PROGRESSIVE GAME PLAN: NEUTRALIZE THE SUPREME COURT AND DISARM THE CITIZENRY

The recent scurrilous attack on Associate Justice Clarence Thomas is part and parcel of the Political “Progressives”* attempt to neutralize the independence of the Third Branch of Government, the Judiciary, and its most ardent supporter of an armed citizenry.On April 9, 2021, two years ago to this day of posting this article on the Arbalest Quarrel, Joe Biden issued an executive order, forming the Presidential Commission on the Supreme Court of the United States, “to examine the Court’s role in the Constitutional system; the length of service and turnover of justices on the Court; the membership and size of the Court; and the Court’s case selection, rules, and practices.”The key phrase in this executive order is “the Court’s role in the Constitutional system.”The Commission’s purpose may seem benign. It is anything but benign. Almost a hundred and thirty years earlier, Franklin D. Roosevelt attempted the same thing. Both sought to sideline and neutralize the U.S. Supreme Court.Fortunately, for the Nation, the efforts of Roosevelt and Biden came to naught.But the Biden Administration’s Progressive Globalist agenda is more extravagant and elaborate than anything dreamed up by Roosevelt and the fabricators of the “New Deal.”The Progressives’ goal of a neo-feudalistic global empire requires neutralizing the High Court and erasing America’s armed citizenry.The U.S. Supreme Court remains the only Branch of the Federal Government today that recognizes the importance of an armed citizenry to resist tyranny.In three seminal case law decisions—Heller, McDonald, and Bruen—coming down in the last fifteen years, the conservative wing majority, led by Justices Clarence Thomas, Samuel Alito, and the late Justice Antonin Scalia, made patently clear the right to armed self-defense is an individual right and a natural law right, the core of which Government is forbidden to interfere with.But these decisions are at loggerheads with the Progressives’ desire to neuter the right of the people to keep and bear arms.In a report on “progressivism,’ published on July 18, 2007, the Heritage Foundation has described the nature of and the aims of the political, social, and cultural transformation of the Nation, using the word, ‘Revolution,’ to describe it.Progressives have since made substantial strides in undermining the Constitution and transforming America beyond all recognition.But use of the word, ‘Revolution,’ to describe this transformation is inaccurate. Rather, this extraordinary and extensive push to remake American society, is not properly a Revolution because we had our Revolution—the American Revolution of 1776—when America’s first Patriots defeated the British empire.These Patriots constructed a free Constitutional Republic, unlike anything the world has seen before or since.Having thrown off the yoke of tyranny, the framers of the U.S. Constitution, created a true Republican form of Government.This “Federal” Government is one with limited and carefully delineated powers and authority. And those powers and authority are demarcated among three co-equal Branches.The Government comes to be not by Divine Right nor by Right claimed for itself by itself. Rather, it comes into existence only by grace of the American people, who are and remain sole sovereign.Since the people themselves created the Government, they retain the right to dismantle it when that Government serves its interests to the detriment of the people, devolving into tyranny.The natural law right to armed self-defense, a right that shall not be infringed, is the instrument of last resort through which the American people maintain and retain both the legal and moral right to resist tyranny that Progressives impose on Americans. See AQ article, posted on October 1, 2021.Progressivism is a thing openly hostile to and antithetical to the tenets and precepts of Individualism upon which the U.S. Constitution rests. See, e.g., article AQ article, posted on October 6, 2018.Adherents of this political and social ideology perceive Government as sovereign over the people, turning the Constitution on its head.Progressivism is an evil perpetrated on the American people, coming into being without the consent of the governed. It seeks a Globalist “Counterrevolution” in counterpoise to the morally good and successful “American Revolution.” See AQ article posted on October 26, 2020.It is in this that the arrogant and ludicrous attack on Justice Thomas comes plainly into view.Representative Ocasio-Cortez, a Progressive Democrat, has recently brought up the subject of impeachment against Clarence Thomas pertaining to “luxury trips and outings on yachts and private jets owned by Dallas businessman Harlan Crow, according to an investigation by ProPublica . . . .” See the article published in thehill.com.She adds, in her typical hyperbolic, rhetorical fashion,“‘Barring some dramatic change, this is what the Roberts court will be known for: rank corruption, erosion of democracy, and the stripping of human rights.’” Id.Impeachment of a sitting Justice does fall within the purview of Congressional authority, but it is impractical and almost unheard of in the annals of history.The House of Representatives impeached Associate Justice Samuel Chase, in 1804. He was acquitted by the U.S. Senate in 1805 and served on the High Court until his death in 1811. Another Associate Justice, Abe Fortas, resigned under threat of impeachment, in 1969. See the article posted in history.com.Impeaching Justice Thomas in a Republican-controlled House won’t happen.Progressives try a different tack.“Sixteen lawmakers led by Sen. Sheldon Whitehouse, D-R.I., and Rep. Hank Johnson, D-Ga., sent a letter to Roberts on Friday requesting an investigation into ‘allegations of unethical, and potentially unlawful, conduct.’” See the article in Foxnews.com.Asking the Chief Justice to launch an investigation of his brethren is pompous, absurd, lame, and bogus.Roberts will do no such thing. And this will rankle Progressives.The Third Branch of Government remains constantly, aggravatingly, tantalizingly beyond the ability of Progressives to tamper with.Unable at present to sit more mannequins like Ketanji Brown Jackson on the Court, they continue to probe for weaknesses. As a last resort, these Democrat Progressives challenge the Court’s importance, independence, and role.Progressives employ like-minded attorneys to undercut the authority of the High Court.One such attorney is Barry P. McDonald, Law Professor at Pepperdine University. In an essay, posted on The New York Times, on May 26, 2016, McDonald writes,“The Supreme Court today is both political and powerful in ways that would be unrecognizable to the framers of the Constitution. They penned a mere five sentences creating a ‘supreme Court’ and defining its jurisdiction. The judicial branch was something of an afterthought for them, because they believed that in a democracy the elected branches would be responsible for governing the country.Judicial review, in its modern sense, did not exist. As the framers envisioned it, the justices appointed to the Supreme Court would mainly interpret and apply federal law when necessary to resolve disputes involving the rights of individuals. And though the framers’ views on the court’s role in interpreting and enforcing the Constitution are the subject of debate, it seems most likely that when disputes required determining whether a federal law comported with the Constitution, the court’s interpretation was supposed to bind only the parties in the particular case — not the legislative and executive branches generally.Over time, however, and especially from the mid-20th century on, the court’s vision of its role in our democratic system changed, from dispute resolver to supreme arbiter of all matters of constitutional law, so that elected branches of government at federal and state levels were bound to accept its interpretations. The American people largely went along with this accretion of power. But they surely never anticipated that eventually, many politically charged and contestable questions — for example, whether the Constitution guarantees the right to possess guns, to have an abortion, to allow gay couples to marry, or to allow corporations to spend money to help elect our political representatives — would be decided by one unelected justice who straddled political voting blocs on the court.This is democratic folly.”And, in a follow-up article posted in the Times, on October 11, 2018, Barry McDonald, writes,“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.”McDonald claims the founders relegated the U.S. Supreme Court to a subservient role in our Three-Branch Governmental structure. This is not only an uncommon viewpoint among scholars, and legally odd; it is demonstrably false.In the Federalist Papers Alexander Hamilton made patently clear that, on matters of Constitutional authority, the Legislative Branch must yield to the Judiciary.“No legislative act . . . contrary to the Constitution can be valid.  To deny this would be to affirm that . . . men acting by virtue of powers may do not only what their powers do not authorize, but what they forbid.  If it be said that the legislative body are themselves the constitutional judges of their own powers, and that the construction they put upon them is conclusive upon the other departments, it may be answered, that this cannot be the natural presumption, where it is not to be collected from any particular provisions of the Constitution. . . . . It is more rational to suppose that the courts were designed to be an intermediate body between the people and the legislature, in order to keep the latter within the limits assigned to their authority. The interpretation of the laws is the proper and peculiar province of the courts.”– Excerpt from Federalist Paper No. 78, written by Alexander Hamilton and published in 1788, part of the founding era’s most important documents explaining to the people the nature of the Constitution then under consideration for ratification. See the article in constitutionalcenter.org. The article also cites to one of the Barry McDonald articles for comparison and contrast.Hamilton’s essay in Federalist Paper No. 78 is an outright repudiation of  McDonald’s remarks about the U.S. Supreme Court. See citations, supra.U.S. Supreme Court Justice, John Marshall was certainly aware of Alexander Hamilton’s remarks in the Federalist, when he drafted his opinion in Marbury vs. Madison, 5 U.S. 137 (1803). The case is a mainstay of Constitutional Law, taught to first-year law students and one of the most important cases in American jurisprudence.The case lays out clearly and categorically the vital role played by the U.S. Supreme Court in our Three-Branch Federal Governmental system.In no uncertain terms, John Marshall, made definitely and definitively clear that it is for the Judiciary, not the Legislature, to determine the constitutionality of Congressional Statutes. We cite below a portion of  Justice Marshall’s erudite opinion.“If an act of the legislature, repugnant to the constitution, is void, does it, notwithstanding its invalidity, bind the courts, and oblige them to give it effect? Or, in other words, though it be not law, does it constitute a rule as operative as if it was a law? This would be to overthrow in fact what was established in theory; and would seem, at first view, an absurdity too gross to be insisted on. It shall, however, receive a more attentive consideration.

