9th Circuit Judge Reinhardt Passes Away at 87

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  • Petar

    Member
    Nov 18, 2010
    532
    Hmm...
     

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    Boondock Saint

    Ultimate Member
    Dec 11, 2008
    24,366
    White Marsh
    "Well, bye," indeed.

    Many of you will recall this fantastic dissent from Kozinski in the en banc petition in Silverira. Judge Reinhardt was among the "excellent colleagues" referenced in this glorious work. Read the entire thing, and enjoy especially the bold part, emphasis mine:

    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
    constitutionalguarantee, 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.
     

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