Category: Courts

While Judge Kozinski had a personally problematic career on the bench, he was a pro-RKBA jurist, holding his own alongside Justice Thomas in his jurisprudence. It may be hoped that some of this judicial view has rubbed off onto the Secretary

Judge Kozinski’s dissent in Silveira v. Lockyer:

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, and that “persons, houses, papers, and effects” also means public telephone booths.

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.

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 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 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 (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.

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. 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. In the North, by contrast, blacks exercised their right to bear arms to defend against racial mob violence.

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, (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 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.

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.

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.

Supreme Court Second Amendment Update 3-27-2025

Edit: The Antonyuk cert petition was rescheduled after this article was published. That was not on my Bingo card, but I hope it is a good sign.

One of the two cases in which the gun-rights community seems to be the most interested, the case challenging a ban on “large capacity” magazines, has a new wrinkle. Last week, the 9th Circuit Court of Appeals upheld California’s ban on magazines that hold more than ten rounds. The timing was interesting. The decision was published last Thursday, the day before the interlocutory magazine ban cert petition out of Rhode Island was scheduled for its ninth SCOTUS conference, in which the justices vote on which cert petitions they will grant.

We will never know for certain whether that 9th CCA opinion played a deciding role, but the petition was once again relisted. Tomorrow is the tenth time the cert petition was scheduled for a conference; it was rescheduled twice. On its heels is a cert petition seeking review of the United States Court of Appeals for the District of Columbia Circuit that upheld the District’s “large capacity” magazine ban.

Last year, SCOTUS made it clear that it isn’t going to grant any Second Amendment interlocutory petitions, and so it is surprising that the petition out of Rhode Island has survived this long. This is particularly true in light of Supreme Court Rule 10, which says the Supreme Court rarely grants petitions that don’t involve a split between the Federal circuits or a split with a state court of last resort on a Federal question. Given that these magazine bans are only in Federal circuits where there is no doubt the appellate courts will uphold the bans, there will not be a circuit split.

That said, SCOTUS Rule 10 does say that SCOTUS can grant cert petitions that present questions of national importance. It remains to be seen whether or not there are four justices who think magazine bans present a question of national importance.

The second petition involves “assault rifles.” It has been listed for conference nine times and rescheduled once. It is out of Maryland (the Fourth Circuit). The petition seeks review of a final judgment, so no interlocutory appeal problem there. However, it suffers from the same SCOTUS Rule 10 obstacle as the “large capacity” magazine bans. These “assault rifle” bans are found in Federal circuits where there is no possibility of one being overturned, and thus no possibility of a Rule 10 split for the justices to resolve.

If there is anything we learned from the oral argument in the bumpstock case, it is that the justices know very little about firearms.

Both the magazine ban (Ocean State Tactical) and the rifle ban cert petitions (Snope) are scheduled for tomorrow’s conference. Another extremely important petition (Antonyuk) out of the Second Circuit Court of Appeals is among the petitions scheduled for the conference.

Antonyuk presents the following two questions in its petition. 1. Whether the proper historical time period for ascertaining the Second Amendment’s original meaning as applied to the states is 1791, rather than 1868; and 2. Whether “the people” must convince government officials of their “good moral character” before exercising their Second Amendment right to bear arms.

The justices could have answered the first question in NYSRPA v. Bruen, but did not. I see no reason why they would ever grant a petition to answer that question. Suppose they did and held that 1791 is the proper historical time period; that would entail that nearly every gun law violates the Second Amendment. That will never happen. As for the second question, the justices certainly do not want to put themselves in the position of deciding what constitutes “good moral character.” And again, there is that pesky Rule 10 obstacle to granting cert and deciding the case on its merits.

There are three more Second Amendment cert petitions and a motion for reconsideration scheduled for tomorrow’s conference. If it were up to me, SCOTUS would not be allowed to pick and choose which appeals it will decide. One hundred years ago, Congress gave SCOTUS that power after the justices promised to decide five hundred cases each term. SCOTUS never came anywhere near that number.

Congress can change that, but voters are easily distracted by shiny objects. Earlier this week, the issue was whether poor people should be allowed to buy soda pop with their food stamps. Okay! The object does not have to be shiny. Voters are easily distracted and have the attention span of a trout.

