Posted on 07/03/2008 9:16:22 AM PDT by jazusamo
Judicial activism. Legislating from the bench. Ideological decision-making by judges.
No sooner had the Supreme Court announced its decision in District of Columbia v. Heller than critics of the 5-4 majority decision and the court's sometimes-conservative majority cried all the above. In holding that the Second Amendment granted individuals the right to keep and bear arms, the court's conservatives -- those champions of judicial modesty and originalism -- were now engaging in judicial activism of their own. Yes, everybody does it, and conservatives are just hypocrites for pretending otherwise.
The Washington Post's E.J. Dionne Jr. was at the head of the pack, with a column that appeared in The Oregonian the day after the decision. Not only was "the judicial right" guilty of this, but the ruling also showed that its talk of deferring to local authorities and elected officials on political decisions and heeding the Constitution's precise words was poppycock.
It's hard to know what accounts for the "They're activists, too" line. Is it confusion or a conscious bid to attack the judicial right's greatest strength -- the solid, winning notion that judges should interpret, not make, law? It certainly cannot be an impartial reading of Justice Antonin Scalia's majority opinion or a full understanding of judicial restraint.
Dionne thinks it's telling -- telling of dishonesty -- that Scalia spent the first 54 pages of the majority opinion explaining away the first 13 words of the Second Amendment ("A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed"). Dionne seems to have spent more time counting than reading. Would he have found the decision more compelling if Scalia had spent 25, 12 or no pages? Or would he have criticized it for not exploring the contemporaneous meaning and relevance of those (13) prefatory words and the (14) words that follow? Somehow I doubt he would have found any number of pages satisfactory, because he disagrees with the result. But what those 54 pages contain is honest, old-fashioned constitutional analysis -- a look at the text and context of the Second Amendment before, during and after the Framing.
But doesn't the "judicial right" favor local decision-making? Shouldn't elected city officials be able to craft policies (handgun bans) to deal with gun violence in their crime-ridden community? Not if they trample on the Constitution in the process. They cannot abrogate the First Amendment's assembly protections or the Fourth's search-and-seizure safeguards because a community wants to deal with gang violence or any other local problem. A due regard for states and local governments in our federal system and a proper judicial deference to the legislative and executive branches on political questions doesn't allow elected officials or unelected judges to ignore the Bill of Rights, and nobody on Dionne's "judicial right" has ever said otherwise.
Dionne and the Heller minority think the Second Amendment recognizes a collective right tied to "a well-regulated Militia," not any individual's right to keep and bear arms. They cite the 1939 "precedent" of United States v. Miller, which upheld two men's federal convictions for transporting an unregistered short-barreled shotgun in interstate commerce. They think this shows the majority's contempt for precedents anathema to conservatives.
Scalia argues, however, that Miller is no precedent at all for their view. He notes that Miller did not center on the fact that the two individuals were not bearing arms for military purposes. In Miller, the court ruled only that the weapon was not eligible for Second Amendment protection, since sawed-off shotguns had no relationship to the "preservation or efficiency of a well regulated militia." As Scalia wrote for the majority, "Had the Court believed that the Second Amendment protects only those serving in the militia, it would have been odd to examine the character of the weapon rather than simply note that the two crooks were not militiamen." Bingo.
Noting Scalia's 54 pages on the 27 words of the Second Amendment, the page-counting Dionne wrote last week. "Does that reflect an honest attempt to determine the 'original' intention of the framers?"
Actually, it does. Majestically so.
David Reinhard, associate editor, can be reached at 503-221-8152 or davidreinhard@news.oregonian.com
I agree 100%. Some of the Court's favorite words in a decision are: "...denied due to lack of standing." Why? Because that means they've disposed of the case in about 5 minutes, and are that much closer to clearing the docket.
It would have been the easiest thing in the world for the 1939 Court to have simply done as the 9th Circus routinely does now regarding the 2nd Amendment - call or treat it as a "collective" right (whatever that absurdity means), which no single person can sue to enforce. But that didn't happen for a reason: because it would logically have destroyed almost the entire Bill of Rights.
Zackly
A quick glance at the Headline, as rendered by jazusamo, brought the pictured lib-weenie to mind.
It did make me stop and read, tho.
What's particularly interesting with that "precedent" is that the Supreme Court didn't uphold any conviction; the case was reversed and remanded to trial court for further proceedings (which never took place).
