That's Laci THE dog

Proof that gun cretins aren't that bright, one of them made the comment that "Laci owns a dog" amongst other statements that he had no fucking idea what I have written.

First off: That's Laci THE dog. And as the blurb at the tops says:

A very intelligent canine. I've gone to court more than Harriet Miers and most US Law School professors ever have. I am ghost written by my human companion.

The idiot also missed the "about me" bit on the right side of the blog. That's a DOG, fuckwit. Has that passed through your thick skull yet?

Laci IS THE Dog, NOT the human who writes this blog.

The bit about the dog going to court is not a joke. I've posted this picture of her in the Court hallway here before. The bit about Harriet Miers came from a friend who pointed out that my dog had been to court more than Miers ever had. Likewise, there are quite a few US law profs who aren't even admitted to any form of State Bar, let alone practised law, which means that Laci has been in court more than they have as well.

The last bit is scary since half the lawyers in the world are located in the US. I find it incredibly frightening that all one needs to do is pass a State bar and they let you loose on the unsuspecting public. Every other jurisdiction requires some form of apprenticeship before finally letting one loose in a courtroom.

The human who actually writes this blog has completed a pupilage in the UK. Whilst one serious hurdle to practise in Great Britain had been overcome. There is a second hurdle to practise: admission to chambers, which is even harder to surpass.

Additionally, this guncretin also shows a huge lack of comprehension of my position regarding DC v. Heller. There is a fairly good summary of that position in my post For SouthernFemaleLawyer. I did add in my response to this moron that one does not amend the Constitution through the judiciary, which Heller did.

Scalia's Second Amendment now reads: "The right of the people to keep and bear arms may be reasonably infringed".

Again, there are more than enough articles written by myself and others that point out this fact. Scalia used the magic words "individual right" which was more than enough to keep the booboisie happy. They now parrot the phrase the Second Amendment is an "individual right" with no understanding of scope of that right.

I didn't say Scalia was an idiot. I have said he was ignorant, which has nothing to do with intelligence. One can be a genius, yet be ignorant. Gun cretins are quite ignorant, which is compounded by the fact that they are ignorant of their ignorance.

I can say that I find Scalia intellectually dishonest as all get out to have wanted to attribute the Heller decision to himself as it pretty much ignores what he claims is his judicial philosophy. As I said, Heller is more "original" than "originalist".

Although, it has been said that Scalia misunderstands the nature of the US legal system and finds it is a civil law system rather than a common law one in his book A Matter of Interpretation. This misunderstanding may form the foundation of his willingness to judicially amend the Constitution rather than go through the proper constitutional process.

Since Heller now stands for the proposition that stare decisis and precedent aren't worth the paper decisions are printed upon, perhaps we can ignore that decision. In fact, isn't there a challenge that it was an unconstitutional act of Judicially amending the constitution to change the language of the Second Amendment? Or to once again quote the man himself:

If the courts are free to write the Constitution anew, they will write it the way the majority wants; the appointment and confirmation process will see to that. This, of course, is the end of the Bill of Rights, whose meaning will be committed to the very body it was meant to protect against: the majority. Antonin Scalia, Vigilante Justices: The Dying Constitution

I don't think I could make my position any clearer.

Using Dred Scott as precedent in Second Amendment cases!

I have to admit to a bit of curiousity about this since it is one of the Supreme Court's most infamous cases! Usually the only reason this case has been cited since the Emancipation Proclamation is to use it as an example of bad law and poor judicial reasoning. Only Judge Silberman, who is decidely senile, used it to overturn Sandidge v. United States, 520 A.2d 1057, 1058 (D.C. 1987) in Parker.

Dred Scott v. Sandford, 60 U.S. (19 How.) 393 (1857), was a decision by the United States Supreme Court that ruled that people of African descent imported into the United States and held as slaves, or their descendants were not protected by the Constitution and could never be citizens of the United States. It did not matter whether or not the descendants were slaves: they still had no status as citizens. It also held that the United States Congress had no authority to prohibit slavery in federal territories. The Court also ruled that because slaves were not citizens, they could not sue in court, or have other rights. Lastly, the Court ruled that slaves—as chattel or private property—could not be taken away from their owners without due process.


The Supreme Court in Dred Scott asserted that Scott was not a "he" but an "it": mere property. Property does not have rights of any kind.

I should add that the Dred Scott case found the exact opposite of what had been held in English Common Law (and Scots Law), that the institution of Slavery was repugnant to civilised Society (see R v Knowles, ex parte Somersett (1772) 20 State Tr 1, AKA Sommersett's Case).

In one of the weirdest aspects of the Second Amendment debate, it has become acceptable to quote Dred Scott as a legitimate constitutional authority. This is one of the most thoroughly discredited cases in Supreme Court history, there is a run up between this case, Korematsu v. United States, 323 U.S. 214 (1944) and Buck v. Bell, 274 U.S. 200 (1927) for most disreputable Supreme Court Case. Dred Scott is considered to be the product of an overly ideological and reactionary judge relying on poor scholarship and weak legal reasoning in an effort to shape public policy. That puts it in there with District of Columbia v. Heller, 554 U.S. ___ (2008) and Bush v. Gore, 531 U.S. 98 (2000) decisions for using similar poor practise.

