An interesting thought

The whole Heller-McDonald mess came about because Judge Silberman decided he didn’t need to follow precedent (Sandidge v. United States, 520 A.2d 1057 (D.C. 1987)).

Given the illegal nature of the Heller-McDonald decisions, why should a judge in future need to follow precedent if he dislikes it: especially if there is good reason to disregard that precedent?

To be quite honest Chief Justice Roberts asked in the Heller oral arguments:

I’m not sure why we have to articulate some very intricate standard. I mean, these standards that apply in the First Amendment just kind of developed over the years as sort of baggage that the First Amendment picked up. But I don’t know why when we are starting afresh, we would try to articulate a whole standard that would apply in every case?

The problem was that the Roberts court was not starting afresh as US v Miller gave clear directions that:

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)

I realise that McReynolds wrote this direction for interpretation in an ass backward manner that is hard for the modern mind to comprehend.   Modern readers will find it makes much more sense if the first paragraph is read after the second or to paraphrase this:

The entire text of the Second Amendment was made with the obvious purpose to assure the continuation and render possible the effectiveness of the forces created under authority of Article 1, Section 8, Clause 16. It must be interpreted and applied in consideration of that purpose. Without evidence that possession or use of a ‘shotgun having a barrel of less than eighteen inches in length’ is reasonably related 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 of the body organised under Article 1, Section 8, Clause 16 of the Constitution or that its use and possession would contribute to the common defense.

There was a standard prior to DC v. Heller which the Roberts’ court has refused to recognise which makes far more legal sense than the garbage the Roberts court has been promulgating.

And if he wants to trash the constitution, then so be it.

Heller-McDonald stands for the proposition that precedent does not matter and need to be followed if it is inconvenient.

Advertisements
%d bloggers like this: