The New Chief Judge of the 9th Circuit Court of Appeals

It is Alex Kozinski--a conservative judge who grew up under Communism, and not surprisingly, is strongly in support of the individual rights view of the Second Amendment. The November 30, 2007 Los Angeles Times describes his new responsibilities:

he chief judge has overall responsibility for circuit operations -- basically ensuring the expeditious, inexpensive and fair disposition of appeals -- and is the court's public face. The chief judge also heads the Circuit Judicial Council, the court's policymaking arm; represents the 9th Circuit on the Judicial Conference, which makes policy for the entire federal judiciary; and represents the 9th Circuit in its dealings with Congress. The chief judge is the only one of the circuit's judges who always serves on the court's "en banc" panels that rehear many of the most controversial and important appeals.

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Kozinski, nearly a decade younger than Schroeder, enjoys a well-deserved reputation as an iconoclast or, some would say, eccentric. Born to Holocaust survivors in Bucharest, Romania, Kozinski came to the U.S. at age 12. He grew up in Los Angeles, attending Marshall High School and UCLA before clerking for then-9th Circuit Judge Anthony Kennedy and U.S. Chief Justice Warren Burger. In the early 1980s, President Reagan appointed Kozinski as chief judge of the new U.S. Claims Court, and in 1985, Reagan appointed him to the 9th Circuit, making him the nation's youngest appellate judge.

Still, the "conservative" label does not quite capture Kozinski's jurisprudential views. He has said that a conservative president appointed him and that he tends "to have conservative instincts" but also believes strongly "in important principles of freedom" -- freedom of speech, religion and personal privacy. He once famously explained the 9th Circuit's judicial independence by remarking that its judges were three time zones away from the Supreme Court and the nation's capital.

This article from Capitalism magazine reprints part of one of Kozinski's dissents in 2003:

Judges know very well how to read the Constitution broadly when they are sympathetic to the right being asserted. We have held, without much ado, that "speech, or . . . the press" also means the Internet, and that "persons, houses, papers, and effects" also means public telephone booths. When a particular right comports especially well with our notions of good social policy, we build magnificent legal edifices on elliptical constitutional phrases--or even the white spaces between lines of constitutional text. But, as the panel amply demonstrates, when we're none too keen on a particular constitutional guarantee, we can be equally ingenious in burying language that is incontrovertibly there.

It is wrong to use some constitutional provisions as spring-boards for major social change while treating others like senile relatives to be cooped up in a nursing home until they quit annoying us. As guardians of the Constitution, we must be consistent in interpreting its provisions. If we adopt a jurisprudence sympathetic to individual rights, we must give broad compass to all constitutional provisions that protect individuals from tyranny. If we take a more statist approach, we must give all such provisions narrow scope. Expanding some to gargantuan proportions while discarding others like a crumpled gum wrapper is not faithfully applying the Constitution; it's using our power as federal judges to constitutionalize our personal preferences.

The able judges of the panel majority are usually very sympathetic to individual rights, but they have succumbed to the temptation to pick and choose. Had they brought the same generous approach to the Second Amendment that they routinely bring to the First, Fourth and selected portions of the Fifth, they would have had no trouble finding an individual right to bear arms. Indeed, to conclude otherwise, they had to ignore binding precedent. United States v. Miller (1939) did not hold that the defendants lacked standing to raise a Second Amendment defense, even though the government argued the collective rights theory in its brief. The Supreme Court reached the Second Amendment claim and rejected it on the merits after finding no evidence that Miller's weapon--a sawed-off shotgun--was reasonably susceptible to militia use. We are bound not only by the outcome of Miller but also by its rationale. If Miller's claim was dead on arrival because it was raised by a person rather than a state, why would the Court have bothered discussing whether a sawed-off shotgun was suitable for militia use? The panel majority not only ignores Miller's test; it renders most of the opinion wholly superfluous. As an inferior court, we may not tell the Supreme Court it was out to lunch when it last visited a constitutional provision.

The majority falls prey to the delusion--popular in some circles--that ordinary people are too careless and stupid to own guns, and we would be far better off leaving all weapons in the hands of professionals on the government payroll. But the simple truth--born of experience--is that tyranny thrives best where government need not fear the wrath of an armed people. Our own sorry history bears this out: Disarmament was the tool of choice for subjugating both slaves and free blacks in the South. In Florida, patrols searched blacks' homes for weapons, confiscated those found and punished their owners without judicial process. In the North, by contrast, blacks exercised their right to bear arms to defend against racial mob violence. As Chief Justice Taney well appreciated, the institution of slavery required a class of people who lacked the means to resist. See Dred Scott v. Sandford, (1857) (finding black citizenship unthinkable because it would give blacks the right to "keep and carry arms wherever they went"). A revolt by Nat Turner and a few dozen other armed blacks could be put down without much difficulty; one by four million armed blacks would have meant big trouble.