OMG, the last two were written by Justice Scalia. The man holds a record for bad decisions!

Although, given that the Dred Scott decision actually went against established precedent, it may not be that weird that it is used as justification for doing something which is morally repugnant.

The Supreme Court has cautioned against citing Dred Scott recognizing the fatally flawed reasoning as the case failed to heed “[t]he wisdom of refraining from avoidable constitutional pronouncements” that are “not ‘absolutely necessary to a decision’”. See Scalia's dissent in Planned Parenthood v. Casey, 505 U.S. 833 (1992) for Criticism of Dred Scott along with many other sources.

Dred Scott v. Sandford, 60 U.S. (19 How.) 393 (1857) had nothing to do with the Second Amendment. Justice Taney did make brief references to the right to travel armed and the right to keep and bear arms, but he never actually discusses the meaning of the Second Amendment. How remarks made by a judge in the most universally reviled decision in American history could provide a solid foundation to over-turn seventy years of precedent on the meaning of the Second Amendment is truly baffling. Of course, Taney was the father of judicial activism, so it might actually make a certain amount of sense to use Dred Scott to revisit the meaning of the Second Amendment if the court were interested in making new law, not interpreting existing law.


This decision is not only archaic, but it takes us back to some seriously bad times in US History. A time when white men, were white men and the darkies knew their place, or they were whipped back into it. Its use as a precedent in this arena only serves to show how tenuous the argument is against the right being solely for ensuring the efficacy of the Militia. It also points out the American public's ignorance of history that this could be used as anything other than an example of a bad judicial decision. Its later-reversed holding had nothing to do with the Second Amendment.

One of Taney's comments about carrying arms can be read as "watch out if the niggers had guns" and is found in what is called the "parade of horribles" portion of the decision. (sorry about using the "n word", but I have to use what I think would be Taney's words). That, of course, is my opinion based upon the fact that Taney was attacked for having come from a slave owning family and once owned slaves. And the fact that bit is found in the "parade of horribles" as to the feared results of granting Mr. Scott's petition. I would also add in that there was a fear of slave insurrections, which was made real by John Brown raid on the Harpers Ferry arsenal, which if I remember correctly Brown's party was armed with pikes rather than firearms (I wonder why?).

In an another portion of the dicta, the Court analyzed whether slaves were entitled to the protections of the Constitution by listing a few examples: "Nor can Congress deny to the people the right to keep and bear arms, nor the right to trial by jury, nor compel any one to be a witness against himself in a criminal proceeding." Unfortunately, Dred Scott, as property, did not possess any of these rights.

Got that: Property does not have rights.

Legally, the validity of a case is checked using Shepherd's and this is what I found using that service:

Copyright 2009 SHEPARD'S(R) -
Signal: Warning: Negative treatment is indicated
Trail: Unrestricted
-----------------------------------------------------------------------------
Scott v. Sandford, 60 U.S. 393, 19 How. 393, 15 L. Ed. 691, 1856 U.S. LEXIS 472 (1857)
Unrestricted Shepard's Summary
No subsequent appellate history.
Citing References:
Warning Analyses: Superseded (3)
Questioned Analyses: Questioned (11)
Cautionary Analyses: Criticized (4), Distinguished (2), Not Followed (1)
Positive Analyses: Followed (1)
Neutral Analyses: Concurring Opinion (9), Dissenting Op. (51), Explained (5), Quest. Precedent (1)
Other Sources: Law Reviews (3374), Secondary Sources (32), Statutes (2), Treatises (24), Annotations (1), Other Citations (9), Court Documents (192)

Even more saliently, does Taney come out and say "the right to keep and bear arms is an individual right"? Naw, he just mentions keeping and bearing arms as a right: not as a civic, individual, collective, god given, pre-exisiting, or any other type of right. It's just a fucking right that property can't exercise.

Got that?????

In short, if you have to rely on dicta from a case which is cited as an example of poor scholarship and weak legal reasoning, you are showing yourself out to be a complete and total fuckwit.

I think that just about says it all. To be quite Honest, you would be laughed out of every court in the nation for using this.

Although if you mentioned this case in the Supreme Court, Clarence Thomas would drop his porno mags, malt liquor, and Chicken wings, get up on the bar of the court and start jigging and cooning, say "YOWZA! YOWZA! YOWZA! I wants me some waddy mellon!" and do the best Stepin Fetchit imitation ever done by a Supreme Court Justice! He even outdoes William "Willie" Best (AKA Sleep 'n' Eat) and Mantan Moreland.

That is until Scalia pulls out the bullwhip sending Unca Tom back to his seat saying "don't whips me, massa! don't whips me, massa!"

The Supreme Court of the US as a 21st Century Minstral show!

Ya Know, It's a bloody shame that Thurgood Marshall was replaced by that House Negro. I am sorry to use Thurgood Marshall's name in relation to the House Negro. or even to blaspheme him by mentioning him in relation to this post as he would be sputtering and fuming if someone had the balls to mention this case save in jest...and perhaps even then.

Dred Scott legally valid??? Give me a break! This shit is getting seriously weird! The lawn Jockeys are attacking! They're in armed revolt! Help, save me!

Grading the Heller Decisions

I have been wanting to do this for a while. I am taking the point of view that these are my students in a tutorial on the Second Amendment in US Constutional law at a British University.

Let's start with Stephen Breyer:

Steve--Interesting ideas, but not really constitutional or even germane. You're focusing a bit more on policy than law here. This isn't PPE or French, we're studying law here. OK, I am being far harsher than I should on you since you are choosing to defer to the legislature which isn't a bad position. Although see my comments to John R about leadership It's just that you are going out on a limb with this approach. Unique, but I am not sure the founders would have really been too thrilled with this approach or what they would have made of it. Cribbing John S's argument is what saved you from Nino and John R's fate here. Well, at least you didn't write an essay like Nino's since I hate giving "F"s. I know the Second Amendment is pretty confusing. Also, I don't agree that the protection the Amendment provides is not absolute--I mean it does use "shall". I was tempted to give you a D+, but you're getting a C- since I know you can do better. My question is why you didn't? Were you at the Union drinking with the lads when you wrote this figuring that cribbing John's essay would get you off the hook and a better grade? Are you ticked off that John made the cadet corps and not you?

Sorry, not much I can do for you on that front.

John--the best of the "three" essays since the other John cribbed Nino. Although I am really disappointed that you didn't deal with some other aspects of this issue, such as the insurrectionist theory or self-defence being an anachronism aspect. I would have loved to have seen your take on that. You also have a slam dunk with the "legislative intent" aspect from the ratification debates that you failed to address in detail. Other than that, you addressed the issue in pretty much a concise, thorough, and conservative manner. Sorry, but you get an A- because it wasn't perfect. As I said, I would have liked a bit more from you. Did you think that Nino was going to get an A for pure creativity?

Nino--Where did you come up with this? First off, you give stare decisis extremely short shrift. Not to mention your essay was a real surprise for me given all this talk about originalism and trying to decipher the founders' intent in the tutorials. You did everything but that. First off, your concept of legislative interpretation does not gibe with your desire to use the Common Law and the Bill of Rights as a source. Where did you come up with that idea anyway? You take Blackstone and totally misunderstand him in this essay. Instead of using his legislative analysis, you use something from a law review article from 1996! What about Marbury V. Madison as well--how could you have forgotten that one? Another thing, you use an idea of self-defence which originated well after the period in which the Bill of Rights was drafted. To top it off, you neglect any of the material from the ratification debates which show that the right was to protect the Article I, Section 8 militias.

You get an F since it probably won't hurt you in the long run. Sometimes original is just not good. Remember, "because everybody believes it" is a fallacy and does not make a concept correct.

Well, at least you didn't advocate the insurrectionist theory, then I would have really wondered what was going on. I would fail you in this course if you had done that.

Anyway, Nino, you need to reread John's essay as he has a pretty good grasp of the concepts here.

John R--You're supposed to be a leader. There are many responsibilities that come with leadership, one of which is not following. The other is setting a good example. Leadership is a position of trust and belief that requires experience. Additionally, one must make unpopular decisions when one is a leader. You cannot be afraid of controversy, especially if you know that the position you will take is the correct one. I had many reservations when I heard you were made a cadet for that reason, but it's a bit late for me to have you removed from the Corps. That said, I was hoping you would come up with something like the other John's essay especially after the comment during the tutorial about "not wanting the Second Amendment to have baggage". Therefore, I am truly disappointed that you cribbed Nino's essay. You didn't have the decency to come up with your own version of an essay, which at least Steve had the decency to do.

F and I will talk to your regiment's commander about this poor show as it is not worthy of a leader.

Editorial comment--I was going to make the PPE be an in joke for "Steve", but am explaining it for the non-UK and those who haven't attended British Uni types

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.

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.

How will your militia be armed? (or still more Heller critique)

Like a magician, or other illusionist, Scalia diverts your attention from the real focus of the Second Amendment.

JUSTICE STEVENS relies on the drafting history of the
Second Amendment—the various proposals in the state
conventions and the debates in Congress. It is dubious to
rely on such history to interpret a text that was widely
understood to codify a pre-existing right, rather than to
fashion a new one. But even assuming that this legislative
history is relevant, JUSTICE STEVENS flatly misreads
the historical record.

Heller at p. 30

The problem is that all the quotes from the drafting history of the Second Amendment show that the concern was not a "pre-existing right" of self-defence by individuals (states yes, individuals NO). In fact, since the right is the created by the Second Amendment, that is the right which needs to be discussed. We are discussing the US constitution and the bill of rights in LEGAL sense, not popular misconceptions of that right. Also, Blackstone totally contradicts the pre-existing right of armed self-defence argument (see linked post).

Scalia spent all of Heller trying to diminsh the focus of the Second Amendment from the Militia. The problem was that the Second Amendment was specifically drafted to ensure that the Militia would be armed and that institution remain vibrant. Hence Patrick Henry's comment that was frequently used by the "RKBA" crowd.

that every man be armed

The text of the Constitutional debates surrounding the Second Amendment can be found here and here.

