Editor's Note: Over
three weeks ago, NationalReview.com allowed their gun writer to smear the true
Second Amendment lawsuit
we are funding -- with misinformation and personal smears on the attorney,
plaintiffs and every last person who has helped fund the case -- long after such
editorials could possibly serve any useful purpose. The smear editorials were
released just one week before the Supreme Court was set to have a Conference on
the case. NRO's Editor repeatedly assured us that they would run our
reply, then suddenly backed out under the flimsiest of excuses. Details here: National Review Online and 2nd Amendment: Publishes Kopel Smear Job, Refuses Rebuttal.
What follows is the reply NRO is afraid to publish even though they repeatedly
said they would.
Silveira Lawsuit Attacker is Shooting Blanks
by Roy Lucas
October 15, 2003
Recently Mr. David Kopel published a
editorial  criticizing the case Silveira v.
Lockyer. The criticisms have been answered in part by more than a few people. I would also like to respond, based upon my own experience in Washington, DC, interacting with the U.S. Supreme Court for over 40 years.
I do not know Mr. Kopel well, but I know much about the Supreme Court and its Justices, going back to 1964, when Mr. Kopel was four years old. I know this from arguing cases, writing briefs, writing cert petitions, and reading biographies of the justices. I could, and can, observe any argument I wished to by walking over to the Court, which is only two blocks away. As a young lawyer I took full advantage of the opportunity, watching the Nixon Tapes Case, the Pentagon Papers Cases, a host of First Amendment arguments, and the cases argued by Archibald Cox and Nicholas Katzenbach, U.S. Solicitor General and Attorney General in 1964.
Five of my law professors at NYU clerked for Justices and argued several major cases before the Supreme Court. But I really started learning how to present complex Supreme Court litigation when I studied arguments before the Court with Archibald Cox on the Civil Rights Act of 1964. I’ve since then read the briefs and studied the oral arguments there in well over 50 Bill of Rights cases.
As for my experience — though you may disagree with the results, I was primary author of the winning brief in
Roe v. Wade, a more difficult and controversial case than Silveira. That was something of an accomplishment for someone just a few years out of law school. Far more recently, I wrote a successful amicus brief for the Screen Actors Guild in 2000 that helped bring about a
unanimous opinion by Chief Justice Rehnquist in the very difficult case of Reno v.
Condon, which reversed two U.S. Courts of Appeal. In between I even won a few from a cert petition or jurisdictional statement alone.
The Silveira certiorari petition was about my fifteenth since 1968, counting similar “jurisdictional statements” in appellate cases. I wrote it with and for Gary Gorski, who is counsel of record in the
Silveira case. We had able critiques from a great many committed and knowledgeable Second Amendment advocates. It was a group effort.
My first brief was for the AAUP in the 1968
Tinker case, the First Amendment black armband case. I have written probably twenty briefs in U.S. Supreme Court cases. All were my best efforts, with a high degree of success. Some were unexpected victories without even argument. The Harvard Law School exhibited a group of my briefs in the late seventies, and videotaped an appellate argument I made before the Supreme Judicial Court of Massachusetts, for training purposes. I’ve argued or written briefs for the highest courts of nine States, eleven U.S. Courts of Appeal, and three times in the U.S. Supreme Court.
And I’m still learning every day.
My chosen occupation these past three years has been as an independent Supreme Court scholar, researching the private papers of the Justices in the Library of Congress in order to understand how and why they actually decide cases. I wrote five full law review articles this year alone on the Second Amendment, targeting the issues and arguments necessary to win in the Supreme Court with a strong individual right
of the people to keep and bear arms. These are coming out over the next months and year.
Silveira is an important case which the U.S. Supreme Court may well hear, and soon.
Silveira — if cert is granted — will be the very first argued case ever before our highest Court in Washington, D.C., squarely addressing the scope of the Second Amendment as applied to the States through the Fourteenth.
US v. Miller  was not such a case, nor were any of the so-called “gun cases” in Mr. Kopel’s
book or articles.
