The topic of what the NRA has become comes up on multiple gun boards fairly regularly. Here is a recent editorial from Brian Puckett telling what he thinks is wrong
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January 24, 2002
I respect both the CRPA and NRA as organizations. I respect the faith and activism of their members. I do not respect many of the actions of their leadership. If you want to know why, read on. � BP.
Background of Silveira v. Lockyer Lawsuit
KeepAndBearArms.com -- In 1999, California�s Democrat-controlled government expanded a previous unconstitutional gun control edict, making it include a ban on selling, making, or bringing into the state all semi-automatic rifles with certain arbitrary features, such as folding stocks, detachable magazines, and pistol grips. Further, if you already owned such a rifle, you were required to register it with the state.
California attorney Gary Gorski understood that this edict grossly violated the rights of the citizens of California. So in the year 2000 Gorski filed a lawsuit in the U.S. Eastern District Court challenging that ban on the basis of several claims, including the Second Amendment�s protection of the individual right to keep and bear arms. [See it: .pdf - .doc] The short name of that case is Silveira v. Lockyer. (Silveira being the first-listed plaintiff Sean Silveira, and Lockyer being the rabidly anti-gun Attorney General of California � a Democrat, of course.)
Shortly after filing the Silveira lawsuit, Gorski contacted several gun rights organizations, including the NRA and the CRPA, and asked for their assistance in his case. He didn�t get a response.
Silveira v. Lockyer was not perfectly constructed. For example, it commences with what is now regarded as a bogus quote by Adolf Hitler, though this has no real bearing on the lawsuit itself. Two gun rights organizations were not happy with Gorski for filing this lawsuit. According to CRPA attorney and spokesman Chuck Michel, who also works for the NRA, "While the lawyers that brought this suit [Silveira] are well-intentioned, this suit was strategically ill-advised from its inception. The case raises too many issues for a court to digest in one lawsuit�The case played right into Justice Reinhardt's biased hands."
Another potential mark against Silveira v. Lockyer is that some of those flaws in the original complaint could cause trouble if the case reached the Supreme Court of the United States (SCOTUS) on appeal. Given the way that court operates, an ideal SCOTUS Second Amendment case would focus on one or two aspects of that Amendment at a time. The NRA and CRPA could have helped create a better case before it ever went to court. But they didn�t bother to get involved.
Bad Call by CRPA Attorney
Now, the California semi-auto rifle ban provided an exemption for retired law enforcement officers, allowing them to buy firearms that were banned to �regular� California citizens. In his lawsuit, one of Gorski�s claims against the ban was that it was unconstitutional because it violated Article I, Section 8 of the California Constitution, which reads ��[a] citizen or class of citizens may not be granted privileges or immunities not granted on the same terms to all citizens.� Of course, retired police officers are regular citizens. For that matter, so are active duty police officers � they simply work in law enforcement as opposed to, say, construction, and have slightly wider powers of arrest and broader permission to carry guns than most other citizens.
According to Gorski, during one conversation with CRPA/NRA attorney Chuck Michel, Michel had a firm opinion on the "equal protection" claim in Gorski's lawsuit. "He [Michel] said 'You will NEVER win on that argument'," Gorski says, "and I said something like, 'I'll bet a hundred dollars on it,' -- then he [Michel] responded, 'I don't want to take your money,' or something like that."
Silveira v. Lockyer was tossed out by the U.S. Eastern District Court for various reasons. Gorski appealed, and eventually the case ended up in the infamously liberal U.S. Ninth Circuit Court. Silveira v. Lockyer was reviewed by a three-judge panel of that peculiar, often-reversed body. This panel of the Ninth Circuit court, whose jurisdiction covers many western states, including the most populous in the nation, California, and is exceeded in authority only by the Supreme Court of the United States, tossed out all of Gorski�s claims but one.
So what was the claim the court upheld? The �equal protection� claim. They said Gorski was exactly right, retired law enforcement officers were just like you and me and have no �super-citizen� status exempting them from the CA rifle ban. Score a big one for Gorski and for all of us � now all retired law enforcement officers who want militia-type rifles are on our side � not on their own side.
Gorski claims another positive result of his lawsuit: �Furthermore, as far I am concerned, the [Ninth Circuit panel] decision was actually a blessing as it essentially held that Hickman and Fresno were wrongly decided. Thus, it will now give the 9th an opportunity to take a fresh and more thorough look at the issue.�
Shockingly to most Americans, unless they�re already familiar with the �Notorious Ninth�, when that court ruled on Silveira it went out of its way to state, in no uncertain terms, that the Second Amendment does not guarantee the individual right of U. S. citizens to keep and bear arms. You might want to read that again.
But Gorski points out that this is actually another positive result of his Silveira case, even though he has �lost� the case so far. That absurd Second Amendment ruling by the Ninth Circuit Court puts it in direct opposition to the Fifth Circuit Court�s Emerson statement that the Second Amendment does protect an individual right to own and carry firearms. This pushes us toward a resolution of the issue in the Supreme Court of the United States.
But because the main claims in Silveira v. Lockyer against California�s unconstitutional rifle ban were ruled against by the Ninth Circuit�s panel, Gorski filed a petition asking that his case be heard by the full Ninth Circuit court.
