Archive for the ‘Justice Alito’ Category

Come on, Justice Kennedy.

I am reading the transcript of the Heller argument and believe I could have done a better job than Walter Dellinger at arguing the case.

While it is a right of a people, we cannot take the people as a word which is anything individual in Constitutional terms. The Constitution starts with “We the people” does this mean each and every individual in the US was present during the entire ratification process? Additionally, the Second Amendment talks about the right of the people to bear arms, but the clause only applies to those enrolled in the militia. This means white males between certain ages. Certain professions were exempt from militia service and many people wanted exemption from militia duties. Were their Second Amendment rights violated?

As for the militia, Justice Kennedy, can I say I am a member of the California National Guard, which is your militia unit if I live in California? And can I say this if am a resident alien Briton? I mean the militia allegedly is all the people. Define people! As I said earlier, isn’t this a blanket term and not one referring to individuals (“We the people”). Likewise, the unorganised militia argument. Are Californians who are members of an unorganised militia say they belong to the California national guard? Was the 60s draft dodger from Berkeley a member of the Militia, that is the California national Guard because he was technically a member of the “unorganised militia”?

The debates were rather explicit that the concern was the power under Article I, section 8 which Justice Alito brought up. I am wondering if Justice Alito is indeed reading this blog. Although, I think he is living up to the reputation I have heard about him.

And the silliest argument is that I am allowed weapons which are “linear descendants of arms carried in revolutionary times”. The Congreve rocket was introduced at about this period, while it is comparable to the Kassam rocket used by the Palestinians, it is a direct ancestor of the modern guided missile. Using this standard means I am indeed allowed to keep tactical nuclear weapons, or even a strategic nuclear missile.

Additionally, saying that the militia who is entitled to weapons is any body other than that organised under Article I, Section 8 means that Al-queda is entitled to weapons, as are any terrorist organisation. Does this make any sense in light of Article III, Section iii?

Yes, the British Bill of rights is far more restrictive, but that is really not a relevance. And while contemporary State Constitutions declarations of rights offer an insight into the Second Amendment, they do have personal rights written into the language which allow for self-defence. Self-defence is not mentioned in the Second Amendment and was not a concern for the founding fathers, the issue of a federal standing army v. a state militia was the concern.

As for the “well regulated” language, this does not mean well trained, it means that the military is under civilian control. The militia is to be subject to government regulation, not an armed mob.

So, while the Revolutionary militia were not subject to the crown, they WERE subject to the Revolutionary authorities. It is not correct to say that the Colonial militias were independent armed bands. Additionally, there were loyalist militia bands during the revolution. There was a fear of standing armies and armed mobs at the time of the revolution. The militia was never outside of authority, whether crown or revolutionary.

Again, to say that bodies which are unregulated are eligible for this right means that Al-queda is entitled to weaponry under the Second Amendment. And the “Well-trained” definitely favours al-Queda as they were trained by the CIA. But, I have always contended that terrorists first face Mecca and praise Allah, then face Independence Hall and praise the founding fathers for allowing them the right to have weaponry in the form of the Second Amendment. The Justices of the Supreme Court may be unwittingly aiding the enemy and violating their oaths if they take the independent right to arms for insurrectionary purposes opinion.

Justice Stevens was bang on in many of his questions. I am sure Wild Bill would be proud that Justice Stevens was his successor.

I am not sure which justice brought up that guns have been regulated. Gura is caught by saying that any regulation is allowed since “reasonable infringement” is not the equivalent of “shall not be infringed”. The problem is that saying the Second Amendment protects an individual right means that all gun regulations are subject to scrutiny. This is why the RKBA folk hope for an opinion that will affirm an individual right, then they will begin to “test the waters”.

I will reiterate that to find any form of individual right away from militia duty is not within the intent or scope of this amendment.

On the other hand, we can find an individual right which means that al-queda, as a well trained militia, has the right to strategic nuclear weapons, which are the direct descendants of the congreve rocket.

Now, isn’t that one of the stupidest things that could happen.

History Never repeats, or does it?

Justice James Clark McReynolds is widely considered one of the most unpleasant men to ever sit on the Court, being labeled “Scrooge” by Drew Pearson in his book The Nine Old Men.

