When recounting the import of U.S. Supreme Court case holdings, especially pertaining to our Nation’s fundamental rights and liberties—the most important of which is codified in the Second Amendment of the Bill of Rights—one must be reminded that the Third Branch of Government is not a distant poor cousin of the other two and is not to be treated as if it were such. Yet, it is often denigrated as such, especially when some case decisions, like those in the recent Bruen and Dobbs cases, happen to throw some people into a fit of rage, threatening the Court and threatening the life of some Justices within it, and threatening the viability and “legitimacy” of the High Court.
Two co-equal Branches of the Federal Government, the Executive and Legislative, along with assistance from the legacy Press, do nothing to curb this insult and danger to the third co-equal Branch. Instead, these two Branches, along with the Press, either remain silent, or actively, avidly encourage the disassembling of the Third. Hence the concerted effort to “tame” the Court through the device of “court-packing,” a thing the Biden Administration looked to accomplish through creation of a commission for just that purpose. Fortunately, that came to naught.
Still, these are the sort of antics of Americans come to expect from the Harris- Biden Administration. And we see these antics from a bloated, rancid, unelected, and unaccountable Administrative Deep State; and from an obstreperous, preening, arrogant Congress; and from a seditious, treacherous Press; and even from some academicians whose essays exhibit an unrestrained, radical Marxist/Neoliberal Globalist oriented socio-political bent.
Americans see a treacherous Federal Government, a seditious Press, and large multinational conglomerates uniting in a collective effort to erode the underpinnings of a free Republic and eventually eradicate it. And it does so because a free Constitutional Republic doesn’t address their wants and desires—as if it ever should have been so.
The present Administration does nothing to prevent a vicious, vile mob from attacking the Court, but remains painfully silent. And members of Congress go further, even inciting a mob to violence. Schumer, who should know better, as a Harvard educated lawyer—although he never practiced law—threatens a Justice at the steps of the High Court, and a would-be assassin eventually tries to oblige.
And Maxine Waters, a sociopath and lunatic if there ever was one, marches with a mob to the doors of the U.S. Supreme Court, shrieking: “The hell with the Supreme Court. We will defy them.”
More restrained in his remarks belittling the Court, but no less dangerous because of the nature of them, a Law Professor at Pepperdine University, one, Barry P. McDonald argues the founding fathers had intended to relegate the Supreme Court to second-class status.
But, if true, the impact of that inference has dangerous repercussions not only for the Government itself but for the peoples’ right to check the power of that Government through force of arms. The Constitution to this scholar is nothing more than an amorphous, shapeless lump of clay to be reshaped and remolded at will or whim, not unlike a potterer producing a clay pot on a ceramic pottery wheel, changing the design as his fancy suits him, as the wheel goes round and round.
McDonald’s essay was published as an Op-Ed in the NY Times, a few days after the Senate voted to confirm Brett Kavanaugh as an Associate U.S. Supreme Court Justice.
Obviously, Professor McDonald disapproved of the confirmation, no less so than The New York Times that sought him out as a credentialed college professor to give weight to its own abhorrence of the Court and of the confirmation of Kavanaugh to sit on it as Justice Kavanaugh.
McDonald wrote, in principal part,
“When the founders established our system of self-government, they didn’t expend much effort on the judicial branch. Of the roughly three and a half long pieces of inscribed parchment that make up the Constitution, the first two pages are devoted to designing Congress. Most of the next full page focuses on the president. The final three-quarters of a page contains various provisions, including just five sentences establishing a ‘supreme court,’ any optional lower courts Congress might create and the types of cases those courts could hear.
Why was the judicial branch given such short shrift? Because in a democracy, the political branches of government — those accountable to the people through elections — were expected to run things. The courts could get involved only as was necessary to resolve disputes, and even then under congressional supervision of their dockets.
It was widely recognized that the Supreme Court was the least important of the three branches: It was the only branch to lack its own building (it was housed in a chamber of Congress), and the best lawyers were seldom enthusiastic about serving on it (John Jay, the court’s first chief justice, resigned within six years and described the institution as lacking ‘energy, weight and dignity’).
