American Flag flying upside down as signal of DISTRESS


ATTORNEY PETER J. MANCUS' ANALYSIS OF THE 9TH CIRCUIT DECISION IN THE MATTER OF "Silveira v. Lockyer."
"Here, arguably, these three lower judges appear to be intentionally not following the Doctrine of Stare Decisis and Judicial Supremacy, namely, they are not deciding similar cases according to prior precedent and they are not following the so-called legal leader, namely, the U.S. Supreme Court. In that sense, arguably, these three judges are legal renegades or judicial insurrectionists who are in revolt against the U.S. Constitution, the U.S. Supreme Court, and "We, the People."
JUDGES' BRAIN FART
by

© Peter J. Mancus

Attorney at Law

Victorian Square

876 Gravenstein Ave. So., Suite 3

Sebastopol, California 95472

© Peter J. Mancus 2002


The assumption that respect for the judiciary can be won by shielding judges from published criticism wrongly appraises the character of American public opinion. For it is a prized American privilege to speak one's mind, although not always with perfect good taste, on all public institutions. And an enforced silence, however limited, solely in the name of preserving the dignity of the bench, would probably engender resentment, suspicion, and contempt much more than it would enhance respect.

    --Bridges v. California (1941) 314 U.S. 252, 270-271


The purpose of this opinion-editorial's title is to focus attention on an alarming recent case decision: Silveira v. Lockyer (9th Circ. 2002) 2002 U.S. LEXIS 24612.

Silveira involved nine plaintiffs, including two California National Guardsmen who are combat veterans, a San Francisco police officer, and a California correctional officer. These plaintiffs sued California's Attorney General, California's Governor, and the State of California to overturn California's ban against semi-automatic rifles, which gun prohibitionists pejoratively demonize as assault weapons. The plaintiffs alleged that this ban violated their Second Amendment rights, the Equal Protection Clause, and other Constitutional provisions.

A three judge panel of the Federal Ninth Circuit, on December 5, 2002 [ten days before another anniversary of the ratification of the U.S. Bill of Rights,] held that these plaintiffs lacked standing to continue with their lawsuit under the Second Amendment because none of them have a Constitutionally valid, individual right to arms exclusive of an effective state militia and the Second guarantees only a state's collective right to maintain an effective state militia, not an individual right to own and possess firearms; therefore, the court ruled against all plaintiffs on that ground. The court also held that the plaintiffs did have standing to claim a violation of the Equal Protection Clause; however, it held that the challenged law, except in one area, was a legitimate, rational classification.

The pagination numbers used by LEXIS will be used herein to reference specific parts of this decision. Example: "[3]" means page three per LEXIS' pagination of this decision.

Gun prohibitionists who champion victim disarmament laws already hail this decision as a stake driven through the heart of the "individual right interpretation" [IRI] of the Second Amendment [2AM.] For the reasons that follow, this characterization is non-meritorious and premature.

There are many objectively verifiable material errors and illogical, reasoning-to-result errors in this decision. There are so many errors that a well documented critique book that analyzes this decision in depth could be written.

To make it easier for anyone to compare this critique with Silveira, this critique starts at the beginning of Silveira and proceeds toward the end.

[3]

The Court [the three federal judges who decided Silveira] discussed an unfortunate, tragic shooting at a Stockton, California elementary school by a lone gunman who used an AK-47 semi-automatic rifle to kill five children, one teacher, and wound twenty-nine children, and the political-legal response, namely, the California Legislature passed the Roberti-Roos Assault Weapons Control Act [the AWCA,] which, among other things, banned many so-called assault weapons and made registration of same a pre-requisite for the lawful ownership and possession of same.

The Court, therefore, in context, confirmed that after this Stockton incident, the political-legal system did the following: first, it lashed out, harassed, and punished those who did not shoot anyone; second, it began to demonize law-abiding citizens who own such firearms; third, it began to demonize such firearms; fourth, to exacerbate matters, it purported to legitimatize registration of such firearms; fifth, it alienated many citizens who believe that demonization of firearms and their owners, combined with registration of such firearms, are telltale signs of a hostile government intent on disarming them by confiscating such firearms; and sixth, it imposed serious prior restraint against a right that many deem to be vital to their existence and a healthy, Constitutional republic, namely, the "right of the people to keep and bear arms, shall not be infringed.," a right that many will fight to enforce, including armed rebellion and civil war if necessary.

[4]

The Court cited Michael A. Bellesiles as an authority on the history of firearms in the United States and federal restrictions on automatic weapons since the days of Al Capone and the Prohibition Era. Mr. Bellesiles, however, is the author of Arming America [AA,] which has been thoroughly discredited by historians and law school professors. As a result of such criticism, and Mr. Bellesiles inability to refute such criticism, he was forced to resign by his university employer. Since Mr. Bellesiles was forced to resign before the Ninth Circuit released Silveira to the public, it is queer that these judges did not sanitize Silveira by stripping it of all references to Mr. Bellesiles. The fact that they did not strip all references to Mr. Bellesiles suggests they did not know about Mr. Bellesiles' fate or, knowing of Mr. Bellesiles' fate, they were inexplicably still willing to use him as an alleged authority, or, they believed that they needed to continue to rely upon Mr. Bellesiles' discredited scholarship because, without it, they would lose one link in their chain of reasoning. Since Silveira was published, Columbia University, which awarded Mr. Bellesiles a coveted award for his authorship of AA, plus $4,000.00, has rescinded the award and asked that Mr. Bellesiles return the $4,000.00 cash award.

[11]

The Court characterized the 2AM as "this relatively obscure constitutional provision attracted little judicial or scholarly attention." The Court's characterization is odd, and is suggestive of a not-so-hidden gun prohibition bias. The 2AM probably "attracted little judicial and scholarly attention" for decades because, in the beginning, for decades, there was a wide spread, common understanding that the 2AM did guarantee an individual right to arms. The long time absence of case decisions about the meaning of a law is strongly suggestive that there is a wide spread, enduring, consensus of what the law means. This is important in and of itself and for another reason: a major rule of "Constitutional construction" [how the Constitution or part of it is interpreted and applied] is: the meaning that the generations closest to the framing of the Constitution gave to that document is entitled to great weight.

Recent "attention" to the 2AM is probably a result of a convergence of the following dynamics: too many judges have become more interested in golf and opera and less interested in firearms and hunting; more Statists now hold political and bureaucratic offices; there are many domestic enemies of the United States with an agenda who want to disarm U.S. citizens; and, increasingly, citizens are beginning to understand that gun control in the guise of crime control is really people control and a major threat to their liberty. As a result of this convergence, scholars on all sides of this debate have focused on the 2AM and more citizens have filed lawsuits to vindicate their perceived 2AM rights.

[11, 12]

The Court specified and defined the "three principal schools of thought" about the 2AM: first, the "traditional individual rights" model [2AM guarantees an individual right of private citizens to possess and use firearms for any purpose, subject only to limited government regulation; second, the "limited individual right" model ["individuals maintain a constitutional right to possess firearms insofar as such possession bears a reasonable relationship to militia service."]; and third, the "collective rights" model ["the Second Amendment right to 'bear arms' guarantees the right of the people to maintain effective state militias, but does not provide any type of individual right to own or possess weapons. Under this theory of the amendment, the federal and state governments have the full authority to enact prohibitions and restrictions on the use and possession of firearms, subject only to generally applicable constitutional constraints, such as due process, equal protection, and the like."]

The Silveira Court said that the "collective right" model is, "Long the dominant view of the Second Amendment, and widely accepted by the federal courts . . . ." Each of these assertions is objectively and demonstratively false. This Court opined that the "collective right" model "has recently come under strong criticism from individual rights advocates." That is true.

[13]

The Court then said that Siveria represents this Court's "full analysis of the amendment, its history, and its purpose," and, based on this scholarship, it, via this decision, reaffirmed its belief that the "collective right" model "provides the best interpretation of the Second Amendment."

[14]

The Court conceded that the U.S. Supreme Court in U.S. v. Miller (1939) 307 U.S. 174 held that possession of a firearm suitable for use in the militia is protected by the 2AM; however, the Siveria judges then said that Miller "offers little guidance as to what rights the Second Amendment does protect." That statement is false.

U.S. v. Miller made all of the following clear: first, if a hand-held firearm, by its inherent design and function, is suitable for modern military use or for a militia to provide for the common defense, it is the type of hand-held firearm that is protected by the 2AM; second, that test for what type of firearms are protected by the 2AM is a function of a firearm's qualities, not a function of whether or not a person who keeps and bears such a firearm is a member of a state militia or any other government regulated paramilitary, military, or law enforcement type organization; third, the militia referenced in the 2AM consists of members who are predominantly civilians first, soldiers second, who, when they marshall for an organized militia purpose in response to a perceived civic crisis, report for duty bringing with them their own privately owned firearms which they take back with them and keep under their own control after the militia disbands. It is important to note that these qualities of a militia and a militia member are 100% inconsistent with the National Guard, which many gun prohibitionists argue is the modern heir to the militia specified in the 2AM. National Guard members do not own any of their government owned firearms, which are retained in government owned armories when not issued to Guardpersons.

