Archive for the ‘constitution’ Category

General Counsel Unconstitutional?

This is more of a question than a statement, but since the Fourth Amendment has a specificity requirement wouldn’t a remit to just go forth and investigate violate that?

The fact that the Mueller Investigation is turning up evidence of thinigs beside Russian Collusion, which was its remit reminds me of a general warrant. General warrant wereissued by the English Secretary of State for the arrest of the author, printer, or publisher of a seditious libel, without naming the persons to be arrested. Such warrants were banned by Parliament in 1766.

Here is the black letter law on one.

A general warrant refers to a warrant providing a law-enforcement officer with broad discretion or authority to search and seize unspecified places or persons. A general warrant lacks a sufficiently particularized description of the person or thing to be seized or the place to be searched. General warrants are unconstitutional because they do not meet the Fourth Amendment’s specificity requirements..

The Fourth Amendment

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.[1}

It seems to me that if the investigation related to Russian Interference than the remit can’t be to go forth and find evidence of crimes without that being in violation of the Fourth Amendment. As the court pointed out in U.S. v. George,  975 F.2d 72, 74 (2d Cir. 1992): the language any other evidence relating to the commission of a crime was unconstitutional. That’s because it was ” plainly is not sufficiently particular with respect to the things to be seized because it effectively granted the executing officers’ “virtually unfettered discretion to seize anything they [saw].”

it seems to me that any investigation would have to have specific limits or it violates the Fourth Amendment.

Footnote:
[1] this from the North Carolina Constitution:

General warrants, whereby any officer or other person may be commanded to search suspected places without evidence of the act committed, or to seize any person or persons not named, whose offense is not particularly described and supported by evidence, are dangerous to liberty and shall not be granted.

Imagine this actually happening at the US Constitutional Convention.

The Good News: Catherine the Great has promised to give us a Donkey Show if we create an Electoral College.
The Bad News: It won’t be for another 230 years or so.

Next, Let’s ensure that we will have gun mayhem and mass shootings in the future.

Oh, cake!

 

washington_constitutional_convention_1787

Originalism and the Second Amendment

This is all very simple since according to people who claim to believe in Originalism, “Constitutional interpretation should remain anchored in the original meaning of the Constitution’s text, which is the source of the Court’s authority and legitimacy.” Using that definition:

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.

The text of the Second Amendment begins with “A well regulated Militia” which is “necessary to the security of a free State“. The language of the text does not mention Self-defence, hunting, target practise, or any other non-militia uses. It is a well established rule or statutory interpretation that inclusio unius est exclusio alterius  which means  that ‘including one excludes another’. The example given where I found this was the statement ‘no dogs allowed’ under this rule would mean that panthers were allowed.

Likewise, the fact that the Militia is specifically referenced would lead one to conclude that this text addresses the militia, but does not cover uses other than the militia.

Likewise, a search of the US Constitution shows that it addresses the militia, but personal defence is not addressed. Likewise, the preamble of the text makes it clear that one of the reasons for adopting the Constitution is to deal with matters of the common defence. However, there are people who claim to follow originalism who are willing to ignore the actual text of the Constitution to advance their beliefs.

The actual wording of the Constitution makes it clear that the Militia and Common defence are covered, but personal uses of weapons aren’t.  I am not going to get into the grammar of the Second Amendment since that isn’t really germane if one is going solely upon the text. Anyway, Dennis Baron addresses that issue in his amicus brief to the Heller decision and this essay where he demonstrates that the founders would indeed have seen this as only relating to the militia.

Reading the Second Amendment as a statement in which every word counts follows from the opinion articulated by Chief Justice John Marshall: “It cannot be presumed that any clause in the constitution is intended to be without effect” (Marbury v. Madison, 1803). But even without that landmark ruling, it would have been clear to 18 th -century readers that the first part of the Second Amendment was bound to the second part in a cause-and- effect relationship, that the right to bear arms was tied by the framers directly to the need for a well-regulated militia.

The Second Amendment was pretty much considered settled case law which was thrown into disarray by Heller and McDonald. US v. Cruikshank, 92 U.S. 542 (1875) wasn’t very helpful since it addressed private action, but Presser v. Illinois, 116 U.S. 252 (1886) and US v. Miller, 307 U.S. 174 (1939) both made it clear that the Second Amendment related to the Militia. Miller is usually not properly represented in recent “Second Amendment Scholarship” and totally ignored in the Heller and McDonald decisions because it is “not helpful”.

