How original is Scalia?

Since Scalia bases a good portion of his Second Amendment analysis in DC v. Heller on the first clause being "prefatory"--

Nelson Lund, for example, helped shift the focus of Second Amendment interpretation by characterizing its first clause as “prefatory” and its second clause as “operative” — and received a Second Amendment chair funded by the NRA for his work. A Hein Online search for the terms “operative,” “prefatory,” and “second amendment” suggests that Nelson Lund was the first academic to introduce this terminology into the Second Amendment literature. See Nelson Lund, The Past and Future of the Individual’s Right to Arms, 31 GA. L. REV. 1 (1996). Nelson Lund is the Patrick Henry Professor of Constitutional Law and the Second Amendment at the George Mason University School of Law. This position was created thanks to a one million dollar commitment to GMU School of Law by the National Rifle Association Foundation announced in 2003. Press Release, $1 Million Endows Professorship at George Mason University (Jan. 28, 2003). Justice Scalia relies on the distinction between “prefatory” and “operative” in describing the relationship of the amendment’s first and second clause. See, e.g., Heller, 128 S.Ct. at 2789 (“The Second Amendment is naturally divided into two parts: its prefatory clause and its operative clause.”).

The problems is that, as has been pointed out, Scalia also uses Blackstone's commentaries on the Laws of England and is bound by the language of Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803):

The subsequent part of the section is mere surplusage, is entirely without meaning, if such is to be the construction...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.

Blackstone would look to the proeme (the "prefatory clause") for guidance in interpreting the language (see previous post and this).

So, the idea of "prefatory" and "operative" came about over 200 years after the drafting of the Bill of Rights (1996).

Hardly original.

In defence of Jeffrey Toobin

Some people are surprised that Jeffrey Toobin pointed out that:

“You know, it’s funny, the way that this hearing goes, you would think that Supreme Court precedent is some unchanging thing- that is just the law that is changed. But if you look at the Second Amendment, that’s something that’s changed dramatically over the last- for 50 years, including when I was in law school, which was more recently than 50 years ago- the idea that you had a Second Amendment right to a gun was considered preposterous. The text of the Second Amendment, I believe we have it- we have it in our system- you know, speaks of a well-regulated militia and the right to bear arms.”

I am not surprised. What most people who haven't attended law school don't realise about the "New Scholarship" surrounding the Second Amendment is that it is indeed very recent. You could count the scholarly legal writings about the Second Amendment when I went to law school on one hand!

The civic right was the accepted legal belief.

I asked my conlaw prof why we didn't study the Second Amendment and his response was "if you think things were bad (emotionally) when we studied Roe v. Wade. they get even more heated when discussing the Second Amendment." because the Civic right was the accepted legal precedent.

Roe and Heller

Very little of the criticism this page receives addresses the most valid point of criticism which is how can I be upset about DC v. Heller, but not Roe v. Wade, 410 U.S. 113 (1973)?

There is a simple non-legal answer which is that the most blatant form of tyranny is when a government interferes with a woman's personal choice to have a child. This is a matter between a woman, her doctor, and her significant other with no place for government interference.

I am amazed at how many people want "gun rights" and freedom from government interference, yet balk at abortion. Also, it is amazing that people can call themselves "pro-life", yet have no problem with shooting and killing someone. Or even capital punishment.

I mentioned use-benefit analysis in another post and personally, I find abortion to be far more of a right to be protected than some illusory "gun right".

That said, I have several legal grounds to dislike Heller.

The first is that it is poorly written and does not stand scrutiny. Anyone who has read my posts can see that there are multiple lines of attack of this POS written by a committee.

Secondly, Scalia has had to violate everything he claims to believe in regarding judicial practise. The most egregious of these being that Scalia's dissent in Planned Parenthood v. Casey, 505 U.S. 833 (1992) acknowledged that abortion rights are of "great importance to many women", but asserted that it is not a liberty protected by the Constitution, because the Constitution does not mention it!

In fact, reading Planned Parenthood v. Casey makes me even more curious as to how Scalia could deign to find a right of self-defence in the Second Amendment.

Scalia does everything that he expresses disgust in in his Planned Parenthood dissent.

