Barely has the dust settled...

And SCOTUS is going to hear its first felon in possession case. well, actually it's a challenge to the West Virginia domestic violence statute, but it's the opening salvo in a barrage that will seem like the Battle of the Somme fought with hydrogen bombs.


The problem is that changing the status quo regarding the Second Amendment, especially by setting up some sort of standard of review, will place this issue into a state of flux. I am not sure of where the Court will go in regard to the issue of whether self-defence should be added to the Second Amendment. Justice Roberts did make this comment:

Well, these various phrases under the different standards that are proposed, "compelling interest," "significant interest," "narrowly tailored," none of them appear in the Constitution; and I wonder why in this case we have to articulate an all-encompassing standard. Isn't it enough to determine the scope of the existing right that the amendment refers to, look at the various regulations that were available at the time, including you can't take the gun to the marketplace and all that, and determine how these -- how this restriction and the scope of this right looks in relation to those?
I'm not sure why we have to articulate some very intricate standard.

CJ Roberts makes a comment a little later on about the First Amendment picking up baggage over time. Now, adding concepts to the Second Amendment which aren't there and announcing standards will indeed create baggage. Highly unnecessary baggage as far as public safety is concerned. And while the Constitution didn't mention self-defence it did mention insuring domestic tranquility and promoting the general welfare, which means it would be against the Constitution to find an individual right to firearms given the cost to society.

At this point, I plan on using the individual right to keep and bear arms in my criminal practise. Mr. Mohammad, my AK-47 toting client may benefit from this sort of decision. As will other criminals, which explains why the NRA, while urging Second Amendment strict scrutiny, thinks Martha Stewart and Lewis Libby have no gun rights. Of course, I agree with Douglas Berman that an individual right means that criminals and terrorists are entitled to guns.

After all, I consider Washington, Hamilton, and the rest of that pack of traitors to be terrorists. They terrorised law abiding British American citizens to either leave home or support their treachery.

So, indeed, Al-queda is entitled to arms whether that be a handgun or a weapon of mass destruction if there is an individual right to keep and bear arms under the Constitution.

Amusing aside

I was curious as to who Justice McReynolds linear "descendant" was and found it amusing that it's Justice David Souter! In a way Justice Souter seems the perfect person to take over for Justice "Ebenezer Scrooge". Both are bachelors, although Justice Souter's attitude toward woman is (I hope) not misogynistic. I know Justice Souter was engaged whereas McReynolds wouldn't have touched a woman with a barge pole. In fact, Justice Souter appears to have the opposite disposition from Justice "Grumpy Drawers" McReynolds. Not to mention McReynolds was a Southerner and Souter is a Damnyankee. At least Souter is an episcopalian and not a Jew. I can imagine how McReynolds would be spinning in his grave if he was eventually replaced by a Jew.


Talk about the odd couple!

Although according to Jeffrey Toobin's book, The Nine, Souter has a decidedly low-tech lifestyle. He writes with a fountain pen and does not use email. He has no cell phone, no answering machine, and no television. I wonder what Justice Souter's opinion is of wrist watches? Justice Souter has a reputation for being a strong guardian of the Court's institutional integrity. A traditionalist in this regard, he famously stated, in response to proposals to videotape oral arguments before the Supreme Court, "I can tell you the day you see a camera come into our courtroom, it's going to roll over my dead body."

I think Justice McReynolds would appreciate that last opinion! Even though McReynolds had no loyalty to the institution of the Supreme Court, he probably wouldn't appreciate media technology in the Courtroom either. McReynolds was also a man from another era. Most people call McR a caveman. I would love to know what McReynolds would think about today's SCOTUS!

Although, I am not sure what could get Justice McReynolds to like a person. McR was the opposite of Will Rogers in that McReynolds never met a man he DID like.

Justice Souter is much more "politically correct" than Justice McReynolds. That's not hard though. I think Justice Thomas is more politically correct than McReynolds was. McReynolds wouldn't survive Senate scrutiny today with some of his comments, especially what he called Howard University. McReynolds was also notoriously insensitive. I can imagine hear McReynolds expounding on Justice Thomas! I can also imagine Justice Thomas lynching McReynolds.

Justice Souter was called the "stealth justice" since his professional record provoked no real controversy and provided very little paper trail. That is a big difference from McReynolds who couldn't keep his nasty opinions to himself. Stories about McReynolds are rather abundant. In fact, it was due to controversy that McReynolds was made a Supreme Court justice.

Although, Justice Souter looks as if he could tame McReynolds's abrasive personality with Souter's sunny disposition in his official photo. I mean Justice Souter looks like a really likable guy: maybe even likable enough for McReynolds. McReynolds looks like the arrogant SOB he was. Actually, I am of the opinion that Oliver Wendell Holmes was correct when he said of McReynolds: "Poor McReynolds is, I think, a man of feeling and of more secret kindliness than he would get credit." Given that McReynolds and Holmes got along, maybe the geographic differences wouldn't be too much of a problem for Souter and McReynolds.