It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each.

The judicial power of the United States is extended to all cases arising under the constitution.Could it be the intention of those who gave this power, to say that, in using it, the constitution should not be looked into? That a case arising under the constitution should be decided without examining the instrument under which it arises?

This is too extravagant to be maintained.”

Progressives pretend the U.S. Constitution is capable of shapeshifting. It isn’t.That doesn’t bother them, though, because they intend to eliminate the Constitution. Referring to it now, as they must, just to destroy it, and creating something novel, more to their liking—a thing subordinated to international law or edict, and subject to change as whim or chance dictates—that's what they they have in mind.In the interim, they force it to cohere to their precepts, agenda, and goals, all of which are antithetical and anathema to the Constitution, as written.In the naked attempt to knead the Constitution as if it were a lump of clay, they show their hand.Trivializing the role of the Court because they can’t easily control it and going after a U.S. Supreme Court Justice they don’t like because he defends a natural law right they don’t agree with, Progressives proclaim to all the world their shameless contempt for Nation, Culture, History, Heritage, Constitution, Ethos, Ethic, and People.They dare disparage us. Yet, it is we, true American Patriots, who rightfully ought to visit derision on them.______________________________________________*The expression ‘Progressive’ as with the expression, ‘Liberal,’ (less so with the expressions, ‘Marxist,’ ‘Neo-Marxist,’ or ‘Classical Marxist’) do not have precise and rigid definitions, due in part, perhaps, to the ubiquity and popularity of the first two terms in the Democratic Party vernacular.Most Democrats, it is here presumed, prefer use of ‘liberal’ as applied to them. And some no doubt prefer the term ‘Progressive,’ as an acknowledged more extreme version of ‘Liberal,’ and they take the label as a note of pride. See article on the website, thisnation.com.But most, if not all, Democrats avoid the appellation ‘Marxist,’ at least publicly, even if that label is most in line with their ideological beliefs, social, political, and economic, and demonstrated in their actions. They might use that expression amongst themselves even if they dare not refer to themselves as ‘Marxist’ in public and would deny the description vehemently if the label is thrust on them by an outsider. For this article, we are staying with the expression, ‘Progressive,’ as it aligns most closely with the theme of the article and apropos of references made in it.____________________________________Copyright © 2023 Roger J Katz (Towne Criour), Stephen L. D’Andrilli (Publius) All Rights Reserved.

