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.

More Blackstone silliness!

I have to admit to musing on the fact that using Blackstone as US Constitutional authority leads to some very wrong results: especially for Catholics.

One needs to remember that the Test Acts, as well as anti-Catholic sentiment, were still going strong in Britain and the United States during the Revolutionary and Constitutional drafting periods. One of the Test Acts is titled An Act for preventing Dangers which may happen from Popish Recusants', Charles II, 1672, Statutes of the Realm: volume 5: 1628-80 (1819), pp. 782-85

Get the picture?

As I mentioned in my previous post, John Jay, the first chief justice of the US Supreme Court urged the New York Legislature to require office-holders to renounce foreign authorities "in all matters ecclesiastical as well as civil." That means you mackeral snappers need to renounce popery and put your true allegiance in the US Constitution.

Love it or burn at the stake.

I believe they were still chopping off heads and sticking them on poles as punishment for treason in Britain around this time. I am not sure about hanging, drawing, and quartering. Whatever the state of capital punishment at the time, the English Criminal law at the time of the adoption of the constitution was called the Bloody Code because a large number of crimes were punishable by execution. Transportation to the North American colonies, which went on to become the United States, and Australia after US independence, was a frequent alternative to the death penalty.

One reason we need a space program is so that we can shoot criminals into space.

It is a melancholy truth, that among the variety of actions which men are daily liable to commit, no less than an hundred and sixty have been declared by Act of Parliament to be felonious without benefit of clergy; or, in other words, to be worthy of instant death — William Blackstone

I predict that Scalia's last opinion be that by using Blackstone as an authority and no less than the words of the First US Chief Justice, the Article VI language that "no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States" is unconstitutional.

Scalia would then order that all US Catholics would be burned at the Stake on the Captiol Mall on the Fourth of July.

I mean wouldn't that be original intent?

(Note: I should write for the Onion: Scalia writes opinion advocating burning Catholics at the Stake

Censorship

You have no right to read this.

The First Amendment gives me the right to write it, but doesn't necessarily give you the right to read it. While the right to free speech certainly infers a corresponding right to hear what is being spoken or written, the First Amendment doesn't explicitly grant such a right to read anything you want. So theoretically, it could be argued that no such right exists.

The key word being "theoretically". As a practical matter, the freedom to read whatever we choose is such an intrinsic part of the US or British national character as to make legal theory superfluous. People would rise in outrage if government ever attempted to proscribe what they read. Theory and reality are often two different things.

Add in that my ability to write or say what I want will allow ideas to get out, even if there are attempts to censor them.

Now, I just moderated some comments about my Mitt Romney piece which may have come from some Mormons (Mormons and Jews tend to proselytise in a similar manner). They are happy to see people accepting their beliefs and defending them as well. I will defend their ability to practise their beliefs even if I have some personal qualms about their faith as an ardent believer that the war of independence and the US Constitution are a disaster and not divinely inspired.

The American War for Independence was satanic in my opinion, but I don't see Mormons as satanic. Their beliefs are not satanic. I would like to think that the Mormons believe in the Spirit of the Constitution and what it means than what this country has become. But I also think most of the founding fathers (and mothers) would probably think this country was a disaster as well if they were able to see what it has become.

On the other hand, as I have said before, I don't see any reason to give the RKBA crowd more of a soapbox to push their opinions upon us. They flood the internet with repeated lies. Repeating these lies will not make it the truth. And the RKBA position on guns is detrimental to society. which is made especially clear after waking to yet another mass shooting in Illinois.

As a lawyer, my job is to state what the law IS, not what I would like it to be. And, until the Supreme Court states otherwise, the Second Amendment protects only the militias which are organised under Article I, Section 8.

I have to update this to say that Scalia's opinion in District of Columbia v. Heller, 554 U.S. ___ (2008), is a piece of political hackery which he should be ashamed of if he truly believes what he professes to believe. So, I remain unconvinced of the validity of this decision as legal precedent.

So I see no reason why District of Columbia v. Heller, 554 U.S. ___ (2008) should not be overturned and replaced with something which makes proper legal sense or why Washington, DC's locally enacted law should have been judicially repealed. Isn't that judicial activism anyway?

Not to mention tyranny.

I am glad to see that I have readers and I am glad to support people's right of conscience if it doesn't hurt anyone. Quite frankly. I have absolutely no problem with any of Mormonism's beliefs. As I said before, I think that they are absolutely dead wrong about the Declaration of Independence and Constitution being devinely inspired. Along with finding retroactive baptism a bit odd, which I am sure my dead Jewish relations who are retroactively baptised do as well.

But, My Mormon relations tell me that my Jewish relations who are retroactively are free to accept or reject Mormonism as they please. Not to mention that the Mormons have helped me in my genealogical pursuits. I have also donated genealogical material to the Mormons who will protect it. So, I have absolutely no problem with Mormons and their beliefs since they are not forcing them upon me.

The Mormons aren't the Branch Davidians, yet I see some of the religious right defend the Branch Davidians even though the BDs were engaged in illegal activities. This is because they were a "Church".

The Mormons are law abiding and not prone to force their beliefs on others, which is what the First Amendment right is about.

And, I really don't care if anyone reads this blog, but it is my right to write it. This is the real first freedom which protects all other freedoms. The Second Amendment's significance is so lost in history and polemic that it is meaningless.

But, it does feel good if my writings make a difference.