Archive for the ‘stare decisis’ 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None of the words in the Constitution are without force and effect, except those superseded by amendments, unless such amendments are repealed.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.
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.

A Simple Second Amendment question and answer part II

I demonstrated how the Second Amendment should be interpreted in A Simple Second Amendment question and answer.

Again, we shall use this as our text for the Second Amendment:

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.

Now, I hear another question that why shouldn’t we ignore the proeme/preamble “A well regulated militia being necessary to the security of a free State”? After all there are “scholarly” articles that suggest this position and it was the position taken by DC v. Heller?

OK, that leaves us with the right of the People to keep and bear arms shall not be infringed.

What exactly does that mean since we can’t infer self-defence or resisting tyranny if the phrases aren’t specifically mentioned.

Other than the method of statutory interpretation used by Blackstone that requires on use the proeme to help discern meaning, we have Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803) which offers the guidance that:

Affirmative words are often, in their operation, negative of other objects than those affirmed, and, in this case, a negative or exclusive sense must be given to them or they have no operation at all.

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 subsequent part of the section is mere surplusage — is entirely without meaning — if such is to be the construction.

The above quotes are not in order as they appear in the decision, but placed in such a way as to educate modern minds.

You can’t have a clause in the Constitution that is without meaning. Justice Stevens takes Scalia to task at pp 8-9 of his dissent for ignoring the canon of Marbury v. Madison. Of course, you could argue that the words require the proeme to be mere surplusage.

The claim that one can disreagard the proeme is essentially anachronistic. While several nineteenth-century treatises on interpretation support this devaluation of prefaces or prologues, orthodox late eighteenth-century learning, reflected by Blackstone among others, was that prefaces and prologues were pivotal to ascertaining meaning, and indeed that purpose clauses were largely outcome determinative respecting textual interpretation. But, I said that in part I of this Question.

The problem is how does one intepret the Second Amendment if we can’t infer self-defence or resisting tyranny if the phrases aren’t specifically mentioned?

I find it interesting that the apologists for Heller don’t find the insertion of items not mentioned are inferred. It amazes me that more people aren’t disturbed by that practise. It is completely against legal method and due process to infer something in a law that is not specifically mentioned. It is even more incorrect to ignore the language of a law in its interpretation solely on the basis that it is “inconvenient”.

I find it even more disturbing that precedent was overturned without a solid legal basis.

A Simple Second Amendment question and answer

In proper legal theory, one has to use the text of a law to determine its meaning. We shall use this as our text for the Second Amendment:

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.

I picked this version because I don’t want tiny minds making stupid comments about punctuation even though the four comma version might be better for the point I’m trying to make here. But we will use this version. Given the intellect of some people answering this, it is probably better to use smaller numbers (yes, and what comes after two????). After all, you give them 2+2 and they come up with 5.

Anyway, We are not going to discuss whether this is an individual, collective or civic right. We are going to analyse the sentence that is the Second Amendment. We will also look at it in light of what the Constitution says.

Why is there a “the right of the People to keep and bear arms” that “shall not be infringed” using the words above? What is the scope of this right?

If your answer is self-defence, then you are wrong since the phrase self-defence is not plainly written in the text. It is a common legal principle that one cannot infer something when it is not plainly written in the text. It is a principle of statutory interpretation that The express mention of one thing excludes all others, that is items not on the list are assumed not to be covered by the statute.

Again, Fighting government tyranny is not mentioned in the Second Amendment. Additionally, Fighting government tyranny makes no sense in light of Article III, Section iii. That means the insurrection theory is truly not supported by any serious constitutional scholarship. The concept of fighting government tyranny makes even less sense when you consider that Samuel Adams said, “Rebellion against a king may be pardoned, or lightly punished, but the man who dares to rebel against the laws of a republic ought to suffer death.”

That means we must find our meaning in the text, not outside of it. We can also look for further guidance in the Constitution since the Second Amendment must be read within the framework of the constitution. However, a search of the Constitutional text will find that one constitutional purpose is to “provide for the common defence” and you don’t have to read to far into the Constution to find that stated.

Blackstone stated that, although the words of an enacting clause were ‘generally to be understood in their usual and most known signification,’ yet if its words, after due analysis, were ‘still dubious’ or ‘ambiguous, equivocal, or intricate,’ one might look to the context, which included ‘the proeme, or preamble, [which] is often called in to help the construction of an act of parliament.’ (1 Blackstone at 59-60).