The trial judge was a partisan anti-gun nut who was expected to get a Supreme Court nomination for his partisan activism. He died before he could be appointed.
“It will be very telling if a case comes before the USSC with that set of facts as the argument as to why normal law-abiding people should be able to own full auto machine guns, for instance.”
Indeed, it will. Scalia even mentioned that a full auto would be protected under the Stevens view of “Miller”. Scalia says that this view is incorrect, that “Miller” also has to be understood in the context of the times in which the 2nd was written. This means that members of the militia were expected to report for duty bearing their weapons (i.e. those in common use at the time).
Of course, full autos aren’t exactly common - but that’s because the 2nd has been violated since 1934 by the government. From 1934 until the present day, if you wanted or want to have a full auto transferred to you, you had/have to (among other things) pay a $200 tax and get the approval of your local chief LEO. Until at least the 1970’s, $200 was very expensive in relation to the cost of the gun itself, so the numbers were limited (and they were also limited due to state law, or to anti-gun LEOs denying people permission, even if they had the $200 for the tax). On top of that, the supply of full autos available for civilian (i.e. non-governmental and non-Class 3 dealer, IOW the vast, vast majority of us) ownership was limited by federal law to those in existence and registered as of 5/19/1986.
I foresee that the ‘86 ban will be lifted - it has ALWAYS been legal to own a full auto under federal law (so how “unusual” or “dangerous” could they be?), and it is simply absurd (i.e. irrational) to say that a particular individual owning a pre-ban full auto cannot also own a post-ban full auto because that somehow presents a danger to society. I further predict that once that case is won, someone will challenge the $200 tax stamp required under the ‘34 NFA. The ruling in “Murdoch v. Pennsylvania” http://nesara.org/court_summaries/murdoch_v_pennsylvania.htm
is very clear in stating that there can be no tax imposed on the exercise of a Constitutional “privilege” (which should have read “right” which, I believe, will be corrected in a USSC opinion in the not-to-distant future).
Good days are coming. I forsee a day in which 5 or 10 million full autos are owned by civilians in this country, which would make any domestic tyranny an impossibility and any foreign invasion a bloody failure...just as the Founders intended.
I think that McCain would win in a walk if he nominated the Nuge for Veep. He’d energize conservatives like no one since Reagan.
That's not what Miller said. Here's what the court found:
"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. "
They didn't decide the issue. Since no one showed up to argue Miller's side of the case, they just remanded the decision and told the lower courts to work it out.
Scalia discusses this exact point in his decision, and opened the door wide to future litigants seeking clarification. This may seem petty on my part, but the distinction is important as the issue is still in play, and will doubtless come up in the near future.
Molon Labe!
The same thought occured to me as I was reading Scalia's opinion. Can the state, by its prior regulatory actions, be allowed to make some arms "uncommon", and then use that fact to prevent peacable citizens from owning "such an instrument"?
I would argue not, but that and three bucks would get you a cup of coffee these days.
I don't like the notion of relying on the courts to preserve our essential liberties (though in the present instance things broke in favor of liberty).
“I don’t like the notion of relying on the courts to preserve our essential liberties.” Me neither. BUT the political elites don’t trust us plebes to have the same arms that their employees have. This ruling is better than nothing, but really what is needed is legislatures that a) want to keep their offices and b) know that voting for “gun-control” legislation is going prevent them from doing a. It doesn’t rely on any more than self interest on the part of the elected to work. ;>)
The 2nd amendment goes down so does everything else IMO.........the socialists democrats and their handlers are working within laws and authority right now as much as we hate too admit it . They won’t like the false sense of security those laws and authority give them when they are declared moot by their own hand and when they become as useless as the constitution they seek too destroy........
Unless they can make grain grow on roof tops their urban refuge is a death trap nightmare waiting too happen should the flare go up !
I beg to differ! Weapons with burst and/or full auto firing capability are the NORM when state militia units get together to train.
I was referring to full autos in civilian hands - because any suit to overturn the '86 ban is moot as applies to a "state militia" or the state's National Guard. Those are governmental entities, and I'd sincerely doubt that the people in these organizations are training with their own personal weapons.