The issue is whether it is a liberty protected by the Constitution of the United States. I am sure it is not. I reach that conclusion not because of anything so exalted as my views concerning the "concept of existence, of meaning, of the universe, and of the mystery of human life." Ibid. Rather, I reach it for the same reason I reach the conclusion that bigamy is not constitutionally protected--because of two simple facts: (1) the Constitution says absolutely nothing about it, and (2) the longstanding traditions of American society have permitted it to be legally proscribed.

Roe v. Wade on the other hand, has some legal basis to support it. The Supreme Court rested its conclusions in Roe on a previously recognized constitutional right to privacy emanating from the Due Process Clause of the Fourteenth Amendment. Justice Blackmun said that the "right of privacy, whether it be founded in the Fourteenth Amendment's concept of personal liberty and restrictions upon state action, as we feel it is, or, as the District Court determined, in the Ninth Amendment's reservation of rights to the people, is broad enough to encompass a woman's decision whether or not to terminate her pregnancy."

I am of the school that the decision is correct, but for the wrong reason. The First Amendment States that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof".

I extend this right to include exercising personal beliefs concerning the beginning of life. The morality of abortion is grounded in the precise belief of the nature of the fetus in Christianity, Judaism, Humanism as well as other religions and ethical systems,. There is a general consensus that when the foetus becomes a human person, then abortions should be severely limited. The question is when does life begin? But that is an ethical decision. Most would confine abortions at the stage when the foetus is viable to situations that threaten the life of the pregnant woman; a very few would eliminate access to abortions totally. The problem that generates so much controversy is that no consensus exists in society over the point, between conception and birth, when personhood begins.

Jewish beliefs and practice concerning abortion do not neatly match either the "pro-life" nor the "pro-choice" points of view. The general principles of modern-day Judaism are that:
--The fetus has great value because it is potentially a human life. It gains "full human status at birth only."
--Abortions are not permitted on the grounds of genetic imperfections of the fetus.
--Abortions are permitted to save the mother's life or health.
--With the exception of some Orthodox authorities, Judaism supports abortion access for women.
--"...each case must be decided individually by a rabbi well-versed in Jewish law."

Islam allows for abortion in cases where the mother's life is threatened.

Additionally, while the "right to an abortion" may not be specifically mentioned in the Constitution, it is a personal choice relating to health, personal finances, beliefs and other issues that government has no right to intrude upon.

As I said in my use-benefit analysis post, there are some things which are beneficial to society, of which prevention of unwanted children is one.

At this point, I have to reiterate another point I have made in my posts, that the Heller decision did not invalidate gun control laws. The problem is that Scalia did not give any idea of the scope of his new right.

The problem is that there are loads of knee-jerk RKBA people out there who follow rather than think. They are told that there is an individual right enshrined in this decision and then say this is about time. They do not analyse what has been written or think about the implications.

Next post in this series, Wedge issues.

This should be pretty clear, but I think some people don't understand it...

Constitutions, or charters, are documents which set forth the structure and rules of governance. These entities ruled by constitutions can be countries or "artificial persons" (that is corporations, trusts, Companies, Unincorporated institutions, Partnerships, and so on).

That said, the US Constitution is a separate thing from the British Constution. Well, the British Constution isn't really a document, but a set of laws. That is constitutional statutes enacted by the Parliament (E.G, House of Commons Disqualification Act 1975, Northern Ireland Act 1998, Scotland Act 1998, Government of Wales Act 1998, European Communities Act 1972 and Human Rights Act 1998) and also unwritten sources such as constitutional conventions, observation of precedents, royal prerogatives, custom and tradition, such as always holding the General Election on Thursdays.

There is no difference in legal terms between constitutional law and statutory law (i.e. law applying to any area of governance) in the English system. Both can be altered or repealed by a simple majority in Parliament. In practice, democratic governments do not use this opportunity to abolish all civil rights, which in theory they could do, but the distinction between regular and constitutional law is still somewhat arbitrary, usually depending on the traditional devotion of popular opinion to historical principles embodied in important past legislation. For example, several Acts of Parliament such as the Bill of Rights, Human Rights Act and, prior to the creation of Parliament, Magna Carta are regarded as granting fundamental rights and principles which are treated as almost constitutional.