WHAT IS THE TAKEAWAY FROM JUDGE AMY CONEY BARRETT’S CONFIRMATION HEARING?

AN ARBALEST QUARREL PERSPECTIVE

Liberal and Radical Left media sources made much of Judge Amy Coney Barrett’s failure, as they perceived it, to respond candidly and honestly to questions thrown at her by Senate Judiciary Committee Democrats during her confirmation hearing.The Progressive news source, The American Independent, for one, said this:“Over the three days of hearings by the Senate Judiciary Committee on Judge Amy Coney Barrett’s nomination to the Supreme Court, Barrett refused to answer 95 questions posed to her by members of the committee.In declining, she repeatedly referred to the words spoken by the late Justice Ruth Bader Ginsburg during her own confirmation hearing in 1993: ‘A judge sworn to decide impartially can offer no forecasts, no hints for that would show not only disregard for the specifics of the particular case, it would display disdain for the entire judicial process.’” Notwithstanding the words of the late liberal-wing leader of the U.S. Supreme Court, Ruth Bader Ginsburg, the seditious Press concluded that, while they would gladly dismiss the late Associate Justice’s own reticence, they were loath to absolve Judge Barrett for doing the same, attempting, lamely, to draw a distinction between Justice Ginsburg's justifiable hesitation to discuss the specifics of a particular case, and Judge Barrett's demonstrating a similar restraint.MSN news, had this to say about Judge Barrett’s responses Senate Democrat Committee members’ questions designed to commit Judge Barrett to taking a particular stand on Constitutional issues.“During a nearly 12-hour question-and-answer session, Judge Barrett evaded Democratic senators’ attempts to pin down her views on the Affordable Care Act, abortion rights, gay marriage, and a possible election-related case. She played down her history of taking conservative stances in legal writings and personal statements, arguing that she might view issues differently as a sitting justice. ‘I have not made any commitments or deals or anything like that,’ she told the Senate Judiciary Committee on her second day of confirmation hearings. ‘I’m not here on a mission to destroy the Affordable Care Act. I’m just here to apply the law and adhere to the rule of law.’. . . Judge Barrett’s refusal to discuss specific cases or commit to recusing from particular matters was in line with a decades-old playbook used by Supreme Court nominees to avoid giving substantive answers during confirmation hearings. But her attempts to deflect such questions were more conspicuous than usual, given how explicit Mr. Trump has been about how he would want his nominees to rule.” Huh? Judge Barrett's attempts to deflect questions were more conspicuous than the late Associate Justice Ginsburg's deflecting of questions?The mainstream seditious Press dares to suggest that Judge Amy Barrett’s justifiable wariness to being pinned down—and therefore, thereafter, constrained—were she to give categorical responses to matters of Constitutional dimension amounts to a disturbing lack of candor on her part, if not outright insolence. This is a conscious, unconscionable attempt to malign Judge Barrett.But Judge Barrett needn't assert and, in fact, shouldn’t assert how she would decide legal issues before the fact. Indeed, how could she? Activist jurists, of course, do so all the time as the public knows full well. Reflect, for a moment, if you will, on any one of a plethora of decisions handed down by activist Judges on Second Amendment and immigration matters. Activist judges almost invariably prejudge cases that come before them. They work backward from their decision to the central issue, constructing premises along the way, designed to cohere with the decision they have already made.But a methodical, meticulous, jurist, such as Judge Barrett, is perspicacious, not judgmental.Judge Barrett carefully analyzes a case; draws her inferences therefrom; and comes to a purposeful, informed, well-considered decision, never a spontaneous one. As Judge Barrett has demonstrated through her dissenting opinion in the Second Amendment Kanter case, she applies sound logical reasoning before rendering a decision. See Arbalest Quarrel article. And Judge Barrett complies with, is devoted to, and pays assiduous, diligent, and laborious attention to firmly established jurisprudential doctrinal methodology, a methodology grounded in strict adherence to the import and purport of the U.S. Constitution as written, consistent with and faithful to the intention of the framers of it. In this way—and only in this way—can a jurist know that he or she is protecting the fundamental, natural, rights and liberties and sovereignty of the citizenry, and preserving a free Constitutional Republic.Of course, ruthless elements both here and abroad want none of that. They have made clear an intention to tear down our Republic, erase our history and traditions, destroy our sacred rights and liberties, and undercut our Judeo-Christian ethic and faith in a loving Divine Creator. And they have been assiduously, seditiously at work and, now, openly rewriting the U.S. Constitution to cohere with a weakened Nation, a subjugated, subservient citizenry, and a bloated Government subordinated to the will and dictates of the EU and Xi Jinping's China.These ruthless elements, through their puppets—Democrats sitting on the Senate Judiciary Committee—do not want a jurist on the High Court who happens to appreciate, and who esteems, and who cherishes the U.S. Constitution as written. They want a jurist who does the bidding of Democrats in Congress, thereby turning the Court into an adjunct of the Legislature and of the ignorant mobocracy among the polity who obediently obey the commands of their taskmasters as conveyed to them through incessant, noxious propaganda.The Democrat Party lackeys of China and of secretive Billionaire Globalists are, understandably, upset with Judge Barrett, sitting on the U.S. Supreme Court; as she is a person “who will not get with the game plan,” who will not pay homage to them and who will not defer to their wishes. That is something they cannot and will not abide.Judge Barrett has made abundantly clear to all who would pay note, that she is a person of integrity, both in her personal conduct and in her role as a jurist. She has made clear that, as a U.S. Supreme Court Justice, she will never interpose her personal predilections in the judicial decision making process. She hasn't done so as a Judge on the U.S. Court of Appeals for the Seventh Circuit and she would not do so as an Associate Justice on the U.S. Supreme Court. How can the American public be certain of this?It is through the methodology employed in deciding cases that the full measure of a jurist can be accurately, adequately deduced. And, on that score, Judge Barrett has been honest, forthright, and open, and, on the methodology she employs in deciding cases, she has been completely candid. That should give Americans—who, as with Judge Barrett, cherish a free Constitutional Republic, who cherish the U.S. Constitution as written, and who cherish our natural, fundamental rights and liberties, as bestowed on and in man, etched into man's very being by a loving Creator—the necessary, requisite assurances that Judge Barrett qua Associate Justice Barrett will never betray the Constitution and will always remain true to our sacred, natural, fundamental rights and liberties.  This of course drives the Destructors of our Nation into a psychotic rage as they have other plans for our Nation, for our Constitution, and for our people; and they have not been shy about what those plans portend. If these Destructors can deceive enough Americans to vote for the so-called “moderate” Joe Biden and if they are able to take control of the United States Senate, then all is lost. The American electorate must see to it that this doesn’t happen.___________________________________________________________