Naysayers Arrive on the Scene
And here�s where the story takes a startling turn: the California Rifle and Pistol Association, using NRA attorney Chuck Michel, filed an amicus curiae (�friend of the court�) brief advising the Ninth Circuit Court to dismiss Gorski�s lawsuit. [See it: .pdf - .doc - scanned images] CRPA wants Silveira v. Lockyer to die right where it is, thus upholding the Ninth Circuit Court�s outrageous claim, consistent with its previous claims in Hickman v Block, that the Second Amendment is not an individual right.
Why did CRPA do this? The reasons inferred from attorney Michel�s statements and from observers of the case are that CRPA thinks the Ninth Circuit court will make bad precedent-setting rulings on various claims in the lawsuit, and that if Silveira reached the U.S. Supreme court on appeal it could result in an unfavorable ruling that would be regarded as the law of the land.
We�ve heard that same claim about virtually every gun-related lawsuit that has come down the pike, including Emerson. In a KIEV radio interview a few years ago, when asked by David Codrea why the NRA wouldn't file a Second Amendment lawsuit, Executive Director of the NRA Institute for Legislative Action Tanya Metaksa said, "What if we lose?" For years, NRA attorneys have repeatedly stated to those inquiring about this matter, include myself, that this was �not the time� to file a Second Amendment lawsuit, and that we �don�t have the votes� in the Supreme Court to win a Second Amendment case.
Two points: First, how could anyone possibly know how the justices would vote on a particular aspect of the Second Amendment, since the Supreme Court is famous for remaining tight-lipped about future cases, and for startling observers by unexpected votes on other issues?
Second, if the Supreme Court vote is so uncertain, why did CRPA/NRA attorney Chuck Michel write in a press release: �CRPA and other self defense civil rights associations are supportive of efforts to get an appropriate case to the Supreme Court. A challenge to the Washington, D.C. handgun ban being prepared by the CATO Institute would be a much more appropriate vehicle to advance the issues.� In other words, how can a CRPA/NRA attorney advocate any Second Amendment case when, as repeatedly stated by NRA attorneys and spokespersons, �It isn�t the right time�, and �We don�t have the votes�, and �What if we lose?�
Regardless of that, we can clearly see what happens when issues raised by the Second Amendment are not settled by the high court: �68 Gun Control Act, �89 semi-auto rifle import ban, �94 semi-auto and over-10-round magazine ban, 1996 Lautenberg Act, and untold state and local gun control laws.
Worst Part of the CRPA Brief
The CRPA brief against Silveira v. Lockyer does take a pro-gun rights stand in several places. [See it: .pdf - .doc - scanned images] But where it goes terribly astray is when it attacks Silveira�s claims on these grounds:
��the failure of the complaint to allege sufficient injury to plaintiffs and the consequent lack of standing and ripeness to decide this case.�
�[Plaintiffs Silveira and others] suffered no injury, did not have ordinary Article III standing, and which was never ripe for decision.�
�Instead, the [Silveira] complaint makes the single, vague allegation that:
�Plaintiffs own, or would like to own, semi-automatic rifles and/or pistols subject to the terms of the statute which prohibits and/or restricts possession, use, transfer and/or sale of semi-automatic rifles and/or pistols.� �
�Moreover, the Act [semi-auto ban] does not regulate 'ownership' of specified firearms � instead, it regulates unregistered possession, transportation, and other acts. Plaintiffs are free to "own" such firearms � ownership means legal title and knows no State boundaries � it is the possession and use thereof in California which are restricted.�
�...the complaint alleges: 'Plaintiffs have been harmed according to proof.' Perhaps it is too much to ask what the "proof' consists of, as the complaint fails to allege any concrete, relevant harm about any particular plaintiff.�
It�s one thing to ask that a lawsuit be thrown out for good reasons. It�s another thing to ask that it be thrown out for �reasons� that undermine the rights of all citizens.
Let me explain. In general terms, the easier it is for citizens to challenge unconstitutional laws, the better it is for freedom. Limiting our ability to bring suit against the government (�standing�) makes it easier for the government to pass unconstitutional laws and keep them in place as long as possible.
The CRPA brief supports the idea that, in order to challenge an edict that violates his rights, a citizen must prove that he really wants to exercise that right, or must actually attempt to exercise that right, or must get himself arrested and charged for exercising that right � thus risking their freedom, income, savings, health, and even life.
We need much broader views of �standing�, such as those iterated in the Supreme Court decision in Eisenstadt v. Baird. But the CRPA didn�t support such a broad view of standing.
To make this clearer, imagine that California had banned the making, selling, and importing of easy-to-read LARGE TYPE versions of the Holy Bible (instead of certain rifles), and required you to register such Bibles you already owned. (With the Democrats in charge, this is not a great stretch of the imagination.) And imagine that the CRPA was the �California Religion Protection Association.� Would you approve of the CRPA saying �Just because you want to buy a banned version of the Bible and the state says NO, that doesn�t mean you�re harmed.� That�s precisely equivalent to what they�re saying about your Second Amendment rights.
