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.

Henry Mayer, A PATRICK HENRY ESSAY(No. 5-98) THE POLITICAL LEGACY OF PATRICK HENRY

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?

Second Amendment--You go girl!

Thanks to MikeB for pointing out that Lisa Madigan is going to not play dead the way Walter Dellinger did (Dave Dellinger was one of the Chicago Seven). As I said in my comment to Mike's post, I point out the irony that the Second Amendment was to protect the States from Federal interference every chance I can get

I am glad that someone is willing to argue proper history in this matter and it's Illinois' Attorney General Lisa Madigan McDonald. Dellinger blew it in the Heller oral arguments because he forgot that precedent was on his side.

Yes, the Second Amendment was to protect against Federal Tyranny: in the form of an overblown military budget (why does no one seem to talk about the Standing Army issue?).

Yes, the Founders wanted local legislative power to control their own affairs. That's what the no taxation without representation bit was about.

DC was screwed by the Supremes.

The next question: how do you argue with historically ignorant justices?

I wish you all the best! Intelligent Women are soooo Sexy!

The Illinois AG's brief can be read here.

Kevin Gutzman on DC v. Heller

I just bought a copy of Prof. Gutzman's The Politically Incorrect Guide to the Constitution where he left out any commentary on the Second Amendment. I found this interesting since the Politically Incorrect Guides take the "pro-gun" side of the issue. This is what I found:

March 18, 2008
Gun Control and the Second Amendment
Posted: 05:19 PM ET
Kevin R.C. Gutzman, J.D., Ph.D.

Neither side has it right in the Second Amendment case currently before the Supreme Court.

District of Columbia v. Heller is an appeal from a federal appeals court’s decision that the D.C. gun control laws violate the Second Amendment. The circuit court’s decision reflected what I believe is the emerging scholarly consensus around the position that the Second Amendment involves an individual right to keep and bear arms.

Gun control advocates on one side and gun rights advocates on the other dispute this question. Since I am known as an originalist, I was asked to sign an amicus brief arguing that the Second Amendment bans laws like D.C.’s. I refused to sign.

Does that mean that I do not believe that the Second Amendment reflected an individual right to keep and bear arms? No, it means that I do not believe that the District of Columbia is governed by the Second Amendment.

Why? Because the District of Columbia, insofar as it behaves as a state, is properly treated as a pseudo-state by the Supreme Court.

The original understanding of the Bill of Rights, including the Second Amendment, was reflected in the Bill’s preamble. That preamble says that the Bill of Rights was added to the Constitution "in order to prevent misconstruction or abuse of its [that is, the federal government’s] powers." It was not about empowering federal judges to strike down state laws, in other words, but about limiting federal power.

The Supreme Court reflected this understanding in the 1833 case of Barron v. Baltimore (1833). There, for a unanimous Court, Chief Justice John Marshall said that the Bill of Rights limited only the powers of the federal government, not those of the states. This was the only significant decision in which Marshall came out for a limitation on federal power; he did so because what he was saying was indisputable.

One might counter by saying that the District of Columbia is part of the federal government. Yet, Congress long ago delegated home rule functions to D.C., and it allows residents to elect mayors, city councilors, and a delegate to Congress. When it comes to the Second Amendment, then, D.C. is a state, and the Second Amendment does not restrict its policy-making discretion.

This is not to say that gun control laws are a good idea. It also does not mean that D.C. residents do not have a right to keep and bear arms. What it means is that if they want that right to be respected, people in D.C. should take that up with their own government, not end-run the republican process by trying to get the Court to overturn its valid laws.

If the conservative majority on the Supreme Court rules in favor of Mr. Heller and against the D.C. gun laws, it will be ruling against the original understanding of the Second Amendment.

Editor's note: Gutzman, an associate professor of history at Western Connecticut State University, is the author of The Politically Incorrect Guide to the Constitution and, with Thomas E. Woods, Jr., of the forthcoming Who Killed the Constitution? The Fate of American Liberty from World War I to George W. Bush

More Prof. Gutzman
9th Circuit "Incorporates" 2nd Amendment
8:43 AM PDT, April 23, 2009
Before the Supreme Court's Heller decision striking down DC's gun regulations as violations of the 2nd Amendment, I argued for the opposite outcome here: http://ac360.blogs.cnn.com/2008/03/18/gun-control- the-second-amendment/. In brief, I reasoned that under home rule, DC was a quasi-state, and that the Bill of Rights had been intended solely as a limitation on the Federal Government; therefore, I concluded, DC's government was not subject to the 2nd Amendment.

