Stare Decisis

or: "Go Away, Boy, You're Bothering Me"

Via Alphecca, Hollis Wayne Fincher has been convicted of possession of an unregistered short-barreled shotgun and two unregistered machine-guns. (Read the comments!)

This is not unexpected. In fact, I'd have been shocked had he not been. Unfortunately, Arkansas is in the 8th Circuit, not the 5th. The 5th Circuit is the one that found (unlike most of the others) that the Second Amendment does protect an individual right to arms - though one of "uncertain scope." Instead, the 8th Circuit has U.S. v. Nelsen as precedent - a 1988 case that used U.S. v Cruikshank as precedent. Here's the pertinent quote from Cruikshank:

The right there specified is that of 'bearing arms for a lawful purpose.' This is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence. The second amendment declares that it shall not be infringed; but this, as has been seen, means no more than that it shall not be infringed by Congress. This is one of the amendments that has no other effect than to restrict the powers of the national government, leaving the people to look for their protection against any violation by their fellow-citizens of the rights it recognizes..."(My emphasis)

Cruikshank is the 1875 Supreme Court case declaring that the Second Amendment only protects the (pre-existing) right to arms from federal infringement. If the majority of the residents of your state wanted to disarm you (because, in this case, you happened to be black), well that was no business of the Feds!

U.S. v. Nelsen cites Cruikshank for the proposition that "The right there specified is that of 'bearing arms for a lawful purpose.' This is not a right granted by the Constitution." Note that Nelson omits Cruikshank's additional language, changing the meaning entirely. Then Nelson was used as precedent in 1992's U.S. v Hale, a very similar case where (if I recall correctly) the accused walked up to a police station, advised the officers present that he possessed several unregistered fully-automatic weapons and challenged them to arrest him so that he could attempt to fix - through the justice legal system - the travesty that has been building since U.S. v. Cruikshank. The BATF eventually got a warrant and went in to find that, indeed, Mr. Hale had several unregistered fully-automatic weapons. He went to trial.

He lost.

He appealed

He lost.

He appealed to the Supreme Court.

They denied certiorari.

Now Wayne Fincher has lost. And, I believe, he will continue to lose because of stare decisis,

Latin: "to stand by that which is decided." The principal that the precedent decisions are to be followed by the courts.

To abide or adhere to decided cases. It is a general maxim that when a point has been settled by decision, it forms a precedent which is not afterwards to be departed from.

It is interesting to note that in the Hale decision there was a separate concurrence by Judge Beam, to wit:

I concur in the result reached in Judge John R. Gibson's opinion in this matter. I agree completely with the portions dealing with Hale's hearsay and confrontation contentions. I also agree that Hale's possession of the particular weapons at issue in this case is not protected by the Second Amendment. I disagree, however, that Cases v. United States, 131 F.2d (1st Cir.1942); United States v. Warin, 530 F.2d (6th Cir.1976); United States v. Oakes, 564 F.2d 384 (10th Cir.1977) and United States v. Nelson, 859 F.2d 1318 (8th Cir.1988) properly interpret the Constitution or the Supreme Court's holding in United States v. Miller, 307 U.S., 59 S.Ct. 816, 83 L.Ed. 1206 (1939) insofar as they say that Congress has the power to prohibit an individual from possessing any type of firearm, even when kept for lawful purposes. Judge Gibson's opinion seems to adopt that premise and with that holding, I disagree. (Emphasis mine.)

Yet footnote 3 of the decision rebukes Judge Beam:

The concurrence flies in the face of stare decisis in arguing that this court did not properly interpret the Second Amendment or Miller in Nelsen, which is consistent with our earlier decisions in Cody and Decker. The concurrence would also flout uniform precedent from other circuits, particularly since Nelsen cites and relies on Oakes and Warin, and Cody on Cases. (Emphasis mine.)

In other words, it doesn't matter. We've changed the law, and we'll keep changing the law as it suits us. Cruikshank declares that Congress can't infringe on the right to arms, but by the time we reach Hale in 1992, through stare decisis alone, Congress has that power. Because the courts say it does.

Which reminds me again of my favorite dissent ever written: Judge Alex Kozinski's dissent to the 9th Circuit's denial of an en banc rehearing of Silveira v Lockyer:

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...and that "persons, houses, papers, and effects" also means public telephone booths....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. 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.

And Judge Kleinfeld's dissent in that same decision was almost as good:

I respectfully dissent from our order denying rehearing en banc. In so doing, I am expressing agreement with my colleague Judge Gould's special concurrence in Nordyke v. King, and with the Fifth Circuit's opinion in United States v. Emerson, both taking the position that the Second Amendment secures an individual, and not collective, right to keep and bear arms.

The panel opinion holds that the Second Amendment "imposes no limitation on California's [or any other state's] ability to enact legislation regulating or prohibiting the possession or use of firearms" and "does not confer an individual right to own or possess arms." The panel opinion erases the Second Amendment from our Constitution as effectively as it can, by holding that no individual even has standing to challenge any law restricting firearm possession or use. This means that an individual cannot even get a case into court to raise the question. The panel's theory is that "the Second Amendment affords only a collective right," an odd deviation from the individualist philosophy of our Founders. The panel strikes a novel blow in favor of states' rights, opining that "the amendment was not adopted to afford rights to individuals with respect to private gun ownership or possession," but was instead "adopted to ensure that effective state militias would be maintained, thus preserving the people's right to bear arms." It is not clear from the opinion whom the states would sue or what such a suit would claim were they to try to enforce this right. The panel's protection of what it calls the "people's right to bear arms" protects that "right" in the same fictional sense as the "people's" rights are protected in a "people's democratic republic."

Our circuit law regarding the Second Amendment squarely conflicts with that of the Fifth Circuit. It is inconsistent with decisions of the Supreme Court that have construed the Second Amendment and phrases within it. Our circuit has effectively repealed the Second Amendment without the democratic protection of the amendment process, which Article V requires.

Those quotes are just excerpts. Read the whole thing. Both Kozinski and Kleinfeld understand that stare decisis only goes so far, and that the courts of this nation have eviscerated the Second Amendment.

And there is every indication that they will continue to do so. Opinions in favor of the original meaning of the Second Amendment will continue to be dissents, and the courts will not save us.

One final excerpt from Kozinski's dissent in Lockyer:

My excellent colleagues have forgotten (the) 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.