When disputes came before the Supreme Court, the justices were expected to ensure that Americans received ‘due process’ — that they would be ruled by the ‘law of the land’ rather than the whims of ruling individuals. In short, the court was to play a limited role in American democracy, and when it did get involved, its job was to ensure that its judgments were based on legal rules that were applied fairly and impartially.
What about the task of interpreting the Constitution? This question is the subject of some debate, but the founders most likely believed that each branch of government had the right and duty to determine for itself what the Constitution demanded, unless the Constitution was clearly transgressed. If the Constitution was clearly transgressed, the Supreme Court had a duty to hold Congress or the president accountable — but only in the case before it. The founders almost certainly did not envision a roving mandate for the Supreme Court to dictate to Congress, the president or state governments what actions comported with the Constitution (unless they were a party to a case before it).”
So, we are to believe that the founders thought less of the High Court because of the Building they were housed in, or because they devoted a few lines to the Judicial Branch in Article 3 of the Constitution, or because we are to accept Professor McDonald’s on faith that the founders expected each Branch to decide for itself the expansiveness of its powers? And where, in all of that jockeying for power among the servants of the people in Government does that leave the people of the United States, who are the true and sole sovereign over Government?
To give credence to this odd notion that the High Court is relegated to a humble position in the Federal Governmental structure, Professor McDonald intimates that John Jay resigned from the Court because he thought the Court lacked “energy, weight and dignity.”
Professor McDonald fails to cite anything to support the inference or provide context for it.
The actual letter, where that phrase appears, a letter from John Jay to President Adams is available for viewing on the founders’ archives website.
It is clear from a perusal of Jay’s letter to President John Adams, declining the President’s invitation to serve once again as Chief Justice of the High Court, that John Jay’s declination was not tied to a belief, contrary to what Professor McDonald intimates, that the framers must have had a low expectation for the Court and that, therefore, John Jay no longer wanted to be a part of the Court. Such an idea is absurd; yet McDonald places significant reliance on it for his thesis.
But, if John Jay had such misgivings about the Court, he would not have served as Chief Justice of it, in the first place, nor stayed on the Court for as long as he did.
The facts are as follows: “In 1789, after Jay declined George Washington’s offer of the position of Secretary of State, the president offered him the new opportunity of becoming Chief Justice of the United States Supreme Court, which Jay accepted. He was unanimously confirmed on September 26, 1789 and remained on the bench until 1795. As this was an inaugural position, many of Jay’s duties involved establishing rules, procedure, and precedents.”
So, Justice John Jay, a founding father, did much to develop the federal judicial system and resigned, when elected Governor of New York. See article in NYCourts.gov.
A few years later, John Adams, the second President offered John Jay the Chief Justice position once again.
He declined the offer but did so not because he thought the Supreme Court had been accorded no real power under the Constitution, but, rather, because he felt the Executive Branch of Government would not allow the Court to exercise its Article 3 powers as the Constitution intended, dismissing the Court’s authority and power out-of-hand.
This early power grab by the Executive Branch came to a head in the famous case of Marbury vs. Madison, when Chief Justice, John Marshall, asserted the Court’s rightful powers that the Executive Branch had chosen to ignore. And in that struggle it was Thomas Jefferson, the third U.S. President, who acceded to Marshall, acknowledging, if only reluctantly, the Supreme Court’s Article 3 authority that the Executive Branch sought to ignore.
The Federal Government was just in its infancy, but, even then, the three Branches had started to jockey for power. Even so, usurpation of power is patently contrary to the dictates of the Constitution which delineates the powers and authority of each Branch, thereby establishing the parameters for the exercise of powers so delineated for each Branch. No Branch is permitted to transgress the Constitutional boundaries of power set for it.
Had the framers of the Constitution sought to place the High Court under the auspices of another Branch as in the English Parliamentary System, the framers would have plainly provided for that. They did not.
There were many possible Governmental forms and many permutations within any Governmental form to choose from.
The framers of the Constitution considered many configurations of Government and rejected all but one:
A tripartite co-equal Branch Republican form of Government in which each Branch would be accorded its own set of limited, clearly articulated, and demarcated powers and authority.