The Supreme Court disagreed. Today comes news that the 9th Circuit Court of Appeals has gone the Supreme Court one better, enforcing the 2nd Amendment against an actual state. The so-called Incorporation Doctrine, which has turned a bill of rights intended as a limit on federal legislative power over the states into an instrument of federal judicial power over the states, thus takes new territory.

All without any warrant from the Constitution.

A Layman's Guide to Heller

By Randy Barnett, the Carmack Waterhouse Professor of Legal Theory at Georgetown University Law Center. Professor Barnett is counsel on an amicus brief in Heller v. District of Columbia filed by the Academics for the Second Amendment. A condensed version of this piece was published in the Wall Street Journal on March 18th as “Gun Rights Show Down”.

A LAYMAN’S GUIDE TO HELLER

Today, the Supreme Court will hear oral arguments in the case of Heller v. District of Columbia, a suit brought by several DC citizens contending that the ban on the possession of operable firearms inside one’s home violates the Second Amendment. The Circuit Court of Appeals for DC agreed and held the ban to be unconstitutional. However it is decided, Heller is already historic. For the first time in recent memory, the Supreme Court will consider the original meaning of a significant passage of the Constitution unencumbered by its own prior decisions; and the majority and dissenting opinions in this case will be taught in law schools for years to come. Here’s a layman’s guide the significance of the case—and its limits.

Heller Will be Decided on Originalist Grounds. Among law professors, enforcing the original meaning of the Constitution is highly controversial. Critics of originalism deny that we should be ruled by the “dead hand of the past.” They prefer following Supreme Court precedents that may or may not be consistent with original meaning. Any justice who today professes a commitment to originalism is branded a radical; and all Supreme Court nominees are now grilled on their commitment to the doctrine of stare decisis. But what are old precedents if not the “dead hand” of dead justices?

Significantly, then, both sides in Heller are making only originalist arguments. The challengers of the law contend that the original meaning of the Second Amendment protects an individual “right to keep and bear arms” that “shall not be abridged.” In response, the District does not contend that this right is outmoded and that the Second Amendment should now be reinterpreted in light of changing social conditions. Not at all. It contends instead that, because the original intentions of the framers of the Second Amendment was to protect the continued existence of “a well regulated militia,” the right it protects was limited to the militia context. (editorial note: I disagree with this since the Second Amendment should be interpreted as a unitary text within the Constitutional framework)

So one thing is certain. Whoever prevails, Heller will be an originalist decision. This shows that originalism remains the proper method of identifying the meaning of the Constitution. Heller reveals that today’s debate over originalism is really about whether old nonoriginalist Supreme Court decisions should supercede the Constitution’s original meaning when doing so leads to results that nonoriginalists like better.

The Second Amendment Protects an Individual Right. In the 1960s, gun control advocates dismissed the Second Amendment as protecting the so-called “collective right” of states to preserve their militias—notwithstanding that, everywhere else in the Constitution, a “right” of “the people” refers to an individual right of persons and the Tenth Amendment expressly distinguishes between “the people” and “the states.” Beginning in the 1980s, a deluge of scholarship showed why the collective rights interpretation is false.

Now even the District asserts the new theory that, while this right is individual, it is “conditioned” on a citizen being an active participant in an organized militia. Therefore, whoever wins, Heller won’t be based on a “collective” right of the states. This is also true of the approach advanced by U.S. Solicitor General Paul Clement: find an individual right but then still largely defer to the judgment of the District (which is not how the Court protects other individual rights). Still, a ruling upholding an unconditioned individual right to arms and invalidating the ban is unlikely to have much affect on current gun laws. Here’s why.

Heller is a Federal Case. Because the District of Columbia is a federal entity, Heller provides a clean application of the Second Amendment which, like the rest of the Bill of Rights, originally applied only to the federal government. Before a state or municipal gun law can be challenged, the Supreme Court will have to decide that the right to keep and bear arms is also protected by the Fourteenth Amendment, which limits state powers. This conclusion is not forgone.

