Archive for the ‘Dellinger’ Category

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None of the words in the Constitution are without force and effect, except those superseded by amendments, unless such amendments are repealed.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.

Musing on the Heller oral arguments

I am not certain which way the justices will go after reading the oral arguments in DC v. Heller. The talk around the courthouse is interesting as most people are not interested in this case per se. One lawyer who has argued before Justice Alito said he is indeed favourable to the Commonwealth in his decisions. But, the Justices aren’t really of interest to me. They can find what they will. Although, I am indeed curious if Justice Alito will feel bound by the US v. Rybar decision, which most attorneys find an interesting point.

All three advocates did a poor job, but Dellinger was very poorly prepared from what I read. Amazingly enough, he didn’t raise the fact that this is not a case of first impression as US v. Miller has given this country a standard:

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.

To summarise yet another time, the Second Amendment must be interpreted as a whole. the declaration, that is “A well regulated Militia, being necessary to the security of a free State”, and the guarantee, the “right of the people to keep and bear Arms, shall not be infringed” bit, need to be interpreted as a whole. There is loads of legal doctrine behind this. For example, Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803), discusses how none of the language of the Constitution can be considered “surplusage”. The Constitution was written in a considered fashion and what was written must be considered essential to its interpretation.

This means a total ban on firearms in civilian hands is not unreasonable if it does not impare the efficacy of the militia/national guard.

As for Justice Robert’s question If it is limited to State militias, why would they say “the right of the people”? In other words, why wouldn’t they say “state militias have the right to keep arms”?

That is also quite simple to explain in that the term “people” is a term of art which is collective, not individual. This term of art refers to representative bodies, the Congress or Militia, as in “We the people” where the “people” who wrote the constitution was not the entire population of the United States, but a select group. Likewise, the militia refers to a certain body of the people. When the Constitution discusses individuals it does so as in the Fourth Amendment “The right of the people to be secure in their persons”. Persons being the right of individuals.

Justice Ginsburg brings out a very good point when she points out “the people,” what those words meant when the Second Amendment was adopted, it was males between the ages of what — 17 and 45? People who were over 45 had no -they didn’t serve in the militia.

Again, as I have frequently pointed out in this blog, Justice Alito’s question about self-defence is easily answered as the Second Amendment is silent on that subject, but it is mentioned in State Constitutions. This is because the issue at hand was not self-defence, but the possibility of a standing army replacing the militia. Which Justice Scalia misses. In the debates, the founders said that a standing army is how the militia is destroyed, not by disarming the people. There is no source to back up Justice Scalia’s assertion.

On the other hand, would Justice Scalia say that the military be abolished in favour of a Swiss system in modern times? Again, as I have pointed out many times before, the establishment of a standing army is the real issue behind the Second Amendment, not self-defence, hunting, or rebellion. My Second Amendment rights are being violated in Iraq, not Washington, DC. The large defence budget is a violation of my Second Amendment rights, not gun laws.

In short, Dellinger missed a lot of things which were in his favour and didn’t seem very well versed in the issue. He had a position of power, but failed to use it. Or, perhaps he thought he had a position of power and was arrogant about it. Unfortunately, Dellinger was not well versed in his opposition’s arguments. I would have thought someone with his reputation as a Supreme Court advocate would have done better research on this topic. Dellinger reminds me of myself when I was practising for moot court and the advanced student asked a procedural question which was beyond our ken. This left us like deer in the headlights because we didn’t know how to respond to that question, which the older student admitted was unfair to us. On the other hand, Dellinger isn’t a first year, first semester law student.

Gura did slightly better, but had an uphill battle. In fact, I think Gura was the best of all the advocates. Unfortunately, he trips over himself given that the individual right position will lead to a pandora’s box of litigation based upon it’s contradictory nature. A true individual right is an all or nothing affair. My right to a strategic nuclear weapon cannot be infringed if it is truly an individual right.

After all, aren’t we talking nuclear weapons when we discuss arms control these days?

I don’t think that the Justices are as sympathetic to his position as the media portray them. Reading Justice Scalia’s comment after Justice Ginsburg’s comment about white males:

Which shows that maybe you’re being unrealistic in thinking that the second clause is not broader than the first. It’s not at all uncommon for a legislative provision or a constitutional provision to go further than is necessary for the principal purpose involved.
The principal purpose here is the militia, but the — but the second clause goes beyond the militia and says the right of the people to keep and bear arms.

