On Silveira v. Lockyer, (9th. Cir. 2002) 312 F. 3d. 1052; Hickman v. Block, (9th Cir. 1996) 81 F. 3d. 98; Nordyke v. King, (9th Cir. February 18, 2003), ___ F. 3d. ___; United States v. Emerson, (5th Cir. 2001) 270 F. 3d. 203; and the Second Amendment
See also www.antipeonage.0catch.com
In these cases, the Ninth Circuit did to the Second Amendment what the Ballek Court did to the Thirteenth Amendment. As any Fourth Grader who passes the Basic Skills Test can see that forcing her father to work to pay child support is involuntary servitude offensive to the plain language of the Thirteenth Amendment, so she can see that what comes before the first comma in the Second Amendment is simply a explanation of necessity for the right that is stated after the comma. That is what the Fifth Circuit concluded in United States v. Emerson, (9th Cir. 2002) 270 F. 3d. 203, 227. Not infringing the right of the people to keep and bear arms is the only guarantee that a well regulated militia can be formed, whenever such proves necessary for the security of a free state, regardless of the circumstances. Sawed off shotguns and fully automatic rifles may be the weapons such a citizen's militia needs to deal with the emergency at hand. The state that infringes such right is not a free state, and has made the Faustian bargain Ben Franklin warned against, trading an essential liberty for the illusion of security. To say that the Second Amendment does not guarantee an individual right is like saying imprisonment for child support is not imprisonment for debt and saying that coercion of employment to pay child support is not involuntary servitude. It is an absurdity.
In fairness to both the Ninth Circuit and the Fifth Circuit, the federal courts inferior in jurisdiction to the Supreme Court have had precious little guidance from the Supreme Court since United States v. Miller, (1939) 307 U.S. 174, 83 L. Ed. 1206, 59 S. Ct. 816. While most of the federal circuits have concluded that Miller mandates a "collective rights" interpretation of the Second Amendment, such decisions listed in Footnote 11 of Silveira, the Supreme Court has consistently denied writs of certiorari arising from these cases, and from Emerson. Part of the motivation for the three judge panel in Silveira may be to provoke the Supreme Court into granting the certiorari and deciding the issue. That is the explicit motivation of Judge Gould's Special Concurrence in Nordyke. The circuits are definitely split.
Judge Gould in Nordyke wrote that a three judge panel is bound by Hickman, which found that the Second Amendment only protected a "collective" right. Hickman found that as a collective right, intended to provide the States with some protection from the federal government, which is thus not incorporated upon the States through the Fourteenth Amendment, which declares the right of persons. I disagree with the Hickman analysis for reasons stated below. But Judge Gould also wrote that he believed that Hickman was wrongly decided and wrote an excellent treatise in his Special Concurrence supporting the proposition that the Second Amendment guarantees an individual right, subject to reasonable regulation, and incorporated upon the States through the Fourteenth Amendment. He suggested that an en banc panel of the Ninth Circuit or the Supreme Court can enter the decision that reverses Hickman.
That is very interesting.
The motion for en banc review of Silveira was denied on May 6, 2003. The dissents by Judges Pregerson, Kozinski, and Kleinfeld contain some excellent arguments in support of the proposition that ALL Constitutional rights are equally important and if we have a broad interpretation of the right to free speech and freedom from unreasonable searches and seizures, so we should broadly interpret the right to keep and bear arms. My problem with this is that after reading Judge Kozinski's excellent argument in support of the courts' duty to uphold Constitutional rights and to broadly interpret them to give force and effect to the meaning of the language in which these Constitutional provisions are written, is that it is so contrary to his opinion in United States v. Ballek. A check of the Ninth Circuit's roster indicates only one Judge Kozinski. The only thing I can say about this is to point out my arguments in my Reply Brief of Appellant that I filed in Knight v. Mercer Island, 9th Cir. No. 03-35116 and hope I can obtain an oral argument where I can illustrate the conflict between Judge Kozinski's dissent in the denial of en banc rehearing of Silveira and his opinion in Ballek. What I would say is this:
"With all due respect, I cannot reconcile Judge Kozinski's dissent in the denial of en banc rehearing in Silveira with his opinion in Ballek. If indeed we should accord all provisions of the Constitution establishing rights with the same broad interpretation, then certainly freedom from involuntary servitude is as important a right as the right to keep and bear arms and the right to truthfully shout 'Fire!' in a crowded theatre. Just as defining the Second Amendment as only providing for a 'collective right', erases the Amendment from the Constitution and deprives all adult Americans and those adults who intend to become citizens of the Second Amendment protection of the right to keep and bear arms, Ballek deprives all parents of the Thirteenth Amendment protection against involuntary servitude. All parents have a duty to support their children. Because we know how a person becomes a parent, under Ballek the Thirteenth Amendment now only protects those men who are strictly homosexual or strictly celibate. Women retain their Thirteenth Amendment rights only by being strictly homosexual or strictly celibate, or by always exercising their right to abortion. This is not what was contemplated by those who brought the Thirteenth Amendment into law and it is certainly what the Antipeonage Act was intended to prevent and prohibit."