Miller in 1939 had no argument from Jack Miller and no friend of the Court briefs from NRA or anyone else.
Since 1939, federal courts have used the
Miller opinion in very negative ways to strangle the Second Amendment and support a collective-right-only in every Circuit but the Fifth in the
Emerson case. Mr. Kopel wants to hold on to Miller, although it is the main case relied upon by ten U.S. Courts of Appeal for a
collective right and to link arms solely to the militia. That means citizen disarmament.
The Miller opinion was written by one of the least competent Justices ever to sit, James McReynolds, yet it has been a noose around the gun rights movement for 64 years. Scholars and jurists regard McReynolds as one of the least intellectually able Justices ever. He attended law school for only one year, and it showed. Historians call him Woodrow Wilson’s Second Biggest Mistake. His overt racism, sexism, anti-Semitism, and hostility toward the Bill of Rights are well documented in biographical compilations of the Justices of the Supreme Court. He would not sit next to Justice Brandeis or Justice Cardozo because they were Jewish. Brandeis is regarded as one of the most brilliant and humanitarian Justices ever to sit on the Court, and is frankly one of my role models. The present Court would no more admire opinions from McReynolds than the later mumblings of Strom Thurmond.
Mr. Kopel suggests we should make the best of
Miller. However, Miller has for over 60 years made the worst of Second Amendment law, in case after case, as gun scholars often note.
The current Justices are far more likely to ignore McReynolds and write on a clean and better-informed slate now, in the
Silveira case, for a strong individual right. No sitting Justice has ever taken a definitive position against the individual right to bear arms. The hard part is persuading the Court for strict scrutiny, instead of reasonable regulations, but Justice O’Connor has taken that approach in female and family cases several times. Mr. Kopel seems oblivious to this level of Justice-by-Justice, issue-by-issue argument and analysis. He is complaining in an uninformed way about
Silveira, and it's obvious he does not know the territory. It is Mr. Kopel, not
Silveira, who is poison to the Second Amendment movement.
Given that we are now waiting to learn if the Supreme Court will hear
Silveira, one would think that David Kopel and those close to him would be doing many concrete, positive things to ensure an overwhelming success for the Second Amendment. This essay is a plea to them to do so, to join rather than divide. They are categorically
not at the present time involved in Silveira and have contributed nothing but negativity to the case.
KeepAndBearArms.com and grass roots individuals have been the principal supporters and have provided invaluable assistance. Chuck Michel and the California Rifle and Pistol Association, an NRA affiliate, actually filed a
brief on the
other side in Silveira, denying that there was standing for citizens to sue. That issue was resolved in the Supreme Court decades ago to the contrary, and there the Ninth Circuit is wrong again. Mr. Kopel’s ill-advised, ill-informed screed plays directly into the hands of the gun grabbers and controllers.
Mr. Kopel and friends could be organizing amicus briefs from historians, law professors, and respected groups who might have some influence with the Court. They could be writing supportive law review articles and up-to-date intelligent books. The
Silveira case without them, on its own, has been more of a booming success than anything in the history of Second Amendment litigation. Six U.S. Court of Appeals Circuit Judges in
Silveira supported the individual right to arms under the Second and Fourteenth
Amendments, twice as many as the three in
Emerson. That is six more federal judges than the NRA, Mr. Kopel, and Mr. Halbrook have ever persuaded on the Second Amendment. The NRA and Mr. Kopel’s group have not initiated many Second Amendment lawsuits, and have had the least success of any Bill of Rights group, such as the
NAACP, ACLU, Jehovah’s Witnesses, disabled folks, non-smokers, smokers, and gay rights
 groups. Even the suicide people and tobacco lawyers have won more cases. Even the chicken-sacrifice religious groups have won in the high Court.
