Dissenting Opinion

The “Circuits” of the US Court of Appeals
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We are a country of individuals with individual rights. So too are the members of our higher courts.

And they too can protest and cause change … when they work the system!

Here’s a case in point.

In higher courts, multiple judges hear each case and decide a verdict by majority vote. But when one or more of them disagree with the majority decision, they still have their right to free speech.

Alex Kozinski, born in Bucharest Romania during the Communist era, came to the United States at age 12 along with his parents and settled in the Los Angeles area. Educated at UCLA including law school, he would become the Chief Judge of the Court of Appeals for the Ninth Circuit. (The Court of Appeals is one step down from the U.S. Supreme Court.)

In 2002, an appeal was made to his court to review the decision of a lower court in Silveira v. Lockyer where the lower court had held that Second Amendment rights do not guarantee the keeping and bearing of arms to individuals but, rather, only to state militias.

In other words, the state would hold the arms and, when they deemed it necessary, the state would give them out to the citizenry, duly sworn as the state’s militia.

That is what the lower court said the Second Amendment meant.

On appeal, that decision went to the Ninth Circuit of the Court of Appeals for review.

But once there, a majority of the 29 judges of that Court of Appeals who cast their ballot voted to refuse to hear the case. And by not hearing the case, they left the decision of the lower court “as is”.

But Kozinski disagreed and although outvoted, he wasn’t done.

In the court’s refusal which he could not stop, Kozinski exercised his right of free speech and filed a dissenting opinion.

In that opinion he said,

“… 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. …”

(328 F. 3d 567, – Silveira v. Lockyer, pgh 13)

Circuit Court Chief Justice Kozinski understood that the so-called “rule of law” works only if everyone agrees to abide by its provisions. And he knew that when powerful factions including those in the government itself refuse to do so, individual citizens would need to exercise that doomsday clause.

It is for that terrible development that the Second Amendment was written and duly approved by the Congress, the individual States and the President.

It is there for when we need it. It is not the state’s right, it is each individual’s right.

And in a later Supreme Court decision, this right of the individual would be upheld and lower court decisions such as these would be overturned. Kozinski’s dissent had been heard, and the Supreme Court — acting in the majority — said, “We agree.”

The Second Amendment exists for a reason, and it’s not because we like to shoot guns.

Chief Justice Kozinski’s entire dissent is only ten paragraphs (pgh 7-16 at the link). It is brief and very readable. And I liked his analogy that the court was acting like a “sumo wrestler trying to kill a rattlesnake by sitting on it — and is just as likely to succeed.”

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