Judge Alex Kozinski of the 9th Circus, I mean Circuit, has been getting a lot of favorable blog press in the last few days. You can count the pro-Second Amendment circuit judges in this county on one hand, and he's definitely there. Here's Prof. Glenn Reynolds on the idea, and here's Prof. Tom Smith.
Here's what I can find of Kozinski's firearms jurisprudence:
Silviera v. Lockyer, 312 F.3d 1052 (9th Cir. 2003). Majority holds second amendment is not an individual right. Motion for rehearing en banc denied. Kozinski writes strong dissent (the more important parts are quoted by Prof. Reynolds, above). The panel opinion complains that in a prior case, "Judge Alex Kozinski, acknowledgedly an extremely able and dedicated jurist, appeared to cling fast to the individual rights view, despite the existence of binding circuit precedent to the contrary that may in no way be dismissed as dicta."
United States v. Stewart, 348 F.3d 1132 (9th Cir. 2003). Kozinski writes panel opinion. Defendant had built a homemade machinegun, and was charged with violating 922(o) (prohibiting possessing a full auto not made before 1986). Kozinski holds that, in this context (gun built at home), 922(o) exceeds Congressional powers to regulate interstate commerce. This is the only federal case I can think of that holds a regulation of gun making beyond the commerce power (I think it and Lopez are the only two that hold any gun law beyond federal power).
State of Idaho v. Horiuchi, 253 F.3d 359 (9th Cir. 2001). Kozinski writes the opinion holding that Idaho authorities may prosecute FBI sniper Lon Horiuchi for shooting Vickie Weaver during the Ruby Ridge affair. Government argued that the Supremacy Clause bars state prosecution of federal actors. Opinion holds that government has not established that her shooting was objectively reasonable, and that absent that, Supremacy Clause is no protection.
United States v. O'Mara, 963 F.2d 1288 (9th Cir. 1992). Defendant convicted of having an unlicensed full-auto Sten gun. Defendant argued he didn't know it was full auto. Issue was whether a defendant has to know a machinegun is a machinegun, or just has to know it is a gun, and court holds he only has to know it is a gun. Kozinski concurs, saying that that is indeed the way 9th Cir. caselaw holds, so he must join, but adding that he thinks the 9th Cir. position is wrong. (He was later vindicated when the Supreme Court took his position in another case).
US v. Foster (1997). Kozinski writes an en-banc majority opinion which construes a sentencing enhancement for carrying a firearm during a drug offense. Defendant was driving a pickup, and there was a gun in a pouch in the bed of it, covered by a snap-down cover. Kozinski concludes for that majority that this was not "carrying" -- the term implies not only conveying a gun, but having it accessible for use. Three judges dissent.
US v. Moore (1997): Kozinski sides with majority in upholding conviction in a "straw man" sale -- a real one, not a set-up. Defendant was a juvenile criminal's mother -- she wasn't the straw buyer, but provided the money, and was charged for aiding and abetting. Dissenters argue that ATF has recognized that a parent may buy for a child.
United States v. Tallmadge, 829 F.2d 767 (9th Cir. 1987). Defendant was first convicted of illegal possession of a machinegun in state court, a felony. Four years later the state court expunged the conviction and reduced it to a misdemeanor (I assume a quirk of California law). Later, bought four rifles, telling the dealer of this, and the dealer told him it was OK because it'd been reduced to a misdemeanor. He was convicted of being a felon in possession. Majority reverses, based on entrapment by estoppel (a rare-allowed defense where a person is misled into violating the law via an act or advise of a government official). Kozinski dissents, pointed out that a firearms dealer, despite his license, is not a federal official. I'd count the majority opinion as one more reason we call it the Ninth Circus. Kozinski's dissent notes that Federal law (pre-FOPA) is at loggerheads with state law... state law allows reduction to a misdemeanor, federal law refused to recognize that. "Again and again we see defendants who have been given solemn assurances by those they justifiably trust -- state judges, prosecutors, defense counsel -- that they may now enjoy all rights of citizenship, including that of owning a gun, yet find that they have committed a federal crime when they exercise that supposed right." He suggests that Congress ought to remedy it, adding "This is not the first case of this kind where I had to wonder whether the prosecution served any purpose other than to pad the prosecutor's batting average."
A possible suggestion. The White House has an email: firstname.lastname@example.org . I'd assume somebody counts the number of emails on a given subject and reports that. If we all sent email entitled, say "please nominate Judge Kozinski," it might just get someone's attention. They may be a bit jumpy about the internet and blogs just now (grin).
I've mentioned Judge Kozinski before.... he's brilliant, but faces one barrier. The conservative movement has two components that I identify as "rules/hierarchy" (the world is stabilized and kept going by rules and hierachies that enforce them) and libertarian. The reason for their coalition is that the coalition that makes up the modern liberal left menaces both (it dislikes social/moral rules, but loves policy-driven governmental ones). But the present administration is predominantly rules/hierarchy conservative, and Judge Kozinski is predominantly libertarian conservative. [Example: about the only thing they could come up with in favor of the last nominee was that she would support the War on Terror, i.e. federal power. I can only think of one case related to that subject that has ever made it to the Supreme Court, mind you. A rules/hierarchy conservative would probably like a judge who defers to Presidental powers and upholds Federal actions that impinge upon individual rights, while a libertarian conservative would find those positions appalling].
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» Alex Kozinski for SCOTUS from Les Jones
I haven't covered the last two SCOTUS nominees because, like James Rummel, I'm not particularly qualifiied or interested. On the other hand, if Alex Kozinski is nominated I'll be rooting for. Read what he has to say about the second amendment. LATER: D... [Read More]
Tracked on October 29, 2005 06:08 PM
The problem with Kozinski is his appaling behavior in a murder case a few years back. It would be a very difficult confirmation hearing.
Posted by: anon at October 29, 2005 09:48 PM
I'll all for the Second Amendment, but that's hardly enough to justify a nomination, post-Miers.
What's the rest of his jurisprudence like?
Posted by: AST at October 29, 2005 11:10 PM