It is ironic that the gay guys and women won big in the Supreme Court this year, 6-3, without even a constitutional amendment on the subject like the First or Second Amendment. They did not use vagueness arguments or try a little piece at a time. All sorts of criminals, Nazis, and convicted murderers have won cases protecting their constitutional rights in the Supreme Court: Miranda, Escobedo, Mapp, and many more. The gun guys, Mr. Kopel included, have had little imagination and courage in initiating creative Second Amendment test cases. The pro-gun lawyers truly slept through the civil rights movement, although scholars laid it out for them starting with Don Kates in 1982, a long 21 years ago.
In all of these many 135 years since the 1868 ratification of the Fourteenth Amendment, no pro gun group has created and carried out a litigation master plan to enforce the Second Amendment. This is despite the fact that the Amendment has a clear history and purpose, fortified by the Fourteenth Amendment and much of what the Congress has said pro gun and pro Second Amendment, starting with James Madison even before 1789. For over 20 years, scholars have been thoroughly explaining the Second Amendment, while litigators have not taken the offensive, but have been fearful. Thurgood Marshall was no coward, nor was Louis Brandeis. Both had good minds for litigation strategy. The gun rights movement has had no Thurgood Marshall, no Robert Carter, no Robert Pitofsky, no Jack Greenberg, no Norman Dorsen
(ACLU President for years), no Robert McKay, and no Hayden Covington (counsel for the Jehovah’s witnesses in the
1940s). Carter, Pitofsky, McKay, and Dorsen were professors of mine, and I listened. The gun rights movement has had very few successes in courts. NRA, GOA, and SAF have even refused to support the creation of model briefs and court papers on CD to use in setting up creative model test cases. They should have done so based on Don Kates’ original work in the 1980s, but they declined to support such a project then, or ever.
Silveira has the makings of a huge national success, if briefed and argued well. Traditional gun lawyers, however, are
— for the time being — a part of the problem. Perhaps they are defensive because they had nothing to do with the success so far in
Silveira, the excellent dissenting opinions that show how many intelligent federal judges are pro Second Amendment. That contradicts the gun lawyer dogma of blaming the judges. NRA, GOA, and SAF do not have a monopoly on Second Amendment wisdom, nor do I, of course. The list of cases brought and lost by them is very long. The common thread is to raise numerous extra off-point issues, such as vagueness and the commerce clause and state constitutional provisions, and to lose, but to be afraid to develop thorough, even stronger Second Amendment arguments.
A final point before continuing: Gary Gorski, lead attorney for
Silveira v. Lockyer, has argued a good number of cases at the federal appeals level, so he will do fine, and will have plenty of practice. The
Silveira plaintiffs have picked Gorski as their lawyer, not Kopel, Halbrook, or anyone else. That is the right to counsel in our constitutional system, almost as important a right as the Second Amendment right to arms. Kopel, Halbrook, NRA, GOA, and SAF have had decades to bring solid systematic Second Amendment test cases, but seem
not to have figured it out. You would not want to see a list of the cases where
KOPEL ON ATTACK
Mr. Kopel opens his anti-Silveira
“Silveira has already seriously harmed Second Amendment rights.”
Silveira has produced six dissents from federal circuit judges, including three of the most articulate U.S. Court of Appeals opinions in the history of the Second Amendment, from the widely respected judges Kozinski, Kleinfeld, and
Gould — all well known to the Supreme Court Justices. Even liberal Pregerson favors an individual right. The Ninth Circuit already had bad controlling precedent, but:
(1) the Ninth Circuit is the most-reversed circuit in the U.S.; and
(2) Reinhardt is the most reversed federal circuit judge.
Ergo, the Supreme Court will look at this case, as at all others from the Ninth Circuit, as a possible candidate for reversal. This is not like appealing a decision by Learned Hand. Reinhardt is not respected by a majority of the U.S. Supreme Court. Mr. Kopel neglected to mention that point, or to explain that the dissenting opinions by Judges Kozinski, Kleinfeld, and Gould are powerful support of the kind that traditional gun lawyers have never seen. If Gorski had not brought the
Silveira case we would not have those landmark dissenting opinions as a bridge to the Supreme Court.
