self-defense. We think the Justices will review our
Petition and realize that this hearing is long overdue."

The last time the Supreme Court ruled on a Second Amendment
case was in 1939, in United States. v. Miller.

Gorski believes the high court will announce in early October
whether or not it will hear this case. "Until then," he says, "we've
have a great deal of work to do to prepare our brief and oral
arguments. This is one of the most important things I've ever been
involved in -- I'm committed to doing it right, and doing it well."

 

[4v50 Gary]

You see! The 9th Circuit Court is good for something after all. What you ask? To bring this issue that is so near & dear to all of us before the Supremes so that we can once and for all establish this as an individual right.

 

[GhostShooter]

Is anyone else cringing at the thought of the supreme court making the FINAL decision on whether or not the 2nd amendment is an individual right or collective right of the militia? I have heard before that a large part of the decisions made by the supreme courts justices are under the direct influence of the people writing the briefs for them. Well... what happens if these people who are writing the briefs are anti-gun and see this as their opportunity?*cringe* I realize it has to happen eventually but what happens if the supreme court drops a devastating ruling on gun owners?

 

[rock jock]

Since this court has already demonstrated that it has a strong activist bent by making decisions that are not based on a strict interpretation of the Constitution, what makes anyone think they will follow the wording or intent of the 2A? You can count on four of the justices voting "collective right", three voting "individual right" and two swing voters. Not good odds. Of course, one can hardly blame the Supremes. There is a wholesale effort on the part of special-interest groups to reinterpret the Constitution to their own liking. In fact, the SCOTUS has largely been a political pawn of the various parties for the last 50 years. Used to be that a justice actually took their oath seriously and vowed to be independent, but no longer.

 

[Waitone]

You see! The 9th Circuit Court is good for something after all. What you ask? To bring this issue that is so near & dear to all of us before the Supremes so that we can once and for all establish this as an individual right.

The thought of a final ruling does nothing to blow up my skirt.

In view of recent SCOTUS acts, I can not recommend sending it any more business. It is highly likely the court will rule on the basis of who knows what. Then where will RKBA go! We don't have a ready way to overturn SC decisions. There is one way of doing so but it would require a set between the legs and a spine in the back on the part of the majority party. I've seen no evidence of either forming.

At that point there is only one alternative. I do not want to go there. We are a long ways from it happening but a collectivist, once and for all interpretation will start the clock.

Until there is a fundamental change in the ideology of the SC I want nothing to do with a showdown case. It is in the business of inventing right out of thin air. It can just as easily ignore written rights. And don't give me any nonsense of rights superceding the constitution. You can make you claims as they shackle your legs just before you get on the bus.

I'd just as soon fight from each and every barracade as opposed to a show down against an unrestrained court.

 

[HBK]

I don't trust the present court to make any decision. I'd not be surprised of they ruled that 2nd ammendment is a "militia" right. They are cracked.

 

[Monkeyleg]

At least wait until O'Connor retires. She's too much of a wildcard, and could gut the 2nd entirely with her "middle of the road" opinion.

 

[BowStreetRunner]

if they did take it they would probably find some middle of the road option that does nothing, leaves it status quo, and fixes little
BSR

 

[Bruce H]

Take it now while we have several troops scattered around the world. We still have the means to fix their wagons with a garbage ruling. If we wait another ten or twenty years what transpires in the legislatures could make a decision moot. They could legislate all weapons away while we wait which is pretty much what has been going on.

 

[Jim March]

The bad news: well, what's scary is that this isn't just any gun case, it's a "scary evil assault rifle" case.

The good news: the actual brief looks quite good. Haven't read it all yet, but from what I've seen...whoa.

Second bit of good news: this is NOT the usual "criminal defendant case" like in the Miller decision. Mr. Silveira and the rest are upright citizens.

Upshot: what the hell...go for it .

 

[sw442642]

Whatever they decide, if they take the case, it won't be a clear cut RKBA decision that voids many laws.

However, if there is a clear cut statement that there is a RKBA for citizens and not militias, that would impact certain jurisdictions like NYC or DC that deny all reasonable access to firearms.

They won't take it.

Also, if there was a clear cut RKBA decision, the NRA and GOA are out of business.

 

[cosmos7]

Also, if there was a clear cut RKBA decision, the NRA and GOA are out of business.

What on earth makes you think that? It was the lack of organizations like these that caused the erosion of our rights in the first place, and prompting them to come into existance.

Just because we win a single victory, even if its a major one, doesn't mean we can sit idle. It's death by a thousand cuts; we have to stand vigilant.

 

[Jim March]

Most of what the NRA does is non-political anyhow (and that's not a criticism, it's the facts - range safety, marksmanship and such is important).

There will still be major legal issues left even with the best possible USSC take on the matter. With most other avenues choked, I'll bet you big money we'd see the "EPA toxic lead hazard" thing get used to try and shut down shooting. God only knows what else.

 

[Standing Wolf]

"The court hasn't jumped into it since 1939," he said. "At some point the Supreme Court will want to make sure it is interpreted consistently throughout the nation."

Why in the world would it want to do a thing like that?

 

[Cal4D4]

USSC is cornered on this. Conflicts exist in the laws and they must act.
Think how the UN's credibility suffered when they choked recently.

I don't think they can present a revisionist ruling and have any continuing credibility as an interpreter on Constitutional intent.

 

[Mr. James]

Cal4D4,

Agreed, but how many Americans will really care? Many on this forum are convinced the court has already lost all credibility. Yet we haven't gone to the barricades.

FWIW, I believe our 2d Amendment rights, at least at the federal level, are in as parlous a state as they could be. O'Connor is a disgrace, a true reed in the wind, a lick-my-finger-and-see-which-side-cools-first peril. Ugh. Shrub saying he'll sign any piece of detritus that crosses his desk, as long as it's "compassionate." Double-ugh. Shrub [I voted for him, so I can do this] is saying he wants - but not too much [wink, wink] - a renewal of the semi-auto ban. Commence projectile emesis.

[rant mode on]"Our" man, friend of liberty, Mr. Bush, let Turdy dictate the terms of his education bill, and then french-kissed him for the newsmen. He is now letting Turdy dictate the bounds of the greatest entitlement program since LBJ was slinging his beagle by the ears, and you can bet sucking the Binaca for the next big smooch. [/rant mode]

Uh, sorry 'bout that. E-Tourettes.

By the way, as Mr. March points out, yet another clays range, in Maryland, is being attacked not only as a noise nuisance by the newcomers who knew it was there all along, but because a local TV station says lead levels are elevated in a nearby stream.

http://www.thehighroad.org/showthread.php?s=&threadid=29558

edited to add link to relevant thread