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For more than six decades, the Supreme Court has ducked the opportunity to examine the real meaning of the Second Amendment’s promise of the right to “keep and bear arms.” Now, some advocates of gun rights are hoping the Court will finally bite the bullet and grant review in Silveira v. Lockyer, No. 03-51, a challenge to California’s strict 1999 assault weapon ban. The case is one of dozens the justices are set to discuss at their private conference Nov. 26. A decision by the Court whether to grant review could be announced as soon as Dec. 1. The Court also meets in conference Dec. 5. Silveira, brought by a group of “California gentlemen,” according to their brief, asks the Court to reverse a December 2002 ruling by the U.S. Court of Appeals for the 9th Circuit that upheld the state law, first enacted in 1989 and broadened in 1999. In an extensive section of the ruling on the Second Amendment, Judge Stephen Reinhardt found the amendment “does not establish an individual right to own or possess firearms for personal or other use.” Reinhardt’s liberal rulings are often scrutinized and reversed by the Court. When the 9th Circuit was asked to review the ruling en banc, the majority said no � and four judges wrote dissents to that decision. “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,” Judge Alex Kozinski wrote, referring to Reinhardt’s lengthy discussion of the Second Amendment. The last time the Court expressed a formal view on the Second Amendment’s meaning was in the 1939 case United States v. Miller. Although Miller is still debated, it framed the discussion of the Second Amendment right in terms of the needs of organized militias, not individuals. Ever since, the Court has denied review in cases that would force it to re-examine its stance. Gary Gorski, a solo practitioner from Fair Oaks, Calif., filed the petition with the Supreme Court, asserting that courts are in “serious conflict” over the Second Amendment. Gorski cites the 5th Circuit’s United States v. Emerson, which in 2001 upheld a federal gun control statute � but also stated that “the Second Amendment, like other parts of the Bill of Rights, applies to and protects individual Americans.” Gorski is backed by the North Fort Myers, Fla.-based gun rights group Keep and Bear Arms. “We must settle the ‘question’ of the Second Amendment sooner rather than later,” the group states on its Web site. The late D.C. lawyer Roy Lucas helped write the Gorski brief. Lucas, who died earlier this month, was best known as an early pro-abortion rights strategist. Lucas, who as a law student helped craft the winning privacy argument that led to Roe v. Wade in 1973, filed the first abortion rights lawsuit in New York state in 1969, according to a New York Times obituary published Nov. 7. Lucas never owned a firearm, but in recent years researched Miller and came to the conclusion that the Second Amendment protects an individual right to bear arms. He was 61 when he died. Other factions in the gun rights legal community have not been as enthusiastic about Silveira, and there was considerable debate over whether it should have been pressed before the 9th Circuit or appealed to the Supreme Court. The National Rifle Association opposed the Silveira plaintiffs at the circuit level, arguing they did not have standing. Now that the case is before the Supreme Court, the NRA has filed an amicus brief supporting Supreme Court review. Gun rights supporter David Kopel, co-author of a new book on the Supreme Court’s firearms decisions, Supreme Court Gun Cases, says Silveira is not the best vehicle for a full-scale examination of the Second Amendment. At the case’s earlier stages, Kopel says, taking a Second Amendment case to the 9th Circuit was like “bringing a 1946 test case on racial segregation in a Mississippi court.” Kopel is confident that the Supreme Court, if it takes the case and ultimately rules on it squarely, will take an “individual right” view of the Second Amendment. “The country will go nuts” in protest if the Court does not take such an approach, says Kopel. “The Court won’t spend political capital to read the Second Amendment out of the Constitution.” But how far the Court goes in protecting that right will be up to Justices Sandra Day O’Connor and Anthony Kennedy, he says. Both justices, Kopel adds, could be swayed to take a limited view of the Second Amendment by “the people they meet at parties in Georgetown” because the case involves unpopular assault weapons. But Lucas, in an essay posted on the Keep and Bear Arms Web site weeks before his death, said Silveira is a good one for the Supreme Court to review, since it involves noncriminals and the pro-gun rights position won the support of the dissenting 9th Circuit judges. Also urging the Court to