One of the earliest commentaries on Silveira is presented by Rush Limbaugh. His arguments for the idea that what the Second Amendment protects is a right held by the people, as in an individual right, and that campaign finance reform infringes the well recognized rights in the First Amendment, are eloquent and well thought out. Those who disparage Mr. Limbaugh have political axes to grind. My problem with Mr. Limbaugh is that he sometimes shows a blind spot to some of our rights. However, he repeatedly makes the argument that the idea behind the Constitution is to provide for a LIMITED government, the rights set forth therein being the limits on the power of the government.
Limbaugh's initial commentary focuses on language contained on page 29 of the Adobe Acrobat file of Silveira. Allow me to entertain you with the quote Limbaugh focused on:
Finally, our definition of "militia" is supported by the inclusion of the modifier "well regulated." As an historian of the Founding Era has noted, the inclusion of that phrase "further shows that the Amendment does not apply to just anyone." Finkelman, supra, at 234. The Second Amendment was enacted soon after the August 1786 - February 1787 uprising of farmers in Western Massachusetts known as Shays's Rebellion. What the drafters of the amendment thought "necessary to the security of a free State" was not an "unregulated" mob of armed individuals such as Shays's band of farmers, the modern day privately organized Michigan Militia, the type of extremist "militia" associated with Timothy McVeigh and other militants with similar anti-government views, groups of white supremacists or other racial or religious bigots, or indeed any other private collection of individuals. To the contrary, "well-regulated" confirms that "militia" can only reasonably be construed as referring to a military force established and controlled by a government entity.
I seriously doubt that there is any evidence whatsoever entered into the record of this case that Mr. Silveira and the other plaintiffs ever had anything to do with the Michigan Militia, with any other militia that the Ninth Circuit would deem "extremist", or with any racist or rabidly "anti-government" organization. Rush Limbaugh is right about one thing: this is a typical slander by association trick. People who believe in the right to keep and bear arms, if only to make the formation of a well regulated militia possible at all times and under all possible circumstances, are lumped in with those who form what are admittedly not so well regulated militias. In this case of a certain type and motivation: anti-government and white racist. Incidentally, the web page to which I link for the Michigan Militia denies being the kind of nutcases the Silveira Court made them out to be.
Of course, Timothy McVeigh did not use a gun in his crime.
But to associate Shays' Rebellion with the Michigan Militia of the Ninth Circuit's imagination? That is reaching a long ways!
Daniel Shays was a hero of the American Revolution. Distinguished for his gallantry at Bunker Hill, and having fought at Saratoga and Stony Point, he was one of the original Minutemen who stood in formation at Lexington on April 19, 1775. Jason Parmenter fought at Ticonderoga and was present for General Burgoyne's surrender. After the war, he was actually elected tax collector. As a tax collector he witnessed first hand the anguish and suffering the high tax rates had upon the humble farmers of the Connecticut River Valley. Thus he joined up with the Shays' Rebellion. After the victory in the Revolution, the United States was a war damaged nation. There was an economic recession and the states owed a huge amount of money to those who financed the costs of the war. Massachusetts, like most of the other states, had levied high taxes in an effort to make good on their loans. The wealthy creditors in Boston depended upon the loan payments for income while trying to restore trade and commerce in the wake of war. However, the farmers were having their property sold out from under them to pay taxes they could not afford. Debt courts were granting judgments to the State and to other creditors, and some of the farmers were being imprisoned for their debts.
Thus Shays' Rebellion in reaction to the excessive taxes. Under these circumstances, Daniel Shays is far more like the story of Robin Hood than he is anything like the "militias" referenced in the Silveira decision. The Robin Hood story is set in an England reeling from the high costs of the Third Crusade in the 1180's. The government owed a huge amount of money to wealthy creditors, and needed to raise 150,000 marks in gold to ransom King Richard, who was taken prisoner while on his way home from the war. At that time, a "mark" was defined as a unit of weight, roughly equivalent to half of a modern pound avoirdupois. 75,000 pounds of gold is lot of money in any era. Thus taxes were set at excessive rates, the sheriffs tasked with the duty to collect them, Prince John was condemned as a tyrant, and a revolt similar to the Robin Hood story could have happened, led by a war veteran taxed out of his father's home. The story is fiction, but the background is historical fact, except that the English had no more love for Richard the Lionhearted than they had for his brother. He too was a tyrant, truth be told.
