Editorial cartoon about McDonald v. Chicago

From the 4 Mar 10 Philadelphia Inquirer

Personally, I would change the motto on the Supreme Court building to: AMERICAN JUSTICE IS THE BEST MONEY CAN BUY!

I also don't agree with the Inquirer's editorial about the possible outcome, although it will be a disaster whatever the result.

We are seeing a proliferation of people pushing the envelope on firearms in public as a result of Heller's new found right. I am not sure what the arms carriers are attempting to prove. They claim that they want to make firearms an everyday item, but I find that they are totally counterproductive to their stated aim. Unfortunately, rather than express disapproval, people who believe in "gun rights" support this idiocy.

Quite frankly, I wouldn't be surprised at whatever nonsense the court promulgates in this case. It is building absurdity upon absurdity by trashing all canons of Constitutional law. We may even see Scalia contradicting himself:

"[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).

Although, we may learn that the Second Amendment applies to the States despite Patrick Henry's warning about "When this power is given up to Congress without limitation or bounds".

It will be even funnier if he allows the State laws as reasonable regulation!

Perhaps, Scalia should have listened to the Precedent of US v Miller rather than judicially amending the Constitution. Better yet, he should listen to himself.

He might realise that he is making a real idiot of himself.

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?

Will Scalia prove he uses the Constitution as toilet paper?

The US Supreme Court has another chance to prove that US justice is not the best money can buy in the case of McDonald v. Chicago.  Bouyed by its success in DC v. Heller, the Cato institute is yet again posed to prove the US justice runs by the golden rule: those with the gold make the rules.  Unlike DC v. Heller, they are much more blatant that they have been plaintiff shopping in their attempt to rewrite the constitution to their interpretation.  Added by the stupidity of the American public regarding the meaning of the Second Amendment as a guarantee against the establishment of a standing army now that the military budget has gone out of control (remember  that "Nobody ever went broke underestimating the intelligence of the American public" P.T. Barnum), they may just pull it off.

These words of Henry Mayer, a Patrick Henry scholar, have been drowned out by propagandists such as Stephen Halbrook:

In this connection, however, I need to say something about a recent popular misconception concerning Patrick Henry's legacy and the genesis of the Second Amendment, which 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." Despite efforts of a number of misguided scholars to construe this language as justifying individual, unregulated gun ownership, 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.

This is not, I repeat NOT, part of Patrick Henry's legacy. Clearly speaking of the problem of militia organization, what he actually said is, "The great object is that every man [of the militia] be armed.--But can the people to afford to pay for double sets of arms &c.? Every one who is able may have a gun. But have we not learned by experience, that necessary as it is to have arms, and though our assembly has, by a succession of laws for many years, endeavored to have the militia completely armed, it is still far from being the case. When this power is given up to Congress without limitation or bounds, how will your militia be armed? You trust to chance...."

Not to belabor the argument, but cinch it, I would also remind you that the liberty or death speech itself was in support of a resolution to put the colony in a mode of defense, and the plan proposed by Henry's committee as a result of its passage included a militia law that described in great detail not only the number of men, but the amount of ammunition to be raised by a collective levy, and a very clear procedure for maintaining county and provincial control over the militia system. If Henry's remarks were intended to cast doubt upon the adequacy of a hypothetical Congressional militia law, they only affirmed his commitment to the traditional method of state control over a militia that, far from being a privatized collection of gun-toting individuals, was a community temporarily called to arms and always subservient to public authority and law.

from A PATRICK HENRY ESSAY(No. 5-98) THE POLITICAL LEGACY OF PATRICK HENRY

Even if we are willing to make the quantum leap of saying that Henry and other founders advocated the US Constitution include the concept of gun rights, they made it quite clear that they DID NOT want those rights to be subject to federal interference.


Those who truly support the Constitution are woefully mute about the Cato Institute's use of the Supreme Court to destroy that document in the name of "liberty".  It makes me sick that people are silent when such an organisation seeks to destroy the constitution and its meaning.  Of course, the US governement is the best that money can buy and the Cato institute seeks to make sure that it is a govenment of corporations and for corporations--the people be damned.


Libertarianism is merely facism with a smily face.  A philosophy of slogans, but without substance.  Anarchy of the right.  The founders were loath of democracy, which in their minds had the same meaning as anarchy does today.  Likewise, they would rail against libertarianism if they were here today.


Scalia has no real need for the original meaning of the Constitution if it doesn't meet his political purpose, or else he would have joined in Justice Steven's dissent in DC v. Heller.  In fact, if all the Justices who signed on to that piece of shit blotter called DC v. Heller cared for the Constitution and its meaning, that opinion would have been unanimous.  Scalia, in my opinion, is a political whore who should resign rather than continue trashing the constitution with rubbish which sounds as if it were written by a madman rather than a high court justice (hence I refuse to call him a justice).

