A STUNNING RULING BY THE SUPREME COURT: HELLER STUNS MASSACHUSETTS HIGH COURT IN CAETANO STUN GUN CASE

No American citizen should take for granted, even for a moment, the importance of the U.S. Supreme Court case, District of Columbia vs. Heller, 554 U.S. 570, 128 S. Ct. 2783, 171 L. Ed. 2d 637 (2008). The high Court made abundantly clear: the right of the people to keep and bear arms is an individual right, independent of and unconnected to service in the military. Justice Scalia wrote the opinion for the majority of the Court. The Court’s holding is clear and cogent, categorical and unequivocal.Henceforth, so long as the Heller holding remains intact, no law can be enacted that is inconsistent with and denigrates the individual right of the American citizen to keep and bear arms. Laws enacted before Heller that are inconsistent with and which denigrate the free exercise of the individual right to keep and bear arms will be struck down. On March 21, 2016 the U.S. Supreme Court did just that. The high Court struck down just such a law. The case is Caetano vs. Massachusetts, ______ U.S. ______ (2016), 2016 U.S LEXIS 1862 (March 21, 2016). The decision of the U.S. Supreme Court was unanimous.If you are wondering why the left-wing of the Court, comprising Justices, Ginsberg, Breyer, Sotomayor, and Kagan, voted with the conservative wing of the Court, comprising Chief Justice Roberts, and Justices Alito, Thomas, and Kennedy, be advised they did so because they were compelled to do so, not because they truly wished to do so.Heller is precedential authority. Even though the left-wing of the high Court dissented from the decision in Heller, and did so strenuously, the left-wing of the Court was in the minority at the time. The majority rules. So the entire Court must abide by the precedents set by and established by the Court’s majority. This principle of jurisprudence is called stare decisis. It means a Court must abide by and uphold its earlier decisions.What binds the U.S. Supreme Court to legal precedents also binds lesser courts, both State and federal. Furthermore, neither Congress nor the U.S. President can change or ignore U.S. Supreme Court decisions. To do so not only undermines the rule of law; such disregard for U.S. Supreme Court decisions undermines the Separation of Powers Doctrine and destroys the system of checks and balances that exists among the three Branches of Government.Yet, This does not mean that the U.S. Supreme Court cannot, itself, overturn one of its own prior decisions. But, the U.S. Supreme Court is generally loathe to do so, and for good reason. For, to do so undercuts the very integrity of the Court. But, if Judge Merrick Garland, or another Judge with the same legal philosophical bent, ultimately secures a seat on the high Court, the left-wing of the Court – having a clear majority at that point – may very well overturn Heller, given their chance to do so since they never agreed with the conservative wing's majority opinion in Heller in the first place. At present, though, the liberal wing of the high Court cannot muster enough votes. It cannot use Caetano to overturn the precedent setting Heller holding outright at this juncture; so it did not try; and, as it had no alternative, the liberal wing of the high Court was compelled, albeit reluctantly -- but compelled nonetheless -- under the doctrine of stare decisis, to decide Caetano in light of the majority’s holding in Heller. But, the liberal wing sided with the conservative wing of the Court, silently -- that is to say -- sans comment. With the passing of Justice Scalia an uneasy balance now exists between the right-wing and left-wing of the Court: 4 to 4. So, then, what is Caetano all about?

