The Silveira Threat

How long will the Second Amendment live?

By Dave Kopel

National Review Online. September 23, 2003, 9:25 a.m.

Silveira v. Lockyer is a Second Amendment lawsuit which has, according to Gun Week (Sept. 1) "gained almost cult status among gun owners." This status is mostly to the benefit of the gun-prohibition lobby, for Silveira has already seriously harmed Second Amendment rights, and the damage may not be over.

The suit was filed in February 2000, to challenge the 1999 amendments to the 1989 California "assault-weapon" control act (AWCA). The complaint blew its credibility on at the very beginning, opening with a fabricated quote attributed to Hitler. The quote has been circulating among gun activists for years, but scholars who have examined German newspapers — which reported all of Der Führer's speeches in great detail — have found no evidence that the quote was actually uttered. Hitler was certainly a gun-control enthusiast, but the quote is phony.

The Silveira complaint further damaged its credibility by shoe-horning an overwhelming number of claims into the suit, including a challenge to the California system for discretionary issuance of concealed-weapons permits. Courts often consider such scattershot complaints as the mark of cranks, and not as persuasive legal argument.

Gary W. Gorski, the attorney who filed the suit said he felt it was necessary because the NRA was not doing anything to fight the "assault-weapon" law. Aside from the fact that NRA and California Rifle and Pistol Association unsuccessfully sued against the ban in 1990-92 (Fresno Rifle & Pistol Club v. Van de Kamp), a new NRA-CRPA-supported lawsuit was being prepared when the Silveira lawsuit was filed. Styled Hunt v. California and filed in September 2001, after the California Department of Justice (DOJ) promulgated regulations, this case is proceeding in Fresno superior court. Fresno District Attorney Ed Hunt and Mendocino District Attorney Norm Vroman are lead plaintiffs. This prosecutor suit is unprecedented, pitting the chief law-enforcement officers of two counties (the DAs) against the chief law-enforcement officer in the state (the attorney general). It has survived two attempts by the DOJ to have it dismissed, and is now moving toward trial.

Quite clearly, a lawsuit which carefully attacks specific administrative regulations, and which supported by district attorneys who claim that the regulations are unconstitutionally vague, has a much more realistic chance of success than an direct attack on a statute enacted by the legislature.

According to Chuck Michel, a former Los Angeles district attorney who now specializes in firearms law, when he and other attorneys experienced in Second Amendment litigation learned of the Silveira case, they contacted Gorski. They informed Gorski of the pending Fresno district-attorney lawsuit to challenge the "assault-weapon" ban. They also advised Gorski about the notorious institutional hostility to the Second Amendment in the overwhelmingly leftist Ninth Circuit. They explained that there was a nationwide strategy by the pro-self-defense community to advance the Second Amendment and fight repressive gun-control laws. The expert attorneys urged Gorski to dismiss the Silveira case, but he refused.

I interviewed Gorski by e-mail, and you can read the full text of the interview here.

Gorski argues that the vagueness challenge is "like challenging the banning of black people from public restrooms because the law's unclear or poorly written." This is precisely right. As I argued yesterday, Second Amendment activists should follow the successful strategy of the NAACP in destroying segregation laws. The NAACP didn't bring cases which were bound to lose — such as challenging Mississippi's restroom segregation laws in 1935. Rather, the NAACP carefully brought cases which could be won under any theory — even a theory which didn't challenge segregation — and used those cases as building blocks for future, bigger victories in subsequent decades.

The defendants in the Silveira case were the California Department of Justice and extremely antigun California Attorney General Bill Lockyer. DOJ filed a motion to dismiss, and in December 2000 the trial-court judge granted the DOJ's motion, holding that the Second Amendment does not protect any individual right.

Many of the Silveira plaintiffs — mostly rugby buddies of Gorski — may not have had a legally sufficient interest in the issues presented to have legitimate "standing" to bring the case in the first place. According to a San Francisco Chronicle interview (Dec. 23, 2002) with Gorski, not all of the plaintiffs even owned a gun, and those who did own guns did not necessarily own guns that the new law designated as "assault weapons." The effect of the standing problem was that the case could have been thrown out of court on procedural grounds, as the DOJ urged in its motion to dismiss the case.