Indeed, it is not helpful to the recent decisions which were ultra vires because they amended the Constitution to add a new meaning to the Second Amendment, as this essay demonstrated. I would also add that Justice William O. Douglas addressed Miller and glossed it in his dissent in Adams v. Williams, 407 U.S 143, 150 -51 (1972) , which somehow is omitted in lists of SCOTUS cases mentioning the Second Amendment. Which is too bad since Justice Douglas was a member of the Supreme Court when Miller was decided, which makes him a very good source for how that case should be read.

Justice Douglas pointed out that in Second Amendment jurisprudence:

The leading case is United States v. Miller, 307 U.S. 174, upholding a federal law making criminal the shipment in interstate commerce of a sawed-off shotgun. The law was upheld, there being no evidence that a sawed-off shotgun had “some reasonable relationship to the preservation or efficiency of a well regulated militia.” Id., at 178. The Second Amendment, it was held, “must be interpreted and applied” with the view of maintaining a “militia.”
“The Militia which the States were expected to maintain and train is set in contrast with Troops which they were forbidden to keep without the consent of Congress. The sentiment of the time strongly disfavored standing armies; the common view was that adequate defense of country and laws could be secured through the Militia – civilians primarily, soldiers on occasion.” Id., at 178-179.

The Heller and McDonald decisions are examples of Judges failing to follow the rule of law, precedent, and their claimed theory of judicial interpretation. As I pointed out, those two decisions are ultra vires and should be ignored, which is easy since they are incredibly limited in their scope. But even then, some daring justice should show that the emperor has no clothes in these decisions.

Anyway, one doesn’t need to go far if you believe that the text of the Constitution is determining in how to interpret the Second Amendment that it only applies to the militia. It is quite obvious that the Second Amendment relates to the militia from the text. But the Heller and McDonald decisions made it clear that the text was optional, which means that Originalism is a nonsensical school of constitutional interpretation.

Sorry, but Laci is no longer taking new cases.

From the Washington Post:

A suspect in an interrogation told detectives to “just give me a lawyer dog,” the Louisiana Supreme Court ruled that the suspect was, in fact, asking for a “lawyer dog,” and not invoking his constitutional right to counsel. It’s not clear how many lawyer dogs there are in Louisiana, and whether any would have been available to represent the human suspect in this case, other than to give the standard admonition in such circumstances to simply stop talking.

While Laci strongly believes in the Constitutional Right to Counsel, she is no longer taking cases.  Even if she were willing to take this case on, she is not licensed to practise in Louisiana.

Too bad the PD was unaware of this blog, since he could have used Laci as a quite willing Canine counsel for his client in cases of judges with acute robeitis.

The Ultimate Slam Dunk Argument Against the Individual Right Interpretation of the Second Amendment.

One thing that Heller and McDonald demonstrated was that it didn’t really care about the Second Amendment within the Constitutional Context. That means that those two cases are an absurdity in “Second Amendment Jurisprudence”. The absurdity starts with its minimalisation of what Heller described as the “preferatory clause”. The reason for the nonsensical nature of the “individual right” interpretation is that it takes the Second Amendment out of legislative and historic context.

But one need not go beyond the four corners of the document to show this is an absurd interpretation of the Second Amendment since it is presumed that a legal document will be interpreted so as to be internally consistent. A particular section of the document shall not be divorced from the rest of the act. Thus, if the Constitution mentions certain goals or subjects in the preamble, it must be considered within the terms of those goals and subjects.

There are two versions of the Amendment and I will use this one for the purposes of the argument I will be making for the purpose of clarity:

“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.”

That means the phrase “A well regulated militia being necessary to the security of a free state” was pretty much ignored or discounted in Scalia’s analysis. This is despite the rule of constitutional interpretation that “It cannot be presumed that any clause in the Constitution is intended to be without effect.” The individual right interpretation means that not only is the “preferatory clause” mere surplusage, entirely without meaning, but so is the rest of the text

Of course, the “Individual right” theory also neglects the preamble, which most people seem to stop reading after the first three words:

“We the people of the United States, in order to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America.”

I would assert that both the preamble of the Constitution and the “preferatory clause” are important to the analysis of the Second Amendment within the proper constitutional context. That is because the document needs to be read as a whole. Doing that it becomes clear that one of the purposes of the US Constitution is to address matters of “the common defence”.