Someone said that the proeme could be read as starting with Because. Which means a better way of reading this is Because a well regulated militia is necessary to the security of a free State, the right of the People to keep and bear arms shall not be infringed.

So, using the text above and the Constution, The right to “Keep and bear arms” has something to do with “a well regulated militia” since that is mentioned in the text of the Second Amendment and is a purpose tied to “providing for the common defence” which is a purpose stated in the Constitution. It has nothing to do with self-defence since nowhere in the text of the Second Amendment or the Constitution is the phrase “self-defence” present or even hinted at.

We will now turn to the universally accepted authority for legal interpretation at the time of the Constitution’s adoption, William Blackstone:

The citation from Blackstone regarding the “proeme, or preamble” is part of a larger section that consists of “observations concerning the interpretation of laws.” 1 Blackstone at *58. One of those “observations” was: “BUT, lastly, the most universal and effectual way of discovering the true meaning of a law, when the words are dubious, is by considering the reason and spirit of it; or the cause which moved the legislator to enact it. For when this reason ceases, the laws itself ought likewise to cease with it.” 1 Blackstone at *61.

Blackstone refers to this “when the reason ceases, the law ought to cease” principle several times in the Commentaries, which would seem to indicate that he considered it a fairly important interpretive principle. 2 Blackstone at *390-91 (discussing property interests in tame and domestic animals and noting “But here the reasons of the general rule cease, and ‘cessante ratione cessat et ipsa lex‘ [The reason of the law ceasing, the law itself also ceases]”), 3 Blackstone at *219 (discussing the law of nuisance, and noting “But, where the reason ceases, the law also ceases with it : therefore it is no nuisance to erect a mill so near mine, as to draw away the custom, unless the miller also intercepts the water.”), 4 Blackstone at *3 (noting that some aspects of Britain’s criminal law “seem to want revision and amendment” and explaining that “These have chiefly arisen from too scrupulous an adherence to some rules of the antient common law, when the resons have ceased upon which those rules were founded . . . “), 4 Blackstone at *81 (discussing the law of treason, and noting that the “plain intention of this law is to guard the blood royal from any suspicion of bastardy, whereby the succession to the crown might be rendered dubious: and therefore, when this reason ceases, the law ceases with it . . .”), 4 Blackstone at *330 (discussing the plea of a former attainder, and noting “But to this general rule however, as to all others, there are some exceptions; wherein, cessante ratione, cessat et ipsa lex.”).

Some of these seem to refer to common-law decision making, but he also applies this principle to statutes.

Which means that if the “cause/reason” for the Second Amendment was the “well-regulated militia”, then it could be argued that when that reason ceased, the law ought likewise to cease with it.

I know I will have lost the simpler minded readers with the citations from Blackstone, but it is rather simple:

The right to keep and bear arms is tied to the militia since no other purpose is mentioned in the text. Additonally, if we look in the Constitution, we find that one of its stated purposes is to “provide for the common defence”. So, it would seem far more likely that the right is in some way tied to a “well regulated militia” than some other purpose.

Of course, with my federalism and stare decisis posts, we can see that the supporters of an individual right don’t mind playing fast and loose with the law. The scary bit is that there has become a cottage industry of “scholars” who have been foisting this theory on an unquestioning public. No one has asked “how can self-defence be comvered when it is not specifically mentioned? Isn’t it a tenet of statutory interpretation that the express mention of one thing excludes all others?”

Also, you don’t need to go beyond the text of the Constitution to find mention of the militia and Congress’ power to “provide for organizing, arming, and disciplining the Militia”. Again, nothing mentioned in the US Constution regarding personal defence. However, the language, which is within the Constitution might provide a clue as to the reason for “the right of the People to keep and bear arms”. That purpose is to provide that congress continues its obligation to arm the militia according to Article I, Section 8, Clause 16.

One other point that shoots down the individual right interpretation is that there is quite a bit of commentary surrounding the adoption of the Constitution which point to concerns based upon article I, Section 8, clauses 15 & 16, not private purposes. The fact that private purposes were mentioned in various proposals only adds weight to the fact that they were not included in the text of the Second Amendment.

The express mention of one thing excludes all others, that is items not on the list are assumed not to be covered by the statute.

More Heller Wanking

For some reason, I keep rereading J. Stevens’s dissent and wishing that it had been the unanimous opinion of the court. I keep wanting to write J. Stevens and ask him if he knew my Uncle from the ABA and would go out for a beer with me at the Brickskeller.