JUDGE BARRETT'S METHODOLOGY FOR DECIDING CASES EXPLAINED

Unlike activist lower Court Judges and liberal-wing High Court Justices who routinely affirm legislative enactments they find palatable, couching their personal predilections in convoluted legalese, rubber-stamping unconstitutional government action, Judge Barrett—soon to be Justice Barrett if all goes well—stated clearly, unequivocally, and categorically that she does not and would not render judgment on the basis of personal bias for or against a particular statute. And, from the cases she has heard and opined upon as a Judge, sitting on the U.S. Court of Appeals for the Seventh Circuit, and from her academic writings, Americans can rest secure in the knowledge that Judge Barrett, will remain true to the written word of the U.S. Constitution and to the sanctity of the Bill of Rights.Judge Barrett grounds her decisions on legal and judicial considerations alone, not on legislative policy considerations that fall within the purview of legislative bodies, outside the purview of courts.She asks: “Is this legislative enactment consistent with the import and purport of the U.S. Constitution, as written?” She frames her analysis accordingly, and her decision follows logically from that analysis. Judge Barrett does not ask, nor should she ask: “Does this legislative enactment cohere with prevailing public whim and fancy, fashion and sentiment, shaped and molded by Progressive ideologues with whom I must adhere?”Through Senate Democrat questioning of Judge Barrett, it becomes abundantly clear that Democrats perceive the U.S. Supreme Court not as an independent Third Branch of Government, but merely as an adjunct of the legislature—a body that has no other purpose than to rubber-stamp Congressional enactments—statutory enactments that cohere with international law and norms, superior to the U.S. Constitution and dismissive of and antithetical to our citizenry’s fundamental rights and liberties. That is what these Democrats want. That is what they desire from a U.S. Supreme Court Justice. But that isn’t what they will get once Judge Amy Coney Barrett is confirmed to sit on the High Court as Justice Amy Coney Barrett. And that enrages Democrats. And, so, they threaten “to pack the Court” if they are able to gain control of the Executive Branch of Government, along with control of the U.S. Senate.During the Senate confirmation hearing, Judiciary Committee Chairman, Lindsey Graham, Republican South Carolina, asked Judge Barrett matter-of-factly how she perceives the role of a jurist.Senator Graham's question was a proper and fitting one to ask of a nominee who might sit on the U.S. Supreme Court, and Judge Barrett welcomed the opportunity to answer the Senator's question, and she was remarkably candid in her response.Senator Graham likely asked this question of Judge Barrett, first, to impress on members of the public—many of whom probably have little comprehension of the specific and appropriate role of a jurist—what the proper role of a jurist is under our Constitutional and jurisprudential framework. And he likely asked this question of Judge Barrett, second, to impress on Senate Democrats who most certainly do comprehend the proper role of a jurist but who desire to impose an improper role on our jurists, that their insinuation that Judge Barrett must do the bidding of Congress—that she owes her soul to the company store, so to speak—is wrong and wrong-headed, for such a role that Senate Democrats demand of our jurists is: one, antithetical to our Nation's Constitutional framework; two, antithetical to our Nation's jurisprudential traditions; and three, antithetical to the separation of powers doctrine. The desire of Senate Democrats to impose their will on judicial nominees was clearly apparent through their long-winded, generally imbecilic monologues and through their impertinent, often insulting queries directed to Judge Barrett. Senate Democrats' insinuation that the U.S. Supreme Court belongs to Congress, and must do the bidding of Congress, is blasphemous. It is dangerous to the well-being of our Nation. It is arrogant in the extreme, and wholly untenable.In response to Senator Graham, Judge Barrett, explained clearly and succinctly: “I interpret the Constitution as a law, that I interpret its text as text, and I understand it to have the meaning that it had at the time people ratified it. So that meaning doesn’t change over time and it’s not up to me to update it or infuse my own policy views into it.” See, Washington Examiner article, as posted by MSN news.Judge Barrett explained that the framers of our Constitution never meant for the U.S. Supreme Court to operate like Congress, and, more to the point, never intended for the U.S. Supreme Court to take its cue from Congress, advocating for and on behalf of Congress.Congress enacts laws predicated on policy choices. Those policy choices may or may not be consistent with the Constitution. If those policy choices, as reflected in law, are at loggerheads with the textual meaning of the Constitution as the embodiment of the intent of the framers of it, then the Court must step in to overturn the law. That is the solemn duty of an American jurist.That isn’t what activist Judges and Justices do and, so, that isn’t what Senate Democrats on the Senate Judiciary Committee wanted to hear. They want docile, obedient jurists, answerable to Congress. Their frustration with, resentment of, even anger with Judge Amy Coney Barrett, was painfully evident.They remonstrated over Judge Barrett's refusal to take a definitive stand on pending legal issues and on legal issues apt to come before the U.S. Supreme Court in the future. They insisted that she acquiesce to their absurd policy objectives; demanding that she declare categorical, unequivocal, acceptance of and adherence to their pernicious, horrific Collectivist vision for the Country, one that reduces Americans to subservient cattle. This Collectivist vision is characterized by uniformity in thought and conduct among the masses; dependency on Government largess for one's physical needs; and the deliberate inculcation of confusion and fear in the masses, effectuated through a targeted campaign of systematic predation on the polity that is unable to effectively defend itself because firearms will have been universally banned.It was all on constant, ignominious display throughout the hearing. And through it all Judge Barrett remained noticeably and notably calm but alert; courteous; unruffled; even, at times, convivial. And that must have enraged Senate Democrats even more; their vote against confirming Judge Barrett to a seat on the High Court a foregone conclusion, a vote that Senate Republicans, fortunately, do not or ought not need._______________________________________________