Nowadays, the Court asks whether a particular rights is “incorporated” into the Due Process Clause of the Fourteenth Amendment, an unpopular doctrine among some conservatives. Of course, after recognizing an unconditioned individual right in Heller, affording it less protection from states than other enumerated rights now receive would be awkward—especially given the overwhelming evidence that the right to keep and bear arms was among the “privileges or immunities of citizens” to which the Fourteenth Amendment refers. Indeed, those who wrote the Amendment were concerned about enabling black freeman and white Republicans in the South to protect themselves from violence, including terrorism by local militias.

Heller Involves a Complete Ban on Operable Firearms in the Home. DC not only bans all handguns, it makes it illegal to possess in one’s home any operable firearm. No state has a comparable law; only scattered municipal firearms bans would be immediately threatened. And the Court would still have to decide how much scrutiny to give gun regulations that fall short of complete prohibition. Furthermore, the DC gun ban is only being challenged as it applies inside the home. So a ruling against DC would not immediately affect most laws governing firearms in other venues.

Most Existing Gun Regulations Would Likely Be Upheld. Under current Supreme Court doctrine, even the First Amendment rights of speech and assembly are subject to reasonable time, place, and manner regulations. So too would gun rights. However, because political support for the right to keep and bear arms is so powerful, only gun laws with pretty plausible justifications actually get enacted—e.g., laws against felons owning firearms. Therefore, even if the Court decides to scrutinize federal and state regulations, rightly or wrongly, most would likely be upheld.

Then Why Is Heller So Important? Although the implications of striking down the DC gun ban are limited, a decision upholding an unqualified individual right in Heller would still be significant. For one thing, it would be a vindication of originalism. More importantly, the private ownership of firearms is a hallmark of American liberty. The right to arms is so politically popular, even Democratic candidates for president feel they must support it—albeit only for hunters. Still, while most gun control activists now deny that they favor banning all firearms, their strategy seem to be to incrementally achieve prohibition by a series of statutes and tort suits that raise the costs of gun ownership and undermine the feasibility of using guns in self defense. Once the Supreme Court recognizes an individual right, lower court challenges to pretextual regulations that may not currently be brought may well be allowed.

But gun rights supporters should also be careful what they wish for. While a Supreme Court decision favoring gun rights in Heller might induce more legislative caution before enacting gun laws, it could also allow legislators to shift responsibility for assessing constitutionality to the courts. And supporters of the gun rights groups that have so effectively protected the right to arms might become apathetic thinking the courts would protect them. Now that Heller is before the Court, however, these risks are worth running. To shrink from enforcing a clear mandate of the Constitution—as, sadly, the Supreme Court has often done in the past—would create a new precedent that would be far more dangerous to liberty than any weapon in the hands of a citizen.

Published Sunday, March 30, 2008 6:00 AM by Federalist Society

© The Federalist Society. All rights reserved.

Editorial comment: Opinions in this are not necessarily ones I share

Incorporation of the Second Amendment

We have seen the gradual erosion of the Second Amendment right by DC v. Heller's failure to take notice of the precedent in United States v. Miller, 307 U.S. 174 (1939), which I paraphrase as to make it comprehensible to less-educated, modern minds.

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.

The majority in Heller was willing to trash the first half of 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. The second part also is now subject to regulation.

That means the text as interpreted by Heller should actually read, the right of the People to keep and bear arms may be reasonably infringed. See this, this, this, and this.

In case you missed it, while granting an individual right, Heller was able to own a handgun providing he passed the registration requirements. Heller was rejected for a permit to register one of his guns!

The question that needs to be asked isn't whether this is a civic, individual, collective, or right for dogs alone, but what is the scope of the right?

Which gets to the point of this post.

It is called "the true palladium of liberty" because the Second Amendment is a guardian of states' rights within the federal system. Federalism the concept that the states (meaning the sovereign people of each state) had delegated only particular powers to the Federal Government. The Bill of Rights was intended solely as a limitation on the Federal Government. That’s why the First Amendment begins “Congress shall make no law” without any mention of state legislatures.

There is also the precedent of In U.S. v. Cruikshank, 92 U. S. 542 (1875) where the Court wrote:

The second and tenth counts are equally defective. The right there specified is that of "bearing arms for a lawful purpose." This is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence. The second amendment declares that it shall not be infringed, but this, as has been seen, means no more than that it shall not be infringed by Congress. This is one of the amendments that has no other effect than to restrict the powers of the national government, leaving the people to look for their protection against any violation by their fellow citizens of the rights it recognizes, to what is called, in The City of New York v. Miln, 11 Pet. 139, the "powers which relate to merely municipal legislation, or what was, perhaps, more properly called internal police," "not surrendered or restrained" by the Constitution of the United States.