But that isn’t really my point here. My point is that the decision was crap for various reasons and doesn’t satisfy either side. The starting point being the Simple Justice blog piece I mentioned in an earlier post. Here is another post. And this one from Lew Rockwell is a real doozy!

Here is another post which reiterates the Simple Justice comment. I have seen other blogs where the posters have realised that Scalia hasn’t said all firearms regulations are suspect.

The best post is this one from Slate. The writer points out that if someone replaces Justices Thomas, Scalia, Roberts, Alito, or Kennedy (Thomas specifically), they could decide that Stevens’s dissent made better legal sense.

Stevens ends his dissent with the following two paragraphs:

I do not know whether today’s decision will increase the labor of federal judges to the “breaking point” envisioned by Justice Cardozo (in Mitchell v. W. T. Grant Co., 416 U. S. 600, 636 (1974)), but it will surely give rise to a far more active judicial role in making vitally important national policy decisions than was envisioned at any time in the 18th, 19th, or 20th centuries.
The Court properly disclaims any interest in evaluating the wisdom of the specific policy choice challenged in this case, but it fails to pay heed to a far more important policy choice—the choice made by the Framers themselves. The Court would have us believe that over 200 years ago, the Framers made a choice to limit the tools available to elected officials wishing to regulate civilian uses of weapons, and to authorize this Court to use the common-law process of case-by-case judicial lawmaking to define the contours of acceptable gun control policy. Absent compelling evidence that is nowhere to be found in the Court’sopinion, I could not possibly conclude that the Framers made such a choice.

Another thing I said in an earlier post was that if the court didn’t want to burden the Second Amendment with baggage, and by further implication the Constitution: the should have used stare decisis and produced J. Stevens dissent as the unanimous opinion of the court. But no, they had to come up with some political puffery.

Stevens points out that the position he advocates does not affect civilian firearms ownership, other than to take it from being a right.

On the other hand, while stating there is some sort of right, Scalia’s position doesn’t define this right. A conclusion that the Second Amendment protects an individual right does not tell us anything about the scope of that right. In fact, it is the best gift for the “gun grabbers” as there is no way that a law can ban the lawful ownership of firearms by law abiding citizens from what little Scalia says. When people realise that was the meaning of all of Scalia’s blather, then the Heller decision is decidedly firing blanks.

Or as one commentator I mention above says “Second Amendment Sharpshooter Scalia Shoots Self In Foot“.

It’s here!!!

Well, Justice Scalia proved that judicial certainty is merely a concept deigning to put his name to the Heller decision. This is a wonderfully Pyrrhic victory for the RKBA crowd as it means absolutely nothing; in fact, it more than proves the Second Amendment is merely a quaint piece of rubbish from the 18th Century that has no meaning. The Militia clause has been held to be rubbish, which flies in the face of all concepts of US Constitutional interpretation since Marbury v. Madison which said no verbiage in the Constitution was mere surplusage. Additionally, the shall not be infringed language, even though it is mandatory (shall) has been held to be surplusage. The right is subject to reasonable regulation, whatever that means since the law was locally legislated.

Which gets down to another concept, the court is not supposed to look into legislative acts; however, in finding a right where no right has previously existed, they had to destroy local legislation. So, I am not sure what exactly they are doing here, but it is truly questionable in my mind. I believe Judicial activism is when courts do not confine themselves to reasonable interpretations of laws, but instead create law. The Supreme Court has decided to violate the separation of powers and create new rights, laws, and overthrow “democracy”. Not that overthrowing the will of the people is bad, but here it will harm the general welfare.

The question has now become what exactly is reasonable regulation? Where does one draw the line between reasonable regulation and a ban? One can prohibit assault weapons or machineguns, but not pistols, which are the most common crime guns: explain the logic here? Not to mention DC’s PPW statute and its definition of a machinegun will preclude most semi-auto pistols from being registered. What sort of rubbish is Scalia promulgating? Is he trying to create more work for the lawyers and courts? Not a bad idea, but the city of Philadelphia is piss poor when it comes to paying me for my “pro-bono” court appointment work.