ON THE DOCTRINES OF PRECEDENT AND SUPER-PRECEDENT IN U.S. SUPREME COURT CASE LAW

A legitimate, perceptive question for Judge Barrett—one that has been asked of previous nominees but, was not asked of her, during the hearing, or otherwise was not dealt with in any extensive appreciable way—involves the judicial doctrine of case law Precedent, referred to as Stare Decisis. The Cornell Law School website defines ‘Stare Decisis,’ thus:“Stare decisis is Latin for ‘to stand by things decided.’ In short, it is the doctrine of precedent.Courts cite to stare decisis when an issue has been previously brought to the court and a ruling already issued. According to the Supreme Court, stare decisis ‘promotes the evenhanded, predictable, and consistent development of legal principles, fosters reliance on judicial decisions, and contributes to the actual and perceived integrity of the judicial process.’ In practice, the Supreme Court will usually defer to its previous decisions even if the soundness of the decision is in doubt.” Democrats on the Senate Judiciary though weren't interested in eliciting profound, insightful responses  from Judge Barrett on that score, which they certainly could have obtained had they bothered to ask her to expound upon the the doctrine of stare decisis. Judge Barrett would certainly have been inclined to elaborate on that matter. But, Democrats weren't interested in that or on any other jurisprudential or juridical subject of any real significance. They were only interested in, or mostly interested in, scoring political points to help them get the feeble, frail Joe Biden over the finish line in November, and in maintaining a majority of Democrats in the House, and taking control of the Senate. If successful, that would give them all the power they would ever need "to pack the High Court" with their lackeys, thereby neutralizing Judge Barrett's seat on the Court.So caught up were Senate Democrats in the frenzy of the moment that, what otherwise could have been a profitable, informative confirmation hearing, devolved, by turns, into, one, a harangue against Trump; two, an annoying, uncalled for, insulting accusation that Judge Barrett must be a pawn of the President; three, a demand that Judge Barrett recuse herself on this, that, or the other case that might happen to come before her once she is seated on the High Court; four, incessant odious, presumptuous, recitations of  Democrat Party policy positions that Judge Barrett was compelled to suffer through; five, insulting innuendoes concerning Judge Barrett's private life and personal religious convictions; and, six, an extended, extensive Democrat Party campaign advert in support of the Harris/Biden ticket.During the hearing, Senate Democrats made manifestly and adamantly clear their fervent desire and their firm intention to raise both abortion on demand and the ACA to the level of fundamental rights, and, as if that weren't enough, they audaciously sought Judge Barrett's imprimatur on abortion and the ACA. They never obtained it. Senate Democrats also made abundantly clear their vehement abhorrence of the right of the people to keep and bear arms and of their deep-seated, enduring wish to reduce a clear illimitable, immutable, unalienable, fundamental, natural right—the right of the people to keep and bear arms—to the status of a mere Governmental privilege, to be bestowed upon and rescinded at the whim of Government bureaucrats.Had someone but troubled to ask Judge Barrett to expound on a paper she had written on the very subject of stare decisis, she would have acknowledged that resolution of Constitutional issues is not always clear-cut, thereby ameliorating, perhaps, some of the harsh criticism leveled against her by Senate Democrats. Then, too, if Senate Democrats devoted more time eliciting critical juridical doctrinal ideas from the nominee and less time delivering heated polemics and exhibiting fits and bursts of histrionics, the confirmation hearing could have been, and likely would have been, much more productive. Alas, they didn't; and, it wasn’t.In her article, written for a symposium on Constitutional disagreement, Judge Barrett laid out her thesis on U.S. Supreme Court precedent, thus:“Over the years, some have lamented the Supreme Court's willingness to overrule itself and have urged the Court to abandon its weak presumption of stare decisis in constitutional cases in favor of a more stringent rule. Stare decisis purports to guide a justice's decision whether to reverse or tolerate error, and sometimes it does that. Sometimes, however, it functions less to handle doctrinal missteps than to mediate intense disagreements between justices about the fundamental nature of the Constitution. Because the justices do not all share the same interpretive methodology, they do not always have an agreed-upon standard for identifying ‘error’ in constitutional cases. Rejection of a controversial precedent does not always mean that the case is wrong when judged by its own lights; it sometimes means that the justices voting to reverse rejected the interpretive premise of the case. In such cases, ‘error’ is a stand-in for jurisprudential disagreement.”A lesser known, quasi-judicial, principle, that of ‘super-precedent,’—was raised by Senate Democrat Amy Klobuchar, but, unfortunately, wasn't pursued. Senator Klobuchar simply brought up the principle to emphasize and to capitalize on a Democrat Party talking point. She wanted to know whether Judge Barrett thought that Roe vs. Wade was so fixed in Supreme Court precedent that it could not or should not be overruled, which is to say that it should be perceived, then, as a super-precedent.Judge Barrett rightfully demurred. The pointed question pertaining to Roe vs. Wade was altogether inappropriate, and Judge Barrett respectfully, but firmly, declined to take the bait.In any event, Roe vs. Wade may be cast in stone as some people see it, but that is no reason to believe its precedential value is beyond reasonable legal dispute.The fact remains that Roe vs. Wade was a bizarre attempt at a judicial “squaring of the circle.” Yet, it was no more than a crude attempt to create a fundamental right out of whole cloth. Still, notwithstanding that some people strenuously and indefatigably, albeit bizarrely, extol that ruling as a thing sacrosanct and inviolate, is not to mean that the ruling carries with it or should carry with it some paramount attribute or weight and must, therefore, never be overruled—only enhanced, if anything, to the point where the murder of a child is lawfully permitted up to the moment of live birth.In fact, New York Governor Andrew Cuomo’s law on abortion does allow for abortion up to the very moment of birth, contrary to Cuomo’s claims that the new, strengthened, New York law is consistent with Roe vs. Wade. It isn’t. Cuomo is either a liar or ignorant of the import of his own law because the word ‘abortion’ has been excised from the New York Criminal Code. The AQ has explained Cuomo’s duplicity on this issue.On the other hand, in contradistinction to Roe vs. Wade, one might ask if Heller vs. District of Columbia is super-precedent case law. Senate Democrats and other political and social progressives would argue it isn’t, predicated, no doubt, on their abject abhorrence of and repugnance toward firearms and firearms' possession, which raises an aesthetic and/or psychological argument against the Second Amendment, not a pertinent legal one.The critical legal question in Heller was whether the Second Amendment embraces an individual right.The High Court Majority held that the Second Amendment—the Majority Opinion written by the late, eminent Associate Justice, Antonin Scalia—does embrace an individual right; and that it does so on logical, as well as legal, grounds; for were it not so, then the right codified in it would be reduced to a nullity and there would have been no point to it.Heller, unlike Roe vs. Wade, must, then, be construed as a manifestly super-precedent ruling: a ruling that resists overturning lest irreparable damage be done to the Bill of Rights itself and, no less, to the sovereignty of the American people whose sovereignty is only assured through force of arms; the principal bulwark against the inexorable slide toward and inevitable onset of tyranny.But, assuming arguendo that Heller were to be overruled—something well within the realm of possibility if the Democrats make good their threat “to pack the Court” if they gain control of the Executive and of the Senate, and a Second Amendment case then wended its way to the Court. But, for Heller to be overturned, a High Court majority would be compelled to opine that the original holding was wrong, which is tantamount to saying the Second Amendment has no meaning at all. But Democrats wouldn’t have a problem drawing that conclusion anyway. Yet, it is patently absurd to say the Second Amendment has no import. From a logical point of view, apart from the legal certainty, the Second Amendment does embrace and must embrace an individual right. So the Heller ruling that the Second Amendment codifies an individual right is dead-on correct. This brings us to Senator Dick Durbin, Democrat, Illinois, and to his singularly odd remarks during the hearing. For all that he had to say about firearms, it would have been interesting if he had had the wherewithal to broach the import of, and the historical imperative of the Second Amendment, with Judge Barrett—instead of going on about black powder muzzle-loaders as if he had any idea what he was talking about, anyway. But he didn’t. And that is just as well, for Senator Durbin obviously has no comprehensive knowledge of nor appreciation for the technical characteristics of firearms; nor does he care one whit about the sacred, natural, immutable, unalienable right of the American people to keep and bear them._____________________________________________________________Copyright © 2020 Roger J Katz (Towne Criour), Stephen L. D’Andrilli (Publius) All Rights Reserved.

