27 June 2008

It's here!!!

Well, Justice Scalia proved that judicial certainty is merely a concept deigning to put his name to the Heller decision. This is a wonderfully Pyrrhic victory for the RKBA crowd as it means absolutely nothing; in fact, it more than proves the Second Amendment is merely a quaint piece of rubbish from the 18th Century that has no meaning. The Militia clause has been held to be rubbish, which flies in the face of all concepts of US Constitutional interpretation since Marbury v. Madison which said no verbiage in the Constitution was mere surplusage. Additionally, the shall not be infringed language, even though it is mandatory (shall) has been held to be surplusage. The right is subject to reasonable regulation, whatever that means since the law was locally legislated.

Which gets down to another concept, the court is not supposed to look into legislative acts; however, in finding a right where no right has previously existed, they had to destroy local legislation. So, I am not sure what exactly they are doing here, but it is truly questionable in my mind. I believe Judicial activism is when courts do not confine themselves to reasonable interpretations of laws, but instead create law. The Supreme Court has decided to violate the separation of powers and create new rights, laws, and overthrow "democracy". Not that overthrowing the will of the people is bad, but here it will harm the general welfare.

The question has now become what exactly is reasonable regulation? Where does one draw the line between reasonable regulation and a ban? One can prohibit assault weapons or machineguns, but not pistols, which are the most common crime guns: explain the logic here? Not to mention DC's PPW statute and its definition of a machinegun will preclude most semi-auto pistols from being registered. What sort of rubbish is Scalia promulgating? Is he trying to create more work for the lawyers and courts? Not a bad idea, but the city of Philadelphia is piss poor when it comes to paying me for my "pro-bono" court appointment work.

Anyway, Scalia has some form of weird theory of Constitutional interpretation that allows for personal opinion to interfere with legal thinking and nothing to do with a professed "originalism". In fact, personal opinion can overrule things like stare decisis and the rule of law--heavy duty. I take from Doug Kmiec's piece on the Second Amendment and DC's gun ban:

An originalist interpretation, at a minimum, must give respect to the meaning of every word of the Second Amendment, including its preamble. Second, the interpretation must situate the Second Amendment intra-textually within the context of the entire Constitution. Third, an originalist interpretation must be honest about the possibility of obsolescence -- namely, that something is in the Constitution which may have no modern analog. Fourth, to the extent it is consistent with the original understanding, precedent must be respected.

What do these principles suggest is the meaning of the Second Amendment? Just this:

The Second Amendment reflects the concerns of the founders that the federal government might exercise its Article I militia power to subjugate the people by disarming local militias in the several states. The Second Amendment was drafted to combat this particular fear, and therefore, the Second Amendment is no limitation whatsoever upon the authority of the people within the several states, by the power reserved to them under the 10th amendment, either to broadly protect individual rights of gun ownership or the opposite.

Scalia has held that one can pick and choose in Constitutional interpretation, ignore the bits which don't fit your interpretation, such as shall not be infringed. Not to mention ignore 70 years of judicial decisions to the contrary. Gun laws are subject to reasonable regulation; however, a local legislature believing that handguns were detrimental to their population and choosing to ban them can be overturned. But nevermind, this is subject to reasonable regulation, which means that DC goes back to pre-Ban days and allows for only .38 revolvers with 4" barrels to be licenced. Of course, one can only register their handgun on alternate Wednesdays between the hours of 8.30-11.30 and 2.30-4.30 since that is when the MPD can spare the manpower to register the weapons! I will add in that DC should charge an extortionate fee for registering the firearm, something on the lines of a couple of hundred bucks. That would make it impossible for the common man to register a firearm, if they were willing to go through the hassles involved.

What fool these justices be!

But, as I point out, one of the complaints of the Colonial Rebels was that they didn't want interference from a legislature 3,000 miles away. They wanted the ability to rule locally, but this decision flies in the face of that concept. DC is a colony and its laws overturned on mere whims and fancies.

Where were you, Justice Alito? You who once ruled that the Second Amendment protected a collective right. Does it depend on what tie I wear if I argue before you whether I will prevail? The day of the week? What sways your whim that you can vote willy-nilly in the truest meaning of that term.

The ultimate flight of fancy came from Justice Kennedy, who cannot differentiate between myth and reality. The frontier farmer is a wonderfully romantic piece from the dime novels, but the reality was the first US citizens to see a grizzly were the members of the Lewis and Clark expedition, which took place nearly 20 years after the Constitution. It's dangerous when myth becomes a basis for overruling prior judicial decisions and stare decisis.

As for Justice Roberts, he didn't fail me. He should have gone through his apprenticeship before becoming a master. His court will prove a mockery of "justice", especially if he can countenance such a ridiculous opinion as that promulgated by his court today. It is an opinion which flies in the face of all that a court, especially one entrusted with the duty of protecting a BUMPF constitution should do. The best part is that he said he didn't want to burden the Second Amendment with the same sort of baggage that the First had, yet this decision will more than burden the courts with baggage for years to come.

Although, as a tory, the Constitution is BUMPF and the Robert's Court only emphasises that quality. Perhaps they can continue their good work in trashing anything that resembles a rule of law and establish democracy as it was understood in the 18th Century, which the Bush administration is well on its way of doing as well.

P.s. Apologies to the "liberal" wing as Justices Stevens and Breyer wrote excellent dissents and were joined by Justices Ginsburg and Souter; however, the other five are complete bozos.