From Plato’s Laws through common law and until modern legal systems, preambles to constitutions have played an important role in law and policy making. The preamble to the United States Constitution has become a legend. The phrase “We the people of the United States” and the remaining forty-five words of the preamble are the most well-known part of the Constitution, and the section that has had the greatest effect on the constitutions of other countries. And yet, the preamble remains a neglected subject in the study of American constitutional theory and receives scant attention in the literature. This is a shame since a preamble is the part of the constitution that best reflects the constitutional intentions of its drafters.

The interpretive role of preambles is rooted in the common law tradition. Edward Coke asserted that preambles to an act of parliament are a “good mean to find out the meaning of the statute” and “the key to open understanding thereof”, they are “the key to the statute and the key to the makers.” William Blackstone referred to preambles as intended “to help the construction of an act of parliament.” Blackstone noted that whenever the statute is dubious, “the proem, or preamble, is often called in to help the construction of an act of parliament.” However, in a case of conflict between the preamble and the body of the act, the body of the act prevails. This is still considered good law in common law states. Some have a specific clause indicating the significant role of preambles in statutory interpretation.

The preamble may not be legally binding, but it is key to understanding the rest of the document and should be given weight in any constitutional analysis. Any interpretation that runs contrary to these principles is questionable. Anything which assumes something which is not covered by the main text must be suspect, which the individual rights interpretation does in spades.

This takes us to two concepts of statutory interpretation: (1) only items which are specifically mentioned are addressed within a law. (2) items which are not specifically mentioned are not covered by the statute.

Which takes us to Article I, Section 8, Clause 16, which gives Congress the power:

“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;”

Note that Congress is given the power to ARM the militia. Only Congress has this power under the Constitution. This is where the individual rights theory provides the usual misquotations removed from their context, which in the case of the Patrick Henry “Let everyman be armed quote” is tragic since it is clear that Henry was concerned with the above section of the Constitution, not a personal right to arms, when one reads it in context.

I really don’t want to get too much into how this one sentence has been mangled and removed from constitutional context in the attempt to create a right which does not exist. The grammar is handled in this article: Dennis Baron, Guns and Grammar: The Linguistics of the Second Amendment. I will say that Prof. Baron would give the “preferatory” clause far more weight than it was given in the Heller decision:

Reading the Second Amendment as a statement in which every word counts follows from the opinion articulated by Chief Justice John Marshall: “It cannot be presumed that any clause in the constitution is intended to be without effect” (Marbury v. Madison, 1803). But even without that landmark ruling, it would have been clear to 18th-century readers that the first part of the Second Amendment was bound to the second part in a cause-and-effect relationship, that the right to bear arms was tied by the framers directly to the need for a well-regulated militia.

If you wish to go outside the Constitution, there are many more problems with the Individual right interpretation. In fact, both the Heller and McDonald decisions were exercises in sophistry which removed the interpretation from an “originalist” and “constitutionalist” context and placed them into pure fantasy. If anything, the Heller and McDonald decisions are unconstitutional exercises of power by judicial amendment of the constitution. McDonald even more so since it somehow neglected Article I, Section 8, Clause 16 and created a right which was present in state laws in contrast to its non-existence in the US Constitution.

I am truly disappointed by the praise of the emperor’s new clothes in McDonald v Chicago by the justices willingness to separate the Second Amendment from Constitutional context by even countenancing that it had nothing to do with Article I, Section 8, Clause 16. How does Congress’ power “incorporate” to the States without an amendment to the Constitution? McDonald can only be described as silly buggers and not really precedent.

State v. Buzzard, 4 Ark. (2 Pike) 18 (1842), puts the absurdity of the individual right assertion:

However captivating such arguments may appear upon a merely casual or superficial view of the subject, they are believed to be specious, and to rest upon premises at variance with all the fundamental principles upon which the government is based; and that, upon a more mature and careful investigation, as to the object for which the right was retained their fallacy becomes evident. The dangers to be apprehended from the existence and exercise of such right, not only to social order, domestic tranquillity and the upright and independent administration of the government, but also to the established institutions of the country, appears so obvious as to induce the belief that they are present to every intelligent mind, and to render their statement here unnecessary. [1]

The revisionist theory that the Second Amendment somehow applies to a context outside the common defence is beautifully destroyed since it does not withstand scrutiny within the four corners of the US Constitution.