Self-defence was not at issue during these debates. In fact, Patrick Henry is discussing Article I, Section 8 in the record and the fact that the Federal government might not arm the militia. In fact, the full Henry quote reiterates the Article I, Section 8 language in the complete quote (see highlighted text).

May we not discipline and arm them, as well as Congress, if the power be concurrent? so that our militia shall have two sets of arms, double sets of regimentals, &c.; and thus, at a very great cost, we shall be doubly armed. The great object is, that every man be armed.

More of this quote is as follows.

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.
http://lcweb2.loc.gov/ammem/amlaw/lwed.html


Mr. HENRY. Mr. Chairman, in my judgment the friends of the opposition have to act cautiously. We must make a firm stand before we decide. I was heard to say, a few days ago, that the sword and purse were the two great instruments of government; and I professed great repugnance at parting with the purse, without any control, to the proposed system of government. And now, when we proceed in this formidable compact, and come to the national defence, the sword, I am persuaded we ought to be still more cautious and circumspect; for I feel still more reluctance to surrender this most valuable of rights.
As my worthy friend said, there is a positive partition of power between the two governments. To Congress is given the power of "arming, organizing, and disciplining the militia, and governing such part of them as may be employed in the service of the United States." To the state legislatures is given the power of "appointing the officers, and training the militia according to the discipline prescribed by Congress." I observed before, that, if the power be concurrent as to arming them, it is concurrent in other respects. If the states have the right of arming them, &c., concurrently, Congress has a concurrent power of appointing the officers, and training the militia. If Congress have that power, it is absurd. To admit this mutual concurrence of powers will carry you into endless absurdity— that Congress has nothing exclusive on the one hand, nor the states on the other. The rational explanation is, that Congress shall have exclusive power of arming them, &c., and that the state governments shall have exclusive power of appointing the officers, &c. Let me put it in another light.
May we not discipline and arm them, as well as Congress, if the power be concurrent? so that our militia shall have two sets of arms, double sets of regimentals, &c.; and thus, at a very great cost, we shall be doubly armed. The great object is, that every man be armed. But can the people afford to pay for double sets of arms &c.? Every one who is able may have a gun. But we have 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; for sure I am that nation which shall trust its liberties in other hands cannot long exist. If gentlemen are serious when they suppose a concurrent power, where can be the impolicy to amend it? Or, in other words, to say that Congress shall not arm or discipline them, till the states shall have refused or neglected to do it? This is my object. I only wish to bring it to what they themselves say is implied. Implication is to be the foundation of our civil liberties, and when you speak of arming the militia by aconcurrence of power, you use implication. But implication will not save you, when a strong army of veterans comes upon you. You would be laughed at by the whole world for trusting your safety implicitly to implication.
The argument of my honorable friend was, that rulers might tyrannize. The answer he received was, that they will not. In saying that they would not, he admitted they might. In this great, this essential part of the Constitution, if you are safe, it is not from the Constitution, but from the virtues of the men in government. If gentlemen are willing to trust themselves and posterity to so slender and improbable a chance, they have greater strength of nerves than I have.

Like the Second Amendment and the Constitution, there is no mention of the concept of self-defence. The debates are published and anyone who cares to review than can do so. I really don't have the time or inclination to do so here.

Scalia gives short shrift to the actual ratification debates of the States and relies on quotes which are not contemporaneous with the adoption of the bill of rights because he doesn't want fact to ruin the fiction he has created with his new right. This right did not exist in connection to the Second Amendment until he put it on paper last year.

If anything, the quotes that Scalia uses show that his argument is without merit as the concept of self-defence may have been considered, but was not worthy of being mentioned in the Second Amendment. As I say, where are the words "self-defence" in the Constitution?

On the other hand, it is ridiculous to say that the Second Amendment enshrines a pre-existing right of armed self-defence. This right has never existed in common law, or in US Constitutional law prior to Scalia's pronouncement.

Immediate interpretation was by the Militia Act of Militia Act of 1792 providing for the authority of the President to call out the Militia which was passed 2 May 1792 by the Second Congress (Session I. Chapter XXVIII).

Scalia gives a lovely illusion, but it doesn't stand close scrutiny like any other illusion.

Or to quote the man:

“What distinguishes the rule of law from the dictatorship
of a shifting Supreme Court majority is the absolutely
indispensable requirement that judicial opinions be
grounded in consistently applied principle. That is what
prevents judges from ruling now this way, now that—
thumbs up or thumbs down—as their personal preferences
dictate. Today’s opinion forthrightly (or actually,
somewhat less than forthrightly) admits that it does not
rest upon consistently applied principle.”

I hate to end this with a question, but what exactly is Scalia's judicial philosophy?

Yet another critique of Scalia's argument in Heller.

Scalia's use of state constitutional provisions is unconvincing from a legal standpoint. State constitutions often grant individuals more protection than do analogous provisions of the federal Constitution. States also protect individual rights which are nowhere to be found in the US constutition.