Hopefully, the Supreme Court will hear an appeal from a gun control case and affirm the traditional principle of states’ rights which was written into the Constitution but mostly ignored during the 20th century. Unfortunately, the Court doesn't really feel bound by precedent or proper legal method, as Heller pointed out. So, stare decisis and the correct interpretation of the precedent is not something to be hoped for.

Got that?

Illinois has not abolished self-defense and has not expressed a preference for long guns over handguns. But the municipalities can, and do, stress another of the themes in the debate over incorporation of the Bill of Rights: That the Constitution establishes a federal republic where local differences are to be cherished as elements of liberty rather than extirpated in order to produce a single, nationally applicable rule. Federalism is an older and more deeply rooted tradition than is a right to carry any particular kind of weapon.

Did you miss my thing on Taxation without representation? In this post, it's not about taxes, but the ability for localities to make their own legislation free from British or Federal interference that was considered tyranny. Let's just turn the Second Amendment on its ass and use it for tyrannical purposes.

Do you agree that the Federal government should have the right to interfere with local legilsation? Are you willing to give up your rights to Washington? Do you realise that by invalidating Chicago's gun laws, that is precisely what will happen?

The poor citizens of DC are subject to Federal tyranny since they are a federal colony, but why should the Citizens of Chicago see their local legislation trashed by five ignorant justices?

I find it amazing that people can speak of individual liberty, yet are so ignorant that they can't see what is being done underneath they noses.

It's amusing the amount of ignorance I see from the gun cretins. They talk about resisting government tyranny and how the Second Amendment will bring them freedom, yet it is doing more to erode their liberties.

They talk of freedom and kinship to the Rebels of the War for American Independence, yet are freely willing to subject themselves to the tyranny the rebels feared. They are willing to give their freedom to unelected judges who are responsible to no one.

P.T. Barnum, a man who should know, said that "no one went broke underestimating the intelligence of the American people." A corellary of which is that the Loyalists had the better arguments during the War for Independence, but they went over the heads of the masses.

I find it as ironic as Meleanie Hain's being shot to death with a gun they owned for protection that the Second Amendment, which was created to be a guardian of states' rights within the federal system, will be destroyed by placing it within Federal jurisdiction.

Ever wonder why I say the Second Amendment is a historical relic?

Does the Second Amendment apply to the States?

The problem with the Second Amendment is that it was intended to prevent Federal interference with State run militias organised under Article I, Section 8. I've gone on at length that most of the half quotations used by those posing as Second Amendment scholars deal with the conflict between the Federal Army and the State Militias set up under Article I, Section 8--not some weird individual right. That was pointed out in 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.

Scalia breezed over this very salient point to Second Amendment jurisprudence as do most alleged "Second Amendment Scholars". Amusingly enough, Scalia has already said it doesn't: “[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.” A Matter of Interpretation: Federal Courts and the Law (1997). Let's see if he can stick with his own precedent!

Anyway, The Second Amendment is a limitation on the Federal Power granted Under Article I, Section 8. As I pointed out in my critique of Dellinger's advocacy he neglected that Miller had already set for the standard of review and that the Second Amendment was written to address the Federal Power granted Under Article I, Section 8, which he should have hammered on about like a broken record.

Now, Any first year law student who has participated in moot court knows that one shouldn't let the Judges take over your argument. Dellinger should have hammered that it was settled law by a Unanimous opinion and that the Second Amendment guarantee should not be extended.

Now with Chicago fighting any Second Amendment challenge to its gun ban based upon the Second Amendment being a limitation on the power of Congress/Federal Government and not local jurisdiction. I hope that Chicago has better appellate advocates than does Washington, DC.

On the other hand, I hope that other lawyers see the advantage to open up the scope of rights granted by the Bill of Rights since Heller was willing to give a broad reading to the rights granted under that document. The Heller decision was bad law as it set a precedent which will allow for much mischief by clever lawyers.

Why should we be bound by the words of the Constitution, especially where clever lawyers can argue an extension of our rights?

As I said, isn't health care a fundamental right? How can one argue with health care?

I want my right to health care that is guaranteed under the Ninth Amendment!