Mr. Kopel complains about the initial almost four years distant complaint in the
Silveira case, especially the not proven Hitler quote and a sentence out of
context — admitted mistakes that have not been repeated in the Supreme Court papers. The Supreme Court, however, is concerned with the serious Bill of Rights Questions Presented in the cert petition and upcoming brief. The complaint’s asides are not relevant, not important.
Complaints can be amended and revised. The CCW claim is not in the Supreme Court appeal, as Kopel seems to suggest. There has been no trial in this case and the Supreme Court is not being asked to rule on “assault weapons” because there has been no evidence or analysis on that yet. Only the basic core Second Amendment questions are presented. That and other subtleties in the cert petition seem to have been missed or neglected by Kopel and a few other gun lawyers.
None of the six dissenting judges — indeed none of the fifteen federal judges who have been involved in the
case — made any of the criticisms that Kopel has made about the complaint.
Judge Alex Kozinski, especially, is one of the most respected federal circuit judges in the country. His dissenting opinion against Reinhardt made cert a stronger possibility. Six
dissents — more than the NRA has gathered in 60 years — almost assure cert and a good chance at a substantial victory. How Mr. Kopel missed that is utterly beyond me. It shows no familiarity with the Supreme Court process. He has not filed a cert petition there or argued a case there. He certainly has never dug into the private papers and manuscripts of the justices in the Washington libraries. That is how you begin to understand the thinking and work of the Justices.
Mr. Kopel supports the NRA-sponsored state court vagueness challenge in
Hunt v. California. The problem with vagueness cases is that the State then comes back with more specific laws and regulations. Then you are back to square one a few months later. In the meantime, your clearly defined Second Amendment rights are being violated every day by the State. We have a solid, clear, well-documented Second Amendment and should be making those arguments forcefully in the Supreme Court. Vagueness is a last resort argument. The Second Amendment, however, has a solid history that should ensure success in the Supreme Court. To use vagueness shows a total lack of confidence in oneself and the Justices of the Supreme Court, not one of whom has ever attacked the Second Amendment. I mean the sitting Justices. They have the votes. Past Justices are
gone and often forgotten.
Mr. Kopel has never filed a single cert petition in his life. He has never argued a case in the Supreme Court, but that is not unusual or
damning — unless you claim to be an expert on the Court. He does not have a string of successful federal court cases and appeals under his belt. Litigation in the federal system is a lifelong learning process. His is
a state court orientation. Most definitely, Mr. Kopel has not invested a great deal of time on the Supreme Court process of dealing with lower courts.
Incremental NAACP Strategy:
Mr. Kopel’s attempt to make an analogy with the NAACP litigation is also off base. Thurgood Marshall and a handful of top colleagues in the 1940’s and 50’s engineered their litigation carefully and with skill. Gun lawyers have done very little Second Amendment litigation in the 50 years from then to now. The NAACP did not have a Second Amendment and a right to arms that was part of the history of the Fourteenth Amendment, as we do. They had to make new law and overcome a history against desegregated schools. We need only to persuade the Supreme Court to study Madison, Story, Rawle, Blackstone, Bingham, Howard, Cooley, Flack, Aynes, and a few others. The Second Amendment case is documented overwhelmingly. We have some practical persuading to do as well to overcome past gun control propaganda. The cert petition and brief make an effort to appeal to each of the nine Justices on their own terms, to persuade them on the basis of law, history, and policy, in their
language — a language that Mr. Kopel does not fully know or understand.
The Ninth Circuit:
Mr. Kopel critiques several aspects of the
Silveira case that are unimportant now, and were of no interest to the Ninth Circuit judges. He is wrong about the reply brief because he has not studied the actual record. He bemoans the fact that Judge Reinhardt wrote such a huge opinion. Long opinions
— written by law clerks most likely — are overturned every day. The opinion has Judge Reinhardt’s name on it and that helps
Silveira, because that judge is very often wrong and reversed. The cert petition frames the case for the Supreme Court, not the earlier complaint, with an occasional misspelling. Cases are not spelling bees, but
Mr. Kopel too misspelled in his piece, and mis-cited
Judge Reinhardt is not particularly important to the Justices. The Silveira parties were actually fortunate to draw him. The dissenting opinions bash him thoroughly.
