Publicola

I rarely post the writings of others in their entirety, but I feel the subject is interesting enough in this instance to justify it.

For some background I first became aware of the following letters on a Bulletin Board I frequent, Gunnyragg.com. It was also on Guns & Ammo's Forum. The letters are from Gary Gorski, the plantiff's attorney in the Silveira vs. Lockyer case.
Here is a link to the thread on Gunnyragg.com & here is the link to the thread on Guns&AmmoMag.com.
(The Guns & Ammo Forum is sponsored by Guns & Ammo magazine & hosted on Outdoors Best's server.)

These letters are reprinted with the permission of Gunnyragg & Gary Gorski respectively.

Here is the initial post at Gunnyragg.com:


En Banc Order from Ninth Circuit SILVEIRA V. LOCKYER

http://www.gunnyragg.com/dissent.pdf

Gary Gorski, Attorney for the plaintiffs in the lawsuit to overturn California's Assault Rifle Ban, sent me this today. It is rather lengthy, but it is the dissenting opinions of the judges who voted for the entire panel to hear the case. Constitutional Law Buffs should find it fascinating reading.

As a matter of fact, it gave me a whole new outlook on MILLER -- SCOTUS, 1939. Where the attorneys screwed up in MILLER was not to present evidence that a sawn-off shotgun DID have militia applicability; one of the dissenting judges says as much. The salient point in all the dissenters' writing is that the RKBA is an INDIVIDUAL not a collective right.

This case is going to the Supreme Court and I would ask all of you to get behind Gorski. This is some real action; the kind I can get my teeth into. His e-mail signature gives all the contact information:

Gary W. Gorski

Attorney at Law http://www.gwgorski.com/
SEPS EXERTUS, SEMPER FIDELIS, FRATER INFINITAS
("Often Tested, Always Faithful, Brothers Forever")
916.965.6800
916.965.6801 fax

The next is a letter sent to the NRA's attorney from Gary Gorski

Gary forwarded me a copy of his e-mail to C.D. Michel NRA Attorney. I am beginning to REALLY like this guy!

Below is the docket entry for Silveira, whereby you, C.D. Michel (the NRA’s attorney), claim that no briefing was ordered per your attached press release below. I just need to know – are your really that stupid, lazy, or just a plain liar trying to play attorney. Let me make a suggestion: stay the fuck out of my clients’ business, and my business. You have no connection with any Second Amendment litigation other than trying to interject yourself into the cases of others. It is now apparent why you have never raised a Second Amendment issue; because you are a walking cluster fuck as an attorney. Where has your so-called litigation strategy gotten you and your clients (i.e. the NRA) – money in your pocket, and that is it. So, go bury your head or ass, whichever you prefer, in the sand and let the real attorneys do what should have be done 20 years ago while you were too busy billing your clients for whatever it is that you do – I can’t figure it out; otherwise, I would not be working for free had you been acting like a true constitutional advocate. Maybe you should also explain in your press release how you opposed the Silveira Petition for Rehearing by raising a standing argument that went out 40, may be 50 years ago – really Chuck, you sound like a first year law student raising some hypothetical esoteric issue in Civ Pro whereby everybody stares at you with a dumbfounded look. I noticed how none of the Circuit judges addressed your stupid standing argument, and I am certain if it was valid, it would have been addressed. You simply look like a fool to the Court, and you are an embarrassment to your clients. By the way, since this is the type of statement I would make to the media, I thought I would just tell it to your face. If you ever want to discuss this in an open forum, I would be more than happy. By the way, I did blind copy this email to the media and those involved in Second Amendment issues. I just want you to know that I would never talk behind someone’s back about how I feel about them. I have no more respect for you than a pile of my dog’s shit – in fact, I have more respect for my dog’s shit because at least it does not smell as bad. But out little boy; the lesson is hopefully over. 12/19/02

Filed order ( Stephen R. REINHARDT, Frank J. Magill, Raymond C. FISHER, ): Defendants - Appellees shall file a response to Plaintiffs - Appellants' petition for rehearing en banc. Fifty (50) copies of said response shall be filed within twenty one (21) days of the filed date of this order. [01-15098] (ru) 1/9/03 Filed Appellees Gray Davis, Bill Lockyer's response to appellants' petition for enbanc rehearing, served on 1/9/03 (PANEL & ALL ACTIVE JUDGES) [01-15098] (ru)

For re release:

This is my PERSONAL opinion, not expressed on behalf of any client.

The Silveira case is still the absolutely wrong case for SCOTUS review.

After consultation with the leading Second Amendment scholars across the country, there is near universal agreement on this. The basic argument of the few in support of taking Silveira to the SCOTUS is that Silveira's lawyers are stubbornly going to do it anyway, so we might as well support them. But we can support the issue ONLY IF AND WHEN they get cert granted by SCOTUS. Until then, it is still a reckless move which plays into the hands of those who would give us a 2A right with no teeth.

FYI, the Nordyke v. Alameda case (challenging Alameda's gun show ban), which also directly raises the 2A issue, is still under consideration for en banc review in the Ninth Circuit. In fact, the court has ordered Alameda County to submit a brief in response to the Nordyke's en banc request. This type of response brief was never ordered in response to Silveira's en banc request, and indicates that the court actually has an interest in the case. CRPA and NRA will submit briefs if en banc review is granted. We would still need to changes a lot of minds, but the Silveira dissents may be influencing the other Ninth Circuit judges.

Remember, the recent Nordyke 3 judge panel decision attacked Reinhardt's Silveira opinion and was cited in the Silveira en banc order dissents - which I must say were precipitated at least to some extent by the Nordyke panel opinion (wherein the judges said there WAS a 2A right but their hands were tied by Hickman).