ANALYSIS OF THE CAETANO CASE: FACTS OF THE CASE AND LEGAL ISSUES

In Caetano, the Appellant, a Massachusetts woman, suffered a brutal beating at the hands of her abusive boyfriend, who put her in the hospital. She had obtained numerous restraining orders against her abuser, but they all proved futile, and she constantly feared for her life. She obtained a stun gun from a friend for self-defense. One day, the Appellant’s violent ex-boyfriend paid Appellant a visit. He threatened to harm her once again and, since the abuser outweighed Appellant by 100 pounds, she could not protect herself against another assault except through the use of a weapon. She stood her ground, displayed the stun gun. The abusive ex-boyfriend got scared and left her alone. Unfortunately, for Appellant, possession of a stun gun is illegal under Massachusetts’ law, even though the fact of having it on hand may have saved her life.The police later discovered the weapon and arrested the Appellant.The trial court found her guilty of possessing a contraband weapon under State law, ALM GL ch. 140 § 131J. The State law says, in part, “No person shall possess a portable device or weapon from which an electrical current, impulse, wave or beam may be directed, which current, impulse, wave or beam is designed to incapacitate temporarily, injure or kill. . . .”Federal, State, and local law enforcement officers are exempted from application of the Massachusetts law. The penalty for violation of the law for everyone else is harsh: “Whoever violates this section shall be punished by a fine of not less than $500 nor more than $1,000 or by imprisonment in the house of correction for not less than 6 months nor more than 2½ years, or by both such fine and imprisonment.” Note: under the law, “A law enforcement officer may arrest without a warrant any person whom he has probable cause to believe has violated this section.” The Massachusetts law also shreds the Fourth Amendment to the U.S. Constitution.The Appellant was found guilty of violation of the Massachusetts Statute. Circumstances surrounding Appellants’ need for the weapon – namely to protect life and limb – were considered by the trial court to be irrelevant. The Appellant appealed the adverse decision to the Supreme Judicial Court of Massachusetts, the highest Court of the State. The Appellant argued that, under the Second Amendment, she was permitted to possess the stun gun. The Supreme Judicial Court of Massachusetts disagreed, holding “that a stun gun is not the type of weapon that is eligible for Second Amendment protection.” The Massachusetts high Court reasoned that stun guns are unprotected because they were not in common use at the time of enactment of the Second Amendment and because they fall within the general prohibition against carrying dangerous and unusual weapons.The legal issues the U.S. Supreme Court dealt with in Caetano are straightforward: first, whether a stun gun is an “arm” within the meaning of the Second Amendment; second, whether Massachusetts’ blanket prohibition on the possession of stun guns infringes the right of the people to keep and bear arms in violation of the Second and Fourteenth Amendments.

THE IMPORTANCE OF THE CAETANO CASE IN RESPECT TO THE SECOND AMENDMENT: DECISION AND REASONING OF THE COURT

In a unanimous decision, the U.S. Supreme Court relying specifically on Heller, held that the Second Amendment extends to all instruments that constitute bearable arms, even those that were not in use at the time of the founding of our Nation.There was no formal majority opinion. That is to say the decision in Caetano was handed down, per curiam. Justice Alito, joined by Justice Thomas, two conservative-wing Justices, did, however, write a concurring opinion. Were he able, Justice Scalia would most certainly have either joined Justice Thomas in Justice Alito’s concurring opinion or would have penned his own. Not surprisingly, as stated, supra, the liberal-wing Justices did not wish to weigh-in with a formal opinion of their own.The left-wing of the high Court is obviously waiting for the day it forms a majority bloc on the high Court. It will then be in the position to overturn Heller when the appropriate Second Amendment case comes before it. If Judge Merrick Garland or someone like him succeeds to Justice Antonin Scalia’s seat, then the day the left-wing of the Court has been anxiously waiting for will have arrived.The Caetano case makes plain that the Second Amendment right of the people to keep and bear arms entails the right of self-defense – a right that antigun groups object to and constantly attack.Justices Alito and Thomas Supreme Court took the Massachusetts high Court to task, attacking both the reasoning and decision of the Supreme Judicial Court of the State. In a blistering critique of the Massachusetts high Court, Justices Alito and Thomas admonished the Court, asserting that the Court professed to apply Heller but, actually wholly ignored it. Justices Alito and Thomas castigated the Supreme Judicial Court for its “ill-treatment of Heller.” The Justices said: “We held {in Heller} that the Second Amendment extends to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding. It is hard to imagine language speaking more directly to the point. Yet the Supreme Judicial Court did not so much as mention it.”Justices Alito and Thomas were not done with the Supreme Judicial Court of Massachusetts. They added that the issue of dangerousness of a weapon does not apply when a weapon, such as a stun gun, is used for a lawful purpose. The Appellant, Caetano, did in fact use the stun gun for a lawful purpose: self-defense. That is not in dispute. That fact was never in dispute. In emphasizing the point, Justices Alito and Thomas ripped apart another argument the Massachusetts high Court made when affirming the decision of the trial Court, against the Appellant.Justices Alito and Thomas also admonished the Court, and by extension, antigun groups, for assailing those who wish to exercise the fundamental right to keep and bear arms for the purpose of self-defense – a legitimate purpose under the Second Amendment. Justices Alito and Thomas pointed out that some people may have reservations about using deadly force due to moral, religious, or emotional reasons but that such reservations do not and cannot override another person’s desire to exercise his or her right of self-defense, as guaranteed under the Second Amendment.The U.S. Supreme Court thereupon remanded the case to the Supreme Judicial Court of Massachusetts with instructions essentially requiring the high Court of Massachusetts to reverse its earlier finding, affirming judgment for the State against Appellant, and enter judgment for the Appellant, Caetano, consistent with the high Court’s holding and reasoning.