Anyway, Scalia has some form of weird theory of Constitutional interpretation that allows for personal opinion to interfere with legal thinking and nothing to do with a professed “originalism”. In fact, personal opinion can overrule things like stare decisis and the rule of law–heavy duty. I take from Doug Kmiec’s piece on the Second Amendment and DC’s gun ban:

An originalist interpretation, at a minimum, must give respect to the meaning of every word of the Second Amendment, including its preamble. Second, the interpretation must situate the Second Amendment intra-textually within the context of the entire Constitution. Third, an originalist interpretation must be honest about the possibility of obsolescence — namely, that something is in the Constitution which may have no modern analog. Fourth, to the extent it is consistent with the original understanding, precedent must be respected.

What do these principles suggest is the meaning of the Second Amendment? Just this:

The Second Amendment reflects the concerns of the founders that the federal government might exercise its Article I militia power to subjugate the people by disarming local militias in the several states. The Second Amendment was drafted to combat this particular fear, and therefore, the Second Amendment is no limitation whatsoever upon the authority of the people within the several states, by the power reserved to them under the 10th amendment, either to broadly protect individual rights of gun ownership or the opposite.

Scalia has held that one can pick and choose in Constitutional interpretation, ignore the bits which don’t fit your interpretation, such as shall not be infringed. Not to mention ignore 70 years of judicial decisions to the contrary. Gun laws are subject to reasonable regulation; however, a local legislature believing that handguns were detrimental to their population and choosing to ban them can be overturned. But nevermind, this is subject to reasonable regulation, which means that DC goes back to pre-Ban days and allows for only .38 revolvers with 4″ barrels to be licenced. Of course, one can only register their handgun on alternate Wednesdays between the hours of 8.30-11.30 and 2.30-4.30 since that is when the MPD can spare the manpower to register the weapons! I will add in that DC should charge an extortionate fee for registering the firearm, something on the lines of a couple of hundred bucks. That would make it impossible for the common man to register a firearm, if they were willing to go through the hassles involved.

What fool these justices be!

But, as I point out, one of the complaints of the Colonial Rebels was that they didn’t want interference from a legislature 3,000 miles away. They wanted the ability to rule locally, but this decision flies in the face of that concept. DC is a colony and its laws overturned on mere whims and fancies.

Where were you, Justice Alito? You who once ruled that the Second Amendment protected a collective right. Does it depend on what tie I wear if I argue before you whether I will prevail? The day of the week? What sways your whim that you can vote willy-nilly in the truest meaning of that term.

The ultimate flight of fancy came from Justice Kennedy, who cannot differentiate between myth and reality. The frontier farmer is a wonderfully romantic piece from the dime novels, but the reality was the first US citizens to see a grizzly were the members of the Lewis and Clark expedition, which took place nearly 20 years after the Constitution. It’s dangerous when myth becomes a basis for overruling prior judicial decisions and stare decisis.

As for Justice Roberts, he didn’t fail me. He should have gone through his apprenticeship before becoming a master. His court will prove a mockery of “justice”, especially if he can countenance such a ridiculous opinion as that promulgated by his court today. It is an opinion which flies in the face of all that a court, especially one entrusted with the duty of protecting a BUMPF constitution should do. The best part is that he said he didn’t want to burden the Second Amendment with the same sort of baggage that the First had, yet this decision will more than burden the courts with baggage for years to come.

Although, as a tory, the Constitution is BUMPF and the Robert’s Court only emphasises that quality. Perhaps they can continue their good work in trashing anything that resembles a rule of law and establish democracy as it was understood in the 18th Century, which the Bush administration is well on its way of doing as well.

P.s. Apologies to the “liberal” wing as Justices Stevens and Breyer wrote excellent dissents and were joined by Justices Ginsburg and Souter; however, the other five are complete bozos.

Square peg, round hole.

Tomorrow we may find out if the Supreme Court of the United States will, or will not, engage in the most outrageous act of judicial activism in the case of DC v. Heller.

The Second Amendment is not a guarantee of an individual right to own firearms, but a guarantee that standing armies will not be established. Every quote taken out of context by the “RKBA” crowd when read in its entirety shows that the issue was a fear of the establishment of a standing army. That is a large military-industrial complex. Think George W. Bush invading Iraq based upon false pretexts and you get the idea of what the founding fathers meant by tyranny.

Instead of preventing a massive military budget, the Second Amendment has been used to prevent any attempt for public safety through the regulation of firearms. Somehow, this fact has been missed by all those writing briefs. Maybe some Supreme Court justice’s clerk reads my blog and this issue will be raised, but I think that this has been lost in the rhetoric. It’s unfortunate. I hope that the issue of prevention of standing armies will be raised and addressed, but that hope may prove in vain.