And let's recall that NRA and CRPA submitted an amicus brief on the Second Amendment in support of the Nordyke's to the 3 judge Ninth Circuit panel (so much for the fringe's "NRA does not want the issue heard at all" theory).

There are now also TWO cases in DC court which are better suited than Silveira for SCOTUS review.

To reiterate a somewhat oversimplified reason why Silveira is a BAD case - look at what Judge Pregerson said in the Silveira en banc order: He believes in the 2A - BUT THE AWCA STILL IS CONSTITUTIONAL. To further understand how a court could do this, look at the Bailey case on Connecticut's AW law - Connecticut had a RKBA provision in its state constitution. Didn't stop the Conn. Supreme court from finding the law constitutional.

A similar thing happened in Oregon. That state RKBA constitutional provision now just protects muskets.

It all hinges on the test applied, and where the court draws the line of protection. "Strict scrutiny" is almost certainly NOT going to be the test. If an AW law is the first case to address the issue, we are probably going to wind up with a "reasonableness" test - something subject to political and subjective application.

Establishing the parameters of that line of protection will mean YEARS of continued fighting in court and Congress even after 2A is confirmed as an individual right. It will be the "full employment act" for 2A lawyers (and unfortunately, uneducated wanna bees), and will require tremendous efforts by pro self defense groups. Those who argue that NRA, etc., doesn't want a 2A case in SCOTUS because they would lose their reason for being (which, by the way, has always been percentage wise more about shooting, safety programs, training, etc, than politics) are legally utterly clueless.

Silveira bites off more than the court (or the lawyers on the case) can chew. It will hurt us.

CRPA, and now additional "friends of the court" will almost certainly be filing an amicus brief in SCOTUS to ask them NOT to hear that Silveira case.

The road to Hell is paved with good intentions


C. D. Michel
TRUTANICH-MICHEL, LLP
Attorneys At Law
Port of Los Angeles Office
407 North Harbor Blvd.
San Pedro, California 90731
Phone: (310) 548-3703
Fax: (310) 548-4813


Gary W. Gorski

Attorney at Law http://www.gwgorski.com/

SEPS EXERTUS, SEMPER FIDELIS, FRATER INFINITAS
("Often Tested, Always Faithful, Brothers Forever")
916.965.6800
916.965.6801 fax


Finally here's a copy of a letter that Gary Gorski sent to Gunnyragg concerning the NRA's attorney & the Silveira vs. Lockyer case:

Another e-mail from Gorski regarding the NRA lawyer's Press Release. You think I am the only person that thinks the NRA sucks as a Second Amendment organization?
This attorney is serious in his effort to bring the case before SCOTUS. Why doesn't the NRA support it?

------------------Gorski's E-Mail ------------------

Michel is wrong, uninformed, completely inexperienced in S Ct litigation, and it shows.

Apparently Michel and his associates are unaware of the intricacies of S Ct practice. It takes a lifetime and you learn something new every day. San Pedro, CA, is a long way from Washington, DC, and that shows too.

NRA also has a poor track record on 2A issues. The list of 2A cases won by the NRA is very short. NRA politicians dictate their litigation, which is why they so often lose and are wrong.


What Michel misses entirely is that the S Ct very often takes cases in order to decide fundamental issues, irrespective of specifics, such as the AW issue. That is not an issue in Silveira until trial. Complex fact issues are for trials first and there has been none yet in Silveira.

Look at Gideon, Miranda, US v Lopez, Brown, Roe. The details of the specific laws and the specific parties are lost in history, but the fundamental principles are not.


The issues presented to the S Ct in Silveira are standing, individual rights, incorporation, and strict scrutiny. That is what the cert petition will raise, but of course Michel and his colleagues cannot be trusted with any detailed material because they have a Master to obey and an agenda to sabotage the cases in which NRA is not involved.

Michel's is a political NRA approach. They want to be in and control the loop the way they see it, even though they have no plan or ideas on how to maximize a S Ct outcome. Their DC copycat case is an example of how not to win a broad ruling, and only how to dump in the sandbox like kids do. It is litigation graffiti, spam, and a wormlike virus.


The recent Silveira decisions show six federal appellate judges adopting the view of the Silveira supporters on standing, individual rights, and incorporation. Only one took a pot shot at AW. That is six more than the NRA has persuaded lately.

The smart money is on the Supreme Court taking a similar approach to that of Judges Kozinski, Gould, and Kleinfeld, as well as the Emerson judges and leaving the AW issues for trial. There is no record or evidence on AW at this stage.


Michel is not what you would call a gifted progressive insightful constitutional scholar. He's there in San Pedro knocking out the hours for his Masters. A few law professors may agree with him. Others disagree. None go to him for ideas or advice.


The closer you are to the Court, the more you realize these are new questions for them, but the arguments for a strong RTKBA are powerful, persuasive, and well documented. NRA simply never figured out how to do this.

NRA supported Emerson despite the underlying facts, and the mediocre cert petition coming out of Lubbok hardy raised the Second Amendment, mainly the losing commerce clause arguments.

With Silveira there has been a great deal of time to prepare thoroughly. Unfortunately, NRA has not used that time wisely or at all, but is still preaching worn out negativism.


A strong RTKBA is a concept whose time has come. Unfortunately, NRA is far behind. They are deceiving their members also and trying to raise money using Silveira. That may be telemarketing fraud. Nordyke did not even raise the Second Amendment issues, and is a narrow equal protection case. NRA likes the case because they think they can control the lawyer handling it.

The strongest reason for supporting Silveira is that it raises the important 2A issues very thoroughly in an appeal from a decision written by Judge Reinhardt. It's hard to say whether Reinhardt or Michel is most off base, but the two are in bed together and with Sarah Brady, so to speak.