Gary Gorski Interview
The following is an e-mail interview of attorney Gary Gorski. Questions from Dave Kopel are in bold. The interview was conducted as part of the research for Kopel's September 23, 2003 article for National Review Online about the Silveiracase. That NRO article contains a link to this interview.
Hi, Dave. Thanks for your interest in the case. While the nature of your questions seem to be slanted against both me and my clients, I prefer to think of you as an ally, so I will answer your questions. In fact, by the way your questions are phrased, it is obvious that they were not based off of the lower court record, nor an understanding of federal procedural law. All I ask is that you print my answers fully and completely. Fair enough?
Q. You told the SF Chronicle that you brought the Silveiracase because no one was challenging the California "assault weapon" law. Do you consider Hunt v. Californiato be a challenge to the California law? Did anyone inform you about Hunt v. California after you announced your case?
A. Hunt challenged the validity of the California Assault Weapons Control Act for being vague. As with other similar challenges, it does not resolve the underlying core Second Amendment issue. That's like challenging the banning of black people from public restrooms because the law's unclear or poorly written. That's like challenging a ban on free speech because the ban needs to be more clearly defined. It was a typical CRPA/NRA-styled case in which the court could rule on another issue without giving a firm, clear, definitive ruling entirely on the fundamental aspects of the Second Amendment. It was merely a challenge to the law as written. In principle, it's not a direct and unequivocal Second Amendment challenge -- because it could be decided without directly answering the long-needed answers on the Framers' intent on the Second and Fourteenth Amendment. We need the Court's help if we are to stop the dismantling of the Second Amendment. We don't need to help state governments perfect the language of gun bans that must be repealed. Challenging an evil law for being vague is a waste of time, energy and money. Because Hunt was a stupid case to begin with, I did not give it much weight.
Also, Gun organizations have had since 1934 to file a Second Amendment case and didn't-- with the precedent set by Emerson and the disparity with Hickman, resolution between the two circuits by the Supreme Court was just a matter of time - we can take this case, professionally prepared, backed by an NRA amicus brief -- or get blindsided by some public defender trying to get some gangbanger off. What do you think the likelihood of a favorable, non-restrictive ruling would be then?
To be honest, I would rather be making money in construction litigation than fighting for Constitutional Rights — it seems this issue should not have gotten to this point. No one stood up to the plate, so I did. If the armchair lawyers think I'm wrong, then let them pay for an attorney to do what I have done. Have them put their money where their mouth is.
And one more thing,
"It is not the critic who counts, not the man who points out how the strong man stumbled or where the doer of deeds could have done better. The credit belongs to the man who is actually in the arena; whose face is marred by dust and sweat and blood; who strives valiantly; who errs and comes short again and again; who knows the great enthusiasms, the great devotions, and spends himself in a worthy cause; who, at the best, knows in the end the triumph of high achievement; and who, at the worst, if he fails, at least fails while daring greatly, so that his place shall never be with those cold and timid souls who know neither victory nor defeat." THEODORE ROOSEVELT
[Note by Kopel: Attorneys who have criticized the Silveira case include Stephen Halbrook, Don Kates, Chuck Michel, and myself. Each of us have substantial litigation experience in gun rights cases, and have spent many thousands of hours in the arena fighting for Second Amendment rights.]
Q. Do you think it helped or hurt your Complaint to include the issue of concealed handgun licensing?
It has no affect on the core constitutional issue which is what is being presented to the Supreme Court. Did you read an opinion which addressed that issue as it pertained to the Second Amendment issue? No, you didn't. So, what was the affect? At the pleading stage, you raise all issues because it is easier to dismiss them at a later stage, as compared to trying to amend the complaint and add them. What is the purpose of the question? I also included an Equal Protection claim, which, if you read the Silveiraopinion, struck down that portion of the law, which is not too bad for a Construction attorney who practices civil rights on the side. How come a Gun rights organization didn't raise an Equal Protection challenge, but instead, always raises the same esoteric vagueness issue or commerce clause issue.
To answer your question, I believe that having to get a license or permit to exercise a basic Constitutional right is wrong. My clients agree, as do millions of Americans. I believe the intent of the Supreme Court in Murdock v. Pennsylvaniain regards to licensing constitutional rights was clear and correct: "A state may not impose a charge for the enjoyment of a right granted by the federal constitution... The power to impose a license tax on the exercise of these freedoms is indeed as potent as the power of censorship which this Court has repeatedly struck down... a person cannot be compelled 'to purchase, through a license fee or a license tax, the privilege freely granted by the constitution.' " The only place I'd contest that statement is that the Constitution didn't "grant" anything; it acknowledged a few pre-existing rights, without excluding many others not specifically enumerated.
Q. Why did you not file a reply brief before the 3-judge panel in the 9th Circuit?
Why should I, unless I was being paid and wanted to bill my clients for a useless filing. Filing a Reply brief before the 3-judge panel was not necessary as proven by the fact that I won the Equal Protection argument -- which CRPA/NRA's "vagueness challengers" said I didn't have a chance to win. The Second Amendment argument was already set by precedent which a three judge panel could not overrule. Only a full panel can overrule a three judge panel, which in which this case was the Hickman v. Block Chuck Michel failure.
Q. Why do you believe the Supreme Court will rule 7-2 or 9-0 that the California law is unconstitutional, even though no appellate court anywhere in the United States has over-turned "assault weapon" laws on right to arms grounds (as opposed to vagueness, or other issues not involving gun rights)?
Look at our Petition and compare it to others that have been submitted. Look at our support. More importantly, I would recommend that you read Flack, The Adoption of the Fourteenth Amendmentwritten in 1908 (or somewhere around there) – you can rest assure that the Justices are well aware of the Framers intent involving the Fourteenth Amendment and the P&I Clause. To disregard the true purpose of the 14th Amendment would be to ignore the Constitution. As far as every major Constitutional scholar who wrote a dispassionate treatise on the 14th Amendment, there is but one answer to the questions presented in our Cert Petition — unless you believe that the Supreme Court cannot be trusted, in which case, why do we even have a Constitution, then it seems pretty academic that the Court will rule in favor of an individual right interpretation as there is no other plausible interpretation without a perversion of the Constitution itself. I'm right because the language, purpose and history are on my side as to the true intent of the Second and Fourteenth Amendment, which is probably why the State of California did not even oppose our Cert Petition. Thanks to the amazing help I've had from experienced Supreme Court counsel and others involved in the gun rights community, it's the best Second Amendment Petition yet presented, in my opinion. Approaches taken cater to the attitudes, beliefs and opinions from each member of the Court, and addressing each Justices core Constitutional values. Have you read it?
Q. Hypothesizing that the Supreme Court does not grant cert., do you think that the Silveira litigation will have been helpful or harmful to Second Amendment rights?
How can it hurt? California passes a new gun law each year — it's just a matter of time before there is a complete ban. Nothing ventured, nothing gained. If the Supreme Court denies cert. in the Silveiracase, much work done in developing the case will be applied to and available for other cases. I am in the process of filing a companion case in California, which will utilize the same material, and be that much better. I will not stop until this issue is decided. Groundbreaking work not yet seen by the public -- some of which should have been done a long, long time ago -- would be used to help other Second Amendment cases. The Silveiracase has already succeeded on Equal Protection grounds; retired law enforcement officers in California are no longer treated as superior to average citizens. For these reasons and several others, Silveirahas been and will continue to be helpful in the ultimate restoration of our Second Amendment rights.
Any other questions? Take care, and thanks.
Gary W. Gorski
Attorney at Law