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.

I heard this open letter to a generic tax’n’spend senator at the end of Cavuto’s show last week, but now it’s on line. My favorite bit:

I’d sooner trust the single mother raising kids, struggling to put food on the table with her money, than “you” with her money.

I’d like you to tell her to her face that she’d be irresponsible with that money.

That it’s reckless for her to spend some extra dough on her kids. Reckless for her to put a little extra cash in the bank. And reckless for her to treat herself and not you.

I’d like you to tell her she’s too ignorant to know what’s best.

I’ll tell you this, you tax-sucking, boondoggle-spending, pork-barrel-pushing fiscal pimp: she has more common fiscal sense in her pinky than you have in your entire rolodex of feeding-at-the-trough lobbyists.

That’s the wonderful last line of a wonderful essay by the highly redoubtable James Lileks on why an international criminal court, under current world circumstances, is a terrible idea.

That’s the name of a new on-line journal being touted by the folks at the National Review. It proclaims itself to be a journal on “technology and society.” It might be worth keeping an eye on.

The premier issue has an article about the vulnerability of our satellites, a subject on which I’ve previously opined, and will continue to do in the future.

Jay Manifold has an interesting post on the overuse of the Precautionary Principle, that could end up causing more harm than it prevents.

Researchers now have the ability to manipulate single atoms of non-conducting materials.

[via Geek Press]

The Germans are getting very serious about their humor.

An Israeli cop was mistaken for a male stripper by some rowdy and raunchy women.

…revellers mistook him for a stripper and began to take off his clothes and stroke him.

“The women had ordered a stripper dressed as a police officer,” national police spokesman Gil Kleiman said on Monday.

The policeman showed the women his badge but they thought it was part of the act.

He was extricated only after his partner came up and vouched for his identity…

For some reason, it reminds me of poor Galahad in the Castle Anthrax.

No word on how many hours it took for him to call for the backup.

Over at Cosmic Log (sorry, permalink not working–it’s the May 3, 4 AM EST entry), one of Alan Boyle’s readers comments (with regard to going back to an Apollo capsule for space access, of which I’ll have more to say later this week):

It is this sort of can-do idea that still makes NASA great. We should follow the Russian lead. It reminds me of the story of the U.S. spending over a million dollars to make a pen that worked in space. As I am sure you know, the Russians used a pencil.?

The reader implies that the story is true. It’s an urban legend.

I stand second to none in my frustration with NASA, and in criticizing much that the agency does, but our criticism, and analysis, should be based on fact, rather than myth, or our recommendations will not be taken seriously.

[Update on Monday evening]

Alan has pointed out a working permalink to the post in question. I assume that his permalink problems are MSNBC related, and not any fault of his. Unfortunately, many of the major media sites (including that of the long-suffering folks at Fox News, who have to regularly deal with inadvertent errors in my column introduced by the chosen software, rather than any errors on their or my part) are, shall we say, behind the times? It’s an inevitable consequence of working for a large bureaucracy, just as NASA’s problems are not the making of any (or at least, not many) of the good people working there.

Glenn and Mickey Kaus (see the Cinco de Mayo i.e., May 5 entry), as a result of others’ blogging about it have started discussing the journalism scandal at the Gray Lady, in which a reporter was fired for plagiarism. It was since discovered that he had been corrected what seemed an inordinate number of times, and retained his job until the most recent egregious violation of journalistic ethics. Not unnaturally, because he was black, it has caused many to speculate that his seemingly too-lengthy tenure, and perhaps even his initial hiring, given his record, was due to affirmative action.

Others (like Glenn) point out that his record isn’t necessarily worse than many white reporters, so it isn’t clear that this is the case.

Here’s where Mickey goes off the rails. He uses an analogy to make his point, and it turns out to be an excellent one–so much so that it makes his opponents’ point.

Suppose in an effort to promote commerce in isolated Utah, the government announced relaxed safety standards on trucks from that state. Utah trucks were safe, the public was told. Many were even safer than trucks from other states. But they wouldn’t be inspected as often or as rigorously.

Now suppose a Utah truck got in an especially big, prominent, messy crash when its brakes failed. Would the politicians, the press and the public say “But non-Utah trucks crash all the time!” or “You haven’t proved a direct causal connection between the Utah-preference program and this crash”? No! There would be a instant hue and cry about how the preference for Utah trucks should be ended — and how Utah trucks should be held to the same standards, etc. And those making the fuss would be right. Why should we have to worry about whether or not the relaxed standards for Utah might have led to this or that particular crash? Just apply the same tough standards across the board. Safe, well-run Utah trucking companies, to save their reputation, would be leading the pack in lobbying to end their special preference.

His point would be valid if the people saying that it wasn’t necessarily the hand of affirmative action at work were also saying that therefore we should keep affirmative action (or that the fact that we can’t obviously blame non-inspection for the truck accident as a justification for non-uniform laws).

Now, I haven’t read anything to indicate that’s the case (though I imagine it will be coming soon if it hasn’t already), but it does nothing to rebut Glenn’s point, which is simply that the evidence doesn’t necessarily show that affirmative action (or lax trucking inspections) was responsible. I suspect that Glenn would (as would I) say that it’s possible to both not be convinced that this particular incident was a result of the bad policies, and still support changing the policies. I think that there’s ample evidence, and theory, to justify ending affirmative action in particular, without the need to resort to this particular incident to support that course. Surely Mickey (and others) don’t fantasize that this will somehow be the straw that snaps the camel’s spine?

[Should we also ask why Mickey would pick on the state of Utah? Could it be because of all the white folks there?–ed. No, let’s not go there.]

That is, I oppose affirmative action (and differential trucking inspection regimes, since, unlike most federal legislation falsely justified by that flawed portion of the Constitution, those clearly fall under the Commerce Clause), and believe that it indeed should be ended for the reasons that Mickey states, and others, but like Glenn, I remain unconvinced that this particular instance was a result of that policy (though I certainly remain convinceable, given sufficient evidence and insufficient counterevidence). However, I also have no trouble, given the state to which the NYT has declined recently, believing that it can also simply be attributed to lousy management and/or agendas.

I do hope that this latest episode results in either continued loss of credibility to a paper that is having an increasingly corrosive effect on public discourse, or a change in editorial and managerial direction that might restore it to its former lofty place in American journalism.