It is even more devastated if we are going to go outside the document since we need to have the “scholars” explain how:

  1.  The concept of self-defence did not allow for the use of deadly force as a first option when the Constitution was written.  Deadly force at that time was a LAST option. There was a duty to retreat. Deadly force could only be used if there was no lesser alternative and all other options had been exhausted.  You had to have your back to the wall to be able to kill someone.
    –carrying a weapon would create a presumption that you intended to do harm.
  2.  Where are the other versions of “gun rights” in Common Law nations?
  3. The issue of civilian control of the military, which fear of standing armies is a common thread in English political thought.  It was mentioned in the debates in relation to this Amendment, whereas personal defence was next to nonexistent.
  4. regulation of private arms has always been a part of the common law.
  5. When primary source material is read in its complete form, it highlights the above issues and the lack of concern with a right to own a weapon outside the context of the common defence.
  6. Why the US Constitution would concern itself with matters of “personal defence”, especially in light of point (1) above?
  7. Why state constitutional provisions explicitly mention this right, but it is not mentioned in the US Constitution.

There are far too many flaws in the Individual Right interpretation of the Second Amendment when one looks at it critically. There are even more flaws in the “precedent” set by Heller-McDonald despite its “friendliness” to firearms regulation. These are dangerous decisions to be left in the common law cannon.

It is a shame that Heller and McDonald have been allowed to create mischief in the US legal system.

I will not even bother readdressing the absurdity of the associated insurrection theory of the Second Amendment since it is so far from the Constitutional contexts as to be laughable. The fact that so many people are willing to accept it in their ignorance is astounding.

[1] Compare Buzzard to the part of Presser v Illinois,  116 U.S. 252, 6 S.Ct. 580, 29 L.Ed. 615 (1886), which says:

Military organization and military drill and parade under arms are subjects especially under the control of the government of every country. They cannot be claimed as a right independent of law. Under our political system they are subject to the regulation and control of the state and federal governments, acting in due regard to their respective prerogatives and powers. The constitution and laws of the United States will be searched in vain for any support to the view that these rights are privileges and immunities of citizens of the United States independent of some specific legislation on the subject.

Sic semper proditores (Thus always to traitors)

BundyOK, all you supposed “Constitutionalists” out there:
  1.  The Constitution makes it clear that waging war on the US is treason (Article III, Section iii–it’s the only crime mentioned in the Constitution!). 18 USC Chapter 115 tells you what laws you are violating and it was passed in accordance with US Constitution Article VI.
  2.  The Second Amendment does not explicitly repeal any of the main Constitutional provisions relating to treason and insurrection.
  3.  Just because you don’t like it doesn’t mean it is unconstitutional.
Dennis v. United States, 341 U.S. 494 (1951) puts paid to the insurrectionist theory:
“The obvious purpose of the statute is to protect existing Government, not from change by peaceable, lawful and constitutional means, but from change by violence, revolution and terrorism. That it is within the power of the Congress to protect the Government of the United States from armed rebellion is a proposition which requires little discussion. Whatever theoretical merit there may be to the argument that there is a “right” to rebellion against dictatorial governments is without force where the existing structure of the government provides for peaceful and orderly change.”

Verb sap.

Alice Paul was right!

Alice Paul believed that to have freedom from legal sex discrimination requires an Equal Rights Amendment that affirms the equal application of the Constitution to all citizens. This is despite the Fourteenth Amendment beginning:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

The central purpose of the Fourteenth Amendment was to guarantee equal citizenship and equality before the law for all citizens and for all persons. It does not simply ban discrimination based on race. The fact that the word race is not mentioned in the text (as it is in the fifteenth amendment) was quite deliberate.

This is the man who wrote an opinion that ended the DC gun ban--spot the conflict.


The problem is that some people didn’t get the message about that, in particular one who has shown that he can find Constitutional language “is mere surplusage — is entirely without meaning”. This is despite Marbury v. Madison saying that “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.” The even more frightening aspect is that this is a view held by the majority of the US Supreme Court that it can rewrite the Constitution, rather than interpret laws.

Alex Pareene in Salon states that:

Ok, well, all the Amendment says is that equal protection under the laws will be afforded to citizens, not “straight male citizens,” or whatever distinction Scalia’s making here. Scalia can be very literal-minded sometimes, like when he explains that the Eighth Amendment doesn’t forbid torture because interrogations aren’t “punishment.” Other times, he gets fuzzier with the language; despite the fact that the government is not allowed to establish or promote religion, Scalia is OK with “under God” in the Pledge of Allegiance. The Constitution always happens to only mean whatever an ultra-conservative Republican asshole thinks it means, isn’t that funny?

Alas, Alex, Scalia has gotten away with twisting the Constitution without too much of a peep from the legal community, let alone the general populace. In fact, Scalia’s Heller decision was held as the “correct” interpretation by many who should know much better.