For example, some states hold that their residents have an "expectation of privacy" in their garbage, meaning that the government must have probable cause to search garbage. Some states hold that traffic "check lanes," where entire lanes of drivers are stopped and checked by the police, are unconstitutional. The United States Supreme Court has held that the Federal Constitution does not recognize an expectation of privacy in garbage, and that traffic check lanes are constitutionally permissible.

States can only add to your Federal constitutional rights -- they cannot pass constitutional amendments that restrict the rights you receive under the Federal Constitution.

A state court's interpretation of the state constitution can differ from an interpretation of an overlapping federally protected right. The variance may arise from a number of circumstances, including textual differences, different legislative histories, and disagreement among courts about the correct interpretation of constitutional language. For some, independent state interpretation of state bills of rights has the benefit of allowing states to be laboratories of experimentation for new or different legal doctrines. Moreover, a state court may be better able to provide stability and clarity of law than a distant federal court.

The problem here is that Scalia used differently worded State constitutional guarantees to try to interpret the US constition. These differently worded provisions only act to obfuscate the proper inquiry.

Another no-no, but Scalia was coming up with his new right.

The problem is that there already was a unanimous decision in US v. Miller that provided this guidance to the interpretation of the Second Amendment:

In the absence of any evidence tending to show that possession or use of a 'shotgun having a barrel of less than eighteen inches in length' at this time 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. Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment or that its use could contribute to the common defense. Aymette v. State of Tennessee, 2 Humph., Tenn., 154, 158.

The Constitution as originally adopted granted to the Congress power- 'To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions; To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress.' U.S.C.A.Const. art. 1, 8. With obvious purpose to assure the continuation and render possible the effectiveness of such forces the declaration and guarantee of the Second Amendment were made. It must be interpreted and applied with that end in view.

UNITED STATES v. MILLER, 307 U.S. 174 (1939)

The obvious answer here is that Scalia had a new interpretation which was without legal basis or preedent that he wanted to justify.

From the Catholic Church...

A Shameful Supreme Court Decision

The US Supreme Court has declared the District of Columbia’s ban on handguns to be unconstitutional as it violates the so called individual “right to bear arms”. We need to unpack this. The Catholic perspective is to start with Aquinas, who viewed law as “an ordinance of reason for the common good, made by him who has care of the community”. The Enlightenment era gave us another view of the law, predicated on the notion of individual liberty as the foundation of society. In other words, the person has to right to do as they wish in search of personal fulfilment, as long as it does not impinge upon the rights of another. Law is then all about the enforcement of social contracts.

It would be erroneous not to credit the Enlightenment with its achievements. Too often, rulers abused the notion of “common good” (if they even bothered to seek a rationale) to trample upon human rights and human dignity. In re-discovering and liberating this essential Catholic teaching, we must be grateful to “Enlightenment values”. But we cannot go too far, for the underlying anthropology is false. It is used to support laissez-faire liberalism, based on the notion that market exchange is a “free” exchange that reflects natural differences in the various actors. This approach as been condemned vociferously by the Church from Pope Leo XIII onwards, for the Church looks at these issues through the lens of the common good, the way Aquinas viewed the law. The ethic of private liberty has led directly to gay marriage, where the goal is simply the satisfaction of personal desires as opposed to the common good which would emphasize the bearing and rearing of children. And of course abortion is justified in this manner: the “right to privacy” is paramount, and the unborn simply cannot be active participants in a social contract.

This is a rather lengthy introduction, but, I believe, an essential one. For the right to bear arms that the Supreme Court upheld today comes directly from this notion of personal liberty trumping the common good. For the authorities charged with the common good in DC, an area suffering from extremely high gun-related violence, felt that a ban on handguns was appropriate. Of course, this ban can have limited effect absent border controls at the Potomac river. But is this a valid argument for inaction? To use that logic, the ability to travel means that no laws restricting abortion should be enacted either.

At this stage, it is useful to see what the Church teaches on this matter. Here are some statements from the USCCB:

“Since such a significant number of violent offenses are committed with handguns and within families, we believe that handguns need to be effectively controlled and eventually eliminated from our society. We acknowledge that controlling the possession of handguns will not eliminate gun violence, but we believe it is an indispensable element of any serious or rational approach to the problem….

We believe that only prohibition of the importation, manufacture, sale, possession and use of handguns (with reasonable exceptions made for the police military, security guards and pistol clubs where guns would be kept on the premises under secure conditions) will provide a comprehensive response to handgun violence.”

That is quite clear. We need a national ban on handguns. I would like the many Catholics who are cheering this ruling to explain why they so gleefully go against the bishops on this one. For this ruling really pits the two alternative approaches to law against each other. Do we go with personal liberty, which includes the right to own handguns for self-defense? Or do we go with the common good, in an atmosphere of out-of-control gun death? I stand with the Church on this one, and deem the Supreme Court decision quite shameful, rooted as it is in the kind of reasoning that gave us Roe v. Wade and gay marriage.

Scalia’s history lesson is also misplaced. First, he appeals very much to the Enlightenment-era philosophy that was prevalent when the constitution was written. Just because the “founders” believed it does not believe it is right. And anyway, as I noted, you can draw a direct line from this position to Roe v. Wade. Second, he forgets that public policy geared to the common good differs by age. A simple example: it would not be possible to achieve universal health care during the middle ages, so there is no duty to try. You know where I am going with this. Scalia’s attempts to freeze-frame jurisprudence in the late-18th century is quite at odds with the notion of law promoting the common good. Then again, his is a sola-scriptura approach to textual analysis.

