The left-leaning Ninth Circuit Court of Appeals, notorious for its ruling against the Pledge of Allegiance, rejected on Tuesday a request for a hearing before the full panel of judges on December's decision. The matter will likely be taken to the United States Supreme Court, where fuming gun-rights advocates predicted it would be overturned.
"While gun-rights activists may be disappointed, they are not discouraged," said Alan Gottlieb, president of Second Amendment Foundation in Bellevue, Wash. "Ninth Circuit made a preposterous ruling in December, and we are confident that it will not stand the test of time or scrutiny."
A three-judge panel of the Ninth Circuit in December upheld California's 1989 ban on ownership of so-called "assault" weapons. The ruling stated that while the Constitution provided for the maintaining of a militia, it was not as clear on individual ownership of guns.
Justice Alex Kozinski wrote a sharp dissent to Tuesday's decision not to rehear the challenge to the California ban. He took particular issue with the notion that arming citizens to maintain a militia was an outdated relic of the Colonial period that did not apply to modern society where gangs and shootings are rampant in some areas.
In his lengthy and eloquent opinion, Kozinski said that all amendments of the Constitution were to be held in equal esteem.
"It is wrong to use some constitutional provisions as spring-boards for major social change while treating others like senile relatives to be cooped up in a nursing home until they quit annoying us," Kozinski said. "As guardians of the Constitution, we must be consistent in interpreting its provisions."
Kozinski also argued that the "doomsday" nature of the Second Amendment was created to prevent Americans from falling under the yoke of tyrannical leaders. He contended that slavery survived until the Civil War because black Americans, slave and free, were not allowed to own guns they could have used to protect themselves from marauding whites.
The Supreme Court's landmark 1857 Dred Scott decision that upheld slavery was issued in part, Kozinski said, because the justices and white society couldn't stomach the thought of blacks possessing firearms.
"The prospect of tyranny may not grab the headlines the way vivid stories of gun crimes routinely do. But few saw the Third Reich coming until it was too late," Kozinski said in his fiery opinion.
"The Second Amendment is a doomsday provision, one designed for those exceptionally rare circumstances where all other rights have failed. ... However improbable these contingencies may seem today, facing them unprepared is a mistake a free people get to make only once," he stated.
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