The real problem is that there is no Constitutional means for telling the Supreme Court that it has it wrong: Short of a hue and cry for Scalia to be impeached. The problem is that Scalia’s bad decisions and poor judgement have gone without comment.

Which gets us back to Alice Paul, The Equal Rights Amendment is needed in order to prevent a rollback of women’s rights by conservative/reactionary political votes, and to promote laws and court decisions that fairly take into account women’s as well as men’s experiences. We now have a concrete example of a Supreme Court Justice who is more than willing to rewrite the Constitution rather than interpret it using precedent (e.g. DC v. Heller). Scalia is kind enough to point out that the political arena is the one place where we can send idiots like him a message (Impeachment and removal from office would be nice). Instead, the right is using the Court system to attack our rights. Judges, such as Scalia and Silverman, are all too willing to ignore precedent and the statute’s wording in order to trash the Constitution.

Thus, something such as this:

The Equal Rights Amendment
Section 1. Equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex.
Section 2. The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.
Section 3. This amendment shall take effect two years after the date of ratification.

Which makes it clear that discrimination because of Sex, rather than mere reliance upon the 14th Amendment’s equal protection clause is needed. Some people are too stupid to realise that women are persons.

If you saw a blind, three legged, 29 year old horse win the derby…

you’d say the race was fixed.

On the other hand, I’m rather amazed at the people who are praising the Heller-McDonald decisions. For example, The Brady Organisation which will happily point out that the decision doesn’t preclude reasonable regulations.

In fact, the Second Amendment protects a civic right, that is it is supposed to ensure that the Article I, Section 8, clause 16 militia remains armed and has fuck all to do with “”gun rights”. But, you small minded fucks need to get it through your thick skulls while that concept means the Second Amendment doesn’t preclude a gun ban: It also means that Kennesaw Georgia can force people to buy a gun (although, that sort of law could run afoul of the First Amendment).

The Civic right interpretation was the law of the land up until 26 June 2008. And, quite frankly, you can argue that it still remains the law of the land since the Second Amendment has not been properly amended, thus the Supreme Court acted ultra vires in producing this decision.

But, that’s not my point. My point is that Walter E. Dellinger argued worse than any first year law student despite his background, although one of the themes in this blog is that the US legal education system sucks. Still, you’d think that someone of Dellinger’s experience would pound in:

Stare decisis: Dellinger had the accepted interpretation of United States v. Miller, 307 U.S. 174 (1939) which he mentioned as:

The court unanimously said in Miller that the Second Amendment must be interpreted in light of its obvious purpose to ensure the continuation and render possible the effectiveness of the military forces.

Unfortunately, Dellinger appears to have been poorly studied in the history of the Second Amendment and its relationship to Standing Army question. Additionally, He was unaware of Shays’ Rebellion, which were the farmers who were on the framers’ minds: not the ones of dime novel ilk that were on Justice Kennedy’s.

There are enough quotations which show that the issue related to that of the Article I, Section 8, clause 16 militia to have sunk any suggestion that there was a private right.

The other aspect which would have strenghtened Dellinger’s argument was the rule of constutitonal interpretation that I keep hammering upon:

None of the words in the Constitution are without force and effect, except those superseded by amendments, unless such amendments are repealed. Except for the statement of purpose in the preamble, every word was intended by the Framers to be legally normative, and not just advisory, declaratory, aspirational, or exhortatory. Verba intelligi ut aliquid operantur debent. Words should be interpreted to give them some effect.

This principle of Constitutional Construction was mentioned in Marbury v. Madison, 5 U.S. 137 (1803), as It cannot be presumed that any clause in the constitution is intended to be without effect; and therefore such a construction is inadmissible, unless the words require it.

And while we are at it: nowhere in the Second Amendment can one find the words which allows for “the people” to own arms for personal defence. Again this goes to the rule of construction that no phrase is without meaning. Expressio unius est exclusio alterius’ (The express mention of one thing excludes all others) : Items not on the list are assumed not to be covered by the statute.

Self-defence is not mentioned in the Second Amendment (or the US Constitution).

Justice Stevens’s dissents in Both Heller and McDonald pointed out that was “a strained and unpersuasive reading” which overturned longstanding precedent, and that the court had “bestowed a dramatic upheaval in the law”. Stevens also stated that the amendment was notable for the “omission of any statement of purpose related to the right to use firearms for hunting or personal self-defense” which are present in the Declarations of Rights of Pennsylvania and Vermont. The fact that these decisions were 5-4 means that the Civic right interpretation isn’t dead, just dormant.

