Godwin's Law, Or Damn Fine Jurisprudence?

I was in jurisprudential ecstacy when I read Judge Kozinski's dissent in Silviera v. Lockyer, 328 F.3d 567 (9th Cir. 2003):

All too many of the other great tragedies of history--Stalin's atrocities, the killing fields of Cambodia, the Holocaust, to name but a few-- were perpetrated by armed troops against unarmed populations. *570 Many could well have been avoided or mitigated, had the perpetrators known their intended victims were equipped with a rifle and twenty bullets apiece, as the Militia Act required here. See Kleinfeld Dissent at 578-579. If a few hundred Jewish fighters in the Warsaw Ghetto could hold off the Wehrmacht for almost a month with only a handful of weapons, six million Jews armed with rifles could not so easily have been herded into cattle cars.

My excellent colleagues have forgotten these 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.

Fortunately, the Framers were wise enough to entrench the right of the people to keep and bear arms within our constitutional structure. The purpose and importance of that right was still fresh in their minds, and they spelled it out clearly so it would not be forgotten.

Despite the panel's mighty struggle to erase these words, they remain, and the people themselves can read what they say plainly enough: A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

The sheer ponderousness of the panel's opinion--the mountain of verbiage it must deploy to explain away these fourteen short words of constitutional text-- refutes its thesis far more convincingly than anything I might say. 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.

You can read it all here.

Kozinski sounds like a rare voice of reason on the Ninth Circuit. Not surprisingly, many want to recruit him for the Supreme Court.