Silveira could not have been won in the Ninth Circuit anyway, and the decision did not change the law there. If Kopel wants to criticize a case, he should study
Nordyke, or the many cases lost by the SAF and NRA.
Severability and Retired Officers:
Gary Gorski won the equal protection argument throwing out the retired officer exemption. That was an important and rare victory. The State has not appealed that issue. It is settled. Even without a severability provision, the Ninth Circuit could overturn one provision and let the remainder stand. The broad federal remedial power and federal supremacy clause allow that and overcome state law and practice. It is Mr. Kopel who does not know his federalism. Far from expanding the statute, the Court upheld it with that one exception.
Jumping for Joy: Sarah Brady is probably jumping for joy about the Kopel piece in NRO to which I am responding. She and the rest of the anti-gun folks, however, have an uphill battle to win, given the overwhelming scholarship of the last 20 years in favor of a strong individual Second Amendment right. The
Silveira case as framed in the cert petition squarely presents the individual right to arms, and the necessity for cleaning up the mess of the past 64 years and longer, as well as overruling some ancient erroneous cases. We will have the same Supreme Court next spring as now, and no soothsayer can predict the demise or retirement of future Justices. The Court may well be more pro gun in three or five years. No one can know that. I saw four Justices depart unexpectedly in 1969-70.
Without Silveira: If Silveira had not been appealed, we might have seen some pretty horrendous cases go up involving all sorts of major criminals.
Miller  and Powell
 are examples of what happens when the NRA and traditional gun lawyers run the show in their sleep. Jack Miller was a professional bank robbery assistant. Powell was assisting a federal prison break with short shotguns and hacksaw blades. Public defenders all over the Nation are appealing those kinds of negative cases, because the NRA and SAF do not have well planned litigation in the pipeline, despite decades to do so. Kopel should be jubilant about
Silveira, but he is in league with the NRA and SAF unimaginative traditionalists who are responsible for decades of failures in every U.S. Court of Appeals, except the Fifth. Mind you, the
Emerson decision was written by a federal judge who was a Princeton historian. It was not masterminded by NRA, SAF, or any other pretenders to wisdom.
Overruling Cruikshank and Miller:
Here Mr. Kopel again shows lack of familiarity with Supreme Court strategy and history. It is necessary to overrule
Presser v. Illinois  in order to apply the right to arms of the Second Amendment to the States. He agrees on that, and his colleague Mr. Halbrook once wrote a thorough article on
Presser. However, Presser relies upon Cruikshank in four places. If you read
Cruikshank, and the literature on the “Colfax Massacre,”  you learn that it was a genocidal event with mass murder of blacks, a crime against humanity today. The Court will not be reluctant to overrule
Cruikshank, and with it Presser. There is a mountain of scholarship explaining why.
Mr. Kopel touts the skills of Charles Cooper, a fine lawyer from Alabama where I once taught.
Interestingly, Mr. Cooper wrote the NRA amicus brief supporting
Silveira fully, and he contradicts the lesser Kopel in several ways. For
example, Mr. Cooper states in the NRA brief: “[Silveira] Petitioners clearly have Article III
standing.” Chuck Michel was wrong on that, by at least 30 years, as is Mr. Kopel.
Mr. Michel wasted a lot of our
time with his opposition to this clean Second Amendment lawsuit, but the Ninth Circuit totally ignored him in the
Charles Cooper further states for the NRA to the Supreme Court:
“Cruikshank and its progeny were decided, however, before the Court incorporated virtually every provision of the Bill of Rights against the States. See
Duncan v. Louisiana, 391 U.S. 145, 148 (1968). Thus, there is now widespread agreement that
Cruikshank is not good law. See Pet. App. 94 (“One point about which we are in agreement with the Fifth Circuit is that
Cruikshank and Presser rest on a principle that is now thoroughly
I agree with Mr. Cooper that Cruikshank should be overruled, and that Kopel should study constitutional history more before he pretends to be authoritative.