DO OTHER JURISDICTIONS CRIMINALIZE POSSESSION OF STUN GUNS?

Yes. Consider just a couple. New York City, for example, criminalizes the mere possession of electronic stun guns, under NYC Administrative Code § 10-135. Violation of this Section of the Code is a Class A Misdemeanor. Under NY CLS Penal § 70.15, a person found guilty of a Class A Misdemeanor can receive a prison sentence of up to one year. In certain situations, as defined in Statute, that prison sentence can be considerably longer.Another jurisdiction in the State of New York, namely, Long Beach, New York, has an ordinance making possession of a stun gun a Class A misdemeanor: Long Beach, New York Code of Ordinances Sec. 63.The Long Beach Ordinance and the NYC code section are both illegal and must be struck down. How many other States and local governing bodies within States have such illegal laws on the books? One can only wonder. But they must be legion; and they are all illegal under Heller – at least so long as Heller remains valid law and is not overturned. If Judge Merrick Garland were to be confirmed, Heller would likely, at some point in time, be overturned. And Justice Scalia’s work would be undone.

AFTER CAETANO THE U.S. SENATE MUST PROTECT THE HELLER CASE AND ITS PROGENY

THE U.S. SENATE HAS DONE ITS JOB: IT HAS DECIDED TO WITHHOLD ITS CONSENT TO MOVE FORWARD WITH THE CONFIRMATION PROCESS OF OBAMA’S NOMINEE TO THE U.S. SUPREME COURT.

The U.S. Senate must not acquiesce to pressure. It must not move forward with a confirmation hearing and floor vote on Obama’s nomination of Judge Merrick Garland to the U.S. Supreme Court. For, we know that, under any scenario, Judge Garland – as Justice Garland – will provide the left-wing of the Court with the key vote it needs to overturn Heller. Hopefully, the U.S. Senate Committee on the Judiciary will hold fast and preclude a formal confirmation hearing and refrain from permitting an up or down vote on the Garland nomination.Under Article 2, Section 2 of the U.S. Constitution, the President nominates individuals to the high Court with the advice and consent of the Senate. The President does not, then, simply, appoint a person to the high Court. The Constitution does not permit that. The U.S. Senate can withhold its consent and it has refused, at this time, to give it, and that is its right.The Senate recognizes the danger to precedential setting cases impacting Americans’ fundamental rights and liberties, such as Heller, if the confirmation process were to proceed. Appropriately, the Senate has decided to exercise vigilance and caution in this matter at this poignant time and given the sensitive circumstances presently facing our Nation.The U.S. Senate has done everything required of it. It has performed its duties under the U.S. Constitution, as it must. The President and his sycophants in the mainstream media don’t like the Senate’s decision. But they would do well, now, to accept it and keep their mouths shut![separator type="medium" style="normal" align="left"margin-bottom="25" margin_top="5"] Copyright © 2015 Roger J Katz (Towne Criour), Stephen L. D’Andrilli (Publius) All Rights Reserved.

