Posted on 10/04/2005 3:20:22 PM PDT by Richard Poe
HARRIET MIERS OUTSHINES BORK
Unlike the Patron Saint of Originalism, Miers Will Defend Our Freedom
Judge Robert H. Bork has come to represent in many conservative minds the gold standard of legal sagacity against which provincial upstarts such as Supreme Court nominee Harriet Miers must be weighed. In truth, however, Bork provides a poor example of conservative jurisprudence. Even as simple a phrase as, "the right of the people to keep and bear arms, shall not be infringed" has long confounded Judge Bork. Harriet Miers suffers no such confusion.
Following a July 1, 1992 incident in which a crazed gunman slew two lawyers and two judges in a Texas courtroom, Miers wrote in the Texas Lawyer, "How does a free society prevent a man from entering a courtroom and opening fire?" (hat tip, David Kopel)
The very liberties we hold dear, such as, "access to public places, the right to bear arms and freedom from constant surveillance" make such crimes possible, noted Miers. Yet, she concluded, "We are not willing to sacrifice these rights because of the acts of maniacs."
By contrast, Robert Bork dismisses the Second Amendment as a useless relic of bygone days. In his 1996 book Slouching Towards Gomorrah he writes that, "The Supreme Court has consistently ruled that there is no individual right to own a firearm" — a statement which is demonstrably untrue. Bork also writes:
"The Second Amendment was designed to allow states to defend themselves against a possibly tyrannical national government. Now that the federal government has stealth bombers and nuclear weapons, it is hard to imagine what people would need to keep in the garage to serve that purpose.''
Perhaps if Judge Bork had found himself besieged by gangs in post-Katrina New Orleans, he might have gained a healthy appreciation for the utility of SKS rifles and AR-15s in modern life. How much more would he have appreciated such hardware, had he found himself surveying the smoking ruins of an American city flattened by nuclear terror attack, devoid of police and swarming with brigands.
But Judge Bork is one of those men who cannot "imagine" what he has not personally experienced. And so the "brilliant" jurist discarded James Madison's handiwork as casually as he would a soiled Kleenex.
If this is brilliance, how exactly should we define stupidity?
In today's American Thinker, Thomas Lifson exposes the snobbery which underlies so many conservative denunciations of Harriet Miers. He writes:
"Thus we hear conservatives sniffing that a Southern Methodist University legal education is just too non-Ivy League, adopting a characteristic trope of blue state elitists. We hear conservatives bemoaning a lack of judicial experience, and not a single law review article in the last decade as evidence of a second rate mind."
The outrage certain conservative pundits have displayed in the face of President Bush's decision to elevate Harriet Miers over their Ivy League classmates may be understandable. But it is not helpful. Nor is it admirable.
And now Miers has said it is a right that shouldn' be infringed and Bork says the 2nd Amendment doesn't impart an individual right and is an anachronism? Could it be he's over-educated himself? Thinks too damn much? Is out of touch with the common man?
Say it ain't so!
I was aware of the overestimated Bork's position on the Second Amendment and have been pointing it out to his defenders for years---
Wow, good find.
The same liberties that ensure a free society make the innocent vulnerable to those who prevent rights and privileges and commit senseless and cruel acts. Those precious liberties include free speech, freedom to assemble, freedom of liberties, access to public places, the right to bear arms and freedom from constant surveillance. We are not willing to sacrifice these rights because of the acts of maniacs.
She is SOOO unsophisticated. We MUST give up our liberties to protect ourselves from the maniacs. She's a anachronism, a throwback. Lord help us! She might even believe that interstate commerce should involve commerce and interstate movement! We're DOOMED!
Someone else finally noticed that Bork is very weak on the 2nd Amendment, and also discovered that Miers apparently isn't. On another thread, someone was lamenting that Bush chose Miers instead of someone like Bork.
Mr. Poe, this is outstanding work.
However, posting it on the All-New Bush-Hating Free Republic is akin to casting pearls before swine...
Great catch and well said. Thanks
Wow! This article appears on moonbatcentral.com. I thought we applied the "moonbat" label to cranky libs.
Oh wait. "Libs" can apply not just to liberals, but to libertarians, too.
"On another thread, someone was lamenting that Bush chose Miers instead of someone like Bork"
That was only because nominating Bork would have caused a big fight....not because Bork would have been a better justice.
Like Rush said, the fight was needed and we will have to fight it someday. But, its been delayed by Miers...oh well.
Yeah, I wonder why all the usual suspects haven't come to this thread decrying campaign contributions Miers made in 1988. Or decrying her lack of qualifications. She really needs to go back to school and get her education up to Bork's level and then Bush could re-nominate her /sarcasm.
No, Bork is consistent with the original intent of the Constitution. He believes in a federal government with limited powers per the Ninth and Tenth Amendments. He believes that the selective incorporation doctrine of the 14th Amendment is bogus. That means the Federal government would be unable to regulate the State militias or enforce the Second Amendment against State laws.
The question is: Do you want Federalism or unlimited Federal power?
There is good reason for this preference. It preserves the powers of your local government which means that your local representation would remain meaningful. As things are now, the federal courts are dictating terms to local governments on hordes of issues that never reach the Supremes.
It's a trade-off with which Bork is at least consistent, unlike most Federal jurists.
Bork isn't being held up as the "gold standard", Scalia and Thomas are. Also I think Bork's view of antitrust law is horribly flawed.
I'd really like to see the context of those Bork quotes-- I really really would.
Man, I feel better about this every hour. Thanks for the link to Kopel's article.
Sorry, but he calls the 2nd Amendment an anachronism. And IMO, the 2nd does not require incorporation as the First did, because it is not prefaced with "Congress shall pass no law."
It says "shall not be infringed." That is absolute. And Bork walks away from that absolutism.
A worthwhile listen: Windows audioclip of Mier's pastor talking about her personality and character on Kevin McCullough's radio talk show
http://media.salemwebnetwork.com/WEBLOG/kmc/Pastor%20Ron%20Key%20-%20Segment%202.wma
Thomas is the gold standard. Scalia sided with the majority in Gonzales v Raich, which would have put a wooden stake into Wickard.
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