Mr. Cooper, further in the NRA brief wisely and correctly states:
“...this Court should clarify that
United States v. Cruikshank ... which held that the Second Amendment was not incorporated against the States, is no longer good
Charles Cooper for the NRA has that right.
Mr. Kopel has it wrong. Why are we not surprised? Because Mr. Kopel has a personal agenda that is intellectually
dishonest and certainly very ill-informed — so uninformed that he praises
Cooper's ability to lead a Second Amendment charge while disagreeing with
Cooper's strategy for getting there, in the very same editorial.
Overruling Miller is also desirable because that 1939 decision has been misused against the Second Amendment dozens of times in every U.S. federal circuit except the Fifth. There was no argument in the case.
Mr. Miller was without a lawyer in the Supreme Court. He was also dead when the decision came down. That alone renders the precedent unpersuasive. Trying to squeeze something good out of
Miller is like trying to convince a charging bear to back off. The reasons for overruling
Miller and writing on a clean slate have been presented thoroughly in recent scholarship that will be published soon. Most federal courts have used
Miller to support a collective militia-only right. Kopel fails to see the mischief that
Miller has wrought, and the injustices it has caused for the past 64 years. The current Supreme Court needs to write on a clean slate.
sitting Justices often overturn state laws. Look at
Lawrence, the gay rights case. The Court 6-3 overruled its own precedent and struck down a state law. Justice O’Connor certainly concurred there as she has in the controversial abortion cases and equal rights litigation. It is silly for Kopel to expect her to uphold a state law simply because a state legislature passed it. That is shallow reasoning.
Lawrence was a far more difficult case than Silveira. The dissenters in
Lawrence appear amenable to listening to solid Second Amendment arguments. Don’t be surprised if parts of
Silveira are unanimous.
Assault Weapons not at issue:
Mr. Kopel is badly mistaken about the scope of the Silveira appeal. Specific points about assault weapons are not at issue. Those come later at a trial in the district court. “Media climate” is not something that concerns the Justices. Their task is to interpret the Constitution and Bill of Rights, not to read the
Enquirer or study NationalReview.com.
In sum, the essay by Mr. Kopel is mistaken and uninformed in many ways. The lack of knowledge shows. He certainly has no master plan for strengthening the Second Amendment, although he has written a great deal on other issues. The task in
Silveira is to document and persuade the nine Justices to:
(1) enforce a strong individual Second Amendment right and apply it to the States; and
(2) to protect that explicit fundamental right with strict scrutiny.
Silveira can and should be a major success and benefit to Second Amendment supporters. Personally, I’ve spent well over 1000 hours in Year 2003 developing the kind of honest persuasive material necessary to win. Mr. Kopel has the attitude of a defeatist. He misreads the Justices and their process. The task is one of persuasion, and the Second Amendment has a well-documented persuasive history, even a stronger history than the First Amendment. I urge Mr. Kopel and his colleagues to take up the challenge and make their maximum contribution. His article was a very bad start.
Roy Lucas, Washington, DC
1. His editorial came in two parts. See:
" Secret Weapon: Some 2nd Amendment lawyers help the gun-ban side." (9/22/2003)
and "The Silveira Threat: How long will the Second Amendment live?" (9/23/2003)
2. 312 F.3d 1052 (9th Cir.)(Reinhardt, J),
rehearing en banc denied, 328 F.3d 567 (9th Cir.), petition for cert.
filed, 72 U.S.L.W. 3093 (U.S. No. 03-51, July 3, 2003). The 'home page' from
the organization helping support the Silveira work is at http://KeepAndBearArms.com/Silveira/.