[17]

The Court cited the pro-gun prohibition opinions of Justice Douglas and Justice Thurgood Marshall in a dissenting opinion. By definition, a dissenting opinion is not controlling authority. Dissenters are losers at least for that particular case. This 3-judge 9th Circuit panel's reliance on the opinions of two dissenting judges from a 1972 decision is the equivalent of desperation, namely, these judges have no better authority to cite to support their holding as alleged applicable precedent. It is incredible that they ignored majority opinions that hold 180 degrees opposite of what they eventually held in Silveira and boldly, and inexplicably, cited a dissenting opinion. There are also dissenting opinions that hold 180 degrees opposite of the sole dissenting opinion that they cited.

[20, 21]

As another alleged applicable precedent, these three judges quoted Ex-Chief Justice Warren Burger, who, in his retirement, in an article that appeared in the non-authoritative PARADE MAGAZINE, January 14, 1990, page 4, opined, "The real purpose of the Second Amendment was to ensure that state armies 'the militia' would be maintained for the defense of the state. The very language of the Second Amendment refutes any argument that it was intended to guarantee every citizen an unfettered right to any kind of weapon he or she desires." It is axiomatic that Ex-Chief Justice Warren Burger's opinion cannot be a precedent. Ex-Chief Justice Warren Burger expressed his naked opinion without benefit of any briefing nor detailed analysis nor cite to controlling authority. Ex-Chief Justice Warren Burger also never participated in a 2AM case when a member of the U.S. Supreme Court. Burger's opinion also telegraphs his lack of a sound or comprehensive understanding of the subject matter. For example, he opined that the 2AM guaranteed that the states had a right to maintain "state armies," but Article I, Section 10, Clause 2 of the U.S. Constitution states, "No State shall, without the Consent of Congress, . . . keep Troops . . . in time of Peace . . . ." Thus, Ex-Chief Justice Warren Burger's opinion that the militia and "state armies" are the same is wrong and Constitutionally unsound. The two concepts are not 100% interchangeable. There are meaningful differences. The judges who signed off on Silveira apparently do not understand this vital difference, or, in the alternative, knowing this vital difference, tried to gloss over it because they had an ulterior agenda.

[22]

These judges, to their credit, articulated a significant opinion that is accurate and not complimentary to some of their sister judges: "Although the majority of circuit courts have, with comparatively little analysis, adopted the collective rights view . . . ." [Emphasis added.]

[23]

These judges, to their credit, made a significant admission which strongly suggests that even after doing their alleged comprehensive analysis of the 2AM, they still have doubts if their interpretation of the 2AM is correct. They admitted, "We agree that our determination in Hickman that Miller endorsed the collective rights position is open to serious debate. We also agree that the entire subject of the meaning of the Second Amendment deserves more consideration than we, or the Supreme Court, have thus far been able (or willing) to give it." [Emphasis added.]

[30]

These judges said:

. . . when we give [the 2AM] text its most plausible reading and consider the amendment in light of the historical context and circumstances surrounding its enactment we are compelled to reaffirm the collective rights view we adopted in Hickman: The amendment protects the people's right to maintain an effective state militia, and does not establish an individual right to own or possess firearms for personal or other use. This conclusion is reinforced in part by Miller's implicit rejection of the traditional individual rights position." [Emphasis added.]
Here, their "logical" [?] train jumps the tracks. By this passage, and others, these judges claim that they considered historical documents and historical context. That is good. That is what the Rules of Constitutional Construction require, among other things. Since these judges assert that they considered many of these sources, which they further assert legitimatizes their holding, these judges, by implication, concede that it is proper to consider such historical documents and context.

Assuming that these judges considered all of the necessary historical documents, in that sense, they had the blueprint and the parts to, in effect, for purpose of analogy only, build a cow. But they built a steer. They got it backwards at worst or, at best, they got it, at most, only 50% correct. How did this non-meritorious result come about?

These judges did not adequately, nor accurately, define what a militia is. They did not discuss the different types of militia: unorganized militia before marshaling in response to a perceived civic crisis, unorganized militia after marshaling in response to a perceived civic crisis, organized militia, and select militia. They also did not acknowledge that in the militia system, all citizens eligible for the militia were part of the militia 24/7: twenty-four hours of every day of the week. Militia members were on duty all the time, even when they continued to outwardly function in their ordinary, unregulated, civilian, routine. During the Founding and Framing Eras, what was important was that citizens had civic virtue: they were willing to take the initiative to defend themselves, to defend another, to defend the local community, to defend the nation, to act alone, if necessary, at a moment's notice, by self-direction, as a militia-of-one, without being on any government payroll.

This militia system was formed before the invention of the following: the telephone, "Dial 911," police departments, and the National Guard. As a result, citizens had to be self-reliant, armed, familiar with arms, and willing to provide for their own defense, for the defense of others, for the defense of the community, and for the defense of the nation.

The major figures of the Founding Era and the Framing Era left us with extensive historical records that discuss the above specified concepts, realities, and attitudes, but these judges did not discuss fully this information which is absent from Silveira.

These judges also did not explain, persuasively, their conclusion that Miller implicitly rejected the traditional individual rights position. Miller did not reject the individual rights position. Miller said: because no litigant introduced evidence as to whether or not the particular shotgun involved in that case had the kind of inherent qualities that would make it suitable for use in a modern military unit or as a militia weapon for the common defense, and since it was unwilling to take judicial notice of any facts relevant to those issues, it reversed a lower federal court decision that held that the defendants in that case did have an individual 2AM right to that shotgun, and, sent the case down to a lower court for a new evidentiary hearing regarding whether or not this shotgun's qualities were suitable for a modern military unit or for a militia.

Silveira's judges also never discussed a fundamental key to understanding, correctly, the 2AM, the state militia system, and the different types of militias. These judges appear to suffer from a wrong understanding, or, in the alternative, they know the historical record but glossed over it because they have a gun prohibitionist's agenda. Their understanding appears to be this: the individual right versus collective right concept is solely an either/or choice, and it is impossible for both rights to co-exist within, and pursuant to, the 2AM. Their decision is strongly suggestive that they wrote it from the point of view that it is impossible for the 2AM to guarantee an individual right to arms and a collective right to arms. But, the 2AM, when properly and comprehensively understood, guarantees an individual right to arms and a collective right to arms. This fact is a function of time.

H20, depending on its temperature, can be a liquid, a solid, or a gas. A human being, depending on time, can be a college student, a law student, an attorney, or a judge. By analogy, a citizen who is a merchant or a farmer, can have an individual right to arms outside a militia and a collective right to arms within a militia, when he voluntarily marshals in response to a perceived civic crisis, and voluntarily subjects himself to state control of the militia, when other citizens voluntarily come together as a militia, under the control of officers of their own choosing.

Inexplicably, these three judges virtually conceded the above analysis at page 30 of their decision: "Although Miller is consistent with both the limited individual rights position and the collective rights view, for reasons we explain below we continue to adhere to the collective rights view we adopted in Hickman."

Here, arguably, these three judges appear to be intentionally not following the Doctrine of Stare Decisis and Judicial Supremacy, namely, they are not deciding similar cases according to prior precedent and they are not following the so-called legal leader, namely, the U.S. Supreme Court. In that sense, arguably, these three judges are legal renegades or judicial insurrectionists in revolt against the U.S. Constitution, the U.S. Supreme Court, and "We, the People."

[31]

These judges, to their credit, acknowledged that the U.S. Supreme Court's Barron v. Baltimore (1833) 32 U.S. 243 decision [the decision which stated that the U.S. Bill of Rights is not applicable to the States] is "now-rejected." Thus, they appear to have declared that the Bill of Rights, without qualification, in its entirety, is 100% binding against the States, without any need to reference the Fourteenth Amendment and the U.S. Supreme Court's Doctrine of Selective Incorporation, namely, that on a case by case basis certain rights codified in the Bill of Rights are binding against the states as a matter of "due process."

These judges, to their credit, also made another significant concession, which underscores intellectual honesty on their part: "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 discredited." This is an extraordinary statement. This is because California Attorney General Bill Lockyer has gone on record stating that the U.S. Supreme Court, in Cruikshank and Presser, granted the states the legal power and right to impose prior restraint gun control legislation! Thus, Silveira can be cited for the proposition that these judges destroyed two of the major pillars to the State of California's rationale for victim disarmament laws. Inexplicably, however, these three judges then stated, "Because we decide this case on the threshold issue of standing, however, we need not consider the question whether the Second Amendment presently enjoins any action on the part of the states."

