Wednesday, April 07, 2021

CA: Ninth Circuit Appeals Court Finds there is no "Right to Bear Arms" in Second Amendment



The Ninth Circuit Court of Appeals, in an en banc panel, has found there is no "Right to Bear Arms" in the Second Amendment of the United States Constitution. The majority opinion was written by Judge Bybee.

The case is the long delayed Young v. State of Hawaii. It will undoubtedly be appealed to the United States Supreme Court (SCOTUS). Whether SCOTUS will grant a writ of Certiorari is unknown at this time. SCOTUS has refused to grant a hearing to nearly all Second Amendment cases for over a decade. 

On 15 June, of 2020, SCOTUS refused to hear ten pending Second Amendment cases.  The consensus, at the time, was the Court was evenly split, with four justices likely in favor of enforcing the Second Amendment, and four justices in favor of gutting the Second Amendment. Justice Kennedy was considered a swing justice which could go either way. Therefore, neither side was willing to risk a case which might go against their desires.

Since then, Justice Kennedy has retired. Justice Ginsburg has died. They were replaced by Justice Kavanaugh and Justice Barrett. Both were advertised as strong originalists and textualists, who would uphold the Constitution as written. 

The ruling class considers SCOTUS to have a strong conservative majority. It is far from clear. Chief Justice Roberts' opinions turned sharply to the Left with his controversial opinion which upheld the constitutionality of Obamacare. Roberts  was reported as bullying SCOTUS into finding the State of Texas did not have standing to sue regarding constitutional irregularities in the 2020 elections.

Several seminal cases are coming before SCOTUS. Senate Majority leader Schumer directly threatened the court in March of 2020. Many think the threat was effective. 

The majority in the Young v. State of Hawaii relies on two weak arguments. One is the qualifier sentence which Justice Stevens bragged about as being inserted into the Heller decision as the price of obtaining the vote of Justice Kennedy to uphold the Second Amendment. From the

His only success, he said, was in getting Kennedy to persuade Justice Antonin Scalia to include language limiting the reach of his majority decision in Heller.

The limiting language was: 

 The Court’s opinion should not be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.

The majority takes this sentence out of Heller and claims that an 1852 law made in the Kingdom of Hawaii, before it was ever part of the United States, shows a ban on the open carry of arms is long standing. There are numerous other references to a scattering of local laws and decisions, often out of context. The claim is that banning the open carry of firearms is a long standing prohibition. It is a false claim, as noted in the dissent by Judge O'Scannlain:

Respectfully, the majority’s opinion—and in particular,its extreme and bizarre reliance on the mere fact of some historical regulation of firearms—represents a gross misapplication of the textual and historical inquiries that Heller demands.

The majority uses long winded, and often, out of context quotes from irrelevant laws, to obfuscate the irrelevancy in 109 pages. 

The second argument is to ignore the right to bear arms, because Heller did not specifically cover the right to bear arms outside the home. In other words, because the Supreme Court did not directly mention it in Heller, it does not exist. 

Judge O'Scannlain, dissenting, states it bluntly:

The Second Amendment to the United States Constitution guarantees “the right of the people to keep and bear Arms.”U.S. Const. amend. II (emphasis added). Today, a majority of our court has decided that the Second Amendment does not mean what it says. Instead, the majority holds that while the Second Amendment may guarantee the right to keep a firearm for self-defense within one’s home, it provides no right whatsoever to bear—i.e., to carry—that same firearm for self-defense in any other place.

The Ninth Circuit is the most overturned Circuit in the country. It will take time to appeal the case to the Supreme Court. The Supreme Court is not required to take it. Several other cases are in process about the right to bear arms outside the home. 

There were eleven judges on the en banc panel at the Ninth Circuit. Six were appointed by Republican presidents. Five were appointed by Democrat Presidents. All the Democrat appointees and two of the appointees by G.W. Bush voted to eviscerate the Second Amendment. It was a seven to four decision.

Majority Judges:

Sidney R. Thomas, Chief Judge, appointed by President Clinton

M. Margaret McKeown, appointed by President Clinton

Kim McLane Wardlaw, appointed by President Clinton

William A. Fletcher,  appointed by President Clinton

Richard R. Clifton,  appointed by President  G.W. Bush

Jay S.Bybee, appointed by President G.W. Bush

Michelle T. Friedland  appointed by President Obama

Dissenting Judges: 

Diarmuid F. O’Scannlain, appointed by President Reagan

Consuelo M. Callahan, appointed by President G.W. Bush

Sandra S. Ikuta, appointed by President G.W. Bush

Ryan D. Nelson,  appointed by President Donald Trump

The dissent by Judge O'Scannlain is well worth reading. 

