It's here!!!

Well, Justice Scalia proved that judicial certainty is merely a concept deigning to put his name to the Heller decision. This is a wonderfully Pyrrhic victory for the RKBA crowd as it means absolutely nothing; in fact, it more than proves the Second Amendment is merely a quaint piece of rubbish from the 18th Century that has no meaning. The Militia clause has been held to be rubbish, which flies in the face of all concepts of US Constitutional interpretation since Marbury v. Madison which said no verbiage in the Constitution was mere surplusage. Additionally, the shall not be infringed language, even though it is mandatory (shall) has been held to be surplusage. The right is subject to reasonable regulation, whatever that means since the law was locally legislated.

Which gets down to another concept, the court is not supposed to look into legislative acts; however, in finding a right where no right has previously existed, they had to destroy local legislation. So, I am not sure what exactly they are doing here, but it is truly questionable in my mind. I believe Judicial activism is when courts do not confine themselves to reasonable interpretations of laws, but instead create law. The Supreme Court has decided to violate the separation of powers and create new rights, laws, and overthrow "democracy". Not that overthrowing the will of the people is bad, but here it will harm the general welfare.

The question has now become what exactly is reasonable regulation? Where does one draw the line between reasonable regulation and a ban? One can prohibit assault weapons or machineguns, but not pistols, which are the most common crime guns: explain the logic here? Not to mention DC's PPW statute and its definition of a machinegun will preclude most semi-auto pistols from being registered. What sort of rubbish is Scalia promulgating? Is he trying to create more work for the lawyers and courts? Not a bad idea, but the city of Philadelphia is piss poor when it comes to paying me for my "pro-bono" court appointment work.

Anyway, Scalia has some form of weird theory of Constitutional interpretation that allows for personal opinion to interfere with legal thinking and nothing to do with a professed "originalism". In fact, personal opinion can overrule things like stare decisis and the rule of law--heavy duty. I take from Doug Kmiec's piece on the Second Amendment and DC's gun ban:

An originalist interpretation, at a minimum, must give respect to the meaning of every word of the Second Amendment, including its preamble. Second, the interpretation must situate the Second Amendment intra-textually within the context of the entire Constitution. Third, an originalist interpretation must be honest about the possibility of obsolescence -- namely, that something is in the Constitution which may have no modern analog. Fourth, to the extent it is consistent with the original understanding, precedent must be respected.

What do these principles suggest is the meaning of the Second Amendment? Just this:

The Second Amendment reflects the concerns of the founders that the federal government might exercise its Article I militia power to subjugate the people by disarming local militias in the several states. The Second Amendment was drafted to combat this particular fear, and therefore, the Second Amendment is no limitation whatsoever upon the authority of the people within the several states, by the power reserved to them under the 10th amendment, either to broadly protect individual rights of gun ownership or the opposite.

Scalia has held that one can pick and choose in Constitutional interpretation, ignore the bits which don't fit your interpretation, such as shall not be infringed. Not to mention ignore 70 years of judicial decisions to the contrary. Gun laws are subject to reasonable regulation; however, a local legislature believing that handguns were detrimental to their population and choosing to ban them can be overturned. But nevermind, this is subject to reasonable regulation, which means that DC goes back to pre-Ban days and allows for only .38 revolvers with 4" barrels to be licenced. Of course, one can only register their handgun on alternate Wednesdays between the hours of 8.30-11.30 and 2.30-4.30 since that is when the MPD can spare the manpower to register the weapons! I will add in that DC should charge an extortionate fee for registering the firearm, something on the lines of a couple of hundred bucks. That would make it impossible for the common man to register a firearm, if they were willing to go through the hassles involved.

What fool these justices be!

But, as I point out, one of the complaints of the Colonial Rebels was that they didn't want interference from a legislature 3,000 miles away. They wanted the ability to rule locally, but this decision flies in the face of that concept. DC is a colony and its laws overturned on mere whims and fancies.

Where were you, Justice Alito? You who once ruled that the Second Amendment protected a collective right. Does it depend on what tie I wear if I argue before you whether I will prevail? The day of the week? What sways your whim that you can vote willy-nilly in the truest meaning of that term.

The ultimate flight of fancy came from Justice Kennedy, who cannot differentiate between myth and reality. The frontier farmer is a wonderfully romantic piece from the dime novels, but the reality was the first US citizens to see a grizzly were the members of the Lewis and Clark expedition, which took place nearly 20 years after the Constitution. It's dangerous when myth becomes a basis for overruling prior judicial decisions and stare decisis.