Instead, the antigun trial judge took the marvelous opportunity created by the Silveira case to render an opinion that would harm the Second Amendment.

On January 11, 2001, the plaintiffs filed their appeal to the Ninth Circuit Court of Appeals, by far the most leftist federal appellate court in the country. At that point that Ninth Circuit had already rejected the Second Amendment at least four times, holding that it does not create a fundamental individual right, and also that it is not a restriction on state laws because the Second Amendment only applies to the federal government. Fresno Rifle & Pistol Club v. Van de Kamp, 965 F. 2d 723 (9th Cir. 1992); Hickman v. Block, 81 F. 3d 998 (9th Cir. 1996), cert denied, 519 U. S. 912 (1996); San Diego County Gun Rights Committee v. Reno, 98 F. 3d 11121 (9th Cir. 1996); United States v. Mack, 164 F.3d 467, 474 (9th Cir. 1999).

These four cases from the past decade plainly revealed the Ninth Circuit's hostility to the Second Amendment, and demonstrated that it would be impossible to get a favorable ruling on the Second Amendment in this forum. Though the previous decisions were brief, they were final. The issue was settled. Only an en banc review of a three member panel could change the Ninth Circuit's position; no three-judge panel can overrule a decision by a previous three-judge panel. Experienced Second Amendment attorneys have long ago decided to avoid the Second Amendment issues in the Ninth Circuit. (The Fresno district attorney case is about vagueness, not the Second Amendment).

The three-judge appellate panel randomly selected to hear the Silveira case had two Democratic appointees, including Judge Stephen Reinhardt, the most prominent leftist judge in the country. The adverse outcome in Silveira was a foregone conclusion. The appeal could have, and should have, been withdrawn at that point.

But Gorski did not withdraw the appeal. Portions of his appellate brief are well-written, and provide a good summary of caselaw and scholarship on the Second Amendment. Other portions are fanciful, at best, such as Gorski's argument that because the California constitution explicitly recognizes the United States Constitution as "the supreme law of the land," California "thereby incorporated the Second Amendment into its own Constitution."

Factual arguments about the non-dangerousness of "assault weapons" often appeared without supporting citation — even though there are many books and law-journal articles which could have cited.

Not all of the Silveira appellate brief was written in standard English: "...whether the state of California can ban all firearms, and confiscate those in possession of its citizens, such as what just happened in Australia." Understandably, there is no citation for "such as what just happened in Australia," because Australia has banned and confiscated only some firearms, not all firearms. The phrasing might be acceptable in a letter to the editor of a gun magazine, but is not appropriate in a federal appellate court brief which expects to be taken seriously.

It is less likely that a judge will take a brief seriously if the attorney writes "Defendants fair no better under a rationale basis test." The properly spelled sentence would be "Defendants fare no better under a rational basis test."

The California Department of Justice filed its opposition brief. Then, Gorski did not file a reply brief in response to the DOJ's brief, although he was entitled to do so.

The DOJ made important arguments in its opposition brief, many of them incorrect. Because of Gorski's failure to file a reply brief, those errors went unchallenged. For instance, DOJ asserted that under the individual rights view of the Second Amendment, no limits could be placed on the type of arms one may possess under the individual-rights view. Actually, as a reply brief could have explained, numerous state-court decisions — which could have been cited in a reply brief — uphold an individual right to arms, while allowing restrictions on particularly dangerous arms.

The Silveira panel could have written a terse decision citing the four recent Ninth Circuit cases, and dismissing the appeal. Instead, Judge Reinhardt seized the opportunity to write a very lengthy opinion holding that the Second Amendment does not guarantee an individual right. Silveira v. Lockyer, 312 F.3d 1052, as amended, 328 F.3d 567, reh. denied, 2003 WL 21004622 (9th Cir. 2003).

Why did Judge Reinhardt take the Silveira case seriously enough to write a major new opinion denigrating the Second Amendment, the most comprehensive such opinion ever published in any American court? The answer lies in the Emerson case, in which a long opinion from the Fifth Circuit vindicated the Second Amendment individual right, while upholding a particular gun control as applied to a particular individual.

