The question went to the Supreme Court which had this
What must underlie petitioners' entire federal assault on the Florida election procedures is an unstated lack of confidence in the impartiality and capacity of the state judges who would make the critical decisions if the vote count were to proceed. Otherwise, their position is wholly without merit. The endorsement of that position by the majority of this Court can only lend credence to the most cynical appraisal of the work of judges throughout the land. It is confidence in the men and women who administer the judicial system that is the true backbone of the rule of law. Time will one day heal the wound to that confidence that will be inflicted by today's decision. One thing, however, is certain. Although we may never know with complete certainty the identity of the winner of this year's Presidential election, the identity of the loser is perfectly clear. It is the Nation's confidence in the judge as an impartial guardian of the rule of law.in the dissenting opinion. Bush v. Gore dissent
That works for where I am going with this post because first off, I am a sore loser that Bush had 8 years to ruin the US and the world.
But even more upset at how the District of Columbia v. Heller, 554 U.S. ___ (2008) decision was decided. Amusingly enough, both Bush v. Gore and the Heller decision were written by the same person: Justice Scalia (editorial comment: and the dissents in these cases by the same person: Justice Stevens).
Now, if the US were a commonwealth country, it could appeal to Her Majesty's Most Honourable Privy Council which was formerly a supreme court of appeal for the entire British Empire.
Now, I realise that Heller addressed the Second Amendment of the United States Constitution, but the case was wrongly decided as "It cannot be presumed that any clause in the constitution is intended to be without effect; and therefore such construction is inadmissible, unless the words require it." [Marbury v. Madison 5 U.S. 137, 175(1803)] Meaning that the question framed by the court in DC v. Heller (ibid):
"The petition for a writ of certiorari is granted limited to the following question: Whether the following provisions, D.C. Code §§ 7-2502.02(a)(4), 22-4504(a), and 7-2507.02, violate the Second Amendment rights of individuals who are not affiliated with any state-regulated militia, but who wish to keep handguns and other firearms for private use in their homes?"
was a resounding "NO" and had been made precedent by United States v. Miller, 307 U.S. 174 (1939) where the Supreme Court had directly addressed the scope of the Second Amendment:
In the absence of any evidence tending to show that possession or use of a 'shotgun having a barrel of less than eighteen inches in length' at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument. Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment or that its use could contribute to the common defense. Aymette v. State of Tennessee, 2 Humph., Tenn., 154, 158.
The Constitution as originally adopted granted to the Congress power- 'To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions; To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress.' U.S.C.A.Const. art. 1, 8. With obvious purpose to assure the continuation and render possible the effectiveness of such forces the declaration and guarantee of the Second Amendment were made. It must be interpreted and applied with that end in view.
I realise that McReynolds wrote this holding in an ass backward manner, it makes much more sense if the first paragraph is read after the second or to paraphrase this for the intellectually challenged:
The entire text of the Second Amendment was made with the obvious purpose to assure the continuation and render possible the effectiveness of the forces created under authority of Article 1, Section 8, Clause 16. It must be interpreted and applied in consideration of that purpose. Without evidence that possession or use of a 'shotgun having a barrel of less than eighteen inches in length' is reasonably related to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument. Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment of the body organised under Article 1, Section 8, Clause 16 of the Constitution or that its use and possession would contribute to the common defense.
As far as I can tell, no deference was given to the precedent set by the unanimous decision in United States v. Miller.
Which takes me to my second point, the Second Amendment states:
A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.
Now, I have seen a couple of versions of this with various punctuation, but the verbiage is pretty much the same.
I do not see the words "self-defence".
One cannot place words or concepts into a law without their being there in the actual text.
Justice Scalia glommed in the concept of self-defence where it does not exist. In common law, this is a big no-no.
It would be nice to be able to take this to the Privy Council as they have familiarity with the common law concept of self-defence.
The right to keep and bear arms also comes from the British Bill of Rights:
That the subjects which are Protestants may have arms for their defence suitable to their conditions and as allowed by law;
Amusingly enought, as I like to point out, the real issue of the Second Amendment is the prevention of the establishment of a standing army by ensuring the vitality of the militia institution, and this:
That the raising or keeping a standing army within the kingdom in time of peace, unless it be with consent of parliament, is against law.
is right before the clause on bearing arms.
Yet, there is loads of US scholarship which removes the Second Amendment from its role of preserving citizen militias creating a bulwark against standing armies. On the other hand, no other common law country with a similar provision has the concept of "gun rights".
Actually, shouldn't that be "arms" rights?
Another concept in the British Bill of rights is freedom from royal interference with the law. Though the sovereign remains the fount of justice, he or she cannot unilaterally establish new courts or act as a judge. Likewise, the executive should not have sway over the judiciary. Even more importantly, neither should popular opinion. The proper forum for changing the constitution is the legislature, not the judiciary.
Heller was a political decision, not a proper legal one, and Justice Scalia needs to have his wrist smacked by a higher authority (or maybe even a nun). My blog is for my own amusement and to exorcise my demons. I doubt Justice Scalia gives rat's arse what I say, but he should be ashamed to have his name attached to Heller.
And I want to point out something from the opinions above: It is confidence in the men and women who administer the judicial system that is the true backbone of the rule of law. In other words, it is having faith that the proper rules of judicial decision making, that is following the law and precedent are followed, which allows for confidence in the judicial system. I need to trust that Judges will follow legal precendent and not whims.
It is a sad state of affairs if the Judges of the highest court are swayed by political considerations rather than legal ones.
I think that all should be disturbed by the Heller decision and its disregard for legal process.
Now, am I too late to file this appeal to the Privy Council?