With this type of logic [if such reasoning can be credited with that term,] these judges undercut their credibility or competency or both.

[32]

These three judges said, "Miller neither adopts nor rejects the collective view. . . . we think it important to ground our circuit law on more solid constitutional reasoning and analysis." It is desirable to have the law grounded on "solid Constitutional reasoning and analysis." Unfortunately, Silveira did not do that for the reasons stated above and below.

[33]

These three judges state that scholars have characterized the 2AM as being "puzzling," "an enigma," and "baffling." Since we are now about 7.5 generations removed from the Founding Era and the Framing Era, to those who do not understand that time period and the core values and world view of the Founders and Framers, the 2AM can be a puzzling enigma. To try to solve this puzzle, these judges state that they must consider the unique relationship between the 2AM's two clauses. That is reasonable.

[35-43]

These judges considered what militia and the 2AM means. At page 35, they correctly stated, "The first or prefatory clause of the Second Amendment sets forth the amendment's purpose and intent." At page 37, these judges made a significant admission: there is a "well-established canon of interpretation that requires a court, wherever possible, to give force to each word in every statutory (or constitutional) provision." This is true. But these judges did not do that. Example: Even though Silveira is a lengthy decision, they never discussed what "shall not be infringed." means.

At page 38, these judges commit themselves as to what militia means - at least to them:
We believe the answer to the definitional question is the one that most persons would expect: "militia" refers to a state military force. We reach our conclusion not only because that is the ordinary meaning of the word, but because contemporaneously enacted provisions of the Constitution that contain the word "militia" consistently use the terms to refer to a state military entity, not to the people of the state as a whole. . . ." [Emphasis added.]
Here, the train really jumps the tracks. Here, these judges, whatever their intent, commit themselves to a fateful, incomplete, and, in that sense, wrong and disingenuous definition of what a militia is and was intended by the Founding and Framing generations.

[44]

Here, these judges state, ". . . it is clear that the drafters believed the militia that provides the best security for a free state to be the permanent state militia, not some amorphous body of the people as a whole, or whatever random and informal collection of armed individuals may from time to time appear on the scene for one purpose or another." This statement is equal parts true and false and 100% disingenuous.

The truth is this: many militia members did prove to be unreliable. George Washington left a clear record to that effect. Washington, given his prolonged experiences with an unreliable militia, became a champion of a professional standing army under control of the federal government. However, the colonies, the new federal government, and the newly created states were strapped for funds. None wanted to incur the expense of a standing army or of a "permanent state militia."

"A permanent state militia" is a contradiction. The militia was essentially a voluntary organization comprised of citizens first, soldiers second. The U.S. Supreme Court decision in U.S. v. Miller made that distinction clear. From the point of view of the Framers and Ratifiers, a "permanent state militia" would be as much of a threat to their liberty as would be a permanent federal standing army. This is why the Framers and the Ratifiers made a well-informed, conscious decision: among the options available to them, they elected to have a minimalist professional, federal, standing army and to have a maximum, unprofessional, voluntary, non-permanent, state militia system, which ordinary civilians would swell in numbers when a legitimate need arose.

[40-45]

These three judges discuss historical records and focus on excerpts therefrom which they opine support their definition of what a militia is. It again appears that they had a correct blueprint and they had access to most, if not all, of the right historical parts. But, instead of coming up with a cow they came up with a steer. What they did, and what they did not do, is not conclusive of them having an ulterior motive to champion a gun prohibition agenda; however, it is suggestive of an approach that is simultaneously harebrained and clever. They appear to have sown together bits and pieces of history, some over the other, to put together a botched, patchwork of alleged, objective, judicial scholarship which is really a quilt of deception.

Only these judges know for sure if they had an ulterior agenda, if they lack competency, if they are intentionally misrepresenting the real facts under the gloss of judicial scholarship, if they have engaged in verbal sleight of hand, if they are, down deep, lying anti-Right to Keep and Bear Arms judges, if they are Judicial Insurrectionists. No matter what explains these judges' questionable scholarship, and reasoning-to-result, to anyone who is well-informed and well-read in this area, this decision smacks of bar room fecal matter. For the edification of these judges, here are some relevant definitions of the militia, articulated by those who were contemporaneous, opinion elites, and political-legal movers and shakers.
Americans [have] the right, and advantage of being armed 'unlike citizens of other countries whose governments are afraid to trust the people with arms.

    --James Madison, The Federalists, No. 46

The great object is that every man be armed

    --Patrick Henry, Debates and Other Proceedings
    of the Convention of Virginia (June 2, 1788)

I ask, sir, what is the militia? It is the whole people, except for a few public officials.

   --George Mason, Jonathan Elliot, The Debates in the
    Several State Conventions on the Adoption of the Federal Constitution

Before a standing army can rule, the people must be disarmed; as they are in almost every kingdom in Europe. The supreme power in America cannot enforce unjust laws by the sword, because the whole body of the people are armed, and constitute a force superior to any band of regular troops that can be, on any pretense, raised in the United States. [Emphasis added.]

   --Noah Webster, "An Examination of the Leading Principles
    Of the Federal Constitution," (1787)

It is always dangerous to the liberties of the people to have an army stationed among them, over which they have no control . . . The Militia is composed of free Citizens. There is therefore no Danger of their making use of their power to the destruction of their own Rights, or suffering others to invade them. [Emphasis added.]

   --Samuel Adams, Writings

They tell us . . . that we are weak, unable to cope with so formidable an adversary. But when shall we be stronger? . . . Will it be when we are totally disarmed, and when a British guard shall be stationed in every house? . . . Three million people, armed in the holy cause of liberty . . . are invincible by any force which our enemy can send against us. [Emphasis added.]

   --Patrick Henry, "Give Me Liberty" Speech

No free man shall ever be debarred the use of arms

    --Thomas Jefferson, Proposed Virginia Constitution, 1776

Arms in the hands of citizens may be used at individual discretion . . . in private defense.

    --John Adams, A Defense of the Constitution of
    The Government of the USA, 471 (1788)

A well-regulated Militia, composed of the Gentlemen, Freeholders, and other Freemen was necessary to protect our ancient laws and liberty from the standing army . . . And we do each of us, for ourselves respectively, promise and engage to keep a good Fire-lock in proper Order & to furnish Ourselves as soon as possible with, & always keep by us, one Pound of Gunpowder, four Pounds of Lead, one Dozen Gun Flints, and a pair of Bullet Molds, with a Cartouch Box, or powder horn, and Bag for Balls.

    --George Mason

To disarm the people [is] the best and most effectual way to enslave them.

    --George Mason, Jonathan Elliot, The Debates in the
    Several State Conventions on the Adoption of the
    Federal Constitution

The said Constitution [shall] never be construed to authorize Congress to . . . prevent the people of the United States, who are peaceable citizens, from keeping their own arms. [Emphasis added.]

    --Samuel Adams, Massachusetts Constitutional Ratification Convention, 1788

Who are the militia? Are they not ourselves? Congress have no power to disarm the militia. The swords and every other terrible implement of the soldier, are the birthright of an American. . . . The unlimited power of the sword is not in the hands of either the federal or state governments, but, where I trust in God it will ever remain, in the hands of the people. [Emphasis added.]

    --Tench Coxe, of Pennsylvania, Pennsylvania Gazette,
    Feb. 20, 1788

[I]f circumstances should at any time oblige the government to form an army of any magnitude, that army can never be formidable to the liberties of the people while there is a large body of citizens, little if at all inferior to them in discipline and the use of arms, who stand ready to defend their rights and those of their fellow citizens. [Emphasis added.]

    --Alexander Hamilton, of New York, The Federalist, No. 29

A militia when properly formed are in fact the people themselves . . . and include all men capable of bearing arms . . . . To preserve liberty it is essential that . . . . The mind that aims at a select militia, must be influenced by a truly anti-republican principle. [Emphasis added.]

    --Richard Henry Lee, of Virginia, Additional Letters
    From The Federal Farmer, 1788

What, sir, is the use of the militia? It is to prevent the establishment of a standing army, the bane of liberty . . . . Whenever Government means to invade the rights and liberties of the people, they always attempt to destroy the militia, in order to raise a standing army upon its ruins.

    --Elbridge Gerry, of Massachusetts, Debate, U.S.
    House of Representatives, August 17, 1789

Since these judges did not come to terms with these definitions and explanations of the militia, the objectivity or thoroughness or both of their scholarship is questionable.