3. Various gun message boards and blogs have commentary. See in particular by Publicola
4. Heart of Atlanta Motel v. United
States, 379 U.S. 241 (1964).
5. 410 U.S. 113 (1973). The 145 page gray brief in
Roe is on microfiche in most law libraries. I wrote the Jurisdictional Statement too (similar to a Petition for Certiorari), which persuaded the Court to hear
6. That brief is summarized in the Lawyers Edition of the Reports, January 2000, not in the U.S. Reports.
7. Tinker v. Des Moines Indep. Community School Dist. 393 U.S. 503 (1969). The brief is outlined in 21 L. Ed. 2d at 975.
8. One was
Gerstein v. Coe, 417 U.S. 279 (1974), another Poe v. Gerstein, 428 U.S. 901 (1976).
Mahoning Women’s Ctr. v. Hunter was yet another case, some time after 1976, interpreting 42 USC §1988.
9. These included the briefs from
Roe and one for the American College of Ob/Gyn in Doe v. Bolton, 410 U.S. 179 (1973), that the Supreme Court cited twice.
10. This was the case of
Baird v. Attorney General, 371 Mass. 741, 360 N. E. 2d 288 (1977).
11. Minnesota, Massachusetts, Maryland, Virginia, Kansas, Texas, Washington, South Dakota, and Colorado.
12. At present the Court is awaiting a brief it has required from the Attorney General of California. It would be unusual to require such a brief unless Silveira already had enough votes to make cert a good possibility.
13. 307 U.S. 174 (1939).
14. One of my recent articles is about
Miller, using new documents from the National Archives and Library of Congress that had not been found by other gun lawyers or researchers. These help us win future Second Amendment cases.
15. Emerson v. United
States, 270 F.3d 203 (5th Cir.), cert. denied, 536 U.S. 907 (2002).
16. Melvin Urofsky, The Supreme Court Justices 297 (N.Y.: Garland 1994); Michael E. Parrish, The Hughes Court: Justices, Rulings, & Legacy 14 (ABC-CLIO 2002).
17. See Burt, Two Jewish Justices (Univ. Cal. Press 1988).
18. The negative impact of
Miller is described well in Denning, Can the Simple Cite be Trusted?: Lower Court Interpretations of United States v. Miller and The Second
Amendment, 26 Cumberland L. Rev. 961 (1996)(analysis of misapplications of Miller and disarray in the U.S. Courts of Appeal).
19. E.g., Troxel v.
Granville, 530 U.S. 57 (2000)(fundamental family rights).
20. Those decisions are published in 328 F.3d 567 (9th Cir. 2003).
21. Under the leadership of Thurgood Marshall and Robert Carter, the NAACP won dozens of major cases in several areas of law, against substantial odds and prejudice. Carter was a professor of mine at NYU and later a U.S. Court of Appeals judge for the Second Circuit in New York.
22. The Witnesses won recently in
Watchtower v. Village of Stratton, 536 U.S. 150 (2002)(prior restraints), and have done so steadily since
West Virginia Bd. of Educ. v. Barnette, 319 U.S.
23. The recent
Lawrence v. Texas, 539 U.S. ___ (2003), case is well known. Why is it that every civil rights group but the NRA has a string of Supreme Court victories?
24. Big tobacco has won three major Supreme Court cases in the past few years, including First Amendment protection for much of their advertising. See
Lorillard v. Reilly, 121 S. Ct. 2404 (2001).
25. That was the amusing case out of Hialeah ten years ago. See
Church of Lukumi Babalu v. City of Hialeah, 508 U.S. 520 (1993).
26. The Miranda warning case involved the
right against self-incrimination, but is cited in the new Kopel book as somehow a “gun case.”
27. One of the first law review articles most helpful to individual gun rights was Kates,
Handgun Prohibition and the Original Meaning of the Second Amendment, 82 Mich. L. Rev. 204 (1983). Kopel was involved in editing that, but no one used the material as the basis for a series of federal court Second Amendment cases, not then, not yet.