FInally, the empirical question. Let me point out for a start that the rest of the developed world views the United States as extreme and insane in its approach to guns. When gun homicide and suicide rates are off the charts, the American defenders to the pseudo-right shrug their shoulders and claim that banning guns would not solve anything. It’s just that, well, the United States is just more violent than elsewhere. Nonsense on stilts.

According to the extensive research of David Hemenway from Harvard’s School of Public Health, the US is actually not that exceptionally violent, at least among other high-income, industrialized nations. Crimes like assault, car theft, burglary, robbery, and sexual incidents are not particularly high by OECD standards. What differs about the US is “lethal violence”. So while guns don’t induce people to commit crimes, they make crimes lethal. The international evidence is beyond dispute: the availability of guns leads to greater rates of homicide and suicide, and no offset in terms of lower non-gun murders. We are talking here about a primary component of the culture of death.

I’ve even tried to do a simple empirical study on this blog, looking at cross-country gun ownership and homicide rates. I found that gun ownership rate are positively and significantly related to homicide and suicide rates across 19 advanced economies, and that a bevy of other factors — GDP per capita, demographics, ethnic divisions, urbanization and inequality– did not seem to matter on their own. It’s the guns, stupid! What causes gun deaths is the availability of guns. Score one for Occam’s razor. I did a little further analysis, to see if the availability of guns enhanced the underlying factors that might cause violence. It does. Introducing a non-linear element in the regression suggests that gun ownership is especially detrimental when ethnic divisions and inequality are elevated. Does that sound like any country you know?

The other argument often touted in that many gun-owning communities are inherently peaceful, and that the problems are localized to a few inner-city areas. Even if that were true, what happened to the notion of solidarity? What happened to the common good? Ah, I forgot, individual liberty matters more. Silly me.

Words to ponder

One major theme of this site is that the US Constitution is dying, as is the United States itself, if not actually dead. Here we see a first-tier legal scholar support this theory. “The Constitution that I interpret and apply is not living, but dead.” has become Justice Scalia’s best known saying, perhaps his signature line. I recommend attention to his warnings.

Antonin Scalia, Vigilante Justices: The Dying Constitution

If the courts are free to write the Constitution anew, they will write it the way the majority wants; the appointment and confirmation process will see to that. This, of course, is the end of the Bill of Rights, whose meaning will be committed to the very body it was meant to protect against: the majority.

He should listen to what he says.

Scalia’s logic used in Heller would lead him to endorse the outcome of Roe, a decision which he condemns on the grounds that the “Constitution says nothing about abortion.” Well, it also says nothing about a right to keeping handguns for self defense– so which is it? Indeed, the partisanship of Justices can sometimes be quite appalling, and just as Scalia is willing to violate his own principles as a means to a right-wing end in the Heller case, so too might a majority left-leaning court be willing to adopt an “textualist” position for the purpose of overthrowing Heller.

Justice Antonin Scalia is ignorant!

I just wanted to say it loud and clear. Maybe he will see it.

The grounds for this is that he has chosen to ignore prior precedent from US. V. Miller in his DC v. Heller decision. Scalia was bound by precedent which he chose to ignore.

Perhaps the Court’s approach to the text is acceptable advocacy, but it is surely an unusual approach for judges to follow.

Justice Steven is polite, but I will use these terms since they are legal terms.

ignorance XIII. — (O)F. — L. ignōrantia, f. prp. of ignōrāre not to know, misunderstand, disregard, rel. to ignārus unaware; see -ANCE.
So ignorant XIV. ignore †not to know XVII; (of a grand jury) reject (a bill); refuse to take notice of XIX. — (O)F. ignorer or L. ignōrāre.

Ignorantia juris non excusat.

This is especially true for someone who purports to be a high court judge.

And I hope he bloody sues me because I want to hear his explanation as to why he ignored this:

In the absence of any evidence tending to show that possession or use of a 'shotgun having a barrel of less than eighteen inches in length' at this time 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. Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment or that its use could contribute to the common defense. Aymette v. State of Tennessee, 2 Humph., Tenn., 154, 158.

The Constitution as originally adopted granted to the Congress power- 'To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions; To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress.' U.S.C.A.Const. art. 1, 8. With obvious purpose to assure the continuation and render possible the effectiveness of such forces the declaration and guarantee of the Second Amendment were made. It must be interpreted and applied with that end in view.
UNITED STATES v. MILLER, 307 U.S. 174 (1939)

Using foreign law sources as precedent

In common law legal systems, a precedent, or authority is a legal case establishing a principle or rule that a court or other judicial body utilizes when deciding subsequent cases with similar issues or facts. There are two forms of precedent: Binding precedent and Persuasive precedent.

Binding precedent relies on the legal principle of stare decisis. A stare decisis means to stand by things decided. It ensures certainty and consistency in the application of law. Existing binding precedents from past cases are applied in principle to new situations by analogy.