It is submitted that these quotations, when construed as a whole, suggests the following conclusions: the referenced militia concept, when properly understood, involved these ideas: first, the people had a right to arms independent of, and apart from, the militia; second, this right was a legally recognized, individual right that was not contingent on their involvement in the militia in any way; third, when a civic problem arose, the citizens, if they believed the government [local, state, or federal] was worth fighting for, had the option of responding to the government's call for the militia to marshall to cope with the civic problem at hand; fourth, these citizens showed up with arms owned by them; fifth, once the militia marshaled, then and only then, did they select their officers from among themselves and those officers, then and only then, had the right to issue orders to the assembled militia; and sixth, when these citizen-militia men disbanded, they returned to their homes and work keeping their privately owned, unregistered firearms, which George Washington characterized as Liberty's teeth.

It is further submitted that peaceable citizens do not lose their individual right to arms merely because state government declines to exercise its Constitutional power to form an organized militia.

It is also submitted that state government has a Constitutionally legitimate power to impose reasonable regulations regarding citizens in the militia only after state government calls forth the militia and reasonably implements the militia system. Absent state government using the militia system, it has no Constitutionally legitimate power, repeat, none whatsoever, to impose any form of prior restraint against any peaceable citizen's absolute right to buy, make, sell, transfer, possess, control, own, keep, carry, and bear, any firearm that is suitable for the militia to use for the common defense. This is because the 2AM's second clause states, "the right of the people to keep and bear arms, shall not be infringed." "[S]hall" is a clear command. "[N]ot" is a clear negative. "[I]nfringed" means no pre-condition of any kind, no matter how slight. With "shall not be infringed.," the Framers and Ratifiers were serious about denying civil authority any and all pretext for disarming "the people," the holder of the right codified, namely, ". . . the right of the people to keep and bear arms, . . . ."


[45]

Here, these judges state, the following: first, society and government cannot tolerate "an 'unregulated' mob of armed individuals . . ., the modern-day privately organized Michigan Militia, the type of extremist 'militia' associated with Timothy McVeigh and other militants with similar anti-government views, groups of white supremacists or other racial or religious bigots, or indeed any other private collection of individuals."; therefore, second, ". . . 'well regulated' confirms that 'militia' can only reasonably be construed as referring to a military force established and controlled by a governmental entity.'" Here, their [logic ?] train again jumps the tracks.

Per these passages, these judges, who are suppose to be neutral, objective, logical, and polite, smeared large numbers of people. Personal attacks are not a substitute for logic or facts or both. Such personal attacks and sniping are below the belt cheap shots.

This smear is unworthy of a well trained judge who functions professionally, as if confined by the Constitution's chains or logical reasoning.

These judges unreasonably smeared millions of Americans and tainted them with residue of Timothy McVeigh. It is a fact that a citizen-militia unit rejected McVeigh as a member!

This smear underscores these judges' elitism and fear of anything not under government's control, on the apparent premise that if X is not under government's control it is, by definition, out of control.

Another not-so-hidden premise in this smear is this egregious idea: because one person, or a few, abuse a right, everyone must be stripped of their right because government fears the right might be abused. That is the reasoning of a tyrant or a tyrant wannabee or a tyrant's apologists. Per that reasoning, since these judges are equipped to be rapists, and to spread sexually transmitted diseases, or are in a position where they can sell their influence, they, arguably, should be removed from office and incarcerated to promote the general welfare.

If these judges are correct [that the 2AM's militia is strictly limited to a State regulated effective militia,] it would have been a simple manner for the learned Framers to write the Second Amendment to state the following, "A State regulated Militia being necessary for the security of the State, the right of the State to keep and bear arms, shall not be infringed." But that is not what the 2AM states.

There is ample historical evidence that "well regulated" in the late 1700's meant the modern equivalent of "well trained," "well disciplined," or "functioning properly," which can be accomplished independently of "government regulation" and, often, better, without "government regulation." Examples: a "well-regulated" clock kept accurate time. A "well-regulated" militia learned to fire in volleys or at will, depending on what it was ordered to do.

When these judges smear and malign the so-called "unregulated mob," they fail to give credit to the citizens aboard the airliner that impacted the Pennsylvania landscape instead of a high value target on 9/11. Those citizens were a disarmed, unregulated, citizen militia, that manifested civic virtue: they spontaneously marshaled, for the common good, in response to a pending civic crisis. Those citizens made the heroic, ultimate sacrifice for the common good, without direction or regulation, from civil authority. Those citizens cannot be dismissed, or overlooked, as the "unregulated mob." They were heroes in the truest sense.

These judges also fail to give credit to the Korean merchants who protected millions of dollars worth of real property, and human lives, during the Los Angeles riots, while government regulated police departments, sheriffs' offices, California Highway Patrol, and Army National Guard units stood by, and did nothing, for agonizing hours, pursuant to orders issued by their chain of command, as large areas of Los Angeles were looted and torched. Citizen-taxpayers annually paid millions of dollars in tax tribute to civil authority for protection that was withheld when needed most. Those Korean immigrants functioned as an unregulated, spontaneous, citizen militia, effectively, for the common good.

There are also approximately 2 million instances a year where a citizen stops a violent crime by merely showing a gun, deterring a crime in progress or about to be started. Those instances are commonly not reported because neither the criminal nor the citizen who packed a sidearm without a CCW [concealed carry weapon] permit have a motive to trigger law enforcement's interest in them. But, society benefits when armed, ordinary, citizens responsibly used a firearm for the common good, despite civil authority's regulations.

It is too simplistic for these judges to smear the "unregulated mob" while praising a regulated, allegedly "effective state militia." There is no assured correlation between "regulation" and "effectiveness" or "no regulation" and "ineffectiveness." Government had no practical positive effect at 30,000 feet on September 11, 2001. In fact, as a result of government's regulations that disarmed the law-abiding citizen passengers on the three airliners involved, all where doomed because government's ill-conceived regulations gave the terrorists an advantage.

Post 9/11, civil authority, including these judges, has not drawn the correct lessons from these events. As a result, there will probably be more Timothy McVeigh's. Civil authority has not correctly learned what motivated McVeigh nor how to prevent future McVeigh's.

Some citizens will not tolerate being disarmed because of a judge's edict or a legislator's law banning guns.

A better, more accurate name for the new Department of Homeland Security is Department of Homeland Lockdown. Government in this nation is now wiping its ass with the Bill of Rights, locking all of us down, in the name of security, turning the United States into the equivalent of a penitentiary exercise yard.

When people become scared, most will gladly give up rights to try to remain safe. But that tradeoff is not a solution. It is a tradeoff that never works. There is a meaningful difference between solution and trade-off. These judges do not have a solution for gun violence. Instead, they have only a trade-off: surrender Liberty for [alleged] Security. That is a horrible trade-off. It is something that only a Statist, a domestic enemy of the United States, or a foreign enemy of the United States would embrace.

[46]

Here, these judges stated something remarkable:
. . . we now turn to the meaning of the second clause, the effect the first clause has on the second, and the meaning of the amendment as a whole. The second clause'"the right of the people to keep and bear Arms, shall not be infringed"'is not free from ambiguity. We consider it highly significant, however, that the second clause does not purport to protect the right to "possess" or "own" arms, but rather to "keep and bear" arms. This choice of words is important because the phrase "bear arms" is a phrase that customarily relates to a military function. [Emphasis added.]
Such parsing of words and semantical games is reminiscent of Clinton's, "It depends on what the meaning of 'is' is." When the undersigned read this excerpt to a relative with college degrees, this relative laughed with scorn at the judge's reasoning.

Keep, as a verb, where relevant, is widely understood to mean the following: (a) to have or maintain in one's service or at one's disposal; (b) to restrain from departure or removal; (c) to refrain from revealing; (d) to retain in one's possession or power; (e) to have in one's control against opposition; (f) to continue to use without interruption; and (g) to persist in a practice.

Own, where relevant, is widely understood to mean the following: (a) to have or hold as property; (b) belonging to oneself, as a possession.

Possess, where relevant, is widely understood to mean: (a) to have possession of; (b) to have and to hold as property; (c) to take into one's possession and to hold onto firmly.

Possession, where relevant, is widely understood to mean: (a) the act of having or taking into control; (b) control of property without regard to ownership; (c) something owned, occupied, or controlled; (d) a domination over something.

These definitions, without a stretch, support the conclusion that keep, as used in the 2AM, is broad enough to include the idea of own or possess without ownership--or both; therefore, the Framers did not intend to make ownership of a firearm a pre-condition for possessing or keeping one. That would be, and is, reasonable. This is because the Framers understood that there is a direct connection between citizens having firearms under their sole control and their ability to preserve their Liberty by having the practical means to hold the Prince to his promise, e.g., to force civil authority to wear its Constitutional collar. Hence, "keep and bear" is consistent with Joe telling Tom, "Hey, Joe, you don't have a gun. Here, borrow mine. Come with me. The militia's been called up!"

Significantly, throughout Silveira, these judges manifested a pattern from which they never deviated: at every turn, they construed anything they deemed to be unclear or ambiguous in a manner that would constrict individual liberty and expand civil authority's powers, even if they had to engage in an illogical stretch, to do so. That is what a Statists would do. That is what an Anti-Right to Keep and Bear Arms judge would do.