The Declaration of Independence doesn’t mention seizing private firearms, but it does mention keeping “standing armies in time of peace”. Anytime the right of keeping and bearing arms is mentioned it is in the context of standing armies and how tyrants build large military machines. The militia is made effete and replaced by a standing army.

The Second Amendment is not as clear as most people believe. Interpreting it without knowing the context in which it was proposed and ratified may just produce the wrong conclusion. One needs to realize that our founding generation was deathly afraid of standing armies. As British citizens, they surely knew that it was only about a century since Oliver Cromwell had used Britain’s “New Model Army” with its red uniforms to overthrow the king and have himself installed as Lord Protector. They also knew that the kings in Europe, including their beloved George III, maintained power by keeping large standing armies to protect them. Even during our Revolution there were many Americans who feared George Washington’s Continental Army as a force that could impose a new tyranny after ousting the British. Militias of the people, however, could provide for the national and state defense without the dangers of a standing army.

The first statement of what later became the Second Amendment was contained as Article XIII of the Virginia Declaration of Rights. It read,

That a well regulated militia, composed of the body of the people, trained to arms, is the proper, natural, and safe defense of a free state; that standing armies, in time of peace, should be avoided as dangerous to liberty; and that, in all cases, the military should be under strict subordination to, and be governed by, the civil power.

The phrase “That the people have a right to keep and bear arms” was added to this language in 1788 by the Virginia constitutional ratifying convention in its proposed bill of rights. The New York convention broke up the right into three paragraphs:

That the People have a right to keep and bear Arms; that a well regulated Militia, including the body of the People capable of bearing Arms, is the proper, natural and safe defence of a free State;
That the Militia should not be subject to Martial Law except in time of War, Rebellion or Insurrection.
That standing Armies in time of Peace are dangerous to Liberty, and ought not to be kept up, except in Cases of necessity; and that at all times, the Military should be under strict Subordination to the civil Power.

When James Madison submitted his version of the Bill of Rights to the Congress in 1789 the provision was close to its final language,

The right of the people to keep and bear arms shall not be infringed; a well armed and well regulated militia being the best security of a free country: but no person religiously scrupulous of bearing arms shall be compelled to render military service in person.

The final version, adopted by the Congress and then sent to the states for ratification, reversed the order of the first two clauses and dropped the conscientious objector provision.

Thomas Jefferson was against a Constitution that did not contain a bill of rights to protect the people not against themselves, but from the federal government:

“I hope, therefore, a bill of rights will be formed to guard the people against the federal government as they are already guarded against their State governments, in most instances”

[Thomas Jefferson to James Madison, 1788. ME 7:98]. Jefferson was alarmed with the defects he found in the initial Constitution sent to him by Madison, and made it known he found it objectionable that there was no provision guarding against a standing army:

“I will now add what I do not like. First, the omission of a bill of rights providing clearly and without aid of sophisms for freedom of religion, freedom of the press, protection against standing armies…”

Elbridge Gerry said:

This declaration of rights, I take it, is intended to secure the people against the mal-administration of the Government; if we could suppose that, in all cases, the rights of the people would be attended to, the occasion for guards of this kind would be removed. Now, I am apprehensive, sir, that this clause would give an opportunity to the people in power to destroy the constitution itself. They can declare who are those religiously scrupulous, and prevent them from bearing arms.

What, sir, is the use of a militia? It is to prevent the establishment of a standing army, the bane of liberty. Now, it must be evident, that, under this provision, together with their other powers, Congress could take such measures with respect to a militia, as to make a standing army necessary. Whenever Governments mean to invade the rights and liberties of the people, they always attempt to destroy the militia, in order to raise an army upon their ruins.

In other words, the Second Amendment is not an individual right to bear anything, but a security of the people to keep and bear arms for purposes of maintaining public militias as a guard against a standing army. The House Committee on the Militia in December of 1833 had no illusion what the Second Amendment stood for when it considered modifying existing militia law in the several States to allow for the following:

…to permit each State in time of peace, in the discretion of its Legislature, to require no person to bear arms under twenty-one, or over forty years of age, and to permit the inspection of arms to be taken by companies instead of by regiments or battalions; and, also into the propriety and justice of providing arms and accoutrements at the public expense for those liable to bear arms…

First of all, it was recognized that such matters as to who can, or cannot bear arms, is up to the State legislature. If the Second Amendment was an outright individual protected right as some like to believe it is, then such proposed State laws would clearly be violating persons under the age of 21, and over the age of 40, right to bear arms under the Second Amendment.