Besides, if a state's militia is also the National Guard unit for that state, it can be federalized at the stroke of the President's pen. Ask Rudy Perpich, former guv of Minnesota, who sued to prevent the MN NG from going on manuevers to Central America. In 1990 the Supreme Court put the old collective-rights canard of "the National Guard IS the militia" into its well-earned grave, decapitated, with several wooden stakes through the heart and a generous dose of silver bullets - it was a unanimous decision.
I know your heart is in the right place, but please don't claim that full autos are common because of state militias, even if they are, in fact, common there. Try taking one of those guns home and see what happens - it would not only be theft of government property, but you'd probably be in violation of the NFA and the '86 FOPA for transferring a full auto without a tax stamp. I do understand where you're coming from - you're arguing that full autos are common, therefore they can't be limited according to what Scalia said in Heller - but they aren't common where they matter for a court case to overturn the '86 ban...in the hands of civilians. Of course, the only reason is because of unconstitutional laws - what buyer of an AR or AR clone wouldn't pay an additional $100 or so for "Da Switch?" If there was no NFA and no '86 ban, there'd be at least 5 million full autos (or select fire weapons, which amounts to the same thing in a legal sense) in civilian hands, maybe more.
Sent to the author:
In fact, the court stated the following:
There had been no testimony during the course of the proceedings that short-barrel shotguns had seen routine military use in World War I as “trench guns,” and continued to be used militarily until 1939, and in fact right through today.
And since the US Supreme Court cannot hear testimony or admit new evidence, only review the record as it stood at that point, they couldn’t draw on their own military experience, call an expert witness, or take “judicial notice” of the fact as if it were an obvious and widely-known fact.
So the reality is that the US Supreme Court didn’t “rule” that short-barrel shotguns had “no relationship” - because such a ruling would have been completely false as any WW-I veteran who’d cut down Germans with one would have known - they ruled that the record contained no evidence that it did, and thus sent the case back down for further evidentiary hearings in a lower court, hearings which never took place.
The court concluded by ordering that the indictment against Miller and Layton be quashed (thrown out) and sent the case back down:
The mythology surrounding the Miller case runs deep, and it certainly doesn’t help that news media keep repeating falsehoods about it decade after decade. I hope that the Oregonian won’t continue to do so. It’s bad enough that Scalia himself did.
-Michael Pelletier.
Scalia was brilliant arguing against the dissent opinions by basing his position on factual evidence and not emotional rhetoric, that's the trick of the antis.
From your post: 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. "
This is why I said the court made a mistake - they didn't do their homework. Maybe it was - as you said - a result of Mr. Miller (who I believe was deceased by the time the Supremes heard oral arguments) had no one there to actually represent his side.
In any case, they were wrong about that. Sawed off shotguns had been used to great effect ALREADY in WW I. Not to mention bootleggers found them very useful for illicit perposes, when they couldn't get their hands a the sub-machine guns of those days.
So I again state my point that the USSC was unaware of the LEGITIMATE use (or uses) this type of weapon could have. During war, or as home protection, and on and on. They didn't do their homework, whether Miller had an attorney present or not, and they screwed up.
And whatever lower court looked at this case on the way back down ALSO screwed up. And for several decades now, somehow this case has been used by the anti-gun crowd to say some really stupid things.
We shouldn’t get all wrapped around the axle of the term “common.”
We now have a “Miller Test” with respect to firearms and the Second Amendment. The test goes like this: “Does said firearm have some reasonable relationship to the preservation or efficiency of a well regulated militia?”
If the answer is “Yes,” then the weapon is encompassed by the Second Amendment.
So that means that M-16s are covered, short-barrel shotguns (”breaching guns,” “combat shotguns”) are covered, 20mm anti-tank rifles are covered, etc.
What’s doesn’t have such a relationship? Perhaps saps, brass knuckles, slungshots... What’s a “dangerous and unusual” weapon? Perhaps chemical, biological, or nuclear arms, JDAMs, or autonomous air-defense guns...
So I again state my point that the USSC was unaware of the LEGITIMATE use (or uses) this type of weapon could have. During war, or as home protection, and on and on. They didn't do their homework, whether Miller had an attorney present or not, and they screwed up.
I'd be willing to bet that at the very least one of the Justices who heard the Miller case had personal knowledge of short-barrel shotguns as "trench guns" in WW-I.
The problem is, the US Supreme Court can't hear new evidence, it can only review what's been presented in lower courts. That's why they remanded the case for further proceedings.
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