But the other side was just as lame as Alan Gura’s argument demonstrates:

MR. GURA: Well, my response is that the government can ban arms that are not appropriate for civilian use. There is no question of that.
JUSTICE KENNEDY: That are not appropriate to —
MR. GURA: That are not appropriate to civilian use.
JUSTICE GINSBURG: For example?
MR. GURA: For example, I think machine guns: It’s difficult to imagine a construction of Miller, or a construction of the lower court’s opinion, that would sanction machine guns or the plastic, undetectable handguns that the Solicitor General spoke of.

Now, if you are going to say that the first clause has no effect, which the Five fools do, then one is left with:

the right of the People to keep and bear arms shall not be infringed.

It is a well-established tenet of our statutory interpretation that the use of the word “shall” generally indicates the legislature’s intention to make a provision mandatory, as opposed to discretionary. Or to quote the RKBA folk:

What don’t you understand about “Shall not be infringed”.

Of course, the court’s construction and interpretation, again violates the principle about the use of the word “shall” since in this context the phrase is now discretionary.

We can get into the fix is in part of this in that the Court could have made Gura and his ilk look like idiots since they construct the phrase to be both discretionary and the first clause to be without effect. So, not only are they asking for Miller to be overturned, they are also asking that long standing rules of Constitutional interpretation be ignored.

Anyway, by ignoring the language “A well regulated militia being necessary to the security of a free State”, we should now have a right which allows for the personal ownership of weapons of mass destruction: let alone machineguns. Any Justice worth their salt should have brought this up (Sorry, that includes you, Justice Stevens).

The problem is that the gun loon crowd act like Pavlov’s dog and salivate when they hear “gun rights” and “individual right”, but don’t really understand what exactly is going on here and how they have been the ones who were fucked. That’s slightly less so from the “antis”: although I’m sure we would be hearing about it if they felt truly fucked over . The Heller-McDonald Supreme court decisions talk of “presumptively lawful regulatory measures”, specifically name some, and then declare the list “is not exhaustive”.

In case you missed it or are too fucking stupid to have figured out what happened–here is the Heller-McDonald language:

Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose. See, e.g., Sheldon, in 5 Blume 346; Rawle 123; Pomeroy 152–153; Abbott 333. For example, the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues. See, e.g., State v. Chandler, 5 La. Ann., at 489–490; Nunn v. State, 1 Ga., at 251; see generally 2 Kent *340, n. 2; The American Students’ Blackstone 84, n. 11 (G. Chase ed. 1884). Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms. Heller at 54-5

Which has as a footnote (26):

We identify these presumptively lawful regulatory measures only as examples; our list does not purport to be exhaustive.

Better yet:

But the enshrinement of constitutional rights necessarily takes certain policy choices off the table. These include the absolute prohibition of handguns held and used for self-defense in the home. Heller at 64

From McDonald:

It is important to keep in mind that Heller, while striking down a law that prohibited the possession of handguns in the home, recognized that the right to keep and bear arms is not “a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.” 554 U. S., at ___ (slip op., at 54). We made it clear in Heller that our holding did not cast doubt on such longstanding regulatory measures as “prohibitions on the possession of firearms by felons and the mentally ill,” “laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.” Id., at ___–___ (slip op., at 54–55). We repeat those assurances here. Despite municipal respondents’ doomsday proclamations, incorporation does not imperil every law regulating firearms. McDonald at 39-40

The only thing off the table is anything that purports to be a ban. Which leads to my question: had Chicago theoretically allowed for registrations (as does New York City) since that is not an “absolute prohibition”– would the law have passed constitutional muster? After all, NYC’s law has been around for 99 years: doesn’t that count as a longstanding regulatory measure?

Likewise, Candidates cannot say that gun laws violate the Second Amendment if they do not infringe upon the rights to truly “law abiding citizens” to own firearms. As the Court said (twice) “the right to keep and bear arms is ‘not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.’”

We can get into the watering down of the Second Amendment right, but that is something which comes from the territory of a judicial amendment of the document: it is whatever a judge says the right is.

True supporters of the Constitution should be appalled at the Heller-McDonald decisions for what it did to the Second Amendment. The even more amusing part is that Scalia has trashed everything that he claimed to believe in by putting his name to this piece of shit, although one can truly question what type of biased hack he is to have not recused himself from this decision. Better yet, one must question what he is doing as a Supreme Court Justice as his presence on the bench does nothing to dignify the institution.