The construction that these judges placed on the critical "keep and bear arms" is not convincing. It is hard to imagine how the Framers could have come up with a written bright line that is more clear than, ". . . the right of the people to keep and bear arms, shall not be infringed." The quoted excerpt from the 2AM can stand as a complete sentence. The 2AM's first clause is not a complete sentence. Each of the words in this excerpt is simple. The phraseology is simple. The declaration of the right is straightforward and clear. The declaration of who has the right is clear. The word privilege does not exist in the 2AM. "Right of the people" is clear. It is clear, or should be, that "right of the people" is not "right of the State." But these judges can look at a cow and declare they saw a steer. Silveira undermines confidence in the judiciary, which is unfortunate. These judges are not Guardians of Liberty.

[45-110]

On page 45, these judges mention the term "shall not be infringed" for the first time in a mere sub-heading, "The Meaning of the Amendment's Second Clause: 'The Right of the People to Keep and Bear Arms, Shall Not Be Infringed.'" They then discuss this "meaning," in over 50 pages, without analyzing what "shall not be infringed." means. But they conclude that their "interpretation" of the 2AM is correct. They ultimately opine they are confident that their view is far superior to all others, even though they never discussed what "shall not be infringed." means. Amazing. That phrase constitutes four of the 2AM's twenty-seven words and that phrase constitutes 100% of how the 2AM ends. The ending is as important, or more so, than the beginning. Yet, these judges declined to give "shall not be infringed."any analysis.

[45-46]

These judges refer to historical documents and conclude that "bear arms" is categorically limited to only in a military sense, as part of a government regulated, military unit. They also argue that "keep" is limited to the only legitimate purpose of the 2AM: to "bear" arms in a military sense within the confines of a State regulated militia. That reasoning is not persuasive. These judges admit that, "Arms can be 'kept' for various purposes'military, social, or criminal." True. But it should be noted that they left out, "for lawful self-defense" or "for lawful defense of others" or "to resist an oppressive, tyrannical government," all of which were part of what motivated the drive to have a 2AM.

These judges continue with their analysis, "The question with respect to the Second Amendment is not whether arms may be kept, but by whom and for what purpose." This is clever. "Keep" suggests "ownership, possession, and control." If a person were a gun prohibitionists, one might make the argument these judges made that "keep" is limited to bearing arms only within a State regulated militia and is not suggestive of the right to own nor to possess. Again, truly amazing reasoning. But "keep" is broader than "own."

[53-58]

Here, these judges analyzed the 2AM's two clauses: the purpose clause and the right clause. They asserted that the purpose clause "helps shape and define the meaning of the substantive provision contained in the second clause, and thus of the amendment itself."

[54-55]

Here, these judges are clever or, arguably, perhaps simply stupid. These judges wrote:
When the second clause is read in light of the first, so as to implement the policy set forth in the preamble, we believe that the plausible construction of the Second Amendment is that it seeks to ensure the existence of effective state militias in which the people may exercise their right to bear arms, and forbids the federal government to interfere with such exercise. This conclusion is based in part on the premise, explicitly set forth in the text of the amendment, that the maintenance of effective state militias is essential to the preservation of a free State. . . . In contrast, it seems reasonably clear that any fair reading of the "bear Arms" clause with the end in view of 'assuring . . . the effectiveness of' the state militias cannot lead to the conclusion that the Second Amendment guarantees an individual right to own or possess weapons for personal and other purposes. [Emphasis added.]
Here, the judges state that "the people may exercise their right to bear arms," but only in the context "of effective state militias." They got it 50% right. And they got it 50% wrong. The "50% wrong" part is dangerous, alarming, and non-meritorious. Again, these judges revealed how much they do not know about the militia concept, or, in the alternative, how much they are ideologues intent on not discussing "the rest of the story" about the complete militia system. Their "reading" is not a "fair reading" nor a persuasive one.

If this is the best these judges can do, they have spent their cerebral seed on a steel slab.

No, on a titanium block 10,000,000 meters thick.

[56]

Here, these judges indirectly suggest they have doubts if their interpretation is correct: "Fortunately, we have available a number of other important sources that can help us determine whether ours is the proper understanding."

[58-62]

Here, these judges discussed historical data, again tacitly implying that such data is relevant and to consider same is appropriate. They demonstrate that they looked at much, if not all, of the "blueprint" to build or find--a cow, but, instead, they built, or found, a steer.

[63]

Here, these judges again cited, and relied upon, Michael A. Bellesiles, the discredited historian.

[67]

Here, these judges cited James Madison's Federalists No. 46 argument. This is the one where Madison wrote, "Besides the advantage of being armed, which the Americans possess over the people of almost every other nation, . . . ." In context, Madison did not qualify "the Americans." Hence, Madison was obviously referencing a broad array of Americans being armed, outside of a State regulated militia context. But, for some reason, these judges did not pick up on this reading and, instead, ignored this fair reading or, in good faith, mis-analyzed it and did not give it the weight it deserves. Their analysis is wrong.

[67]

Here, these judges said that the Framers' concern with "the balance of military power between the states and the federal government" is "now an anachronistic subject foreign to our mode of thinking." True! True in the sense that these judges have not successfully placed themselves within the minds of the Founders and Framers, or, having studied well enough to know their view accurately, they seek to distort it to promote their own agenda.

[69]

Here, these judges acknowledge their familiarity with a key, pivotal concept that the Framers had, namely, ". . . opponents of the Constitution contended, then Congress would have the implied power to disarm the state militias and thus the people as well." [Emphasis added.] In context, these judges, in effect, conceded that "the people" are "the militia"! But they refuse to acknowledge that fact or, in the alternative, do not understand that fact. But, the Founders, Framers and the Ratifiers understood that fact--a stubborn fact, namely, "the militia" and "the people" were one and the same, in the 1700's and that is exactly how they intended it to remain, indefintely, as long as the U.S. Constitution remained the Supreme Law of the Land. These judges discussed these Framers concerns admirably well. They even cited Patrick Henry's and George Mason's warnings and concerns. But, they then drew wrong conclusions: instead of finding a cow, they find a steer.

[72]

Here, these judges make a remarkable statement: ". . . so few of us remain concerned with any right of the people to take up arms against the federal government." Written like the Statists they are.

[60-89]

Here, these judges seem to adhere to this premise: to the extent the States do not elect to maintain a militia, the people have absolutely no Constitutional right to own nor to possess any firearm, period. This attitude confirms the Anti-Federalists fears. But, again, if that were the case, the 2AM would read, ". . . the right of the States to keep and bear arms, shall not be infringed." But it states, ". . . the right of the people to keep and bear arms, shall not be infringed."

Judges are stuck with the 2AM's text. That is a stubborn fact. No interpretation will change the text itself. Knowing that stubborn fact, these judges apparently tried to interpret away the 2AM's text. Their herculean effort fails.

[73]

Here, the judges state, ". . . the question of a national defense as opposed to state-by-state military defense force would also seem somewhat academic after World War I, World War II, the Cold War, and Al Qaeda." This does not compute. Does the First Amendment protect only the quill and not the computer? Citizen concerns about citizens defending themselves against a tyrannical government 'federal only, state only, local only, or any combination of all three or two of the three' is a timeless, eternal issue for all who value Liberty. The National Guard and the Air National Guard units now comprise approximately 30% to 45% and more of the front line military equipment of this nation. On paper, those units are theoretically assigned to the States. In reality, however, all unit equipment is owned by the Federal government. Most, if not, all payroll is paid by the Federal government. And, whenever the President wants to federalize State Guard units, the President may due so, which would strip the States of their theoretical and practical protection from a tyrannical federal government, especially if ordinary citizens were disarmed.

If ordinary citizens are disarmed and a tyrannical federal government federalizes the States' Guard units and sends them overseas or allows those units to wither through lack of funding, what will exist to defend the States against the Federal Government? It is not prudent to assume that any of those scenarios will not occur.

[76-77]

Here, these judges quoted a passage attributed to Framer George Mason. In this passage, Mr. Mason indicated that he believed that "divine Providence has given to every individual the means of self-defense." In context, Mr. Mason declared that God is the source of Mankind's rights, not civil authority, and another rationale for the 2AM is to codify a legal recognition for the individual right to own and to control firearms for personal self-defense. But, again, these judges look at a cow and report that they saw a steer.

[79]

Here, these judges, after 78 pages of their analysis, make another significant admission, but with a twist that only gets it 50% correct:
In sum, a careful review of the ratification debates demonstrates beyond question that opponents of the new Constitution sought amendment of the Militia Clauses in order to preserve the people's rights to maintain an effective military force for their self-defense, and not to afford individuals a Constitutional right to possess weapons.
By this passage, these judges are the functional equivalent of an 18 year old boy who shows up at his girlfriend's parent's home, to take their daughter out to the senior prom, dressed only from the waist up! These judges never attempt to explain how the group may be armed while its members may not be.

