Kozinski dissent from Silveira v. Lockyer

Very entertaining to read, especially the last paragraph… (btw, my stance on gun control is complicated, not worth going into now…)

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 espe-cially

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 con-stitutional

guarantee, we can be equally ingenious in burying

language that is incontrovertibly there.

It is wrong to use some constitutional provisions as spring-boards

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 juris-prudence

sympathetic to individual rights, we must give broad

compass to all constitutional provisions that protect individu-als

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 crum-pled

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 sym-pathetic

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 rou-tinely

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 gov-ernment

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 Mil-ler’s

claim was dead on arrival because it was raised by a per-son

rather than a state, why would the Court have bothered

discussing whether a sawed-off shotgun was suitable for mili-tia

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 went�). 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 Holo-caust,

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 constitu-tional

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.

The sheer ponderousness of the panel’s opinion—the moun-tain

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 rat-tlesnake

by sitting on it—and is just as likely to succeed.

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