Clearly then, the context of bearing arms is purely in a military service context since that is all the term “bear arms” imports. The term “bear arms” had the universal understanding of militarily taking up arms against another in aggression, which of course explains why there were people who were religiously scrupulous to bearing arms or supporting militias financially, but otherwise had no problem with personally owning private weapons. Quakers for example, refused to “bear arms” or contribute funds in support of the militia, yet had no objection to personally owning firearms.

President Andrew Jackson confirms the right under the Second only relates to the collective right to bear arms under militias for defense of the State: “To take from the people the right of bearing arms, and put their weapons of defence in the hands of a standing army, would be scarcely more dangerous to their liberties, than to permit the Government to accumulate immense amounts of treasure beyond the supplies necessary to its legitimate wants.”

The Second Amendment only qualifies bearing arms as part of the defense of the State, not personally, because it focuses only with the body of the people who make up the militias. There is no qualification to a right to private ownership because that would dwell into domestic concerns of a State, something the federal Constitution does not by design permit.

To me it is clear that the right to keep and bear arms must be read in conjunction with the founding generation’s determination to rely on militias, rather than a standing army, for national defense. Certainly the right to bear arms is a right of the people, not the state or federal governments. On the other hand, the right was clearly intended to guarantee the existence of militias, not for any other purpose. Further, the fact that we now are perfectly comfortable maintaining a standing army, navy, air force and marine corps and that our state militias have been themselves formalized into National Guards and Reserve components leads to the obvious conclusion is that the right to bear arms for the purpose of maintaining a strong national defense is no longer relevant in 2008.

Of course, judges are supposed to be free of the political fray which leads to the type of mess and confusion which the Second Amendment has found itself in the mind of the masses. Few are willing to discuss the true meaning of the Second Amendment as a guarantee against standing armies. On the other hand, will the justices raise this issue? There are commentators on the internet who do, but this seems lost in the piles of briefs pro and con in DC v Heller.

Additionally, the Supreme Court has ruled on this and found that the right is one to enable the body organised under the militia powers granted in Article I, Section 8 of the Constitution in US v. Miller. Miller was reiterated in US v. Rybar which stated that the same arguments which are being presented by Heller in this case were without merit. Which means that one Supreme Court Justice, Alito, has ruled upon this question and found the “individual right” argument without merit.

Given that my Second Amendment right is to be free from a large, standing military, that right is being violated in Washington, DC. Not by the District of Columbia’s firearms laws, but by the legislature and executive by allowing the invasion of Iraq. To find that the Second Amendment allows for an individual right to own firearms unrelated to militia duty is to make logical leaps of outrageous proportion.

Still even yet more DC v Heller

There is a phrase that seems to be missing throughout all this punditry on DC v Heller, with the exception of my posts: stare decisis. Actually, the American Bar Association’s Brief deals specifically with this topic.

Whether the following provisions—D.C. Code §§ 7-
2502.02(a)(4), 22-4504(a), and 7-2507.02—violate the
Second Amendment rights of individuals who are not
affiliated with any state-regulated militia, but who wish
to keep handguns and other firearms for private use in
their homes?

There is an objection in court “Asked and answered”, which this question is.

It has been taken as a ruling that the Miller court established that there needs to be a relationship between the activity and to ensure the efficacy of the Militia institution set up under Article I, Section 8. This has been the interpretation for the past 70 years. Prior to Miller, the Second Amendment has not been seen as a barrier to gun control.

In fact, any detailed reading of the primary source material shows that the Second Amendment is a guarantee that the Militia forces would not be disarmed. In fact, the Second Amendment is a guarantee against standing armies, not personal ownership of firearms. But, for some reason, the peace movement hasn’t capitalised on the debates the way the guns for criminals crowd has.

Anyway, with the cost of “gun violence” in terms of public health and law enforcement, there is no reason to find an individual right. Even more impotantly to place concept of self-defence within the purview of the Second Amendment when it has not been a part of that Amendment’s purpose or jurisprudence.

One need not go too far to find merit in DC’s appeal and overturn the Parker decision.

The legal rules require such a decision.

Posted 15/03/2008 by lacithedog in DC v. Heller, rule of law, stare decisis

Can’t get my mind off it.