RELEASE THE MEMO: REPUBLICAN HOUSE INTELLIGENCE COMMITTEE MEMBERS SHOCKED BY CONTENTS AND CALL FOR ITS RELEASE TO THE AMERICAN PUBLIC

PART ONE

HAVE SENIOR OFFICIALS IN THE DEPARTMENT OF JUSTICE AND FBI CONSPIRED TO OVERTHROW PRESIDENT TRUMP? IS THE MUELLER INVESTIGATION PART AND PARCEL OF THIS COUP ATTEMPT?

For those of you who tuned into Hannity’s Fox News program Thursday evening, January 18, and Friday evening, January 19, 2018, you learned that our Government is in the throes of a silent but deadly coup. U.S. House Representatives Jim Jordan (R-OH) and Matt Gaetz (R-FL), appearing on Hannity, Thursday, stated they had reviewed a classified House Intelligence Committee Memorandum that, as they strongly intimate, provide conclusive proof of a deliberate, calculated, categorical, treacherous attempt by senior FBI and Justice Department Officials to topple the Trump Presidency. They describe the Memo as “shocking.” Jordan and Gaetz want this Memo to be released to the public. They are insistent. They say the public has a right to know the contents of the Memo. And, we do.If half of what these House Republican Intelligence Committee members suggest is true—and, keep in mind that House and Senate Intelligence Committee members rarely, if ever, call for release of classified material to the American public—the public not only does have a right to know the contents of this Memorandum; they must know. But, House Democratic Party Intelligence Committee members according to Representatives Jordan and Gaetz, have demurred, claiming national security concerns, even, as they show, incongruously, lack of interest in the material. Very few House Democrats have reviewed the Memorandum and have, curiously, expressed no wish to do so.Government Officials and Legislators routinely cite national security concerns when they do not wish to release the contents of classified material; and, when they do, the contents are generally heavily redacted, and, so, essentially indecipherable. But national security is not at stake when Governmental documents contain content merely content that may be deemed merely embarrassing or humiliating. Worst of all, when Government documents contain evidence of ethical or criminal wrongdoing, transparency, not secrecy, is mandated. Evidence of criminal or ethical misconduct cries out for disclosure. The federal Government is, after all, our Government. It doesn’t belong to Congress and it doesn’t belong to bureaucrats. They are supposed to serve our interests, not their own. In refusing release of this House Intelligence Committee Memorandum to the American citizenry, House Democrats demonstrate complicity in the coup attempt and cover-up.Representatives Jordan and Gaetz, true patriots, having come forward with knowledge of this deeply disturbing Intelligence Committee Memo, have made abundantly clear that, once the American citizenry has access to the contents of it, heads will roll.The American public should not be surprised if, once the Memo is released, hopefully uncensored, some of the names that appear in the Memo happen to include:Rod Rosenstein, Deputy Attorney General of the DOJ; Andrew McCabe, acting Attorney General after the U.S. President Donald Trump fired James Comey; Andrew Weissman, Chief of the Criminal Fraud Section of the DOJ, and senior managing official on Robert Mueller’s Special Counsel team; Peter Strzok, senior counterintelligence official in the FBI, who served on Mueller’s team until Mueller was compelled to oust him for conspiratorial comments coming to light in his “insurance policy” email to Lisa Page, FBI lawyer; Lisa Page, FBI lawyer who failed to notify her superiors of Strzok’s conspiratorial intentions as she was probably complicit in the conspiracy; Sally Yates, Deputy Attorney General to then-President Barack Obama, and acting Attorney General after the departure of Loretta Lynch—the latter of whom served as Attorney General in President Barack Obama’s Administration immediately after the inauguration of Donald Trump to the Office of U.S. President Trump—whom President Trump rightfully fired for insubordination after Yates defiantly refused to defend the U.S. President’s order to close the Nation’s borders against terrorist threats from the Middle East; Bruce Ohr, Associate Deputy Attorney General, demoted, for concealing his secret meetings with Officials of Fusion GPS; James Comey, fired Director of the FBI, who leaked classified documents to The New York Times, through a friend, Daniel Richman, Professor at Columbia Law School. Comey’s documents served as a basis, along with the Fusion GPS Dossier, as the pretext for Rod Rosenstein’s appointment of Robert Mueller as Special Counsel, whose tacit directive is to take down the U.S. President. And, we surmise that Robert Mueller’s name, too, may be one of the names that appears on the memo that Representatives Jordan and Gaetz refers to.Robert Mueller served as FBI Director from 2001 to 2013. As FBI Director, he must have had knowledge of and may have been complicit in approving illegal sale of uranium to the Russians. If true, it would be singularly odd for the DOJ's Robert Rosenstein to appoint Robert Mueller to head a team to investigate, inter alia--as reported in the letter (Order No. 2915-2017) from Rosenstein to Mueller--“any links and/or coordination between the Russian Government and individuals associated with the campaign of President Donald Trump.” We may surmise that Hillary Clinton’s name appears in this classified House Intelligence Committee Memo, too, along with the name of Loretta Lynch, who served as President Barack Obama’s Attorney General, from April 27, 2015 – January 20, 2017. And, is it possible