Here are the cases scheduled for tomorrow’s conference. Click on the case number, and you will be taken to the SCOTUS docket for that case, should you wish to take a deep dive into the case. As always, if a waiver was filed (or no response was filed) and the petition goes into conference without a justice requesting a response, then the petition was never voted on. The petition was placed on the SCOTUS deadlist and will appear as “Petition Denied” on next week’s Orders list. A “GVR” is a Grant, Vacate, and Remand, which, for all intents and purposes, sends the case back to the lower courts for a do-over. In the past two terms, I can only recall one petition where the Feds asked for a GVR, which was denied. I chalk that up to a clerical error.

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Why Lawrence VanDyke’s Video Dissent in Duncan is a Real Problem For Anti-Gun Judges

Courts do have a lot of rules for introducing evidence and arguments. The net effect of all of those rules is simple: they tend to entrench the things that the court wants to believe. If your argument benefits from the court’s biases, the rules of evidence will help you. If you’re working against the court’s biases, the rules of evidence can be fatal to your case.

VanDyke is in a unique position here. As a judge rather than a party to the case, he can do pretty much whatever he wants. And he’s using that power to say the majority is using the rule against judges bringing outside facts to cover up their real goal: preventing judges from bringing outside logic. They don’t like standard-capacity magazines. And that’s a personal opinion that people are free to have. But under Bruen, the only way a court could uphold a ban on those magazines is if they prevent people like VanDyke from pointing out the holes not in their facts, but in their basic logic.

Lay people don’t read court rulings, let alone dissents. But video is a much more effective medium, and VanDyke’s video is all over social media right now. That’s a problem for the majority’s logic, but it’s good for logic in general.

— Open Source Defense in Judges on gun knowledge: “That’s for me not to know and for you not to find out”

SCOTUS Still Silent on Semi-Auto, Magazine Bans as More 2A Cases Head Its Way

Another Monday has rolled around with the Supreme Court taking no action whatsoever on two cases that have been heard in conference on an almost weekly basis since last December.

Monday mornings are starting to feel a little like Groundhog Day when it comes to Snope and Ocean State Tactical, and I have no idea what’s going on with either of these cases. Both were heard in conference for first time back in December, so even if there’s going to be a denial with a written dissent the justices who are penning their displeasure with the decision not to grant cert have had plenty of time to formalize their objections. The same is true when it comes to a per curium opinion that would find either or both of the challenged laws to be a violation of the right to keep and bear arms.

It’s possible that the justices are still wrestling with the issue of whether or not to accept one or both of these cases, but that strikes me as pretty unlikely as well. The Court has had months to consider granting cert, and while other Second Amendment challenges like Heller and Bruen went through multiple conferences before cert was granted, neither of those cases were kept in limbo nearly as long as Snope and Ocean State Tactical have been.

Meanwhile, there are several other cases dealing with the right to keep and bear arms that are slated to be heard in conference for the first time in the coming days and weeks. This Thursday the justices should take up Antonyuk v. James in their weekly conference. That’s the case that deals with one of the post-Bruen restrictions that New York put in place in defiance of what the Supreme Court had to say about the right to bear arms; the “good moral character” requirement for a concealed carry license that is essentially serves as a replacement for the subjective “justifiable need” gun owners had to demonstrate under the may-issue permitting regime the Court ruled unconstitutional.

The justices are also expected to debate a case called Price v. U.S. this week that deals with whether or not possession of a firearm with an obliterated serial number constitutes Second Amendment-protected conduct. That case has yet to be fully briefed and decided on the merits, however, and I suspect that the justices will turn it aside, at least for now.

There are three other cases slated for conference in April as well:

• Wade v. University of Michigan, which addresses “Whether the Second and Fourteenth Amendments allow a criminal ordinance that prohibits mere possession of firearms on an entire poorly-delineated university campus, except by permission of a single government official with unfettered discretion, which is granted onlyfor “extraordinary circumstances.”
• Jacobson v. Worth, which seeks to answer “Does Minnesota’s statute limiting permits for public carry of pistols to those 21 and older comport with the principles underlying the Second Amendment?
• B & L Productions v. Newsom, a challenge to California’s ban on “sales” of firearms and ammunition on any state-owned property.

The odds of the Court granting cert to every one of these cases is slim. In fact, at this point the odds of the Court taking any of them feels pretty small. I’m still holding out hope for Snope, but at this point it’s anyone’s guess as to what the justices will do with Maryland’s semi-auto ban… other than once again considering the Snope case (and Ocean State Tactical v. Neronha) at this Thursday’s conference.