Emerson impelled Judge Reinhardt to issue a massive opinion that purports to rebut the holding by the Emerson court. This, in turn, provided anti-Second Amendment forces the precedential case authority they desperately needed to rebut Emerson in every forum where it might be cited, from legal briefs to media discussions.

Before Emerson, there were a significant number of cases from federal district courts and federal courts of appeal which said that the Second Amendment does not guarantee an individual right. These opinions were superficial and conclusory. They provided almost no legal reasoning which would persuade a neutral reader. That is one reason the Fifth Circuit Court of Appeals, upholding the individual right in the Emerson case, had little trouble splitting from other circuits.

The Ninth Circuit's Silveira opinion, however, changes everything. Silveira is a deeply flawed opinion, but it is not a superficial one. A conscientious federal judge in another circuit, hearing a Second Amendment case, might reasonably dismiss all the other the anti-rights federal court opinions from district and appellate courts as proving nothing. The Silveira opinion, however, cannot be so dismissed; it is wrong, but understanding why it is wrong requires a judge to delve deeply into the legal scholarship and history of the Second Amendment. Not all federal judges will be interested in doing so.

In short, the Silveira attorney led with his (and our) chins. He brought a foolish case, and persisted even when it was clear that he had no reasonable chance of success on appeal. His failure to file a reply brief was terrible. The fruit of his labor is a horrendous Ninth Circuit opinion which will harm the Second Amendment for years to come.

Gorski did win one point in the Ninth Circuit opinion; the California law exempted retired police officers from the gun prohibition. The court ruled that this exemption was an irrational violation of the Fourteenth Amendment's Equal Protection guarantee, and removed the exemption from the statute. This ruling is helpful to gun rights, because it means that, in the Ninth Circuit at least, future gun bans which are enacted will also apply to retired police; accordingly, gun bans will be harder to enact. (Such bans will not be impossible however; they will simply need to invent some connection between the retired officer and the gun he wishes to posses; for example, the officer has received police training in use of roughly similar types of guns.)

But even this one-issue victory was squandered. Gorski did not brief the issue of severability; if he had, the court would have been shown precedent showing that if the police exemption clause was unconstitutional, the rest of the statute could not be "severed" and remain law. Moreover, the Ninth Circuit's criminalization of "assault-weapon" possession by police officers is itself plainly unconstitutional. A court has no authority to expand the scope of a criminal law, and make the law apply to people whom the legislature explicitly intended not to criminalize.

The plaintiffs in Silveira petitioned the Ninth Circuit for an en banc review of the case. The petition, not unexpectedly, was denied. Silveira v. Lockyer, 2003 WL 21004622 (9th Cir. 2003). That was silver lining on the cloud, in that an en banc opinion against the Second Amendment would be worse than the current panel decision by Judge Reinhardt.

Six judges joined in four dissents from the denial of rehearing. The dissenting opinions of Judges Kozinski, Kleinfeld, and Gould supported the individual-rights interpretation of the Second Amendment. The dissent of liberal Judge Pregerson also did so, while stating that the right to keep and bear arms "is subject to reasonable restrictions such as those embedded in the statute the California legislature enacted."

The Ninth Circuit is not the proper circuit to litigate the Second Amendment. It is like bringing a 1946 test case on racial segregation in a Mississippi court. The Second Amendment to the Bill of Rights does have friends on federal courts in other parts of the country. The case law should be developed there.

Gorski has filed a petition for a writ of certiorari in the U.S. Supreme Court. Should the Court grant cert., lawyers for the gun-prohibition groups should jump for joy. Not because they are certain of winning on the Second Amendment issue, because they might well lose. But because they are much better off with Silveira being the Second Amendment showdown case, than in almost any other possible case.

First, future Courts are going to get worse, not better, for the gun prohibitionists. Retirement of Justice O'Connor could remove a potential swing vote the prohibitionists very much need. (Rehnquist, Scalia, and Thomas are near-certain votes for an individual right.)