Chief Justice Taft thought him selfish, prejudiced, “and someone who seems to delight in making others uncomfortable… He has a continual grouch, and is always offended because the court is doing something that he regards as undignified.” Taft also wrote that McReynolds was the most irresponsible member of the Court due to his tendency to take holidays (go on vacations in septic terms), and that “[i]n the absence of McReynolds everything went smoothly”. Taft’s dislike of McReynolds was not based on the latter’s views of the Constitution and the law, which usually did not differ from the Chief Justice’s. Taft wrote that although he considered McReynolds an “able man”, he found him to be “selfish to the last degree… fuller of prejudice than any man I have ever known,… one who delights in making others uncomfortable. He has no sense of duty… really seems to have less of a loyal spirit to the Court than anybody.

Justice McReynolds would not accept “Jews, drinkers, blacks, women, smokers, married or engaged individuals as law clerks.”

McReynolds is known to have been misogynistic and anti-semitic. McReynolds refused to speak to Louis Brandeis, the first Jew on the Court, for three years following Brandeis’s appointment and, when Brandeis retired in 1939, did not sign the customary dedicatory letter sent to justices on their retirement. He habitually left the conference room when Brandeis spoke. When Benjamin Cardozo’s appointment was being pressed on Hoover, McReynolds joined with Justices Butler and Van Devanter in urging the White House not to “afflict the Court with another Jew.” When news of Cardozo’s appointment was announced, McReynolds is claimed to have said “Huh, it seems that the only way you can get on the Supreme Court these days is to be either the son of a criminal or a Jew, or both.” During Cardozo’s swearing-in ceremony, McReynolds pointedly read a newspaper, and would often hold a brief or record in front of his face when Cardozo delivered an opinion from the bench. According to John Frush Knox, McReynolds’s law clerk in 1936-37 and the author of a memoir of his service, McReynolds never spoke to Cardozo at all. McReynolds even absented himself from the memorial ceremonies held at the Supreme Court in honor of Cardozo. He did not attend Felix Frankfurter’s swearing-in, exclaiming “My God, another Jew on the Court!”.

McReynolds’s rudeness was not confined to colleagues on the Court. Once, when called before the chairman of the Golf Committee at the Chevy Chase club after complaints were filed against him, McReynolds said: “I’ve been a member of this club a good many years, and no one around here has ever shown me any courtesy, so I don’t intend to show any to anyone else.” The indignant chairman replied: “Mr Justice, you wouldn’t be a member of this club if it wasn’t for your official position. The members of this club have put up with your discourtesy for years, merely because you are a member of the Supreme Court. But I’m telling you now that the next time there is a complaint against you, you’ll be suspended from the privileges of the golf course.” Justices Pierce Butler and Willis Van Devanter transferred from the Chevy Chase club to Burning Tree because McReynolds “got disagreeable even beyond their endurance.”

McReynolds has been called the most reactionary of Supreme Court Justices.

Yet, Justice McReynolds was the author of United States v. Miller 307 U.S. 174 (1939), which prior to DC v. Heller was the only Supreme Court decision to directly address the Second Amendment. It was a unanimous opinion which has been accepted as that the holding is:

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 interpeted 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.

I personally believe that Justice McReynolds would be appalled at the possibility that DC v. Heller could find that the Second Amendment would find any right outside of militia duty. It would be interesting to see what sort of comments he would be making about the so called “Right to keep and bear Arms” crowd if he were here today.

Now, Justice Alito is allegedly the most conservative of Supreme Court justices on the bench today. If US v. Rybar gives any indication of Justice Alito’s opinion of the application of the Second Amendment, we can believe that Justice Alito will also find no merit in Heller’s arguments as he previously found no merit in the same arguments when they were presented in Rybar.

Now, the right wing, I do not find these people “Conservative” by any means, have said that a finding of an individual right will mean that:

And Heller is just the beginning. There will be more Second Amendment cases. If the Court finds the Second Amendment guarantees to American citizens an individual right to own firearms, 20 years of major cases will follow, fleshing out the contours of this right.
according to Sandy Froman

Better yet, we will have litigation on the laws regarding felon in possession of a firearm.

Robert Levy has also said that other gun laws will be brought into question, meaning that a finding of an individual right will open the floodgate of litigation to try and overturn every regulation on firearms.

Now, as I understand conservatism means one does not lightly change the status quo, especially if that status quo involves public safety. However, what is called conservatism is the United States is really reactionaryism. Although, I think even Justice McReynolds would seem liberal compared to this strain of reactionaryism. While Justice McReynolds may have been misanthropic, he certainly was no idiot.