As for Justice Roberts, he didn't fail me. He should have gone through his apprenticeship before becoming a master. His court will prove a mockery of "justice", especially if he can countenance such a ridiculous opinion as that promulgated by his court today. It is an opinion which flies in the face of all that a court, especially one entrusted with the duty of protecting a BUMPF constitution should do. The best part is that he said he didn't want to burden the Second Amendment with the same sort of baggage that the First had, yet this decision will more than burden the courts with baggage for years to come.

Although, as a tory, the Constitution is BUMPF and the Robert's Court only emphasises that quality. Perhaps they can continue their good work in trashing anything that resembles a rule of law and establish democracy as it was understood in the 18th Century, which the Bush administration is well on its way of doing as well.

GOD SAVE THE QUEEN!
P.s. Apologies to the "liberal" wing as Justices Stevens and Breyer wrote excellent dissents and were joined by Justices Ginsburg and Souter; however, the other five are complete bozos.

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.

Square peg, round hole.

Tomorrow we may find out if the Supreme Court of the United States will, or will not, engage in the most outrageous act of judicial activism in the case of DC v. Heller.

The Second Amendment is not a guarantee of an individual right to own firearms, but a guarantee that standing armies will not be established. Every quote taken out of context by the "RKBA" crowd when read in its entirety shows that the issue was a fear of the establishment of a standing army. That is a large military-industrial complex. Think George W. Bush invading Iraq based upon false pretexts and you get the idea of what the founding fathers meant by tyranny.

Instead of preventing a massive military budget, the Second Amendment has been used to prevent any attempt for public safety through the regulation of firearms. Somehow, this fact has been missed by all those writing briefs. Maybe some Supreme Court justice's clerk reads my blog and this issue will be raised, but I think that this has been lost in the rhetoric. It's unfortunate. I hope that the issue of prevention of standing armies will be raised and addressed, but that hope may prove in vain.

The Declaration of Independence doesn't mention seizing private firearms, but it does mention keeping "standing armies in time of peace". Anytime the right of keeping and bearing arms is mentioned it is in the context of standing armies and how tyrants build large military machines. The militia is made effete and replaced by a standing army.

The Second Amendment is not as clear as most people believe. Interpreting it without knowing the context in which it was proposed and ratified may just produce the wrong conclusion. One needs to realize that our founding generation was deathly afraid of standing armies. As British citizens, they surely knew that it was only about a century since Oliver Cromwell had used Britain’s “New Model Army” with its red uniforms to overthrow the king and have himself installed as Lord Protector. They also knew that the kings in Europe, including their beloved George III, maintained power by keeping large standing armies to protect them. Even during our Revolution there were many Americans who feared George Washington’s Continental Army as a force that could impose a new tyranny after ousting the British. Militias of the people, however, could provide for the national and state defense without the dangers of a standing army.

The first statement of what later became the Second Amendment was contained as Article XIII of the Virginia Declaration of Rights. It read,

That a well regulated militia, composed of the body of the people, trained to arms, is the proper, natural, and safe defense of a free state; that standing armies, in time of peace, should be avoided as dangerous to liberty; and that, in all cases, the military should be under strict subordination to, and be governed by, the civil power.

The phrase “That the people have a right to keep and bear arms” was added to this language in 1788 by the Virginia constitutional ratifying convention in its proposed bill of rights. The New York convention broke up the right into three paragraphs:

That the People have a right to keep and bear Arms; that a well regulated Militia, including the body of the People capable of bearing Arms, is the proper, natural and safe defence of a free State;
That the Militia should not be subject to Martial Law except in time of War, Rebellion or Insurrection.
That standing Armies in time of Peace are dangerous to Liberty, and ought not to be kept up, except in Cases of necessity; and that at all times, the Military should be under strict Subordination to the civil Power.


When James Madison submitted his version of the Bill of Rights to the Congress in 1789 the provision was close to its final language,

The right of the people to keep and bear arms shall not be infringed; a well armed and well regulated militia being the best security of a free country: but no person religiously scrupulous of bearing arms shall be compelled to render military service in person.

The final version, adopted by the Congress and then sent to the states for ratification, reversed the order of the first two clauses and dropped the conscientious objector provision.