I have to admit that I am worried that the Supreme Court will make the wrong decision in DC v. Heller. They will be swayed by popular opinion and new “scholarship”. Of course, the NRA disagrees with me and believes that the Supreme Court will back the “collective rights theory”. The RKBA crowd would prefer if the US legislature annul the locally enacted law.

Additionally. Alan Gura (one of Heller’s attorneys) has told the RKBA crowd to stay away from the lawsuit. Exact words: {By allowing the RKBA groups} “to join this litigation would substantially and unnecessarily complicate what is presently a straightforward single-issue case…By adding a variety of extraneous claims to a case that is nearly ready for summary disposition, the Seegars plaintiffs would impede this court in resolving the narrow issue presented in the Parker litigation and substantially prejudice the Parker plaintiffs by delaying resolution of their claim.”

The single issue:

“Whether the following provisions — D.C. Code secs. 7-2502.02(a)(4), 22-4504(a), and 7-2507.02 — violate the Second Amendment rights of individuals who are not affiliated with any state-regulated militia, but who wish to keep handguns and other firearms for private use in their homes?”

The accepted interpretation of US v. Miller, 307 U.S. 174 (1939) is that it does not. U.S. v. Sandidge, 520 A.2d 1057 (D.C. 1987) held that it did not, and was precedent until the Parker court decided to violate stare decisis and say that those code sections did. Sandidge said straight out that the Second Amendment applied to the Militia, which is currently the DC national guard. Anyone who was not a member of the militia engaged in militia related duties did not have a right to arms. Additionally, US v. Rybar, 103 F.3d 273 (3d Cir. 1996) was another of the many cases which addressed this issue and found that the right applied only to militia related activities.

For the most part, as I have said over and over here, is that this was pretty much the accepted legal interpretation of the Second Amendment. The only other exception to this was US v. Emerson, 270 F.3d 203,(5th Cir. 2001)

The problem is that the egregious courts fail to address the pertinent case law. The Parker majority ignores three Supreme Court cases that address the meaning of the Second Amendment. In U.S. v. Cruikshank (1876), the Court concluded that “bearing arms for lawful purposes” was not what the Second Amendment was about. More importantly, the Court stated flatly in Presser v. Illinois (1886) that the Second Amendment did not protect a citizen’s right to privately bear arms; instead, it protected the “keeping and bearing of arms” so that the government could not be deprived of “their rightful resource for maintaining the public security” or “disable the people from performing their duty” to the government. And in 1894, the Court upheld a Texas law “prohibiting the carrying of dangerous weapons” in Miller v. Texas, turning aside a Second Amendment rights claim. Little wonder that these three cases went unmentioned.

Instead, we see reliance upon “New Scholarship” which is erroneous and basically advocacy. The problem with the “New Scholarship” is that it doesn’t address the real issue, which was the conflicting institutions, the Federal Army v. State Militia. The primary source literature is full of talk about how a standing army can be used to oppress the people: nothing substantial about personal right to firearms outside of militia service. And the fear of a standing army is much more realistic proposition than my having personal firearms for self-defence, let alone hunting. Since firearms were handmade, they were expensive (think Purdey or Holland and Holland shotguns). Hunting was a pass time of rich landowners, not the common person.

Also, I have pointed out before as well, hunting and self-defence are not mentioned in the Second Amendment as they are in State grants of the “right to keep and bear arms”. Many of these state rights have been rewritten in recent years to be more in line with the popular view of the right to keep and bear arms. Taking it away from a right intertwined with militia service and making it a personal right in the State Constitutions.

On the other hand, the Second Amendment has been interpreted by the Supreme Court as being a right of the militia:

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.

Popular opinion has misinterpreted Miller ignoring the above passage, especially the last sentence: It must be interpreted and applied with that end in view..

This is pretty emphatic that the Second Amendment applies only to the body known as the militia. This is the body organised under congress’s powers from Article I, Section 8. It isn’t a hypothetical body (i.e., “sedentary militia” or “unorganised militia”), or some fantasy army of rebellion. The right only applies to active militia related activities.

I have hopes that Justice Alito will be a voice of reason and advocate continuation of the current accepted interpretation and put paid to this “New Scholarship”. The law is not to be swayed by popular opinion. Not if it wishes to remain the law. A judge should keep in mind the rule of law, one of those principles being stare decisis.

US V Rybar on the Second Amendment

Editorial note: This is the Section of U.S. v. Rybar,103 F.3d 273 (3d Cir. 1996) that deals with Rybar’s Second Amendment defence. It addresses the arguments found in the pro-Heller briefs and finds them without merit.