Yes, this is contempt of court, but the contempt is well justified and deserved.  It should be accepted as that if he wishes to talk shit and clothe it as legal opinion.


Instead, he deserves the contempt he receives for deigning to put his name to DC v. Heller.  I hope his reputation as a judge will be that of a joke.  He has provided us with poor law. Moreover, he has made a joke of the the institution of the Supreme Court and US justice.  No longer is it equal protection under the law, but those who have money see their way.

Likewise, Roberts has burdened the Second Amendment with baggage, which he said he didn't want to do in the DC v. Heller Oral arguments.  Roberts has proven that he was indeed a poor choice to be chief justice.  But, Dubious Bush was also a poor choice to be president.  The idiots are running the village, but people get the government they deserve in a democracy

As I have said before, this blog began as a joke that my dog had been to court more than Harriet Miers had.  Five supreme court justices may again show that my dog has a better understanding of the law than they do.

McDonald v Chicago

I find it interesting that people are so interested in seeing the Second Amendment "incorporated" against the states.

The problem is that the Second Amendment was to counter Federal tyranny and guarantee the state's rights. The history and Framers’ intent concerning the Second Amendment suggest that it was ratified as a means to protect the states from federal encroachment, to limit the states would be contrary to the Amendment’s original purpose. Thus, regardless of the right’s force as applied to federal law, those determining whether the Second Amendment should be incorporated must consider and reconcile the right’s federalist history.

I guess that's why this quote isn't used too much these days.

When this power is given up to Congress without limitation or bounds, how will your militia be armed? You trust to chance; for sure I am that nation which shall trust its liberties in other hands cannot long exist.
Patrick Henry, The Debates in the Several State Conventions on the Adoption of the Federal
Constitution (3 Elliot's Debates 384-7), Virginia, Saturday, June 14, 1788.

Of course, those who find Heller was correctly decided should have no problem with yet another erosion of their rights.

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?

More Melanie Hain

I think this comes directly to the point:

The paper also quotes one neighbor, Debbie Mise, as saying she feared something bad would eventually happen at the Hain home. "She just wasn't right," Mise said of Meleanie Hain, the paper reports. "You don't bring a gun to a kids' soccer game, and you don't wear a gun when you go shopping at Kohl's."

Gun control means effective tools to keep firearms from disqualified persons. Melanie Hain should not have had a firearm let alone, a permit to carry a concealed weapon.

I know the usual, but disingenous, litany is to enforce the gun laws on the books, but the "gun rights" people have done everything in their power to make the laws unenforcable.

Besides, it is much easier to prevent than deal with the outcome of situations such as Melanie Hain's. It costs far less to prevent than to deal with the costs of medical care, police investigations, and suvivors.

There are three children who are now orphaned by a foolish attempt to bring "protection" to her family. Instead, the weapon was used to kill her.

Enough is enough,

I have long been tired of hearing talk of "gun rights". There are no such rights.

There is under our decisions no reason why stiff state laws governing the purchase and possession of pistols may not be enacted. There is no reason why pistols may not be barred from anyone with a police record. There is no reason why a State may not require a purchaser of a pistol to pass a psychiatric test. There is no reason why all pistols should not be barred to everyone except the police.

Critics say that proposals like this water down the Second Amendment. Our decisions belie that argument, for the Second Amendment, as noted, was designed to keep alive the militia. But if watering-down is the mood of the day, I would prefer to water down the Second rather than the Fourth Amendment. I share with Judge Friendly a concern that the easy extension of Terry v. Ohio, 392 U.S. 1, to "possessory offenses" is a serious intrusion on Fourth Amendment safeguards. "If it is to be extended to the latter at all, this should be only where observation by the officer himself or well authenticated information shows `that criminal activity may be afoot.'"

Both from Justice William O Douglas, Adams v. Williams, 407 U.S 143, 150 -51 (1972).

In 1991, Warren E. Burger, the conservative chief justice of the Supreme Court, was interviewed on the MacNeil/Lehrer NewsHour about the meaning of the Second Amendment's "right to keep and bear arms." Burger answered that the Second Amendment "has been the subject of one of the greatest pieces of fraud-- I repeat the word 'fraud'--on the American public by special interest groups that I have ever seen in my lifetime." In a speech in 1992, Burger declared that "the Second Amendment doesn't guarantee the right to have firearms at all. " In his view, the purpose of the Second Amendment was "to ensure that the 'state armies'--'the militia'--would be maintained for the defense of the state."

I am amazed that The Supreme Court could have produced the Heller decision since it is based upon fraud and fallacy.

The dissent in Heller was correct.

I only hope that McDonald v. Chicago can correct the error made in Heller v. DC.