28. Greenberg was counsel for the NAACP Legal Defense Fund and won over 50 Supreme Court cases. I was able to watch him argue a few of those.
29. The California NRA association filed a brief on the other side in
Silveira, arguing that the plaintiffs lacked standing. These issues I briefed and argued in numerous courts successfully even before
Roe v. Wade. The Court in Roe adopted my arguments from the brief there to find standing. You do not have to be prosecuted to sue. If the law adversely affects you the case is ripe. The NAACP won that as early as 1958 in
Evers v. Dwyer, 358 U.S. 202 (1958), same with the Evolution case where there were no prosecutions, just a deterrent effect.
Epperson v. Arkansas, 393 U.S. 97 (1968)(ripeness – “Evolution” teaching case).
30. Kopel cites the “as amended” part of
Silveira wrongly at 328 F.3d 567. That is the citation for the order and lengthy dissenting opinions on rehearing, that he virtually ignores. The amendment is at 312 F.3d 1052 with the initial opinion, sixteen volumes away. Big deal. It is interesting that Kopel made no analysis of this case in the first nine months of the year after the initial decision. He has contributed nothing positive to help the
Silveira case succeed. His piece has also wasted the time of people who should be working night and day on persuading the Supreme Court, not dealing with his uninformed agenda.
31. See Nordyke v.
King, 319 F.3d 1185 (9th Cir. 2003). The Court there makes light of various First Amendment claims of a gun show exhibition. The Second Amendment was not even raised in the filings of
Nordyke. That was a case where a good fundamental rights equal protection argument could have been made but was not.
32. United States v.
Miller, 307 U.S. 174 (1939), is the only real Supreme Court “gun case” interpreting the scope of the Second Amendment. There were no amicus briefs. The NRA had supported the National firearms Act which banned maneuverable short shotguns. This prevents citizens from having effective short shotguns for home defense. It has minimal impact on gangsters and burglars.
33. Powell v. United
States, 423 U.S. 87 (1975), was a very quirky case. Powell sent two short shotguns and 25 hacksaw blades to the wife of a federal inmate. The Supreme Court in the end upheld her prosecution under a 1927 law banning as unmailable handguns and pistols. The apparent density of the defendant Powell was surely a factor in the outcome. Powell was like the robbery defendant who rose and waved to the jury when the prosecutor asked a witness if the robber was in the court room. Then Justice Rehnquist wrote that negative gun opinion, but the case was on vagueness, not the Second Amendment.
Powell and Miller are the kinds of bad cases that have come up to the Supreme Court because the NRA, SAF, and GOA have had inadequate litigation planning and have not developed an intelligent winning program. Without
Silveira the Supreme Court would take up some such unsavory case, while the NRA counsel are diddling away in state trial courts over vagueness claims.
34. 116 U.S. 252 (1886).
The Right of Workers to Assemble and Bear Arms, 76 U. Detr. Mercy L. Rev. 943 (1999).
36. 116 U.S. at 265-68 cites
United States v. Cruikshank, 92 U.S. 542 (1876), four times to buttress its case.
37. A thorough book on this is Vandal, Rethinking Southern Violence: Homicides in Post-Civil War Louisiana, 1866-1884 (Ohio State 2000).
38. The most significant articles and books on this include: Aynes,
On Misreading John Bingham and the Fourteenth Amendment, 103 Yale L.J. 57 (1993); Crosskey, Charles Fairman,
“Legislative History,” and the Constitutional Limitations on State
Authority, 22 U. Chi. L. Rev. 1 (1954); Michael Kent Curtis, No State Shall Abridge (Duke 1986); Horace Flack,
The Adoption of the Fourteenth Amendment (Johns Hopkins 1908); and Antieau,
The Intended Significance of the Fourteenth Amendment (Wm. Hein, Buffalo, N.Y.: 1997). These are indispensable reading for a full understanding of the issue of incorporation. I know that Gary Gorski is familiar with and even owns copies of these works, but Kopel is perhaps not.
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