[82]

Here, these judges, to their credit, got this right:
Anti-Federalists offered dire predictions, particularly regarding the federal power to call forth state militias. They predicted that this power would lead to one state's militia being turned against another's, and that the federal government would force state militias to march to far-flung corners of the nation.
The Federal Government has already ordered State Guard units to go overseas, with the U.S. Supreme Court's blessing, and, it is willing, able, and ready to do the same regarding Iraq, Korea, etc.

[83]

Here, these judges make an interesting admission, one that undercuts their holding. This admission is:
No one in the First Congress was concerned, however, that federal marshals might go house-to-house taking away muskets and swords from the man on the street or on the farm.
They were not concerned because there was an overwhelming consensus that peaceable, free citizens had an absolute, legally recognizable, individual right to own firearms, and government did not have any power to ban and/or to confiscate arms from ordinary, peaceable, citizens.

[86]

Here, these judges summarized their understanding of the 2AM:
In sum, our review of the historical record regarding the enactment of the Second Amendment reveals that the amendment was adopted to ensure that effective state militias would be maintained, thus preserving the people's right to bear arms. The militias, in turn were viewed as critical to preserving the integrity of the states within the newly structured national government as well as ensuring the freedom of the people from federal tyranny. Properly read, the historical record relating to the Second Amendment leaves little doubt as to its intended scope and effect. [Emphasis added.]
Again, these judges do not discuss the issue of timing. Their discussion of the 2AM is analogous to explaining H2O as if it can only be water, or only ice, or only a gas. The components of H20 do not change as H20 changes due to temperature changes. Similarly, ordinary citizens were considered militia at all times and all places, whenever defense of the community, of self, or of others was required, not just when they mustered, formally, as an organized militia. Thus, even self-defense was not purely private. Militia service was defense of the public, which included oneself as a member of the public. The public was deemed to benefit when one successfully acted in self-defense or defense of another. Thus, the militia duty was 7/24, at one's own initiative, responsive to one's own call-up, even if no one else was present or responsive.

[88-89]

Here, these judges state that the 2AM means that the people can exercise their right to "bear arms" only within an "effective state militia"; therefore, the "collective rights" model is correct, and "we hold that the Second Amendment imposes no limitation on California's ability to enact legislation regulating or prohibiting the possession or use of firearms, including dangerous weapons such as assault weapons." [Emphasis added.] Thus, these judges declare that the State of California may ban not only so-called assault weapons, but all firearms owned, kept, possessed, or controlled by all ordinary citizens who are not part of an effective State of California militia. But California does not have such a militia because the Authoritarian Elitists running the show do not want such a militia.

It should be noted that these judges construed California's statute that bans only assault weapons to mean that California could ban, and confiscate, all firearms owned or possessed by ordinary citizens. In context, these judges bless this prospect: except for ordinary criminals, civil authority, via the armed forces and law enforcement, has a monopoly on firearms. But, to get to that position, these judges had to do radical surgery on the 2AM. If they were plastic surgeons working on a human face, they would have put the poor soul's belly button on the forehead.

* * *

These judges confined their analysis of the Second Amendment to only historical records that dealt with the Founding Era and the Framing Era. They did not consider the documents generated by the post Civil War Reconstruction Congress in the late 1860's. If they had done so, they would have had to come to terms with that era's interpretation of the 2AM which was essentially this: citizenship consists of a bundle of rights, among which is the individual right to keep and bear arms. That view endured for decades, until certain Authoritarian Elitists who are intent on disarming ordinary U.S. citizens invented the "collective rights" model for the Second Amendment. Attorney Stephen P. Halbrook's Freedmen, The Fourteenth Amendment and the Right to Bear Arms, 1866-1876, ISBN 0-275-96331-4, is an authoritative source for this topic.

A logical extension of Silveira is this: civil authority's agents [military and law enforcement] have a right to a monopoly on arms. If so, that is a classic definition of a police state.

The failure of these judges to confront "shall not be infringed." is significant. Even God cannot reconcile "regulation" with "shall not be infringed." When militia members, under State control, have a right to bear arms which "shall not be infringed.," civil authority has lost control over the military. That result is unacceptable. A bedrock principle of our Constitutionally limited, democratic, republican form of government is civilian control over the military, which would include "an effective State militia." The lost of civilian control over any aspect of the military would be disastrous. That would mean that at least some elements of the military are beyond civilian control and unaccountable to civilian authority. That development could lead to the entire military being beyond civilian control. That development could lead to a military dictatorship.

Silveira implies, without clearly stating it, that the National Guard is the modern equivalent of the militia referenced in the 2AM. But Silveira never addressed how "shall not be infringed." should be construed relative to the National Guard . . . or to anything or anyone. This is a glaring defect in Silveira.

If Guardpersons have a right to firearms which "shall not be infringed." then they may, at their whim, carry automatic weapons wherever they go. No one can stop them because their right to do so "shall not be infringed."

On the other hand, if the 2AM shall continue to fulfill its primary purpose, namely, to allow "We, the People," to maintain the pragmatic means to deter, or to defeat, a tyrannical government, ordinary citizens must have the absolute right to modern military, hand held, firearms, which "shall not be infringed." to keep civil authority from trying to strip citizens of that right per any pretext or rationale.

The Framers made a well-informed, well-reasoned, deliberate choice: better civil authority be afraid of an armed citizenry than an unarmed citizenry cower before an oppressive government.

Silveira is poorly reasoned. Just as motion should never be mistaken for action, its extensive historical references fail to fortify its reasoning. If these judges really did their utmost best to set forth their best arguments to try to prove that the Second Amendment does not guarantee an individual right to arms, after exhausting themselves, they failed. More than that, they squandered their credibility and good will, and they manifested their sub-standard scholarship. Given their holding, they have also alarmed armed citizens who are increasingly awakening to how judicial insurrection against the Constitution arguably exists. Consequently, if these judges intended to advance a gun prohibitionist's agenda, their decision is a tactical mistake and perhaps, ultimately, a strategic mistake. They are well down the road of mismanaging potential conflict. Like the German sergeant in the pill box at Normandy, in the movie "The Longest Day," these judges seem oblivious of the armada forming over the horizon. Justice Jackson, concurring and dissenting, in American Communications Ass'n. C.I.O. v. Douds (1950) 339 U.S. 382, 426, warned, "Our constitutional scheme of elections will not settle issues between large groups when the price of losing is to suffer extinction. When dissensions cut too deeply, men will fight, even hopelessly, before they submit."

The Silveira holding will not endure. There is a dynamic to the core essence of the militia system that these judges failed to heed: citizens do not need to be a member of a government regulated militia to be effective freedom fighters. For lack of a better term, "the American deer hunter," when aroused, is the world's largest, latent, guerrilla force in waiting. JFK warned, "Those who make peaceful revolutions impossible will make violent revolutions inevitable."

Many armed, ordinary, Americans living within the Ninth Circuit's jurisdiction will not yield to Silveira: they will neither cower nor obey this ill-advised edict. Any law enforcement officer who tries to enforce this edict is a fool and a domestic enemy of the U.S. Constitution.

The entire thrust of Western Civilization, especially in the United States, has been, and is, this: (1) the individual is more important than the group; (2) the collective does not have priority over the individual; (3) civilization is the story of Mankind placing a Constitutional collar on civil authority's neck and of citizens retaining the practical power to break civil authority's neck if it tries to slip its Constitutional collar; (4) no law repugnant to the Constitution nor individual rights is legitimate; and (5) when civil authority abuses citizens through a prolonged train of abuses, it forfeits its legitimacy and citizens have a right and a duty to rebel and to replace an abusive, unconstitutional, civil authority. Silveira is dangerously contrary to (1) through (5).

If Alvin York, Audie Murphy, Patton, Eisenhower, Bradley, MacArthur, Nimitz, Halsely, LeMay, and all the veterans who served under those commanders were alive today, living within the jurisdiction subjected to Silveira [Alaska, Hawaii, Washington, Oregon, California, Nevada, Montana, Idaho, and Arizona,] these three judges would have the audacity to tell them, in effect, "You have no right to own or to possess any firearm, or to carry one for lawful self-defense or lawful defense of your loved ones, outside of an effective state militia. And neither do your spouses nor your adult children. Medal of Honor winner? We don't care! Commanded thousands of men in combat? We don't care! Took a bullet at Okinawa? We don't care! Charged an enemy pill box spitting out lead and became an invalid when you blew it up? We don't care! Lost toes due to frostbite at the Battle of the Bulge? We don't care! Shot down eight German fighters, became an ace, and was awarded coveted medals? We don't care! Been depth charged, had a sub sunk out from under you, and saw your buddies eaten by sharks? We don't care! Gave 20-45 years of your life in faithful service to the nation? We don't care! Flew nuclear armed strategic bombers? We don't care! Served in Nam with the Rangers? We don't care! Worried about getting mugged when you get off work at 11:30 p.m.? We don't care! Concerned about gangs? We don't care! Afraid of a home invasion? We don't care! Afraid of government becoming tyrannical? We don't care!"