CITIZENS BEWARE: JUSTICE SERVED ON A SILVER PLATTER SET TO DESTROY THE SECOND AMENDMENT

THE POSITIONING OF JUDGE MERRICK GARLAND FOR A LIBERAL-WING TAKEOVER OF THE U.S. SUPREME COURT

PART 2A

In the previous article in this series we began with a discussion of our concern over President Obama’s nomination of Judge Merrick Garland to the U.S. Supreme Court. We analyzed a Second Amendment case brought before the United States Court of Appeals for the District of Columbia, Circuit. The case is Parker vs. District of Columbia, 478 F.3d 370 (D.C. Cir. 2007), petition for en banc hearing denied, Parker vs. District of Columbia, 2007 U.S. App. LEXIS 11029 (D.C. Cir. 2007). An analysis of that case gives an inkling as to Judge Garland’s view of Americans’ Second Amendment right of the people to keep and bear arms. It’s not good. In this Article we provide further perspective.Judge Garland presently serves as one of ten Judges on the United States Court of Appeals for the District of Columbia Circuit. Service on that Court is a stepping stone to a seat on the U.S. Supreme Court. In fact the late Justice Antonin Scalia also served as a judge on the U.S. Court of Appeals for the District of Columbia Circuit before President Reagan nominated him to the United States Supreme Court. The U.S. Senate subsequently confirmed the nomination in 1986. Justice Scalia served as an esteemed Associate Justice on the U.S. Supreme Court until his untimely death on February 13, 2016.Many legal experts consider the U.S. Court of Appeals for the District of Columbia Circuit to be the second most powerful Court in the Country. Other U.S. Circuit Courts of Appeal give considerable deference to a decision by that Court, but they are not obligated to do so. A decision by the U.S. Supreme Court, though, has binding effect over the Nation and its territories. Given the monumental impact of a U.S. Supreme Court decision, it is incumbent on the U.S. Senate to be circumspect in handling a nomination to the high Court. The decisions of the high Court impact the very fabric of society and, in fact, the existence of a free Republic. The framers of our Constitution made certain the U.S. Senate shall have the final say on all appointments to the high Court. The President shall nominate but the only the U.S. Senate can confirm the appointment. The Senate proffers its advice and consent, consistent with Article 2, Section 2 of the U.S. Constitution. Thus, the framers of our Constitution intended, and for good reason, to preclude a President from packing the Court. The U.S. Senate, though, seeks – and rightfully so – to protect the legacy of Justice Scalia, a man who devoted his life to – and focused his brilliant mind on – preserving our Bill of Rights.President Obama is improperly attempting to force the Senate’s hand in this matter and he is using the medium of a compliant Press to do so. He waxes poetic over the intellectual ability and moral character of Judge Garland and the Press echoes the President’s sentiments. One phrase President Obama uses in defining Judge Garland, though, should give the U.S. Senate and the American people pause.The President says Judge Garland is a “consensus builder.” Consider the meaning of that phrase for a moment. The President is saying Judge Garland would likely bridge the gap between the liberal wing of the Court and the conservative wing – a position, at the moment, filled by Justice Kennedy. But, Judge Garland is said to fall “to the left” of Justice Kennedy. Thus, the assertion that Judge Garland would act as a “consensus builder” on the high Court means, disconcertingly, that Judge Garland – serving as Justice Garland – would hand the liberal wing of the Court a decisive majority in every case. Justice Garland would likely support every cause promoted by the progressive left in this Country. The shattering of the Bill of Rights is not a pleasant thought to contemplate.The idea is not wild fancy. Judge Garland, sitting on the U.S. Supreme Court as Justice Garland, would take an active part in drafting opinions weakening the Second