that the name of Barack Obama, too, appears in this Memo? If, Clinton’s name and Obama’s name appears in this House Intelligence Committee Memo, we can well imagine why House Democrats adamantly refuse to release the Memo to the public. For, the entirety of the Democratic Party will be held up to shame. The shameful and likely criminal acts of these individuals are too numerous to mention here, but we have touched on several—especially those that point to serious criminal acts on the part of Hillary Clinton. Imagine a person such as Hillary Clinton in the White House.Senior Federal Government Officials, having failed to achieve their goal of depositing Hillary Clinton into the Oval Office—having hatched and orchestrated a plan, through then-FBI Director James Comey and others, to absolve Democratic Party U.S. Presidential Hillary Clinton of criminal wrongdoing on multiple counts of multiple felonies so that she could continue to run as the Democratic Party choice for U.S. President, hatched their secondary plan. They presented, as is abundantly clear, false and fabricated information, namely the notorious Fusion GPS Dossier—paid for by Hillary Clinton and the Democratic National Committee (DNC)—to the FISA Court. These high-level Officials in the FBI and DOJ, in a plot to topple the U.S. President, Donald Trump, attempted to obtain a warrant that would give these disreputable, and arguably, despicable, Officials legal cover by allowing the FBI to secretly, and ostensibly lawfully, to investigate senior Trump campaign officials on false allegations of having had nefarious dealings with the Russians. If true, this would serve, conceivably, as the principal feasible basis to impeach Trump and, if successful, would lead to his removal from Office.Comey’s own memoranda to The New York Times was instrumental in the appointment of  a Special Counsel in the first instance. The Fusion GPS Dossier, a compilation of damnable lies and uncorroborated, baseless rumor, innuendo, and hearsay, is a manuscript of deception put together by an ex-British spy, Christopher Steele. Steele is an expert on deception and intrigues, who worked for British intelligence, MI-6. The Dossier became the vehicle through which the FISA Court issued a warrant, allowing/authorizing the Special Counsel, Robert Mueller, to investigate presumptive collusion between the Trump Campaign and the Russian Government. This Dossier, this lie, this work of fiction, serves as the predicate basis for the Mueller investigation. Therefore, the Mueller investigation is itself grounded on a lie, made worse through misuse of exorbitant taxpayer monies and wasteful Governmental resources. Further, presenting false information to a FISA Court, swearing that it is true to obtain a warrant from the Court that the Court otherwise would not have issued--subornation of perjury--constitutes a fraud on the Court—compounding other serious wrongdoing by senior Officials of Government who have been working secretly and inexorably to bring down Trump and his Administration. These senior FBI and DOJ Officials, who may include senior and mid-level Officials in both the State Department and in the Intelligence Agencies as well—hold-overs from the Obama Administration, have betrayed, through color of law and their Office, their sacred oath to this Nation, to this Nation's Constitution and to this Nation's citizenry. Their weak defense, for their heinous betrayal, which will not operate as a tenable defense at all in a Court of competent jurisdiction, is that it is their belief that Donald Trump will lead this Nation on a path that is at loggerheads with foreign and domestic policies of previous Administrations which they had wish to see continued. This is the height of arrogance, and contrary to the will of the American people who elected Donald Trump to the Office of President of the United States. What these senior and mid-level Officials of the Deep State want, or, what they unwittingly would be working toward if they would only stop to think about the matter, is subordination of our Nation, its Constitution, its Bill of Rights, its system of laws, its jurisprudence, its core values, its system of ethics and morality, to that of a new trans-nationalist, internationalist, globalist world order, as  exemplified in the present undermining of the political, social, and financial fabric, and independence, and sovereignty of the Nations that comprise the EU.Is the Mueller probe, then, nothing more than a monstrous step in a planned, coordinated, coup d’état of the Executive Branch of Government? Does the House Intelligence Committee Memo that Representatives Jordan and Gaetz refer to evidence of that? We think so, as this is the only intelligible inference that can be drawn on the facts so far illuminated. Further facts would, we believe, serve only to  buttress this sound conclusion.In Part two of this multi-series, we look to the mainstream news media organizations. Why does the American citizenry hear so little about this? We will post Part two of this series, on the Arbalest Quarrel website, tomorrow. In Part three, immediately following the posting of Part two of this series, we will look at a few of the specific crimes that senior DOJ and FBI Officials likely committed--serious crimes that these Officials can feasibly be charged with through the contemptible, dishonorable, thoroughly reprehensible hoax they perpetrated on both the FISA Court and the American people, a hoax that is, as of the date of posting of this article, still being played out!_________________________________________________ Copyright © 2017 Roger J Katz (Towne Criour), Stephen L. D’Andrilli (Publius) All Rights Reserved.