Thomas Jefferson was against a Constitution that did not contain a bill of rights to protect the people not against themselves, but from the federal government:

“I hope, therefore, a bill of rights will be formed to guard the people against the federal government as they are already guarded against their State governments, in most instances”

[Thomas Jefferson to James Madison, 1788. ME 7:98]. Jefferson was alarmed with the defects he found in the initial Constitution sent to him by Madison, and made it known he found it objectionable that there was no provision guarding against a standing army:

“I will now add what I do not like. First, the omission of a bill of rights providing clearly and without aid of sophisms for freedom of religion, freedom of the press, protection against standing armies…”

Elbridge Gerry said:

This declaration of rights, I take it, is intended to secure the people against the mal-administration of the Government; if we could suppose that, in all cases, the rights of the people would be attended to, the occasion for guards of this kind would be removed. Now, I am apprehensive, sir, that this clause would give an opportunity to the people in power to destroy the constitution itself. They can declare who are those religiously scrupulous, and prevent them from bearing arms.

What, sir, is the use of a militia? It is to prevent the establishment of a standing army, the bane of liberty. Now, it must be evident, that, under this provision, together with their other powers, Congress could take such measures with respect to a militia, as to make a standing army necessary. Whenever Governments mean to invade the rights and liberties of the people, they always attempt to destroy the militia, in order to raise an army upon their ruins.

In other words, the Second Amendment is not an individual right to bear anything, but a security of the people to keep and bear arms for purposes of maintaining public militias as a guard against a standing army. The House Committee on the Militia in December of 1833 had no illusion what the Second Amendment stood for when it considered modifying existing militia law in the several States to allow for the following:

…to permit each State in time of peace, in the discretion of its Legislature, to require no person to bear arms under twenty-one, or over forty years of age, and to permit the inspection of arms to be taken by companies instead of by regiments or battalions; and, also into the propriety and justice of providing arms and accoutrements at the public expense for those liable to bear arms…


First of all, it was recognized that such matters as to who can, or cannot bear arms, is up to the State legislature. If the Second Amendment was an outright individual protected right as some like to believe it is, then such proposed State laws would clearly be violating persons under the age of 21, and over the age of 40, right to bear arms under the Second Amendment.

Clearly then, the context of bearing arms is purely in a military service context since that is all the term “bear arms” imports. The term “bear arms” had the universal understanding of militarily taking up arms against another in aggression, which of course explains why there were people who were religiously scrupulous to bearing arms or supporting militias financially, but otherwise had no problem with personally owning private weapons. Quakers for example, refused to “bear arms” or contribute funds in support of the militia, yet had no objection to personally owning firearms.

President Andrew Jackson confirms the right under the Second only relates to the collective right to bear arms under militias for defense of the State: “To take from the people the right of bearing arms, and put their weapons of defence in the hands of a standing army, would be scarcely more dangerous to their liberties, than to permit the Government to accumulate immense amounts of treasure beyond the supplies necessary to its legitimate wants.”

The Second Amendment only qualifies bearing arms as part of the defense of the State, not personally, because it focuses only with the body of the people who make up the militias. There is no qualification to a right to private ownership because that would dwell into domestic concerns of a State, something the federal Constitution does not by design permit.

To me it is clear that the right to keep and bear arms must be read in conjunction with the founding generation’s determination to rely on militias, rather than a standing army, for national defense. Certainly the right to bear arms is a right of the people, not the state or federal governments. On the other hand, the right was clearly intended to guarantee the existence of militias, not for any other purpose. Further, the fact that we now are perfectly comfortable maintaining a standing army, navy, air force and marine corps and that our state militias have been themselves formalized into National Guards and Reserve components leads to the obvious conclusion is that the right to bear arms for the purpose of maintaining a strong national defense is no longer relevant in 2008.

Of course, judges are supposed to be free of the political fray which leads to the type of mess and confusion which the Second Amendment has found itself in the mind of the masses. Few are willing to discuss the true meaning of the Second Amendment as a guarantee against standing armies. On the other hand, will the justices raise this issue? There are commentators on the internet who do, but this seems lost in the piles of briefs pro and con in DC v Heller.

Additionally, the Supreme Court has ruled on this and found that the right is one to enable the body organised under the militia powers granted in Article I, Section 8 of the Constitution in US v. Miller. Miller was reiterated in US v. Rybar which stated that the same arguments which are being presented by Heller in this case were without merit. Which means that one Supreme Court Justice, Alito, has ruled upon this question and found the "individual right" argument without merit.

Given that my Second Amendment right is to be free from a large, standing military, that right is being violated in Washington, DC. Not by the District of Columbia's firearms laws, but by the legislature and executive by allowing the invasion of Iraq. To find that the Second Amendment allows for an individual right to own firearms unrelated to militia duty is to make logical leaps of outrageous proportion.