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With six judges dissenting, the Ninth Circuit U.S. Court of Appeals on Tuesday let stand a controversial ruling that found the Second Amendment doesn’t give individuals a right to bear arms. Among the six who argued that the case should be reheard by an 11-judge en banc panel was the staunchly liberal Judge Harry Pregerson. But the yeoman’s work in dissent was done by Judge Andrew Kleinfeld, who defended an individual’s right to bear arms using the same means Judge Stephen Reinhardt employed in December to shoot it down: by weaving together scholarship, grammar and historical analysis. “Where the Constitution establishes a right of the people, no organ of the government, including the courts, can legitimately take that right away from the people,” Kleinfeld wrote. “All of our rights, every one of them, may become impediments to the efficient functioning of our government and our society from time to time, but fortunately they are locked in by the Constitution against permanent loss because of temporary impediments.” Judge Reinhardt’s original opinion in Silveira v. Lockyer, 312 F.3d 1052, clashes with a 2001 ruling from the Fifth Circuit, raising the possibility the U.S. Supreme Court will see the need to interpret the Second Amendment and its bearing on gun-control laws. Like Reinhardt’s opinion, Tuesday’s main dissent from Kleinfeld exhaustively examined many of the Founding Fathers’ words and concepts — including who, exactly, “the people” referred to throughout the Constitution are — and the role of the militia. Kleinfeld argued that the Second Amendment shouldn’t be construed narrowly, as that would invalidate many of the Constitution’s individual protections. “If we used the panel’s methodology, taking each word according a right in the Bill of Rights in the narrowest possible sense, then we would limit the freedom of ‘speech’ protected by the First Amendment to oral declamations,” he wrote. Eugene Volokh, a UCLA constitutional law professor and outspoken proponent of the Second Amendment, called Kleinfeld’s opinion “very careful and detailed.” He pointed out that up until the Fifth Circuit engaged in a similarly exhaustive analysis and decided that the Constitution guaranteed an individual, rather than a collective, right to bear arms, no court had ever taken on the task. The high court declined to review the Fifth Circuit’s opinion in United States v. Emerson, 270 F.3d 203, and Volokh thinks it will likewise steer clear of the Ninth Circuit ruling. Since Reinhardt’s opinion came in a challenge to California’s assault-weapons ban, overruling it would require the high court to strike down the law, something Volokh doubts the court would do. But, said Volokh, “Now we really have a debate on the issue.” Pregerson’s short, separate dissent said he would have upheld the assault-weapons ban without construing the Second Amendment as just a collective right. The rhetorical star of the dissenters was Judge Alex Kozinski, who chided Reinhardt’s panel for endorsing individual rights in a selective manner. “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.” Kozinski, who as a child fled Romania when it was under the grip of dictator Nikolai Ceausescu, wrote that American slaves and Holocaust victims could have fought back had they been allowed to own guns. “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 re-election and silences those who protest; where courts have lost the courage to oppose, or can find no one to enforce their decrees,” Kozinski wrote. “However improbable these contingencies may seem today, facing them unprepared is a mistake free people get to make only once.” He also said the effort Reinhardt expended in doing away with an individual right to bear arms is evidence itself that he was headed down the wrong path. “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.”

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