Thus, the Framers constructed one form of Government they hoped would be the least susceptible to insinuation of tyranny. Still the framers of the U.S. Constitution harbored doubt that their best efforts to establish a Government of three co-equal Branches would be sufficient to forestall the insinuation of tyranny into the Government. Their concerns were justified.
They knew that such is the nature of Government that no Governmental form would suffice to prevent the inevitable and inexorable tendency of a centralized Government with a standing army to resist the irresistible tug, and urge, and itch, to gather ever more power for itself.
Since the Federal Government was constructed to be the servant of the people, the founders made certain that the American people would bear arms to secure their freedom and liberty from tyranny and they understood that the natural law right of the people to keep and bear arms would rest—must rest—beyond the power of Government to toy with. For it is only through an armed citizenry that Government—especially one that is hell-bent in exercising absolute power and concomitantly oppressing the citizenry—can be kept from usurping the sovereignty of the American people and subjugating them in the process.
Exercise of Governmental Power has shifted between and among the Branches through the decades, as they jockey for power and this is inconsistent with the plain text of the Constitution that demarcates the power and authority of each Branch; the power and authority that each Branch was allowed to wield, and not intrude on the domain of another Branch.
The American people as the sole sovereign over Government would check the insinuation of tyranny—a given—through exercise of the natural law right of the people to keep and bear arms. And that would remain an immutable “constant,” irrespective of the machinations of the Three Branches of Government.
And it is the stubborn constancy of the Second Amendment continues to rankle Big Government and its supporters to no end becoming more noticeable as the Government continues to devolve ever further into tyranny.
Today, we see the coalescing and merging of the Executive Branch and Legislative Branches. And we see attempts to bring the Judicial Branch into the fold.
And none of this bodes well for the American people. This means the right of the people to keep and bear arms grows more insistent.
The Biden Administration, with a compliant Senate, has barreled through confirmation the first of a new kind of Supreme Court Justice: one who has no regard for the rights and liberties of the American people. This person, Ketanji Brown Jackson, is a person of mediocre talents at best, according to a National Review report.
She was selected by the Administration’s shadowy puppetmasters, precisely because she is a dutiful proponent of the Marxist dogma of “Diversity, Equity, Inclusion.” Did the National Review provide support for her nomination? One reporter did. See an article in the Federalist about this, chastising the National Review because of this.
This nomination and confirmation of Ketanji Brown Jackson and more like her would not bode well for the independence of the Court.
Imagine the fate of Americans today if Congress could legislate away exercise of the fundamental rights as codified in the Nation’s Bill of Rights and if the Executive Branch could do much the same through DOJ/FBI and ATF misuse of its Administrative Rulemaking authority.
And, does anyone doubt for a moment that five Justices—the faux Conservative-wing Originalist, Chief Justice Roberts, and four liberal-wing Associate Justices, Breyer, Kagan, Sotomayor, plus Garland, wouldn’t have overturned the rulings of the seminal Second Amendment Heller and McDonald cases, using the Bruen case for just that purpose, apart from affirming the decision of the U.S. Court of Appeals for the Second Circuit, for the Respondent City of New York, against the Petitioners. In a nightmare world that could have happened, and, indeed, would have happened. And, here in reality, the Neo-Marxists and Neoliberal Globalists are more than annoyed at the outcome of Bruen and Dobbs, that their dream of negating the Second Amendment did not happen. They are absolutely apoplectic over that.
Just look at how this obsequious, fawning head of the DOJ, unlawfully but dutifully targets Americans for special treatment at the behest of the Biden Administration and at the behest of other radical groups like the National School Board Association.
The framers of the U.S. Constitution would not be pleased but not all that surprised at the Government’s turn toward tyranny. As the framers wrestled with and finally settled on a Republican form of Government, consisting of three co-equal Branches, they also created a “failsafe” to offset the tendency of Government toward tyranny. Government would serve at the behest of the American people, the true and sole sovereign of Government and Nation but only if that Government is kept in check by an armed citizenry, whom, Constitutionally, it has no control over as it is prohibited from infringing the natural law right of the people to be armed.
Thus, the cause of frustration of those forces that seek to usurp the sovereignty of the American people by controlling their possession of and access to arms and ammunition.