The thing which makes me think of Justice Souter and McReynolds as being similar is that they were considered conservative at one point. McReynolds is considered the creator of the right in Roe v. Wade. Justice Souter defied all expectations and voted to uphold Roe v. Wade in Planned Parenthood v. Casey, 505 U.S. 833 (1992). Justice Souter said after he was sworn in as Associate justice: "The first lesson, simple as it is, is that whatever court we're in, whatever we are doing, at the end of our task some human being is going to be affected. Some human life is going to be changed by what we do. And so we had better use every power of our minds and our hearts and our beings to get those rulings right."

Like McReynolds, I think that Justice Souter will follow the Collective Right approach in DC v. Heller. I found it interesting that Justice Souter raised the Aymette comment about hunting mentioned in another post.

McReynolds would truly respect Justice Souter if the latter could get the Court to show dignity and follow its precedent.

Of course, McReynolds could haunt the court with the chains that "he forged throughout these years" if they didn't.

Come on, Justice Kennedy.

I am reading the transcript of the Heller argument and believe I could have done a better job than Walter Dellinger at arguing the case.

While it is a right of a people, we cannot take the people as a word which is anything individual in Constitutional terms. The Constitution starts with "We the people" does this mean each and every individual in the US was present during the entire ratification process? Additionally, the Second Amendment talks about the right of the people to bear arms, but the clause only applies to those enrolled in the militia. This means white males between certain ages. Certain professions were exempt from militia service and many people wanted exemption from militia duties. Were their Second Amendment rights violated?

As for the militia, Justice Kennedy, can I say I am a member of the California National Guard, which is your militia unit if I live in California? And can I say this if am a resident alien Briton? I mean the militia allegedly is all the people. Define people! As I said earlier, isn't this a blanket term and not one referring to individuals ("We the people"). Likewise, the unorganised militia argument. Are Californians who are members of an unorganised militia say they belong to the California national guard? Was the 60s draft dodger from Berkeley a member of the Militia, that is the California national Guard because he was technically a member of the "unorganised militia"?

The debates were rather explicit that the concern was the power under Article I, section 8 which Justice Alito brought up. I am wondering if Justice Alito is indeed reading this blog. Although, I think he is living up to the reputation I have heard about him.

And the silliest argument is that I am allowed weapons which are "linear descendants of arms carried in revolutionary times". The Congreve rocket was introduced at about this period, while it is comparable to the Kassam rocket used by the Palestinians, it is a direct ancestor of the modern guided missile. Using this standard means I am indeed allowed to keep tactical nuclear weapons, or even a strategic nuclear missile.

Additionally, saying that the militia who is entitled to weapons is any body other than that organised under Article I, Section 8 means that Al-queda is entitled to weapons, as are any terrorist organisation. Does this make any sense in light of Article III, Section iii?

Yes, the British Bill of rights is far more restrictive, but that is really not a relevance. And while contemporary State Constitutions declarations of rights offer an insight into the Second Amendment, they do have personal rights written into the language which allow for self-defence. Self-defence is not mentioned in the Second Amendment and was not a concern for the founding fathers, the issue of a federal standing army v. a state militia was the concern.

As for the "well regulated" language, this does not mean well trained, it means that the military is under civilian control. The militia is to be subject to government regulation, not an armed mob.

So, while the Revolutionary militia were not subject to the crown, they WERE subject to the Revolutionary authorities. It is not correct to say that the Colonial militias were independent armed bands. Additionally, there were loyalist militia bands during the revolution. There was a fear of standing armies and armed mobs at the time of the revolution. The militia was never outside of authority, whether crown or revolutionary.

Again, to say that bodies which are unregulated are eligible for this right means that Al-queda is entitled to weaponry under the Second Amendment. And the "Well-trained" definitely favours al-Queda as they were trained by the CIA. But, I have always contended that terrorists first face Mecca and praise Allah, then face Independence Hall and praise the founding fathers for allowing them the right to have weaponry in the form of the Second Amendment. The Justices of the Supreme Court may be unwittingly aiding the enemy and violating their oaths if they take the independent right to arms for insurrectionary purposes opinion.

Justice Stevens was bang on in many of his questions. I am sure Wild Bill would be proud that Justice Stevens was his successor.

I am not sure which justice brought up that guns have been regulated. Gura is caught by saying that any regulation is allowed since "reasonable infringement" is not the equivalent of "shall not be infringed". The problem is that saying the Second Amendment protects an individual right means that all gun regulations are subject to scrutiny. This is why the RKBA folk hope for an opinion that will affirm an individual right, then they will begin to "test the waters".

I will reiterate that to find any form of individual right away from militia duty is not within the intent or scope of this amendment.

On the other hand, we can find an individual right which means that al-queda, as a well trained militia, has the right to strategic nuclear weapons, which are the direct descendants of the congreve rocket.

Now, isn't that one of the stupidest things that could happen.