The Ninth Circuit Protects Gun Rights and Stops Confiscation

Ammunition1Every now and then the Ninth Circuit Court of Appeals — arguably the nation’s most progressive federal circuit — can offer up a legal surprise. Yesterday, it gave us a legal shock, when a divided panel of its judges affirmed last year’s federal district-court injunction temporarily blocking enforcement of California’s confiscatory ban on so-called large-capacity magazines.

Under California law, any person who possesses a legally purchased magazine capable of holding more than ten rounds of ammunition must either remove the magazine from the state, sell it to a licensed firearm dealer, or hand it over to law enforcement. Those citizens who retained their magazines after the law went into effect risked a fine or up to one year’s imprisonment in county jail.

The district court’s 66-page opinion was a legal tour-de-force that not only dismantled California’s justifications for the ban, but also reiterated and reinforced the constitutional and historical basis for the right to keep and bear arms. As I wrote last year, this paragraph from the district-court opinion is nearly-perfect:

Violent gun use is a constitutionally-protected means for law-abiding citizens to protect themselves from criminals. The phrase “gun violence” may not be invoked as a talismanic incantation to justify any exercise of state power. Implicit in the concept of public safety is the right of law-abiding people to use firearms and the magazines that make them work to protect themselves, their families, their homes, and their state against all armed enemies, foreign and domestic. To borrow a phrase, it would indeed be ironic if, in the name of public safety and reducing gun violence, statutes were permitted to subvert the public’s Second Amendment rights — which may repel criminal gun violence and which ultimately ensure the safety of the Republic.

Lest anyone think that the Ninth Circuit has suddenly discovered the original meaning of the Second Amendment, its ruling upholding the district-court injunction was limited. It merely held that the trial court didn’t abuse its discretion when it temporarily blocked enforcement of the law. But despite the limited holding, there was encouraging rhetoric in the court’s ruling. …

Click here to read the full article from National Review.

Harry Jaffa, RIP

Harry Jaffa, 96, died on Saturday. He was one of the rare persons who combined an influential academic career with activism in politics, in particular the Goldwater Movement of 1964.

Professor Emeritus at Claremont McKenna College and Claremont Graduate University and a distinguished fellow of the Claremont Institute, Jaffa was dean of what National Review has called “Claremont conservatism,” which is influential not only in California, but throughout the country.

In academe, Jaffa is best known for his Lincoln scholarship, going back to 1959 and the highly influential “Crisis of the House Divided: An Interpretation of the Issues in the Lincoln-Douglas Debates.” The sequel, after a lifetime of scholarship and refelection, came in 2004 with, “A New Birth of Freedom: Abraham Lincoln and the Coming of the Civil War.”

The latter book highlights the Gettysburg Address, which Jaffa maintained was “a speech within a drama. It can no more be interpreted apart from the drama than, let us say, a speech by Hamlet or MacBeth can be interpreted apart from Hamlet or MacBeth. The Gettysburg Address is a speech within the tragedy of the Civil War, even as Lincoln is its tragic hero. The Civil War is itself an outcome of tragic flaws — birthmarks, so to speak — of the infant nation.”

According to a National Review profile last year:

Jaffa is one of the most famously cantankerous intellectuals in America …. This is especially true for fellow conservatives. “If you think Harry Jaffa is hard to argue with, try agreeing with him,” quipped William F. Buckley Jr. in the foreword to one of Jaffa’s books. “He studies the fine print in any agreement as if it were a trap, or a treaty with the Soviet Union.”

Other sparring partners have included George Will and the late Irving Kristol. NR wrote:

“I do not mean to be gentle with you,” Jaffa once wrote in an open letter to Walter Berns, another conservative scholar. “In your present state of mind, nothing less than a metaphysical two-by-four across the frontal bone would capture your attention.” 

(Alas, Berns, another influential scholar of the conservative movement, himself died on the same day as Jaffa, at 95.)

Goldwater 64

In practical politics, Jaffa was best known as a speechwriter for Arizona Sen. Barry Goldwater’s 1964 presidential campaign. Not many political phrases are remembered five days after a campaign, let alone five decades. But this lone Goldwater spoke in his GOP Convention acceptance at the Cow Palace in San Francisco still is recalled, “Extremism in the defense of liberty is no vice, and moderation in the pursuit of justice is not a virtue.”

The line was a dig at the “moderate” Rockefeller wing of the party that Goldwater had defeated, also called “Me Too” Republicans back then for going along with Democratic Party increases in taxes and government; or what today is called a RINO — Republican in Name Only.

President Johnson’s campaign ran with it, part of its ongoing smears of Goldwater as an “extremist” who would start endless wars. That theme most infamously was shown in the LBJ campaign’s “Daisy” attack ad, itself one of the few campaign ads anyone remembers. It depicted a little girl picking daisies as an atomic bomb explodes in the background over Johnson’s voiceover warning that Goldwater would get the country involved in deadly wars.

Ironically, it was LBJ who got the country involved in the Vietnam quagmire that cost 58,000 brave young American lives, and in the end was lost.


But the point of Jaffa, and Goldwater, was that liberty is non-negotiable. Lincoln said in the “House Divided” speech in 1857 that Jaffa wrote about, “In my opinion, it will not cease, until a crisis shall have been reached, and passed. ‘A house divided against itself cannot stand.’ I believe this government cannot endure, permanently half slave and half free.”

Lincoln did not say, “I believe this government can endure, maybe 1/10 slave and 9/10 free. After all, we don’t need extremism in defense of ending slavery.”

Although Goldwater lost, his campaign inspired a generation of conservatives, many of them later Jaffa’s students at Claremont. The conservative movement helped elect Ronald Reagan, a big Goldwater backer, president in 1980 and 84.

And conservatism remains a strong voice in American politics, as the GOP victory in last November’s election showed. Jaffa’s work endures.

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