What if the CRPA was the California Right to Print Association, and California had banned high-speed printing presses. Would you approve of the CRPA saying, �Just because you want to buy a banned printing press and the state says NO, that doesn�t mean you�re harmed.� That�s precisely equivalent to what they�re saying about your Second Amendment rights.
Silveira v. Lockyer is about having a constitutional right pre-emptively DENIED to Californians. What part of �right� or "infringed" does CRPA not understand?
As California attorney Peter Mancus writes, ��The idea that if civil authority denies everyone's rights across the board, no one has standing because the denial is merely �political,� not �unconstitutional,� is crap. That argument only rewards civil authority for denying everyone certain rights instead of a lesser number.�
�To exacerbate matters,� Mancus adds, �Mr. Michel boldly told the court that he and his client filed this motion on behalf of gun owners, sportsmen, and people interested in lawful self-defense with firearms, etc. I, and you, can do without his kind of 'help.'�
Gorski has issued his own press release regarding the CRPA�s amicus curiae brief.
Another Look at the �Equal Protection� Issue
Whether or not CRPA thought Silveira would advance on appeal or not, why did their amicus brief contain no word in support of Gorski�s claim that his clients were being discriminated against under California�s �equal protection� clause? Remember, the CRPA�s amicus brief did support some pro-gun claims without changing its bottom-line opinion that Silveira should be dismissed. But not one word about Gorski�s equal rights. As Gorski himself wrote to CRPA/NRA attorney Chuck Michel, �� I did note that the CRPA is composed of 70,000 members which includes 'law enforcement officers.' Your silence and lack of action utilizing the Equal Protection holding is deafening.�
By which Gorski means, of course, that CRPA didn�t want to upset any retired law enforcement members who might want to buy a gun that the rest of us weren�t allowed to buy.
In a San Francisco Chronicle article, CRPA/NRA attorney Michel said Gorski is a "well-intentioned loose cannon." And in a communication with Gorski, Michel wrote that his CRPA amicus brief �details why you [Gorski] are setting yourself up to be remembered in history as the Judas that betrayed the 2A civil rights movement.�
Considering Michel�s statement and the content of his CRPA amicus brief, does Michel have standing to call anyone a �Judas� or a �loose cannon�?
Two More Important Things
1. Shortly after filing the Silveira lawsuit, Gorski contacted several gun rights organizations, including the NRA and the CRPA, and asked for their assistance in his case. He didn�t get a response. They popped up later, when things had gone all the way to the Ninth Circuit Court, going against the case.
Attorney Peter Mancus again: �[Why didn�t the CRPA instead say in it�s amicus brief] that the lower court should have granted Mr. Gorski and his clients additional leave to amend their complaint to comply with any alleged pleading irregularity or deficiency because Mr. Gorski certainly could have, and would have, done that.�
2. CRPA/NRA Attorney Michel implies that gun rights organizations such as the NRA will back a lawsuit seeking to overturn Washington, DC's handgun ban, but we have zero assurances that the people now running the NRA will get involved, or if they do, no assurances that they won't cut and run at the worst possible time.
Consider the following. In the case Fresno Rifle & Pistol Club v. Van de Kamp, the Ninth Circuit Court said "...we affirm the district court's decision 'that the Second Amendment stays the hand of the National Government only.' " In other words, they said the Second Amendment could be freely and completely violated by state governments.
You're probably guessing that the NRA (which supported this case) directed the attorneys in this case to file an appeal to the U.S. Supreme Court, right? Wrong. They let it drop. In doing so, they set the stage for possible citations of this failure in future cases, and allowed Handgun Control, Inc. / Brady Campaign to write:
"The NRA's lawsuit, Fresno Rifle and Pistol Club v. Van de Kamp, was rejected by a Fresno federal district court judge handpicked by the NRA to hear the case as well [sic] by the U.S. Court of Appeals for the Ninth Circuit. Although the NRA used the promise of a legal challenge to the law to raise money in mass fundraising appeals, the NRA simply dropped the case in 1992 rather than appeal it to the U.S. Supreme Court. The NRA's surrender ended Second Amendment challenges to the Roberti-Roos assault weapon ban."
The fact is, the current NRA management - the "Winning Team" - can't be trusted to do the right thing. These are the people who changed the historic direction of the NRA from fighting against unconstitutional gun laws to demanding enforcement of unconstitutional laws. You can read about that in my article "NRA Management Turns Against Second Amendment".
Here's just one of many similar quotes from the NRA "Winning Team" member Wayne LaPierre:
"But the truth is a tough criminal justice system with tough, no-nonsense enforcement of the federal laws we have on the books and tough prosecution of the federal laws we have on the books will cut to the heart of this culture of violence the President talks about."
What happened to REPEALING these existing blatantly unconstitutional gun laws on the books, such as the ban on 1994 ban on selected semi-automatic rifles and magazines holding over 10 rounds? Do you want to be prosecuted under that law? LaPierre wants you to be - he said so.
Once again: the people who currently run the great National Rifle Association must be replaced by true believers in the Constitution and its Second Amendment - and surrounded by attorneys who believe you shouldn't have to be arrested to fight for your rights in court.