The Shays' Rebellion forced the debt courts to close. The wealthy creditors, with their own funds, raised an army to march out to do battle with the Shays' men. The irony of the Ninth Circuit's consideration of this event is that BOTH SIDES of this fight were fought with Second Amendment type militias: Citizens who brought their own weapons for use in the fight. The advantage of a well regulated militia is that is the militia more likely to win the fight, which is what happened in Massachusetts. It is not the language of the Second Amendment that enforces the requirement that the militia be well regulated, it is necessity that enforces such requirement.
It is true that the Shay's Rebellion provided part of the impetus to replace the Articles of Confederation with a stronger federal government. But it was also true that in Massachusetts, the new Constitution was not popular with those sympathetic to the farmer's rebellion. Massachusetts ratified the Constitution by a very close vote. As we all know from our history lessons, the Constitution was ratified only upon a promise that the First Congress elected under it would propose a Bill of Rights to limit the powers of the new federal government they were creating. The Second Amendment is a part of that Bill of Rights presented by the First Congress to the states for ratification.
Another consequence of Shays' Rebellion is that states started incorporating into their constitutions prohibitions of imprisonment for debt. The farmers were rightly concerned with becoming debt peons and recreating on American soil the feudal system of Britain and Europe. People do funny things when oppressed like that century after century: Tear apart the Bastille. Use the guillotine to execute their oppressors and perceived oppressors. Invent the Metric System. Place everything in the hands of a nutcase such as Napoleon Bonaparte. And because Russia did not learn the lessons of what happened in France, their Royal Family was shot to death after being told they were posing for a photograph. Not only did they adopt the Metric System, they adopted communism and placed an even bigger nutcase, Stalin, in charge. Perhaps imprisoning people for debts they cannot pay, whether inside an actual jail, or as to their rights in society, is not such a good idea. Can lead folks to adopt even worse ideas.
The purpose of the Second Amendment is to allow the citizens to be able to form a militia, whenever such is necessary for the defense of a free state. Including when the state is no longer free. That is precisely why "right of the people" does not mean the collective rights of a state, it has to mean the right of individuals to keep and bear arms. The European tyrannies so well known to the Americans of the time did not trust their people to keep and bear arms. They could not have oppressed them the way they did if the farmers and the peasants could fight the knights with weapons comparable to those possessed by the knights. When the French people in Paris were finally so fed up they were not taking it anymore, they broke into an arsenal and started keeping and bearing arms anyway. This not so well regulated militia broke into the Bastille and took the Ancient Regime down. Had the French people possessed the right to keep and bear arms all along, the tyranny that provoked them in 1789 would never had gotten so terrible. And perhaps, they would have avoided the Reign of Terror that was the result of when things get so out of hand.
Now my criticism of United States v. Emerson, (5th Cir. 2001) 270 F. 3d. 203.
Having found that the Second Amendment protected an individual right to keep and bear arms, the Fifth Circuit then failed to enforce the right in the case of a restraining order obtained in a domestic relations case (while admitting that due process protection was minimal in Texas restraining order law). I criticize that too, because often the threats at issue in such restraining orders are made in the heat of high emotion by people who are not ordinarily a danger to society. Once the emotions cool down, most such people have no intention of ever carrying out the things they say. The finding of fact is not made by a jury of our peers, but by a judge with all of the institutional prejudices and blindnesses that come with being a judge, particularly in family law including the blindness to the Thirteenth Amendment and the Antipeonage Act extensively illustrated by this website. Indeed, judicial blindness to the suffering of the farmers is what led to Shay's Rebellion. For an example of the perfectly legal if somewhat strange behavior that can result in a restraining order, see our dummy brief for Winslow Bainbridge. Facts as innocuous as described therein do result in restraining orders, often with exclusion radii as long as 500 yards. It is not rational to deprive Winslow of his right to keep and bear arms, not on the basis of any actual stalking or surveillance he perpetrated, but only on the unsupported belief of such surveillance by a nervous ex-girlfriend. And certainly not on the basis of strange phone calls that do not include any legally definable threats, but only denials of such threats.
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