How brave of these judges to issue their edict from the sanctuary of a federal courthouse, while they enjoy security paid for by taxpayers who they purport to ream.

These judges purport to function as God in a robe. But, per the Constitution's chains, they do not have any legitimate power, or right, to determine whose hide is worthy of protection, to determine whose rights they can reduce to a privilege and deny, to pervert the Constitution, to, with words, take a glove made to fit the right hand and turn it inside out and make it fit the left hand. Despite their best efforts to pull off that trick, the glove's seams show. The glove's seams show because these judges got Silveira backwards and inside out.

Currently, within the jurisdiction "controlled" by these three judges, there are U.S. Navy, U.S. Air Force, U.S. Army, and U.S. Marine Corps bases, with officers and subordinates entrusted with nuclear weapons. Per these judges, on Day-1, a man can be a five star general or an admiral on active duty or a national hero. But on Day-2, the first day of his retirement, he is allegedly--a bum, part of the unregulated mob who cannot be trusted with any firearm merely because he is no longer a government employee. This condescending, arrogant, pompous, reckless, attitude is rampant authoritarian, elitism at its worse. From this perspective, these judges irresponsibly moved a lighted match toward the fuse on a bundle of TNT . They do not seem to understand that they hold both in their hands. That is irresponsible. That is dangerous. That is inflammatory. That, arguably, is a form of treason.

Every tyrant in the world who would love to defeat the United States and occupy her would love to have all ordinary U.S. citizens disarmed, especially without having to wage war to accomplish that goal. Silveira, therefore, must give aid and comfort to this nation's foreign, and domestic, enemies who covet weakening, controlling, and occupying the United States.

It has recently been reported that Iraqi officials, in anticipation of a U.S. lead attack and land invasion, have distributed firearms to able bodied Iraqi citizens. If true, it is ironic that that distribution coincided with the judiciary's release of Silveira. If Iraqi officials did make a wide spread distribution of firearms to ordinary citizens, they have at least a partial understanding of militia and the power of an armed citizenry.

The State of California, before 9-11, and especially after 9-11, should forthwith re-activate the State militia system, make it "effective," and build a strong, good will, bond with loyal, responsible, civic-minded, armed, ordinary citizens. Instead, it foolishly, arrogantly, and recklessly treats them as skunks, pokes them with sticks, demonizes them and their firearms with unconstitutional laws and poisonous rhetoric, and now purports to have the power to disarm them.

There is no need to go to Afghanistan to find the Taliban. This nation, and California in particular, is plagued with the domestic version of home grown Taliban, American style. Some are dressed up in black robes. Their anti-Liberty sermon is the legal equivalent of the Bubonic Plague.

Heed the following warnings.
If the time shall ever come (which Heaven avert), when men shall be placed in the supreme tribunal of the country, who entertain opinions hostile to the just powers of the Constitution, we shall then be visited by an evil defying all remedy. Our case will be past surgery. From that moment the Constitution is at an end. . . . If I live to see that day come, I shall despair of the country. . . . I know of no security against the possibility of this evil, but an awakened public vigilance. I know of no safety, but in that state of public opinion which shall lead it to rebuke and put down every attempt . . . to dilute the Constitution by creating a court which shall construe away its provisions. . . . Let us hope that we shall never see the time when . . . the government shall be found in opposition to the Constitution, and when the guardians of Union shall become its betrayers.

    --Daniel Webster, Excerpts from a speech delivered at a public
    dinner in New York on March 10, 1831

The judiciary of the United States is the subtle corps of sappers and miners constantly working under ground to undermine the foundations of our confederated fabric. . . . A judiciary independent of a king or executive alone, is a good thing; but independent of the will of the nation is a solecism, at least in a republican government.

    --Thomas Jefferson, letter to Thomas Ritchie, Dec. 25, 1820

The germ of dissolution of our federal government is in the constitution of the federal judiciary; an irresponsible body . . . working like gravity by night and by day, gaining a little to-day and a little to-morrow, and advancing its noiseless step like a thief, over the field of jurisdiction, until all shall be usurped from the States, and the government of all be consolidated into one.

    --Thomas Jefferson, letter to Charles Hammond, Aug. 18. 1821

If the policy of government, upon vital questions affecting the whole people, is to be irrevocably fixed by decisions of the Supreme Court, . . . the people will have ceased, to be their own rulers, having, to that extent, practically resigned their government into the hands of that eminent tribunal.

    --Abraham Lincoln, first inaugural address, March 4, 1861

The right to sue and defend in the courts is the alternative of force. In an organized society, it is the right conservative of all other rights, and lies at the foundation of orderly government.

    --Chambers v. Baltimore & Ohio R.R. (1907) 207 U.S. 142, 148

Frame constitutions of government with what wisdom and foresight we may, they must be imperfect, and leave something to discretion, and much to public virtue. It is in vain, that we insert bills of rights in our constitutions, as checks upon legislative power, unless there be firmness in courts, in the hour of trial, to resist the fashionable opinions of the day.

    --Joseph Story, Address before Suffolk Bar, Boston, Sept. 4, 1821

The issue is The Peoples' Right to hold government to Constitutional restraint. If they cannot hold it to account for such violations, then either the Constitution is not the supreme law, or the supreme law does not bind government. The supreme law of the land must be as binding on government when government doesn't like it as it is on citizens whether they like it or not. If either the people or government do not like certain constitutional clauses the remedy is to amend the Constitution, not "interpret" it contrary to its express and contextual meanings. The Constitution contains its own terms for amendment, and "judicial fiat" is not among them.

    --John E. Wolfgram, "How The Judiciary Stole The Right To Petition,"
    31 U. West L.A. L. Rev. (Summer 2000)

That is what the Right of Petition is. It is the right conservative of all others. It is designed to bring government to account under the law of the land, or by force if necessary, for the violation of other rights. It is so powerful that its free use will prevent the hostilities of war between government and governed and the mere promise to respect it can restore peace to warring factions because it is the instrument of justice under law, as between government and governed. It is intended to subject government to the compulsory process of law when government does not want to fairly redress the grievance. It is so important that "law" without it, is "law without justice," and that is another name for oppression.

    --John E. Wolfgram, "How The Judiciary Stole The Right To Petition,"
    31 U. West L.A. L. Rev. (Summer 2000)

Judicial cowardice is not a very good reason to refuse to support the Constitution.

    --John E. Wolfgram, "How The Judiciary Stole The Right To Petition,"
    31 U. West L.A. L. Rev. (Summer 2000)

To prove this, let facts be submitted to a candid world. ' He [King George, III] has refused his assent to laws, the most wholesome and necessary for the public good. . . . ' He has made judges dependent on his will alone . . . ' He has erected a multitude of new offices, and sent hither swarms of officers to harass our people, and eat out their substance. . . . ' He has combined with others to subject us to a jurisdiction foreign to our constitution, and unacknowledged by our laws; giving his assent to their acts of pretended legislation: . . . For depriving us in many cases, of the benefits of trial by jury: . . . . ' For taking away our charters, abolishing our most valuable laws, and altering fundamentally the forms of our governments: . . .

    --Partial list of colonials' grievances against King George, III,
    as stated in the July 4th, 1776 Declaration of Independence [Emphasis added.]

What do we mean by the Revolution? The War? That was no part of the Revolution. It was only an Effect and Consequence of it. The Revolution was in the Minds of the People, and this was effected, from 1760 to 1775, in the course of fifteen years before a drop of blood was drawn at Lexington.

    --John Adams in a letter dated August 14, 1815 to Thomas Jefferson

[C]onstitutional lines are the price of constitutional government.

    --People v. Camacho (2000) 23 Cal.4th 824

If we desire respect for the law, we must first make the law respectable.

    --U.S. Supreme Court Justice Louis Brandeis
Silveira will not endure. When it is buried, the following would be an apt epitaph:
The . . . interpreters of the laws . . . can always be depended upon to take any reasonably good law and interpret the common sense all out of it. They can be depended on, every time, to defeat a good law, and make it inoperative'yes, and utterly grotesque, too, mere matter for laughter and derision.

    --Mark Twain, Letter to H.C. Christiancy, Dec. 18, 1887
The judges who signed off on Silveira, and who smeared ordinary citizens with the characterization that they are mere members of the unregulated mob, and, therefore, are unworthy of having an individual right to arms, should ponder the following wisdom and re-examine their commitment to Freedom, Liberty, Individual Rights, and the Constitutional Rule of Law.
These experiences underline the wisdom of the basic constitutional precept that penalties should be imposed only for a person's own conduct, not for his beliefs or for the conduct of others with whom he may associate. [Emphasis added.]