My hope is that Justice Alito will follow the conservative strain as shown by Justice McReynolds and not this tom foolery which calls itself conservativism these days. I hope that he can pull the same sort of coup which a curmudgeon like Justice McReynolds could bring about a unanimous court to find that the second Amendment guaranteed no individual right, but was to be interpreted as guaranteeing the effectiveness of the forces organised under Article I, section 8 of the Constitution.

The priority of government should be to assure the welfare of its people, which a finding of an individual right to firearms will not. A finding of an individual right will only mean that the United States will continue to have the highest body count and a plague of injuries due to firearms.

A guarantee of security will become carte blanche for terror.

The true conservative opinion regarding the Second Amendment is that it has no bearing upon an individual right to firearms and never has. Of course, Justice McReynolds wouldn’t be too surprised if the Court did something as undignified and unprecedented as finding an individual right.

Let’s surprise the old fart this time.

Are you reading this, Justice Alito?

This blog started as a joke after I realised that my dog has been in more courtrooms than Harriet Miers. No joke. Ask Arnie Silverstein and his partner; they will verify this. There is a District Justice in Montgomery County who also knows I come to court because she brings her dog as well. So, there are dogs out there who have been in Court more than some Judicial nominees, but that is not the point.

Neither is the point that I find this blog comes out top in the search results when I google certain subjects.

I do this for myself, but I wouldn’t mind the recognition. Or money. Michael is truly a slacker given that friends he went to school with are in positions of power: Governors, Judges, Presidential advisors, or high government officials. No, Michael is the honest lawyer, which means he is BROKE .

The real point is that in conversations and my early blogs, I pointed out that Justice Alito was on the three judge panel that decided U.S. v. Rybar,103 F.3d 273 (3d Cir. 1996). That was the case which earned him the nickname “machinegun Sammy”. But, I have been pointing out as frequently as I can that this case addressed the personal right interpretation of the Second Amendment which was raised as a defence by Rybar. The Rybar court held that the Second Amendment was a collective right, which means that it is to ensure the efficacy of the Militia institution set up under Article I, Section 8.

Justice Alito did dissent, but he did so in a manner similar to Justice Kennedy did in US v Lopez, 514 U.S. 549 (1995) which was to say that he would have found the machinegun statute constitutional had Congress provided a finding that these items were in interstate commerce.

Now, I have raised the question whether this means that Justice Alito follows the collective right interpretation of the Second Amendment whenever I can. I am also curious if stare decisis precludes Justice Alito from taking the individual right interpretation, which most commentators are not sure. I would like to think that it does. Or, failing that, I would like to think that Justice Alito is what I consider a true conservative rather than the idiots who call themselves conservative these days. This means that Justice Alito knows the accepted judicial interpretation of the Second Amendment, which is that it is to ensure the efficacy of the militia set up under Article I, Section 8 and has nothing to do with self-defence, hunting, or shooting sports in general.

It is even sillier to say it has something to do with the ability to revolt against a “tyrannical government”.

As I have before, none of those concepts are mentioned in the Second Amendment, and the right of revolt is totally ridiculous as it goes against everything in the Constitution.

I know people who know Justice Alito and they say he is a very intelligent and considered judge. I would like to think that he is not swayed by poor arguments such as the majority of people believe that the Second Amendment guarantees a personal right to things which are not within the scope of that Amendment (self-defence, hunting, shooting sports in general, or “revolt”). It is fallacious reasoning to be swayed by numbers especially when those numbers are wrong.

I read the briefs for Heller that argue the personal right and I see fallacious arguments, false history, misquotations,and so on. The fact is that the Second Amendment has been interpreted as being related to the preservation or efficiency of a well-regulated militia.

The court denied Rybar’s motion to dismiss Counts I and III.
The court held that section 922(o) was “a valid exercise of the
authority granted to Congress under the Commerce Clause” and was
compatible with Second Amendment protections “because this
defendant’s possession of a machine gun was not reasonably
related to the preservation or efficiency of a well-regulated

OK, that may not be the best excerpt from the Rybar decision, but it makes my point.

Please, Justice Alito, you have shown reason in interpretation of the Second Amendment in the past. I hope that you can persuade the other justices that the Personal right interpretation is fallacious and dangerous to society.

You are being “dogged” in this regard.

Note: I just googled “Justice Alito Rybar” and this came up toward the front of the results! I hope Justice Alito reads this!