One must decide the law based upon the law, not one’s personal biases.

Anyway, the fix is in and everybody got fucked: especially the Constitution.

Principles of Constitutional Construction

I found this here:

None of the words are without force and effect, except those superseded by amendments, unless such amendments are repealed. Except for the statement of purpose in the preamble, every word was intended by the Framers to be legally normative, and not just advisory, declaratory, aspirational, or exhortatory. Verba intelligi ut aliquid operantur debent. Words should be interpreted to give them some effect.

This principle of Constitutional Construction was mentioned in Marbury v. Madison, 5 U.S. 137 (1803), as It cannot be presumed that any clause in the constitution is intended to be without effect; and therefore such a construction is inadmissible, unless the words require it.

The Heller-McDonald decisions chose to ignore this cannon of Constitutional Construction and are, therefore, invalid.

Unless, of course, one wishes to amend the Constitution to change the meaning to that expounded by the court.

Finding gold in a pile of horseshit

You know the story about the kid who is so optimisitic that when his parents give him a pile of horseshit, he goes looking for a pony with the comment “with all that shit–there must be a pony somewhere!”.

Likewise, the Brady campaign tries to put a good spin on the Heller-McDonald decision and I have to agree with them. Doug Henigan says in his blog post on the decision:

So far, the oddest reaction to the McDonald decision is from the NRA’s Wayne LaPierre. Far from the purely celebratory statements he made after Heller, yesterday LaPierre himself conceded that the “constitutional victory” in McDonald could end up eventually as a “practical defeat”. Indeed, LaPierre has already put together his “enemies list” of those to blame for such a defeat, including “activist judges, defiant city councils, or cynical politicians.” Is he preparing his membership for the disappointments to come, as all manner of state and local gun laws are upheld and elected officials are emboldened to enact even tougher laws?

LaPierre may also be contemplating the future of the gun debate now that handgun bans are “off the table,” in the words of the Heller majority opinion. How long will the NRA’s leadership be able to argue, with anything approaching a straight face, that the Second Amendment precludes gun regulations like background checks, limits on large-volume sales, safe storage requirements, assault weapon bans, owner licensing, and registration of gun sales, when both Heller and McDonald read like legal briefs for the constitutionality of those laws? And, more importantly, how long will the NRA’s leadership be successful in using its legendary scare tactics to convince gun owners to oppose every gun regulation as a step down the “slippery slope” to a gun ban, when Heller and McDonald have taken gun bans “off the table”?

Viewing Heller and McDonald from LaPierre’s vantage point, an old expression comes to mind: Be careful what you wish for. It could come true.

The problem is that the gun loon crowd act like Pavlov’s dog and salivate when they hear “gun rights” and “individual right”, but don’t really understand what exactly is being mentioned. The Heller-McDonald Supreme  court decisions talk of “presumptively lawful regulatory measures”,  specifically name some, and then declare the list “is not exhaustive”.

Anyway, here is the Heller-McDonald language:

Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose. See, e.g., Sheldon, in 5 Blume 346; Rawle 123; Pomeroy 152–153; Abbott 333. For example,  the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues. See, e.g., State v. Chandler, 5 La. Ann., at 489–490; Nunn v. State, 1 Ga., at 251; see generally 2 Kent *340, n. 2; The American Students’ Blackstone 84, n. 11 (G. Chase ed. 1884).  Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms. Heller at 54-5

Which has as a footnote (26):

We identify these presumptively lawful regulatory measures only as examples; our list does not purport to be exhaustive.

Better yet:

But the enshrinement of constitutional rights necessarily takes certain policy choices off the table. These include the absolute prohibition of handguns held and used for self-defense in the home.  Heller at 64

From McDonald:

It is important to keep in mind that Heller, while striking down a law that prohibited the possession of handguns in the home, recognized that the right to keep and bear arms is not “a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.” 554 U. S., at ___ (slip op., at 54). We made it clear in Heller that our holding did not cast doubt on such longstanding regulatory measures as “prohibitions on the possession of firearms by felons and the mentally ill,” “laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.” Id., at ___–___ (slip op., at 54–55). We repeat those assurances here. Despite municipal respondents’ doomsday proclamations, incorporation does not imperil every law regulating firearms. McDonald at 39-40

The only thing off the table is anything that purports to be a ban. Which leads to my question: had Chicago theoretically allowed for registrations (as does New York City) since that is not an “absolute prohibition”– would the law have passed constitutional muster? After all, NYC’s law has been around for 99 years: doesn’t that count as a longstanding regulatory measure?