Precedent that is not mandatory but which is useful or relevant is known as persuasive precedent (persuasive authority or advisory precedent). Persuasive precedent includes cases decided by lower courts, by peer or higher courts from other geographic jurisdictions, cases made in other parallel systems (for example, military courts, administrative courts, indigenous/tribal courts, State courts versus Federal courts in the United States), and in some exceptional circumstances, cases of other nations, treaties, world judicial bodies, etc.

In a case of first impression, courts often rely on persuasive precedent from courts in other jurisdictions that have previously dealt with similar issues. Persuasive precedent may become binding through the adoption of the persuasive precedent by a higher court.

Foreign law cannot be used as a holding or a precedent or to bind an outcome of a legal decision interpreting the Constitution except in extremely exceptional circumstances. That would be that the court had no precedent.

Courts should ban the citation of persuasive precedent from outside their jurisdiction, with two exceptions:

(1) cases where the foreign jurisdiction's law is the subject of the case, or
(2) instances where a litigant intends to ask the highest court of the jurisdiction to overturn binding precedent, and therefore needs to cite persuasive precedent to demonstrate a trend in other jurisdictions.

It is interesting that Scalia has been a vocal opponent of the practice of using foreign law sources as precedent. I guess he does whatever justifies his conclusion. Even if that means an incorrect application of the law, his supposed beliefs on judicial interpretation, or whatever else can be used to make a justification for his conclusion.

Was he trained by Jesuits?

The problem is that if one chooses to use a foreign source to enlighten a legal decision, then one must also see how the other jurisdiction has applied this source.

Where I am going with this is that I believe that the use of Blackstone implies that there is no relevant precedent in the US jurisdiction that will illuminate our understanding of the Second Amendment. This is, of course, wrong, but it is the assumption that Scalia takes.

You see there are articles out there which say that the holding would have been different if Scalia properly gave deference to Blackstone's method of legal interpretation. Especially since Blackstone knews about these forms of precedent and would have said that US v Miller was binding precedent.

But, Scalia is ignorant of the binding authority of prior precedent thus believing that there is no Second Amendment jurisprudence whatsoever.

Taking this as his point of view, he has chosen the English Bill of Rights and Blackstone as persuasive authority.

But, he shouldn't have limited himself there. He should have seen how other Common Law jurisdictions have applied the relevant text and the law of self-defence. That is the proper method for using persuasive authority: see how have other courts applied the law in question.

I mean, aren't British, Canadian, Australian, New Zealand and so forth Courts familiar with their law?

The problem is that Scalia glommed onto a phrase, a concept, but again shows his ignorance. He doesn't care what the other jurisdictions do with the law, he wants to justify his own untenable position.

The problem is that this also flies in his face as anyone familiar with firearms laws in other Common law jurisdictions knows. There is no right to a firearm.

Likewise, self-defence: Self-defence in English law is a complete defence to all levels of assault and can't be used to mitigate liability, say, from murder to manslaughter where a soldier or police officer acting in the course of his duty uses a greater degree of force than necessary for self-defence (compare the situation in some of the Australian states in Self-defence). Hence, self-defence is distinguishable from provocation which only applies to mitigate what would otherwise have been murder to manslaughter (i.e. provocation is not a complete defence).

Because of the completeness of the defence, Self-defence is interpreted in a relatively conservative way to avoid creating too generous a standard of justification. The more forgiving a defence, the greater the incentive for a cynical defendant to exploit it when planning the use of violence or in explaining matters after the event. Thus, although the jury in self-defence cases are entitled to take into account the physical characteristics of the defendant, that evidence has little probative value in deciding whether excessive force was actually used. The general common law principle is stated in Beckford v R (1988) 1 AC 130:

"A defendant is entitled to use reasonable force to protect himself, others for whom he is responsible and his property. It must be reasonable."

Opinions can differ on what is a reasonable amount of force, but one thing is certain. The defendant does not have the right to decide how much force it is reasonable to use because the defendant would always believe he or she was acting reasonably and would never be guilty of any offence. It is for the jury, as ordinary members of the community, to decide the amount of force which would be reasonable to use in the circumstances of each case. It is relevant that the defendant was under pressure from an imminent attack and might not have had time to make entirely rational decisions, so the test must balance the objective standard of a reasonable person by attributing some of the subjective knowledge of the defendant, including his or her beliefs as to the surrounding circumstances, even if mistaken. However, even allowing for any mistakes made in a crisis, the amount of force must be proportionate and reasonable given the value of the interests being protected and the harm likely to be caused by use of force. The classic test comes from the Jamaican case of Palmer v The Queen, on appeal to the Privy Council in 1971:

"The defence of self-defence is one which can be and will be readily understood by any jury. It is a straightforward conception. It involves no abstruse legal thought. ...Only common sense is needed for its understanding. It is both good law and good sense that a man who is attacked may defend himself. It is both good law and good sense that he may do, but may only do, what is reasonably necessary. But everything will depend upon the particular facts and circumstances. ...It may in some cases be only sensible and clearly possible to take some simple avoiding action. Some attacks may be serious and dangerous. Others may not be. If there is some relatively minor attack it would not be common sense to permit some action of retaliation which was wholly out of proportion to the necessities of the situation. If an attack is serious so that it puts someone in immediate peril then immediate defensive action may be necessary. If the moment is one of crisis for someone in imminent danger he may have [to] avert the danger by some instant reaction. If the attack is all over and no sort of peril remains then the employment of force may be by way of revenge or punishment or by way of paying off an old score or may be pure aggression. There may no longer be any link with a necessity of defence... If a jury thought that in a moment of unexpected anguish a person attacked had only done what he honestly and instinctively thought was necessary that would be most potent evidence that only reasonable defensive action had been taken."