The British Empire sought to do this once and failed. Much more insidiously, the Government of the United States, today, seeks to do the same thing and this Government has been busily at work, especially in the 20th Century and to the present day, to dispossess the American people of their firearms and stocks of ammunition and, further, to destroy their will to resist.
Imagine the fate of Americans today if Congress could legislate away exercise of the fundamental rights as codified in the Nation’s Bill of Rights and if the Executive Branch could do much the same through ostensible DOJ/FBI and ATF Administrative Rulemaking authority.
Not to be long forestalled by the inconvenience of the U.S. Constitution, the Nation’s Tyrannical Government has attempted to do just that. The first major Federal legislation infringing the right of the people to keep and bear arms was in the 1930s with enactment of the appalling National Firearms Act of 1934 and Congress added to that infringement with the Gun Control Act of 1968, and the “Gun Violence Prevention Act of 1994.” And the threat continues to this day.
These enactments conflict with the primacy and supremacy of the Second Amendment to ward off the threat of tyranny and are prima facie proof of the Government’s embrace of Tyranny.
Historical events demonstrating the fact of Government usurpation of powers and authority that belong alone to the American people become of themselves legal justification for controverting the dictates of the Constitution.
But Government action that erodes fundamental Rights and Liberty should not operate as prima facie evidence of the lawfulness of those actions merely because they occurred. But that is what we have.
Historical events demonstrating unequivocal illegal Government action infringing Americans’ fundamental rights manifest, paradoxically—like a conjurer’s sleight of hand—as self-justifying evidence for the legality and propriety of the actions—a kind of historical necessity: “it happened, so it must be right and proper.” The historical antecedent event thus transforms as a transcendental moral truth.
That is the argument the Biden Administration makes for corralling the Second Amendment. And that over-reliance on history and on the appeal to history as part of the Court’s standard of review of the legality of laws impinging on the Second Amendment point to a serious flaw in Bruen. Justices Alito, Thomas, and Amy Coney-Barrett must know this.
In fact, Justice Amy Coney-Barrett specifically points to the problem of utilizing history as a standard by which to ascertain whether a particular Governmental action unconstitutionally infringes the Second Amendment. In a short concurring opinion which, curiously no one joined, she says, in part, this:
“I write separately to highlight two methodological points that the Court does not resolve. First, the Court does not conclusively determine the manner and circumstances in which postratification practice may bear on the original meaning of the Constitution. . . . Scholars have proposed competing and potentially conflicting frameworks for this analysis, including liquidation, tradition, and precedent. . . . The limits on the permissible use of history may vary between these frameworks (and between different articulations of each one). To name just a few unsettled questions: How long after ratification may subsequent practice illuminate original public meaning? . . . . What form must practice take to carry weight in constitutional analysis? . . . . And may practice settle the meaning of individual rights as well as structural provisions? . . . The historical inquiry presented in this case does not require us to answer such questions, which might make a difference in another case. . . .
Second and relatedly, the Court avoids another ‘ongoing scholarly debate on whether courts should primarily rely on the prevailing understanding of an individual right when the Fourteenth Amendment was ratified in 1868’ or when the Bill of Rights was ratified in 1791. . . . Here, the lack of support for New York’s law in either period makes it unnecessary to choose between them. But if 1791 is the benchmark, then New York’s appeals to Reconstruction-era history would fail for the independent reason that this evidence is simply too late (in addition to too little). Cf. Espinoza v. Montana Dept. of Revenue, 591 U. S. ___, ___-___ (2020) (slip op., at 15-16) (a practice that ‘arose in the second half of the 19th century . . . cannot by itself establish an early American tradition” informing our understanding of the First Amendment). So today’s decision should not be understood to endorse freewheeling reliance on historical practice from the mid-to-late 19th century to establish the original meaning of the Bill of Rights. On the contrary, the Court is careful to caution ‘against giving postenactment history more weight than it can rightly bear [citations omitted].’”
We discuss this problem of history as a component of a new standard of review in Second Amendment cases in future articles analyzing Bruen.
Copyright © 2022 Roger J Katz (Towne Criour), Stephen L. D’Andrilli (Publius) All Rights Reserved