Likewise, Candidates cannot say that gun laws violate the Second Amendment if they do not infringe upon the rights to truly “law abiding citizens” to own firearms. As the Court said (twice) “the right to keep and bear arms is ‘not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.’”

We can get into the watering down of the Second Amendment right, but that is something which comes from the territory of a judicial amendment of the document: it is whatever a judge says the right is.

So, I have four hopes for the Heller-McDonald decisions: it results in strict gun laws being upheld as long as they are not “bans”, there is a shitload of litigation clogging the court system (after all I do this for a living), and it results in massive confusion creating a constitutional crisis of amazing proportions which goes well beyond the concept of “gun rights”. An additional hope is that it becomes clear that the US legal system runs on the golden rule: those with the gold make the rules.

And the blame lands squarely on the laps of the five stooges.

“Equal Justice Under Law” my arse.

It’s more like we have the best justice money can buy.

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.

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

McDonald v. Chicago trashes the Constitution!

The Second Amendment was adopted to protect the States from federal encroachment. Notwithstanding the Heller Court’s efforts to write the Second Amendment’s preamble out of the Constitution, the Amendment still serves the structural function of protecting the States from encroachment by an overreaching Federal Government. The Second Amendment is a federalism provision in the U.S. Constitution. It makes absolutely no sense to “incorporate” a section of the Bill of Rights if that clause exists to safeguard federalism interests.

It is directed at preserving the autonomy of the sovereign States, and its logic therefore “resists” incorporation by a federal court against the States.

I can find nothing in the Second Amendment’s text, history, or underlying rationale that could warrant characterizing it as “fundamental” insofar as it seeks to protect the keeping and bearing of arms for private self-defense purposes. Nor can I find any justification for interpreting the Constitution as transferring ultimate regulatory authority over the private uses of firearms from democratically elected legislatures to courts or from the States to the Federal Government.

This history of intrusive regulation is not surprising given that the very text of the Second Amendment calls out for regulation (“a well-regulated militia”), and the ability to respond to the social ills associated with dangerous weapons goes to the very core of the States’ police powers. I can think of no better example of the police power which the Founders denied the National Government and reposed in the States than The promotion of their citizen’s safety.

The Heller Court based its conclusions almost exclusively upon its reading of history. But the relevant history in Heller was far from clear: Four dissenting Justices disagreed with the majority’s historical analysis. Additionally, the history and background to the Second Amendment point that the Amendment was written to prevent the federal legislature from disarming state’s militias and that the right was reserved for militia purposes only. But one thing scholarly writing defintely reveals is why disputed history provides treacherous ground on which to build decisions written by judges who are not expert at history.

Additionally, Alito is the WORST justice to pick to write something saying that the Second Amendment guarantees an individual right to bear arms as the US v Rybar, 103 F.3d 273 (3d Cir. 1996), decision which Alito was one of the deciding judges found the Second Amendment right did not apply outside of the Militia context. What novel argument could persuade him otherwise? Additionally, Alito said in Rybar that the Commerce clause didn’t apply to machineguns under the commerce clause.

Why, Justice Alito does the commerce clause apply to the machineguns, yet the states cannot exercise their police power?

The Heller-McDonald cases should not be followed as they are unconstitutional acts of judicial lawmaking.

GUN BANS ARE LEGAL!

In defence of Jeffrey Toobin

Some people are surprised that Jeffrey Toobin pointed out that:


“You know, it’s funny, the way that this hearing goes, you would think that Supreme Court precedent is some unchanging thing- that is just the law that is changed. But if you look at the Second Amendment, that’s something that’s changed dramatically over the last- for 50 years, including when I was in law school, which was more recently than 50 years ago- the idea that you had a Second Amendment right to a gun was considered preposterous. The text of the Second Amendment, I believe we have it- we have it in our system- you know, speaks of a well-regulated militia and the right to bear arms.”

I am not surprised. What most people who haven’t attended law school don’t realise about the “New Scholarship” surrounding the Second Amendment is that it is indeed very recent. You could count the scholarly legal writings about the Second Amendment when I went to law school on one hand!

The civic right was the accepted legal belief.

I asked my conlaw prof why we didn’t study the Second Amendment and his response was “if you think things were bad (emotionally) when we studied Roe v. Wade. they get even more heated when discussing the Second Amendment.” because the Civic right was the accepted legal precedent.

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?