Justice Scalia seems to be making the point I did above, where I say that the term people is more expansive than the population protected by the right. That is those who can legally claim standing to challenge this law.

I think I owe Justice Kennedy an apology as he asks Gura some really salient questions. In particular, the question about people on the frontier. My interpretation of that is that it was not relevant as that was not an issue regarding the Second Amendment. Unless, of course, one is discussing Shays’s Rebellion or the Whisky Rebellion which both run contrary to the Spirit of the Second Amendment. In fact, Shays’s Rebellion is a good counter to Justice Scalia’s comment on militias. Shays’s Rebels were not acting in accord with the Massachusetts legislature. It was an insurrection.

Gura really trips all over himself when he says: “The legislature has a great deal of leeway in regulating firearms. There is no dispute about that.” Justice Stevens makes a very good point in that Gura seems to be saying “the right ‘shall not be ‘unreasonably infringed’ instead of ‘shall not be infringed’?” As I have pointed out, once one reads this as a personal right, one opens the door for litigation as to the contours of this right. Also, the right cannot be infringed, which calls all firearms legislation into question. However, this is the hope of the RKBA crowd.

And Gura points out “the fact is that at some point there is a role for judicial review.” Now, it is not the job of the courts to second guess legislatures, especially when they make legislation which regards public safety. Dellinger missed the point that the right of self-defence can be limited in regards of what weapons are used. The argument that “only pistols” can provide adaquate security is totally nonsensical. It is not borne out in other jurisdiction, especially common law jurisdictions, where arms can be proscribed by law.

The Solicitor General Clement is tripping all over himself as he is in an untenable position of trying to argue both sides of the issue. One cannot split the baby in this regard. Once one questions legislative actions, all hell will break loose. Additionally, a finding of an individual right, but the ability to reasonably regulate that right will make the Second Amendment a joke. Justice Stevens very correctly pointed out that the wording is “shall not be infringed”.

Justice Souter asks Clement a question where Clement totally makes a fool of himself: “if somebody goes hunting deer he is bearing arms, or are you?”. Now, this is a direct reference to Aymette v. State, 21 Tenn. (2 Hump.) 154 (1840), which was incorporated by refernce to US v. Miller which is:

Here we know that the phrase has a military sense, and no other; and we must infer that it is used in the same sense in the 26th section, which secures to the citizen the right to bear arms. A man in the pursuit of deer, elk and buffaloes, might carry his rifle every day, for forty years, and, yet, it would never be said of him, that he had borne arms, much less could it be said, that a private citizen bears arms, because he has a dirk or pistol concealed under his clothes, or a spear in a cane. So that, with deference, we think the argument of the court in the case referred to, even upon the question it has debated, is defective and inconclusive.

The worst was Dellinger’s rebuttal, as I said, he had both stare decisis and the lack of the term self-defence on his side. A trigger lock provision is a very reasonable standard if it does not impinge upon the efficacy of the militia. To say the Second Amendment encompasses the right of self-defence is to not go into the penumbra, or even umbra, it is to take it to beyond the outer edge of the logical universe.

Again, Justice Douglas said in Adams v. Williams, 407 U.S 143, 150 -51 (1972):

The police problem is an acute one not because of the Fourth Amendment, but because of the ease with which anyone can acquire a pistol. A powerful lobby dins into the ears of our citizenry that these gun purchases are constitutional rights protected by the Second Amendment, which reads, “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.”
There is under our decisions no reason why stiff state laws governing the purchase and possession of pistols may not be enacted. There is no reason why pistols may not be barred from anyone with a police record. There is no reason why a State may not require a purchaser of a pistol to pass a psychiatric test. There is no reason why all pistols should not be barred to everyone except the police.
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.”

Using Justice Douglas’s words, Washington, DC’s law is very reasonable, as the standard is whether the law infringes upon the maintenance of a militia. A total ban on firearms is conceivable and not contrary to the Second Amendment. Even Gura concedes this: “Well, my response is that the government can ban arms that are not appropriate for civilian use.” Which arms are appropriate for Civilian use, Mr. Gura? If the legislature deems one arm to not be suitable for such use based upon public safety concerns, is it the place of courts to second guess the legislature? Again, Gura is getting into the contradictory nature of suggesting that the Second Amendment protects a right outside of militia service.

There is no need to find another standard in this case, it makes sense to follow stare decisis and the standard articulated by Justices McReynolds and Douglas whether the law infringes upon the maintenance of a militia. There is no personal right to own a firearm outside of militia service.