©2020 by Dean Weingarten: Permission to share is granted when this notice and link are included.

Gun Watch 




Anonymous said...

I think nit is time to define the word corruption. The corruption in the courts across this nation. Any one can read the Second Amendment and see for themselves the words Keep and bear are Clearly written in the Second Amendment. To have a court that willingly ignores that actual words physically written and ratified. is the epitome of corruption. I insist the Ninth Circuit justices that agree the words Keep and bear are not written be immediately impeached and removed One very important point in the Federal Constitution is something the Courts like to ignore. Any Government officer and that includes Judges in any court in this nation are appointed or elected to serve during good behavior. There is no office that is a life time appoint emnt. Even judges of the U. S. Supreme court are not life time appointments they are to serve as long as they do their job according to the requirements of that job and are subject to impeachment when they fail to serve correctly. The 26 words written in the second amendment have legally existed since the year 1791. There has never been an attempt to amend the second Amendment. Only constitutionally legally ratified amendment have legal effect of enforcement. only the words physically legally ratified can and must be enforced. There is a few words that carry the legal weight of absolute mandates specifically written in our Federal Constitution. They have extreme weight in our language and an unalterable meaning Shall is one of those words and SHALL Not are extremely powerful Commands The government is forced to comply with those words as intended by the framers when those words were chosen to be written. Shall in plain English means you better damn well do it or Shall Not means you damn well better Not do it. Giving Congress No wiggle room. Shall Not BE infringed is an absolute command. Congress has never had the authority to pass any laws or acts to modify the Second Amendment in any way. All words added, ignored or simply left out are infringements by definitions there is no authority written in the constitution that permits congress to destroy our rights at the governments will. The reason we have a constitution if the the citizens to have the power to control the power of the government. when that citizen control is destroyed the constitution no longer exists and the government can do as it pleases, That is the very definition of corrupt government. The framers of the constitution clearly meant the second amendment to be used to remove and replace a corrupt government and they gave the citizens the power to remove the government by giving us the second amendment. How do the citizens remove and replace a corrupt government with out the weapons to do so. We are talking about real tyranny not arguments over spending our taxes. in my opinion the Courts are the most corrupt branch of government. They love to claim their appointment is for life but that isn legally incorrect ANY government officer in all three branches can be impeached and removed for failing in their duty to us. he citizens that our taxes pay their salaries. Any employer can fire a bad worker. when government officials violate their oath of office they need to be fired. Impeachment is the process to fire them. Once we have no power to fire them we have no constitution. With out a Constitution the government can not exist. Government has been dumbing down the education of the citizens for decades. How many really understand how powerful the constitution is. It was written to give the citizens the power over government not the government the power over citizens. Frankly the citizens can keep and bear any arms the government has. The government bought those arms with our tax money we actually own those weapons. The constitution formed th government the citizens are to control. When any member of government violate the duties of their office they must be removed and replaced. What employer allows their employees to set their wages? Wake up America while we still are America.

ScienceABC123 said...

The length some judges will go to avoid seeing what is plainly written in the Constitution just astounds me.

Anonymous said...

let me put this here. I think Americans and foreigners are ignorant of our immigration laws. The existing law was written in 1952. Many of the immigrant males are of military age and appear to have Military style hair cuts with about one months growth. Are we being quietly invaded? The news reports say many of the females are pregnant. The immigration law says Natural born citizenship is passed from at least one legal citizen parent to their child. Green card holders are not yet legal citizens, Children born to non of those immigrants are classed or identified as foreign nationals born abroad, not in their own country . The USA is one of four countries in the world that will not recognize dual citizenship. being born on American soil is not automatic citizenship. If you are an American born to legal citizen parents in a foreign country you are a citizen of that country and the only time if born on An American controlled property in that foreign country you have dual citizenship up to age eleven years old then you must make a choice which country to claim citizenship in and take an oath of allegiance. In history many invading forces took their family with them By my research on the issue there are at least 50 million non citizens already in this country. The border Patrol has unearthed at least three weapons cashes two on this side of the border and one south of the border. rarely makes the news. just health care for 50 million would bankrupt this country. In the 1952 immigration law Muslims are forbidden to immigrate to the U.S. Now we have them in Congress. We are a nation of laws, when are they going to be enforced? Do not forget violation of the oath of office is a primary reason to impeach any federal officer, any elected or appointed government official. The ninth circuit should be impeached, Their ruling A constitutionally guaranteed right is Not a right???? Their oath of office requires them to up hold and enforce the written constitution. Their opinions of what is actually written id not ratified to be law. only the people have the power to ratify an amendment. Shall not be infringed is what is written. No president has any law making power. And rights are not a mater of administrative policy.

america daels said...

thanks fro the effective work