Quis custodiet ipsos custodes?

This is latin for “Who watches our guardians? The guardians themselves?” which is an apt question after the McDonald v. Chicago decision.

How can two decisions (DC v. Heller and McDonald v. Chicago) which are so legally wrong be allowed to stand without question?

In lower courts, one can ask the judge to reconsider their decision which they will do. they will even change the decision if there is overwhelming evidence that they were wrong.

Likewise, the Supreme Court could back track on the Heller decision and have let Chicago’s and the other respondent’s gun laws stand by not incorporating the Second Amendment. That would have been quite easy as the legislative history of the Second Amendment shows that it is tied to Congress’s power Article I, Section 8, Clause 16:

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;

Indeed, prior to DC v. Heller, the law was ruled by US v. Miller after quoting that exact passage clearly stated that:

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.

However the five stooges on the Supreme Court have decided that they have the power to change precedent and the constitution, which they do not.

It requires the amendment of the Constitution to remove the language of the “prefatory clause” from the Second Amendment: hence, these two decisions are both unconstitutional and illegal.

The problem is that the US Constitution does not provide for any other process other than the political one for the censure of these out of control judges.

And we have seen how inadequate the US political process is for protecting the safety of its citizens through gun control.

But the issue goes far beyond the mess and litigation that this will stir up in regard to gun control.

These foolish judges have stirred up a political hornet’s nest the likes of which we have yet to endure. Truly conservative judges would have taken the path of least damage, but these fools have inklings of what sort of mischief can be raised from the legal reasoning of the Heller-McDonald decisions. This is especially true given the reckless nature of the American legal educational system.

The fact that the theories upon which the Heller-McDonald decisions see the light of day is the most damning evidence that the American system of legal education is fraught with inadequacies. We can be sure that it won’t take long before convicted felons will be suing for gun rights. In fact, they have post-Heller. The Gun Owners of America have already pledged to help those convicted of misdemeanor domestic violence recover their gun rights!

The question is how long will it take before the firearms law challenge litigation gets totally out of control?

Better yet, how long before the undiciplined lawyers churned out by the US legal educational system start creating havoc in litigating for rights such as gay marriage, health care, and whatever else comes to mind?

The US is on the edge of a beautiful constitutional crisis which its framework is not empowered to handle. The Second Amendment system of the militia which would have theoretically provided some form of stability has been emasculated by history and, the ultimate insult, made a joke of by the Heller-McDonald cases. There is no constitutional body to provide a check upon judicial error from the Supreme Court.

The problem with gun control is that people have been able to justify inaction because the victims are usually “not like us”; however, I think we may see a rise in the body count now that the five stooges are willing to go beyond federal limits.

On the other hand, there is also the possibility that regulation may come as the court rule that many of the legislated restrictions may stand as reasonable. Registration, no matter how onerous, may be seen as “reasonable”, which puts the concept of gun rights as a joke. The Heller-Chicago cases demonstrate the law of unintended consequences as more restrictive gun laws are promulgated.

The only thing which is unreasonable is an outright ban. So, had Chicago theoretically allowed for registration, but not granted it, that sort of “ban” may have been reasonable. Think of New Jersey’s gun laws as being reasonable.

Quite frankly, no matter how you look at it, the Heller-Chicago cases will prove that Judges who use their own prejudices rather than legal precedent cause more mischief than they are worth.

Note: I strongly recommend the Economist’s blog post on the McDonald decision

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