Amendment right of the people to keep and bear arms. Most news articles fail to mention Judge Garland’s clear antipathy toward the Second Amendment if those articles happen to mention the Second Amendment at all.Yet, it would be an affront to the memory of Justice Scalia to have, as his replacement, a man – regardless of ability and temperament – who would not continue Justice Scalia’s deference to our Bill of Rights.How do we know this? In our previous article we provided you with a comprehensive analysis of one Second Amendment case, Parker vs. District of Columbia, 478 F.3d 370 (D.C. Cir. 2007), petition for en banc hearing denied, Parker vs. District of Columbia, 2007 U.S. App. LEXIS 11029 (D.C. Cir. 2007). An analysis of that case gives an inkling into the mindset of Justice Garland. He is not at all a proponent of the Second Amendment. But consider: would President Obama honestly nominate a person to serve on the high Court if that person professed a strong propensity to preserve and strengthen the Second Amendment?Do we find in President Obama’s previous two nominations, whom the U.S. Senate confirmed, namely, Justice Elena Kagan and Justice Sonja Sotomayor, to be proponents of the Second Amendment? If you think so, you should take another look at the seminal Second Amendment case, District of Columbia vs. Heller, 554 U.S. 570, 128 S. Ct. 2783, 171 L. Ed. 2d 637 (2008). Those two Justices, along with Justices Ruth Bader Ginsberg and Stephen Breyer – the liberal-wing of the Court – dissented from the Majority in that case.Had Judge Garland served on the high Court in lieu of Justice Scalia, at the time the Heller case was decided, the outcome would have been entirely different. Of that, there can be no reasonable doubt. The liberal-wing of the Court would have had a majority and that majority would hold that: the right of the people to keep and bear arms does not entail an individual right, and that the Second Amendment has no meaning except in respect to one who serves in a military capacity.So, contrary to protestations of President Obama, as echoed through and trumpeted by a submissive news media, the U.S. Senate is not shirking its duty by refusing to consider Judge Garland’s confirmation. President Obama tells the Senate that it must do its job, just as President Obama has done his. He says, contemptuously, even perniciously: “to suggest that someone as qualified and respected as Merrick Garland doesn’t even deserve a hearing, let alone an up-or-down vote, to join an institution as important as our Supreme Court, when two-thirds of Americans believe otherwise — that would be unprecedented.” The U.S. Senate Committee on the Judiciary takes its role very seriously and it has in fact acted by choosing not to act on the Garland nomination at this time. Indeed, it has taken the only appropriate action it can take at this time – a step necessary to protect our Bill of Rights. The U.S. Senate is fulfilling its obligation under the U.S. Constitution, as the framers of the Constitution entrusted to it. Keep in mind: through Obama’s two prior nominations that the Senate confirmed, the composition of the high Court now tilts dangerously leftward. Equilibrium would be entirely lost were the Senate to confirm the nomination of Judge Garland.In the next article in this series we take a close look at a second U.S. Court of Appeals for the District of Columbia Circuit case – one that Judge Garland had a hand in – a case that bespeaks a positive legal bent away from – not toward – the preservation of the Second Amendment – a case decided by the United States Court of Appeals for the District of Columbia Circuit, eight years before Justice Scalia wrote the Majority opinion in Heller.Citizens beware! Our right to keep and bear arms is grossly threatened – more so than ever before. Stand up and demand that your elected officials protect the Second Amendment![separator type="medium" style="normal" align="left"margin-bottom="25" margin_top="5"] Copyright © 2015 Roger J Katz (Towne Criour), Stephen L. D’Andrilli (Publius) All Rights Reserved.