How does that work in practise?

Tony Martin, a middle-aged farmer, was awakened one night by the sounds of burglars breaking into his isolated farmhouse in Norfolk, England. Fearing for his life, because he lived alone on his remote farm more than 30 minutes away from the nearest police station, Mr. Martin relied upon his shotgun for his safety. He fired on the burglars, killing one, and wounding a second.

Doesn't that Sound like a clear case of self-defence?

Sorry, but Tony Martin was sentenced to life in a British prison. On appeal, his sentence was later reduced to five years in prison. The government is so set against citizens using firearms to defend themselves that now it is fighting Martin’s early release from prison. Even though he’s been a model prisoner, government lawyers claim he represents a “threat to society.” Why? Because he refuses to admit he did anything wrong in defending his life and his property. Believe it or not, the government even argues burglars need to be protected from the people they attempt to rob.

The government is not completely without a heart, however. The wounded robber was granted £5,000 to assist him in suing Martin for damages. The robber, who has multiple convictions and has never held a steady job, claims that his injuries keep him from working.

Not an aberation: there is also Padraig Nally in Ireland.

Using examples such as those, Scalia should have found that not only was DC's law Constitutional--it didn't go far enough.

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

More on Justice Scalia's comment about Scottish arms.

The 1746 Act of Proscription (19 Geo. 2, c. 39) banned more than just Scottish arms, it banned wearing of the Kilt. Of course, had the Scotsman been loyal to King George the Second, AKA the Kraut, they were still able to wear the kilt and bear arms (e.g., the Black Watch). It was basically an extension of the Dress Act of 1746 (19 George II, Chap. 39, Sec. 17, 1746).

Anyway, what brought this about was that I was thinking about the fact that Highlanders never wore the kilt when they fought. No, I am not joking. As one friend pointed out, just think about a few hundred highlanders chasing you with swords and no kilt on. Part of the reason for their success, I bet you'd run too if you were being chased by THAT!

I wish I had known Justice Scalia would ask questions about this. If I had I would have liked to have argued the case wearing formal highland dress. This is especially true since my family were Jacobites.

"Justice Scalia, the British had reasons for barring the highlanders and Catholics from bearing arms. This was due to the Jacobite Risings by the Highlanders between 1689 and 1746 where they attempted to restore the Stuart Monarchy. The Catholics were seen to be working against the established order due to religious wars, e.g., the Civil War."

Anyway, I have attached a picture of me bearing arms. In this case, it is a two handed claymore sword. I was holding a targe and claymore broadsword in the previous post on this topic. So, I have nothing against "keeping and bearing arms" as long as it is within a well regulated militia, such as my Pennsylvania Loyalist Highlanders.

One does not "bear arms" for private purposes. One bears them for the common defence. I bear my arms in service of my monarch: Queen Elizabeth the First (She's the First in Scotland).

The state has an interest in seeing who bears arms and that they don't bear arms in detriment of public order.

When one takes off the kilt though, one is baring something totally different.

Trigger locks

The more I think about it, the more Chief Justice Roberts's and Justice Scalia's questions about trigger locks were off point during Dellinger's rebuttal. Dellinger was too poor an advocate to regain control. This is surprising given his experience before the Court.

First off, there is no right to self-defence in the Second Amendment. Furthermore, there is no right to own a firearm for self-defence purposes. This is the case in other common law jurisdictions and should be such in this one as well.

Secondly, the standard is whether something impedes upon the efficacy of the militia. Given this standard, we can take the example of Switzerland. A Swiss "army" member has an assault rifle in his house; however, he is subject to stiff penalties should he use it.

Every soldier equipped with the Sig 550 assault rifle is issued 50 rounds of ammunition in a sealed box, to be opened only upon alert. The ammunition is then loaded into the rifle magazine for use by the militiaman should any needs arise while he is en route to join his unit. Any other use than this, or even unsealing the ammunition is strictly forbidden. Since summer 2007, there is no storage of ammunition in private homes. No new boxes of ammunition have been issued to Swiss army members and those in private homes have been collected.

So, unless the trigger lock has a bearing upon the militia member's efficacy, this is a distraction. In fact, the National guard has held arms in its armouries since the late 19th Century. Is this a violation of the Second Amendment?

There is a reason for a dearth of Second Amendment case law and that it that the times that it is truly applicable are extremely limited. The issue of private ownership of firearms outside of militia service is not under its ambit. And the issue for which it was supposed to address, the vast military industrial complex, has remained unchallenged.