By separating itself from England, The United States broke with English Constitutional law and created its own rules of governance. The law of the United States was originally largely derived from the common law system of English law, which was in force at the time of the Revolutionary War. The supreme law of the land, under the Constitution's Supremacy Clause (VI), is the United States Constitution, as well as laws enacted by Congress, and treaties to which the U.S. is a party. The Constitution forms the basis for federal laws under the federal constitution in the United States; it circumscribes the boundaries of the jurisdiction of federal law along with the laws in the fifty U.S. states and in the territories.

The most important source of law is the United States Constitution. All other law falls under and is subordinate to that document. No law may contradict the Constitution. For example, if Congress enacts a statute that conflicts with the Constitution, the Supreme Court may find that law unconstitutional and declare it invalid. Notably, a statute does not disappear automatically merely because it has been found unconstitutional; it must be deleted by a subsequent statute. Many federal and state statutes have remained on the books for decades after they were ruled to be unconstitutional. However, under the principle of stare decisis, no sensible lower court* will enforce an unconstitutional statute, and any court that does so will be reversed by the Supreme Court. Conversely, any court that refuses to enforce a constitutional statute (where such constitutionality has been expressly established in prior cases) will risk reversal by the Supreme Court. (But who reverses the ninnies when they mess up???)

While Blackstone may have talked about rights, he knew full well they could be repealed by Parliament. This is why the language is "bear arms for their own defense, as suitable to their class and as allowed by law". This is the way rights are treated under the English Constitution. Here today and gone tomorrow.

Again, if one uses Blackstone as a source, one knows that the right to bear arms for defence in England (and by extension the UK and other common law countries) is next to nil as well. This is because the right is "as allowed by law". That is it is under regulation by parliament and not as absolute as the language in the Second Amendment. The Founding fathers were well aware of the tenuous nature of rights under the English system, which did not define or quantify natural rights. They believed that adding a Bill of Rights to the Constitution would limit their rights to those listed in the Constitution. This is the primary reason the Ninth Amendment was included.

On June 5, 1788, Patrick Henry spoke before Virginia's ratification convention in opposition to the Constitution: "Is it necessary for your liberty that you should abandon those great rights by the adoption of this system? Is the relinquishment of the trial by jury and the liberty of the press necessary for your liberty? Will the abandonment of your most sacred rights tend to the security of your liberty? Liberty, the greatest of all earthly blessings—give us that precious jewel, and you may take every thing else!"

The founders knew they were setting up a totally new and different system from the English one under the US Constitution.

Of course, as I read more about Scalia's pretensions at "originalism", the more I worry that he is willing to destroy rights willy nilly in the common law fashion. Sod the fact the US Constitution is a written document: he'll tear it up.

But, I would prefer for my elected officials to do that. There is a reason that Royalty and nobility are unconstitutional.

Unless, of course, I am calling the shots here!

* On the other hand, a non-sensical supreme court can do whatever it wishes until whapped over the head.

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.

the strict constructionist and the Second Amendment

I read that any law which does not literally impinge on an explicitly enumerated right in the Constitution passes judicial scrutiny according to the strict constructionist view.

Now, I just did a search of the constitution for self-defence, and nowhere is that term mentioned. Which means that self-defence is not a constitutionally protected right.

Again, as I mentioned in my posts on the Heller Oral arguments, the Second Amendment does not mention this. Self-defence is a common law concept, not a constitutional one.

If the object of Justices Scalia, Thomas, and Alito is to not impinge upon an expressly enumerated right, then the District's gun laws do not. Self-defence was not at issue when the Second Amendment was drafted and is not an enumerated right in the constitution.

On the other hand, the establishment of a standing army was the issue.

The Second Amendment is a dead letter, especially regarding the right of an individual to own a firearm for self-defence. Self-defence was not a concern.

Justice Kennedy's frontier farmer could be scalped and the women raped for all the "people" who wrote the Constitution cared. The issue was not self-defence, but assure the continuation and render possible the effectiveness of the body organised under Article I, Section 8, which at that time was called the militia and is now the national guard.

To say the Second Amendment encompasses the right of self-defence is to not go into the penumbra, or even umbra, it is to take it to beyond the outer edge of the logical universe. It is to create a Constitutional right where none existed. It is to forgo public safety for no sane reason. Worst of all, it is to second guess legislatures and destroy the rule of law.