MILESFORTIS

Judge Kozinski’s Full Dissent

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 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. 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.

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.

BLUF
The “collective right” myth was killed in 2008. It was never really alive. Like a zombie in the movies, it keeps rearing its ugly head in ill-informed arguments about the Second Amendment.

Second Amendment “Collective Rights” Myth: Born Nov 1905 – Killed June 2008

U.S.A. –-(AmmoLand.com)-— The myth of the Second Amendment as a “collective right” and not an individual right, was born in an obscure Kansas Supreme Court case. It was in 1905, as progressive ideology was becoming ascendant in the United States.

Dave Hardy notes, the myth of the Second Amendment as a “collective right” was born with the case of City of Salina v. Blaksley, on November 11, 1905.

What happened there was that the court held that the Kansas guarantee of a right to arms did not cover his actions, because it related only to bearing arms in a militia-type function. This 1905 case was the entire starting point of “collective rights” theory.

The “collective rights” theory did not gain traction for decades. In 1931, the Michigan Supreme Court rejected it in People v Brown:

 When the bulwark of state defense was the militia, privately armed, there may have been good reason for the historical and military test of the right to bear arms. But in this state the militia, although legally existent and composed of all able-bodied male citizens…is practically extinct and has been superseded by the National Guard and reserve organizations… The historical test would render the constitutional provision lifeless.

The protection of the Constitution is not limited to militiamen nor military purposes, in terms, but extends to “every person” to bear arms for the “defense of himself” as well as of the state.

Then in 1939, the Miller case was set up by  Heartsill Ragon. Ragon was an anti-Second Amendment ideologue and a President Franklin Delano Roosevelt (FDR) ally appointed from Congress to the federal judgeship. The case went to the Supreme Court without opposing counsel or briefs. The Supreme Court refused to rule on whether a sawed-off shotgun (having not been presented with any evidence to the contrary) was an arm protected by the Second Amendment.  The Supreme Court decision stated all men capable of carrying arms were protected by the Second Amendment. No opposing views were presented to the court. From Miller:

 The signification attributed to the term Militia appears from the debates in the Convention, the history and legislation of Colonies and States, and the writings of approved commentators. These show plainly enough that the Militia comprised all males physically capable of acting in concert for the common defense.

The Miller decision was muddy, but the context was clear. Individuals were protected by the Second Amendment.

But progressive judges started to ignore and misrepresent the Miller decision as showing the Second Amendment only applied to state militias. In 1942, during the height of World War II, two circuit court decisions added to the flimsy foundation of the “collective right” myth.

In United States v Tot, the Third Circuit held the Second Amendment did not apply to criminals, a finding which can be consistent with an individual rights interpretation. The judge, in one-paragraph dicta, pushed the myth the Second Amendment was a “collective right,” incorrectly citing Miller, and a short historical discussion of the English revolution from 1688-1689, found in Aymette (an anomalous Tennessee case from 1840), and a collection of modern writers. The historical analysis was very weak.

In the First Circuit, in Cases v United States, the three progressive judges went so far as to claim Miller did not apply to military weapons because it was what they wanted to find. From Cases:

Another objection to the rule of the Miller case as a full and general statement is that according to it Congress would be prevented by the Second Amendment from regulating the possession or use by private persons not present or prospective members of any military unit, of distinctly military arms, such as machine guns, trench mortars, anti-tank or anti-aircraft guns, even though under the circumstances surrounding such possession or use it would be inconceivable that a private person could have any legitimate reason for having such a weapon. It seems to us unlikely that the framers of the Amendment intended any such result.

In 1965, Progressive AG, Nicholas Katzenbach, in the Progressive Johnson administration, claimed the “collective right” myth was correct, without evidence. In 1968, President Johnson pushed through the infamous Gun Control Act of the same year.  After 1968, a flurry of circuit court decisions adopted the “collective right” myth, citing Tot, or Cases, or a cursory reference to Miller. The “collective right” myth was now fully formed.

The full-fledged “collective right” myth was in active use and fully formed in the courts after 1968.

It was not adopted at the Supreme Court but was pushed hard in the anti-gun MSM Media.

In the 1970s, the “collective right” myth started being exposed by academics. The myth was so thoroughly debunked in the literature the fact the Second Amendment protected individual rights was referred to as the Standard Model.

In 2004, the Department of Justice rejected the “collective rights” myth and confirmed the Second Amendment protected individual rights.

In the Heller decision published on June 26, 2008, the Supreme Court clearly and precisely points out the “collective rights” myth is false, and shows the reality. The Progressive judges on the Supreme Court generally admitted the rights protected were individual rights, but argued they should be limited by the prefactory clause. From billofrights.com:

Finally, the Court reasoned that the right to own weapons for self-defense was an “inherent” (in-born) right of all people. “It has always been widely understood that the Second Amendment, like the First and Fourth Amendments, codified a pre-existing right. The very text of the Second Amendment implicitly recognizes the pre-existence of the right and declares only that it ‘shall not be infringed.’”

Four of the nine Supreme Court Justices dissented. (They disagreed with the Court’s ruling.) Some of the dissenters agreed that the Second Amendment protected an individual right. However, they argued that the scope of that individual right was limited by the amendment’s prefatory clause. One dissenter agreed that the Second Amendment protected an individual right, but argued that the District law was a reasonable restriction.

This was the death of the myth of the “collective right”. It never was reasonable to believe a pre-existing  “right of the people” would refer only to a right of the states to form militias.

The Heller decision killed any logical claim about the “collective rights” myth. It had been created out of very thin, stone soup.

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