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View Full Version : SILVEIRA v. LOCKYER loss (and therefore the whole AW ban) is OBAMA's Fault!!!


Matt C
04-21-2008, 1:04 PM
Well, maybe indirectly. From the NRA: Barack Obama’s presidential campaign has worked to assure uneasy gun owners that he believes the Constitution protects their rights and that he doesn’t want to take away their guns. But before he became a national political figure, he sat on the board of a Chicago-based foundation that doled out at least nine grants totaling nearly $2.7 million to groups that advocated the opposite positions.

This included "an $84,000 to the Chicago-Kent College of Law for a symposium on the theory that the Second Amendment does not protect an individual’s right to bear arms, but rather only a state’s right to arm its militia. The Chicago-Kent Law Review edition that resulted from the symposium has been influential in Second Amendment jurisprudence. It was cited several times in a 2002 federal court decision upholding most of a tough California gun control law on the basis that the Constitution doesn’t protect individual gun owners’ rights."

Anyone want to guess what case that was exactly? Yep, SILVEIRA v. LOCKYER. So yeah the CA AW ban is Obama's fault. Sort of.

http://dyn.politico.com/printstory.cfm?uuid=66551746-3048-5C12-00921D2BE9528C54

Socal858
04-21-2008, 1:12 PM
not surprised. i hate everything about him and his mere indignant voice makes me throw up profusely

mymonkeyman
04-21-2008, 1:33 PM
Well not really, the 9th circuit had already ruled several years earlier than the 2nd was not an individual right.

USN CHIEF
04-21-2008, 1:36 PM
He means nothing but bad news to the 2nd. Along with Hillary.. Freaking sad..

Matt C
04-21-2008, 1:41 PM
Well not really, the 9th circuit had already ruled several years earlier than the 2nd was not an individual right.

Which case was that?

RRangel
04-21-2008, 1:53 PM
There is no doubt that Barrak is completely anti-gun. He was also a board member of the Joyce Foundation which actively seeks to remove gun rights. If I remember correctly he even contemplated running the whole organization. He's just another gun banning liar.

mymonkeyman
04-21-2008, 1:58 PM
Which case was that?

Hickman v. Block, 81 F.3d 98, 102 (9th Cir. 1996).

The thing most people miss about Silveria is that the court decided to "reaffirm [its] conclusion" in Hickman, but a panel decision of a court of appeals has no authority to not follow a prior panel opinion, so almost all of Silveria is dicta. This is pointed out in a lengthy footnote in Nordyke v. King where the court says how ridiculously inappropriate it was for Reinhardt to do what he did in Silveria:


We should note in passing that in Silveira v. Lockyer, 312 F.3d 1052 (9th Cir. 2002), another panel took it upon itself to review the constitutional protections afforded by the Second Amendment even though that panel was also bound by our court's holding in Hickman. The panel in Silveira concluded that analysis of the text and historical record led it to the conclusion that the collective view of the Second Amendment is correct and that individual plaintiffs lack standing to sue.

However, we feel that the Silveira panel's exposition of the conflicting interpretations of the Second Amendment was both unpersuasive and, even more importantly, unnecessary. We agree with the concurring opinion in Silveira: "[W]e are bound by the Hickman decision, and resolution of the Second Amendment issue before the court today is simple: plaintiffs lack standing to sue for Second Amendment violations because the Second Amendment guarantees a collective, not an individual, right." Silveira v. Lockyer, 312 F.3d 1094 (9th Cir. 2002) (Magill, J., concurring). This represents the essential holding of Hickman and is the binding law of this circuit.

There was simply no need for the Silveira panel's broad digression. In a recent case, an individual plaintiff cited to the Fifth Circuit's holding in Emerson and argued that the Second Amendment protects an individual right to bear arms. United States v. Hinostroza, 297 F.3d 924, 927 (9th Cir. 2002). However, we summarily, and properly as a matter of stare decisis, rejected the Second Amendment challenge on the grounds that it is foreclosed by this court's holding in Hickman.

Therefore, despite the burgeoning legal scholarship supporting the "individual rights" theory as well as the Fifth Circuit's holding in Emerson, the Silveira panel's decision to re-examine the scope and purpose of the Second Amendment was improper. Because "only the court sitting en banc may overrule a prior decision of the court," Morton v. De Oliveira, 984 F.2d 289, 292 (9th Cir. 1993), the Silveira panel was bound by Hickman, and its rather lengthy re-consideration of Hickman was neither warranted nor constitutes the binding law of this circuit. Accordingly, we ignore the Silveira panel's unnecessary historical disquisition as the dicta that it is and consider ourselves bound only by the framework set forth in Hickman.

Matt C
04-21-2008, 2:01 PM
Interesting stuff there.

chris
04-21-2008, 2:12 PM
he's a democrat therefore he like most democrats except for some in the house and senate support gun control. no surprise there at all.

Fate
04-21-2008, 3:46 PM
Interesting stuff there.Very. Makes you wonder how easily things here will topple with a positive outcome of Heller v. DC.

aileron
04-21-2008, 5:51 PM
Hickman v. Block, 81 F.3d 98, 102 (9th Cir. 1996).

The thing most people miss about Silveria is that the court decided to "reaffirm [its] conclusion" in Hickman, but a panel decision of a court of appeals has no authority to not follow a prior panel opinion, so almost all of Silveria is dicta. This is pointed out in a lengthy footnote in Nordyke v. King where the court says how ridiculously inappropriate it was for Reinhardt to do what he did in Silveria:

Thanks, I thoroughly hated reading that.

If we show that the world is round, but are bound by prior improper decisions which says its flat (especially if its new and we want it to be flat), we must go with flat. I like it.

The problem with law is it is not Socratic but Combative.

hawk1
04-21-2008, 7:03 PM
Well not really, the 9th circuit had already ruled several years earlier than the 2nd was not an individual right.

Well lets put the blame on him anyways...:D

motorhead
04-21-2008, 7:40 PM
i concur.

bg
04-21-2008, 8:58 PM
A snake is a snake, is a snake...No "change" to it. He says he wants
"change" save for gun rights. Those he would prefer just go in the
closest dumpster.