Second Amendment

As an independent basis for his argument that section 922(o)
is unconstitutional, Rybar relies on the Second Amendment of the
Constitution, which provides: “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.” U.S.
Const. amend. II.

In support, Rybar cites, paradoxically, the Supreme Court
decision in United States v. Miller, 307 U.S. 174, 59 S.Ct. 816,
83 L.Ed. 1206 (1939), where the Court upheld the
constitutionality of a firearms-registration requirement against
a Second Amendment challenge. Rybar draws on that holding,
relying on the Miller Court’s observation that the sawed-off
shotgun in question had not been shown to bear “some reasonable
relationship to the preservation or efficiency of a well
regulated militia.” Brief of Appellant at 24-25; Miller, 307
U.S. at 178, 59 S.Ct. at 818. Drawing from that language the
contrapositive implication, Rybar suggests that because the
military utility of the machine guns proscribed by section 922(o)
is clear, a result contrary to that reached in Miller is
required, and the statute is therefore invalid under the Second

Rybar’s reliance on Miller is misplaced. The language Rybar
cites is taken from the following passage:

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.

307 U.S. at 178, 59 S.Ct. at 818.

We note first that however clear the Court’s suggestion that
the firearm before it lacked the necessary military character, it
did not state that such character alone would be sufficient to
secure Second Amendment protection. In fact, the Miller Court
assigned no special importance to the character of the weapon
itself, but instead demanded a reasonable relationship between
its “possession or use” and militia-related activity. Id.; see
Cases v. United States, 131 F.2d 916, 922 (1st Cir.1942)
(susceptibility of firearm to military application not
determinative), cert. denied, 319 U.S. 770, 63 S.Ct. 1431, 87
L.Ed. 1718 (1943). Rybar has not demonstrated that his
possession of the machine guns had any connection with
militia-related activity. Indeed, as noted above, Rybar was a
firearms dealer and the transactions in question appear to have
been consistent with that business activity.

Nonetheless, Rybar attempts to place himself within the
penumbra of membership in the “militia” specified by the Second
Amendment by quoting from 10 U.S.C. section 311(a):

The militia of the United States consists of all able-bodied
males at least 17 years of age and, except as provided in
section 313 of title 32, under 45 years of age who are …
citizens of the United States….

Rybar’s invocation of this statute does nothing to establish
that his firearm possession bears a reasonable relationship to
“the preservation or efficiency of a well regulated militia,” as
required in Miller, 307 U.S. at 178, 59 S.Ct. at 818. Nor can
claimed membership in a hypothetical or “sedentary” militia
suffice. See United States v. Hale, 978 F.2d 1016, 1020 (8th
Cir.1992), cert. denied, 507 U.S. 997, 113 S.Ct. 1614, 123
L.Ed.2d 174 (1993); United States v. Oakes, 564 F.2d 384, 387
(10th Cir.1977), cert. denied, 435 U.S. 926, 98 S.Ct. 1493, 55
L.Ed.2d 521 (1978); United States v. Warin, 530 F.2d 103, 106
(6th Cir.), cert. denied, 426 U.S. 948, 96 S.Ct. 3168, 49 L.Ed.2d
1185 (1976).

Rybar boldly asserts that “the Miller Court was quite simply
wrong in its superficial (and one-sided) analysis of the Second
Amendment.” Brief of Appellant at 27. As one of the inferior
federal courts subject to the Supreme Court’s precedents, we have
neither the license nor the inclination to engage in such
freewheeling presumptuousness. In any event, this court has on
several occasions emphasized that the Second Amendment furnishes
no absolute right to firearms.
See United States v. Graves, 554
F.2d 65, 66 n. 2 (3d Cir.1977); Eckert v. City of Philadelphia,
477 F.2d 610 (3d Cir.), cert. denied, 414 U.S. 839, 843, 94 S.Ct.
89, 104, 38 L.Ed.2d 74, 81 (1973). Federal attempts at firearms
regulation have also consistently withstood challenge under the
Second Amendment. See, e.g., Hale, 978 F.2d at 1020; Warin, 530
F.2d at 108; United States v. Three Winchester 30-30 Caliber
Lever Action Carbines, 504 F.2d 1288, 1290 n. 5 (7th Cir.1974);
United States v. Johnson, 497 F.2d 548, 550 (4th Cir.1974);
Cases, 131 F.2d at 923. We see no reason why section 922(o)
should be an exception.

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!