03 March 2010

Flip a coin!

Yeah, Scalia says that he follows the founder's intent in interpreting the constitution. He also pretends to follow precedent, which he clearly DID NOT in DC v. Heller when he ignored Justice McReynolds:
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...
With obvious purpose to assure the continuation and render possible the effectiveness of such forces (Article I, Section 8 militias), the declaration and guarantee of the Second Amendment were made. It must be interpreted and applied with that end in view.
That couldn't have been any clearer in how the Second Amendment was to be interpreted, yet somehow it was missed.

Scalia has written that he viewed "[T]he Second Amendment [i]s a guarantee that the federal government will not interfere with the individual’s right to bear arms for self-defense. … Dispassionate scholarship suggests quite strongly that the right of the people to keep and bear arms meant just that. … [T]here is no need to deceive ourselves as to what the original Second Amendment said and meant. Of course, properly understood, it is no limitation upon arms control by the states."

Antonin Scalia, A Matter of Interpretation, Federal Courts and the Law 136-137 n.13 (Amy Gutmann ed., Princeton U. Press 1997).

Can he even follow his own writings when ideology calls on him to change his position?

Of course, What he calls dispassionate scholars are merely propagandists as truly dispassionate scholars have pointed out that:
I am firmly convinced that the Second Amendment is concerned with the state's power to control its own militia as a civilian alternative to a professional standing army. In raising the issue in the Virginia Convention Patrick Henry several times pointed to Art. I, Section 8, Clause 16, as an example of the potentially threatening effect of dual state and congressional jurisdiction over the militia and the possibly dangerous union of the purse and sword vested in Congress. Yet wielding the scholar's power of the ellipse several partisans of gun ownership have edited Henry's remarks about how best to regulate the militia into an inflammatory half-truth "The great object is that every man be armed....Every one who is able may have a gun." The NRA has blown this up into a poster-sized blurb embossed with Patrick Henry's image.

Likewise, the Second Amendment is the one Amendment which cannot be applied to the States by its nature. It was a bulwark against federal tyranny. I find it most amusing that those who claim that the Second Amendment promotes freedom use it as a tool for imposing their will on the people to bypass local legislatures.

Quite frankly, there was no mention of the concept of self-defence in the actual debates when the Second Amendment was being adopted, but you can find copious references to a federal standing army and how the Second Amendment was to prevent it from taking over the states along with the incumbent evils (out of control military spending). Additionally, the words "self-defence" are conspicuously absent from the Second Amendment.

In addition, Incoporation would interfere with the police power which is reserved to the States. More federal tyranny!

Scalia does back flips and trashes all legal principles to come up with the DC v. Heller decision. To be quite frank, the side arguing for Chicago should have made it quite clear to Scalia that his decision invalidates the use of precedent. He has created law in violation of the Constitutional principles he claims to follow. He has avoided the proper method of amending the constitution in his DC v Heller decision. US v. Miller was quite clear in how the Second Amendment was to be interpreted, yet he chose to ignore it.

But, I won't rag on just Scalia, since Alito (or is that Scalito) once took part in a decision that upheld the civic right interpretation of the Second Amendment (U.S. v. Rybar,103 F.3d 273 (3d Cir. 1996)). Again, how does one argue to judges that choose to ignore precedent and history? Especially when the judges are willing to overturn themselves based upon fanatasies and fairy tales.

Whatever happened to judicial certainty when judges decide cases willy-nilly?

We can be sure that Scalia will provide us with yet another mutation of US Constitutional law as he has painted himself into a wonderful corner by failing to follow his own principles of constitutional interpretation. Let alone the accepted canons of judicial intepretation in his DC v. Heller decision.

What sort of aberration will be produced by McDonald v Chicago?

Scalia's method of Constitutional interpretation seems to be I am the judge, I make the laws!

How does one invalidate an unconstitutional act by a Judge?

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