review the case are a range of gun rights groups, including Women Against Gun Control, Jews for the Preservation of Firearms Ownership, and Pink Pistols, which advocates for the right of self-defense for gay, lesbian, bisexual, and transgendered firearms owners. The state of California defends the law and says the Second Amendment does not even apply to state laws. While most of the rest of the Bill of Rights has been interpreted to restrict state as well as federal action, California Attorney General Bill Lockyer says the Second Amendment should be an exception. “Since the Second Amendment was designed to ensure the states’ ability to thwart invasion and protect against federal encroachment, it would be especially ironic to include it among the provisions selectively incorporated against state power.” Groups in support of gun control are eyeing Silveira warily. None has filed a brief yet. Silveira “could be” a pivotal Second Amendment case, says Brian Siebel, senior attorney at the Brady Center to Prevent Gun Violence. But he adds that if the high court wants to avoid the Second Amendment issue as it has in the past, it could well deny review. Mathew Nosanchuk, litigation director of the Violence Policy Center, thinks it is likely the Supreme Court will not review the case. He says there is no substantial circuit split, and he doubts the Court will want to examine the Second Amendment in the “politically sensitive” context of assault weapons. The Bush administration has defended the federal assault weapon law in court, he notes. “These are the weapons used to kill one out of five police officers, used in the Stockton and Columbine school shootings, and by the D.C-Maryland-Virginia snipers,” says Nosanchuk. OTHER CASES UP FOR REVIEW Nov. 26:Central Laborers’ Pension Fund v. Thomas E. Heinz, No. 02-891. Suspension of early retirement benefits and ERISA. • Zapata Hermanos Sucesores SA v. Hearthside Baking Co., No. 02-1318. Whether attorney fees qualify as a form of “loss” under the U.N. Convention on Contracts for International Sale of Goods. • Danzell v. Ashcroft, No. 03-115. Whether petitioner’s cocaine possession conviction is an “aggravated felony” under the Immigration and Nationality Act. • Dow Chemical Co. v. AES Corp., No. 03-272 and No. 03-432. Application of nonreliance clause of the Securities Exchange Act in purchase of securities. • Allergan Inc. v. Alcon Laboratories Inc., No. 03-443. Patent infringement action against a drug company’s plan to market a generic version of a drug covered by a patent. • Sabate SA v. Chateau des Charmes Wines Ltd., No. 03-465. Oral sales contracts between parties and U.N. Convention of Contracts for International Sale of Goods. Dec. 5:General Motors v. United States, No. 03-165. Deference to the Defense Department in case involving regulation of federal contractor’s pension costs. • United States v. Benitez, No. 03-167. Whether inadequate instructions by a judge during a guilty plea hearing constitutes reversible error. • King v. Rumsfeld, No. 03-197. Testimony by co-workers in establishing prima facie employment discrimination. • Minor v. Kmart Corp., No. 03-311. Whether an attorney who staged a media event to execute judgment against the defendant is subject to sanctions under Rule 11 of the Federal Rules of Civil Procedure. • Thweatt v. Electronic Data Systems Corp., No. 03-349. Whether the disparate impact method of proving age discrimination can be used by plaintiffs suing under Age Discrimination in Employment Act. • Cheney v. U.S. District Court for the District of Columbia, No. 03-475. Appellate jurisdiction to review a District Court order compelling discovery of information about a presidential advisory group. • United States v. Alvarez-Machain, No. 03-485. Whether an individual arrested by U.S. law enforcement agents in a foreign country can sue for false arrest under the Federal Tort Claims Act. • Amelkin v. McClure, No. 03-498. Whether states can give access to police reports to parties, their attorneys, and news media while barring access to other attorneys and chiropractors. • LaFace Records v. Parks, No. 03-504. Under the First Amendment, can public figures use trademark and right of publicity laws to restrict use of their names in song titles? � Shaina Jones “Conference Call” seeks to identify cases on the Supreme Court’s conference agenda that are leading candidates for Supreme Court review. Thomas Goldstein of Washington, D.C.’s Goldstein & Howe selects these cases from the many petitions filed based on several factors, including whether lower courts have split on the issues presented. He does not otherwise participate in the preparation of this column. Goldstein represents the petitioner in Sabate SA v. Chateau des Charmes Wines Ltd., No. 03-465.

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