    --Justice Black, dissenting in American Communications
    Ass'n, C.I.O. v. Douds (1950) 339 U.S. 382, 452

Can our form of government, our system of justice, survive if one can be denied freedom because he might abuse it?

    --Harlon Carter

Experience should teach us to be most on guard to protect liberty when the Government's purposes are beneficent. Men born to freedom are naturally alert to repel invasion of their liberty by evil-minded rulers. The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding.

    --Justice Louis D. Brandeis, dissenting in
    Olmstead v. United States, 277 U.S. 479 (1928)

It will be found an unjust and unwise jealousy to deprive a man of his natural liberty upon the supposition he may abuse it.

    --Oliver Cromwell

I believe there are more instances of abridgment of the freedom of the people by gradual and silent encroachments of those in power than by violent and sudden usurpations.

    --James Madison

The danger is not that a particular class is unfit to govern. Every class is unfit to govern.

    --Lord Acton

I know of no class of my fellowmen, however just, enlightened, and humane, which can be wisely and safely trusted absolutely with the liberties of any class.

    --Frederick Douglass

It behooves every man who values liberty of conscience for himself, to resist invasions of it in the case of others.

    --Thomas Jefferson

The mass of mankind has not been born with saddles on their backs, nor a favored few booted and spurred, ready to ride them legitimately, by the grace of God.

    --Thomas Jefferson

We are in danger of forgetting that the Bill of Rights reflects experience with police excesses. . . . History bears testimony that by such disregard are the rights of liberty extinguished, heedlessly at first, then stealthily, and brazenly in the end.

    --Justice Felix Frankfurter, Davis v. United States, 328 U.S. 582, 597 (1946)

Power tends to corrupt, and absolute power corrupts absolutely.

    --Lord Acton

[O]nce you cease to regard the individual as important you have made the decision that all individuals of a given society are unimportant. They are mere tools of other individuals who make the decisions. When individual rights have been eliminated, group "rights" also will not survive for long. . . . ' We are losing our freedom not to Communists, but to homegrown police statists.

    --Claire Wolf and Aaron Zelman, The State vs. The People:
    The Rise of the American Police State

Those who would give up essential Liberty to obtain a little temporary Safety deserve neither Liberty nor Safety.

    --Benjamin Franklin

Those who deny freedom to others, deserve it not for themselves; and under a just God, can not long retain it.

    --Abraham Lincoln

. . . the only thing we have to fear is fear itself . . . .

    --Franklin D. Roosevelt

We cannot defend freedom abroad by deserting it at home.

    --Thomas Jefferson

. . . a tyranny exercised for the good of its victims may be the most oppressive. . . . those who torment us for our own good will torment us without end, for they do so with the approval of their own conscience.

    --C. S. Lewis

The worth of a state in the long run, is the worth of the individuals composing it; and a state which dwarfs its men in order that they may be more docile instruments in its hands even for beneficial purposes--will find that within small men no great thing can really be accomplished.

    --John Stuart Mill, On Liberty

The urge to save humanity is almost always only a false-face for the urge to rule it.

    --H. L. Mencken

I knew a man scared by the rustle of his own hatband.

    --Ralph Waldo Emerson

It is very easy to perpetuate injustice against any individual if you do so in the name of "the greatest good" or the "rights of others"--with implication being that "only those we choose not to target at the moment have any rights."

    --Claire Wolf and Aaron Zelman, The State vs. The People:
    The Rise of the American Police State

The makers of our Constitution . . . conferred, as against the government, the right to be left alone'the most comprehensive of rights and the right most valued by civilized men. To protect, that right, every unjustifiable intrusion by government upon the privacy of the individual, whatever the means employed, must be deemed a violation of the Fourth Amendment.

    --Justice Brandeis [dissenting] in Olmstead v. U.S.
    (1928) 277 U.S. 438, 478

There will never be a really free and enlightened State, until the State comes to recognize the individual as a higher and independent power, from which all its own power and authority are derived, and treats him accordingly.

    --Henry David Thoreau, Civil Disobedience

. . . the ultimate enemy of any people is not the angry hate groups that fester within, but a government itself that has lost respect for the individual.

    --Gerry Spence, From Freedom to Slavery: The Rebirth of
    Tyranny in America, page 11

The political philosophy of America's Founding Fathers is so thoroughly buried under decades of statist misrepresentation on one side and empty lip-service on the other, that it has to be re-discovered, not ritualistically repeated. It has to be rescued from the shameful barnacles of platitudes now hiding it. It has to be expanded--because it was only a magnificent beginning, not a completed job.

    --Ayn Rand, It Is Earlier Than You Think

The spirit of liberty is the spirit which is not too sure that it is right; the spirit of liberty is the spirit which seeks to understand the minds of other men and women; the spirit of liberty is the spirit which weighs their interests alongside its own without bias.

    --Learned Hand

Liberty is the only thing you cannot have unless you give it to others.

    --William Allen White

No passion so effectually robs the mind of all its powers of acting and reasoning as fear.

    --Edmund Burke

No greater hell than to be slave to fear.

    --Ben Jonson

Our natural, inalienable rights are now considered to be a dispensation from government, and freedom has never been so fragile, so close to slipping from our grasp as it is at this moment.

    --Ronald Reagan

In Germany they first came for the communists and I didn't speak up because I wasn't a communist. Then they came for the Jews, and I didn't speak up because I wasn't a Jew. . . . Then they came for the Catholics, and again I didn't speak up because I was a Protestant. Then they came for me and by that time no one was left to speak up.

    --Pastor Martin Niemoller

One of the things that bothers me most is the growing belief in the country that security is more important than freedom. It ain't.

    --Lyn Nofziger.

The only freedom deserving of the name, is that of pursuing our own good in our own way, so long as we do not attempt to deprive others of theirs, or impeded their efforts to obtain it. . . . Mankind are greater gainers by suffering each other to live as seems good to themselves, than by compelling each to live as seems good to the rest.

    --John Stuart Mill

You can't hold a man down without staying down with him.

    Booker T. Washington

Fear not only anticipates misfortunes that never happens, it also precipitates some that would not otherwise have happened.

    --Anonymous

It is ironic that our very acceptance of the government's "benevolent" intentions is putting us on the path that leads to that least benevolent of all forms of government, a police state.

    --Claire Wolf and Aaron Zelman, The State vs. The People:
    The Rise of the American Police State

. . . the fundamental police-state premise: Anything not under government control is out of control.

    --Claire Wolf and Aaron Zelman, The State vs. The People:
    The Rise of the American Police State

. . . gun control is a thinly disguised elitist method of "riff-raff control."

    --Claire Wolf and Aaron Zelman, The State vs. The People:
    The Rise of the American Police State

America began with a different--in fact, an opposite--tradition: that the individual was sovereign and that no "will of the majority," no priority of the state, no greater good for the masses could ever trump certain basic rights and prerogatives of a lone man.

    --Claire Wolf and Aaron Zelman, The State vs. The People:
    The Rise of the American Police State

The belief that you can't get justice has a far more powerful impact than the actual failure to get justice. . . . Societies that come to believe that the justice system is unjust are in the process of falling apart.

    --Claire Wolf and Aaron Zelman, The State vs. The People:
    The Rise of the American Police State

A prime necessity of the police state [is] to impose uniformity of thought on the populace. ' A nation whose citizens think alike can more easily be mobilized [when they are] pre-conditioned to agree with, or mindlessly accept, leaders' viewpoints. ' Uniformity of thought . . . satisfies a bureaucratic craving for social order. It also ensures that those who don't "fit"--that is, who don't think or act like others, or who fall into a category defined as "undesirable"--can be more easily identified, ostracized, marginalized, and conveniently used as a scapegoat for whatever troubles invariably prevent a police state from achieving utopia.

    --Claire Wolf and Aaron Zelman, The State vs. The People:
    The Rise of the American Police State

If information is not under government control, it is, by definition, out of control. If the minds of the people are not under government control, they are, by definition, out of control--and who knows where they might wander?

    --Claire Wolf and Aaron Zelman, The State vs. The People:
    The Rise of the American Police State

The best armed defense of liberty is keeping our guns, keeping the freedom to use them, and maintaining a calm but steady attitude of watchful skepticism about all manifestations of political power.

    --Claire Wolf and Aaron Zelman, The State vs. The People:
    The Rise of the American Police State

[A]n attack [on guns is] not merely [an attack] on tools, but on all the values they represent, and all the freedom they protect.

    --Claire Wolf and Aaron Zelman, The State vs. The People:
    The Rise of the American Police State

Peter J. Mancus 2002

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