Second, if cert is granted in Silveira, the lead attorney would not be Stephen Halbrook, who has a 3-0 record on gun cases in the Supreme Court. Nor would the lawyer be Charles Cooper, the former Department of Justice official who helped win the Emerson case.

The Silveira petition for certiorari does not generate confidence that a winning case would be presented to the Court. The petition unnecessarily suggests that one of the Court's major gun cases from the 19th century, Cruikshank, needs to be overruled, although the case is not a barrier to application of the Second Amendment to the states via the Due Process clause of the Fourteenth Amendment. Likewise, the petition argues that the 1939 Miller case should be limited or overruled, although this case is not inconsistent with an individual Second Amendment right.

The five most-likely votes for Second Amendment rights on the Supreme Court are all supporters of state's rights — making a challenge to a state statute an especially bad context for a Second Amendment case. Moreover, the Court has never decisively ruled that the Second Amendment is a limit on state power (as opposed to being a limit on federal power), and it seems unwise to litigate in a situation requiring two major favorable decisions by the Court (on the meaning Second Amendment itself, plus its incorporation against the states).

Moreover, "assault weapons" are an awful test case to bring to the Court. Gun experts understand that so-called "assault weapons" are merely ordinary guns with politically incorrect cosmetics. The justices, however, live in the Beltway, where the media have provided them with an almost unrelieved stream of vitriol about "assault weapons" and the kind of people who own them. It would surely be better for a major Second Amendment test case to involve more "ordinary" guns, which would not require the plaintiffs to spend an extensive section of their finite briefing pages in explaining the technicalities of the particular guns.

Given the media climate over "assault weapons," it is inconceivable that the Court would rule in Silveira's favor. At best, the Court's opinion might uphold the Second Amendment as an individual right, while affirming California's ban 9-0 or 8-1. This kind of loss would seriously harm efforts to prevent renewal of the federal "assault-weapons" ban, which is scheduled to sunset in September 2004. Such a loss would also make it easier for gun-prohibition lobbies to pass "assault-weapons" bans in various state legislatures.

At worst, a 5-4 or 6-3 Supreme Court majority might declare the Second Amendment to protect no individual right at all. The odds of such a ruling are increased if the case arises in a context likely to offend Justice O'Connor's affection for state's rights, and involving guns which she is likely to know almost nothing about — since she grew up on an Arizona ranch long before "assault weapons" became popular among competitive target shooters.

Gorski claims that if cert. is granted, he will in win the case invalidating the "assault-weapon" ban 7-2 or 9-0. He told me that the reason he is so confident is that he is right on the merits, and will therefore win, "unless you believe that the Supreme Court cannot be trusted."

Well, he is right on the merits, and of course the Supreme Court can't be trusted. The number of cases in which the current Court has upheld bogus constitutional theories, or has been willingly duped by lawyers for politically correct causes is rather large. Just this summer, a majority of the Court ignored the explicit and unmistakable ban on racial discrimination in the Civil Rights Act of 1964, in order to permit state-based racial discrimination. If the Court can ignore a statute which is exactly on point and has no ambiguity, the Court can surely find reasons to evade the original intent of the Second Amendment, and also to ignore the Court's precedents on the Second Amendment.

The fundamental error of prohibition is trying to alleviate the problem of gun misuse but ignoring the ancient medical admonition which should be the first rule of public policy as well as medicine: in trying to cure problems first make sure that you do no harm. The Silveira decision is the disastrous result of ignoring that admonition. The Ninth Circuit loss was as predictable as it was avoidable.

Silveira and cases like it are worse than playing Russian Roulette with our freedoms, and the freedoms of our heirs. With Russian roulette, the odds of not getting harmed are 5/6. The odds are much worse in Silveira, with the only question being the type of self-inflicted damage.

In the coming decades and centuries, our children and our children's children will not care if the Supreme Court decisively vindicates the Second Amendment in 2004 or 2008. They will care only if we win, whenever it happens. But if the wrong case results in a devastating Supreme Court decision, future generations will live with the consequences, and they will justifiably blame the men who ended up helping the gun-prohibition lobby.

— Dave Kopel is co-author of Supreme Court Gun Cases.