Most aren't going to want to download and read the entire ruling and dissents from this week's 9th Circuit declaration that the right to bear arms isn't an individual one, but it's a very important one. It's in direct conflict with the 5th Circuit's decision in Emerson, which means that it will almost certainly go to the Supreme Court, which will finally resolve this issue, and hopefully restore the Second Amendment to its rightful place in the Bill of Rights, and make a legal hash of much of the existing federal gun statutes.

Along that theme, it's worth republishing here Judge Kozinski's eloquent dissent, which is a commentary not only on the issue at hand, but in some judges being "cafeteria constitutionalists," broadly stretching some aspects of the Constitution far beyond any intent of the Founders, while completely ignoring others, according to their personal political predilections.

Judges know very well how to read the Constitution broadly when they are sympathetic to the right being asserted. We have held, without much ado, that "speech, or . . . the press" also means the Internet, see Reno v. ACLU, 521 U.S. 844 (1997), and that "persons, houses, papers, and effects" also means public telephone booths, see Katz v. United States, 389 U.S. 347 (1967). When a particular right comports especially well with our notions of good social policy, we build magnificent legal edifices on elliptical constitutional phrases?or even the white spaces between lines of constitutional text. See, e.g., Compassion in Dying v. Washington, 79 F.3d 790 (9th Cir. 1996) (en banc), rev?d sub nom. Washington v. Glucksberg, 521 U.S. 702 (1997). But, as the panel amply demonstrates, when we?re none too keen on a particular constitutional guarantee, we can be equally ingenious in burying language that is incontrovertibly there.

It is wrong to use some constitutional provisions as springboards for major social change while treating others like senile relatives to be cooped up in a nursing home until they quit annoying us. As guardians of the Constitution, we must be consistent in interpreting its provisions. If we adopt a jurisprudence sympathetic to individual rights, we must give broad compass to all constitutional provisions that protect individuals from tyranny. If we take a more statist approach, we must give all such provisions narrow scope. Expanding some to gargantuan proportions while discarding others like a crumpled gum wrapper is not faithfully applying the Constitution; it?s using our power as federal judges to constitutionalize our personal preferences.

The able judges of the panel majority are usually very sympathetic to individual rights, but they have succumbed to the temptation to pick and choose. Had they brought the same generous approach to the Second Amendment that they routinely bring to the First, Fourth and selected portions of the Fifth, they would have had no trouble finding an individual right to bear arms. Indeed, to conclude otherwise, they had to ignore binding precedent. United States v. Miller, 307 U.S. 174 (1939), did not hold that the defendants lacked standing to raise a Second Amendment defense, even though the government argued the collective rights theory in its brief. See Kleinfeld Dissent at 6011-12; see also Brannon P. Denning & Glenn H. Reynolds, Telling Miller?s Tale: A Reply to David Yassky, 65 Law & Contemp. Probs. 113, 117-18 (2002). The Supreme Court reached the Second Amendment claim and rejected it on the merits after finding no evidence that Miller?s weapon?a sawed-off shotgun?was reasonably susceptible to militia use. See Miller, 307 U.S. at 178. We are bound not only by the outcome of Miller but also by its rationale. If Miller?s claim was dead on arrival because it was raised by a person rather than a state, why would the Court have bothered discussing whether a sawed-off shotgun was suitable for militia use? The panel majority not only ignores Miller?s test; it renders most of the opinion wholly superfluous. As an inferior court, we may not tell the Supreme Court it was out to lunch when it last visited a constitutional provision.

The majority falls prey to the delusion?popular in some circles?that ordinary people are too careless and stupid to own guns, and we would be far better off leaving all weapons in the hands of professionals on the government payroll. But the simple truth?born of experience?is that tyranny thrives best where government need not fear the wrath of an armed people. Our own sorry history bears this out: Disarmament was the tool of choice for subjugating both slaves and free blacks in the South. In Florida, patrols searched blacks? homes for weapons, confiscated those found and punished their owners without judicial process. See Robert J. Cottrol & Raymond T. Diamond, The Second Amendment: Toward an Afro-Americanist Reconsideration, 80 Geo. L.J. 309, 338 (1991). In the North, by contrast, blacks exercised their right to bear arms to defend against racial mob violence. Id. at 341-42. As Chief Justice Taney well appreciated, the institution of slavery required a class of people who lacked the means to resist. See Dred Scott v. Sandford, 60 U.S. (19 How.) 393, 417 (1857) (finding black citizenship unthinkable because it would give blacks the right to "keep and carry arms wherever they went"). A revolt by Nat Turner and a few dozen other armed blacks could be put down without much difficulty; one by four million armed blacks would have meant big trouble.

All too many of the other great tragedies of history?Stalin?s atrocities, the killing fields of Cambodia, the Holocaust, to name but a few ?were perpetrated by armed troops against unarmed populations. Many could well have been avoided or mitigated, had the perpetrators known their intended victims were equipped with a rifle and twenty bullets apiece, as the Militia Act required here. See Kleinfeld Dissent at 5997-99. If a few hundred Jewish fighters in the Warsaw Ghetto could hold off the Wehrmacht for almost a month with only a handful of weapons, six million Jews armed with rifles could not so easily have been herded into cattle cars.

My excellent colleagues have forgotten these bitter lessons of history. The prospect of tyranny may not grab the headlines the way vivid stories of gun crime routinely do. But few saw the Third Reich coming until it was too late. 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. However improbable these contingencies may seem today, facing them unprepared is a mistake a free people get to make only once.

Fortunately, the Framers were wise enough to entrench the right of the people to keep and bear arms within our constitutional structure. The purpose and importance of that right was still fresh in their minds, and they spelled it out clearly so it would not be forgotten. Despite the panel?s mighty struggle to erase these words, they remain, and the people themselves can read what they say plainly enough:

"A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed."

The sheer ponderousness of the panel?s opinion?the mountain of verbiage it must deploy to explain away these fourteen short words of constitutional text?refutes its thesis far more convincingly than anything I might say. The panel?s labored effort to smother the Second Amendment by sheer body weight has all the grace of a sumo wrestler trying to kill a rattlesnake by sitting on it?and is just as likely to succeed.

[Update on Wednesday morning]

Eugene Volokh has some thoughts on whether or not the case will make it to the Supreme Court. Bottom line: he doesn't know--there are too many unknown factors that will drive the decision.

Eloquent and excellent. I just hope that he would apply the same level of defense to the 9th and 10th amendments.

I keep thinking (with a chuckle) about Justice Thomas's response to a question about what he thought of Al Gore's description of the Constitution as a "living breathing document": "My copy appears to be inanimate."

> "My copy appears to be inanimate."

I'm not sure that that is necessarily a good thing in a constitution.

It's an excellent thing in a Constitution, as long as there are provisions for explicitly changing it, which there are. Otherwise it becomes meaningless, and subject to the whims of individual and mercurial judges (which is in fact what has happened to a large degree over the past few decades).

Oh My God!! A reasoned, thought out, historically accurate defense of the Second Ammendment.

I hope we get this level of support WHEN it gets to the Supreme Court. If not, I propose we join the rattlesnake and bite the Sumo on the arse, repeatedly.

> as long as there are provisions for explicitly changing it, which there are.

It depends on what those provisions are. If, for example, they are crafted to make changes difficult, perhaps too difficult, you can end up with an arcane document which has little or no bearing in certain areas.

NB: I'm not neccesarily talking about the US one, just constitutions in general.