WHERE DOES THE MOST SERIOUS THREAT TO THE PRESERVATION OF THE FUNDAMENTAL RIGHTS AND LIBERTIES OF AMERICANS REST? FROM CONGRESS? FROM THE PRESS? FROM THE PRESIDENT? FROM ALL THREE TAKEN TOGETHER? THE ANSWER MAY SURPRISE YOU!

KOLBE VS. HOGAN:

INTERIM REMARKS

The Arbalest Quarrel has been working steadily on a systematic and comprehensive analysis of the Kolbe case. We are taking a short timeout with this segment, subtitled, “Interim Remarks,” to place the substantial time we are devoting to Kolbe in proper perspective. We feel our analysis has singular importance now with the Senate Judiciary Hearings on the Gorsuch confirmation that took place these past few days, and which have concluded. Senate Democrats are now filibustering, to prevent a vote on the confirmation of Judge Gorsuch as Associate Justice on the U.S. Supreme Court.The Arbalest Quarrel will continue its comprehensive, analytical exposition of the Kolbe case, considering its negative impact on the Second Amendment and considering, as well, the failure of the Fourth Circuit to take proper note of and abide by the rulings and reasoning of the high Court in the seminal Heller case. The high Court provided clear guidance to the lower Courts for the proper handling of Second Amendment cases where government action attacks the core of the Second Amendment.What is unfortunately abundantly clear now is that lower federal Courts will, at times, ignore rulings and reasoning and guidance of the U.S. Supreme Court if those lower federal Courts do not agree with the methodology, the rulings, the reasoning, and the jurisprudential underpinnings of the law as reflected in specific cases. So it is that we see some United States Circuits ignoring the precepts of Heller. But, regardless of a jurist’s political and social philosophy, precedent must not be ignored. Precedent must never be ignored. All too often as we see, though, judicial precedent is ignored, and it is, not infrequently, ignored in the most important cases: those cases negatively impacting our most sacred rights and liberties.If anything came out of the Neil Gorsuch confirmation hearings —where Judge Gorsuch had to suffer through days of torturous questioning and insufferable pontificating of Senate Democrats sitting on the Judiciary Committee—the public has come to see that Judge Gorsuch believes fervently in the importance of legal precedent as the cornerstone of our system of laws. This is necessary if our system of laws is not to be reduced to a set of discordant, inconsistent body of law, providing no guidance on which Courts may reasonably rely.The public has also seen that Judge Gorsuch gives credence to the law enacted by Congress, as written. Judge Gorsuch does not allow personal feeling to sway his rulings. That seems to bother some members of the Senate Judiciary Committee. It should, though, give the public hope. For, the public can rest assured that Judge Gorsuch, sitting on the high Court as an Associate Justice, will demonstrate proper restraint—applying the law to the facts as that law exists, and not as he may, perhaps, rather like the law to be.What the law ought to be is subject matter for legal and political philosophical musings set down in essays. When a judge opines on a case before that judge, the jurist is not to render judgment on what the law ought to be but must predicate his or her rulings on what the state of the law is, and elucidate findings of fact and conclusions of law on that basis and on that basis alone. Frankly, all too often we do not see this. The worst and most dangerous example of improper legal judgment is judgment reflected in personal feeling peppered, if only tacitly, but unmistakably, in legal opinions—personal feeling overriding judicial restraint in matters directly impacting the Bill of Rights, not least of which, we see on the continued assault against the clear meaning and purpose of the Second Amendment.The rabid assault on the sanctity of the Second Amendment to the U.S. Constitution continues unabated notwithstanding the clear reasoning of and holdings in the Heller case. But, where do the greatest and gravest threats rest?Contrary to popular opinion on the matter, the greatest threat to our Bill of Rights, generally, and the gravest danger to our Second Amendment, particularly, rests less upon the assertive, pretentious, sanctimonious, noxious rhetorical flourishes and rancor of some elected officials who disdainfully, arrogantly voice their antipathy toward the Second Amendment—even if that rancor is masked through the obligatory assertion, “but of course I support the Second Amendment,” as if, through the addition of that assertion to the official’s polemic, the elected official may effectively hide his or her clear distaste toward the very idea that the average, law-abiding, rational, American citizen—not working as a policeman, or as a soldier, or as a licensed bodyguard, or as a government or private security officer, or in some unknown, secretive governmental capacity, but merely, solely as a civilian—should actually ever be armed with—horror of horrors—a firearm.And, contrary to popular opinion on the matter, the greatest threat to our Bill of Rights, generally, and the gravest danger to our Second Amendment, particularly, rests less upon the loud, vociferous, discordant voice of writers, editors, and owners of mainstream media whose antipathy toward the right of the people to keep and bear arms is well-known by the public, and is at once both longstanding and supremely malevolent.Rather, the greatest threat to our Bill of Rights, generally, and the gravest danger to our Second Amendment, particularly, rests more on the actions of activist Jurists of the federal District and Circuit Courts whose arcane opinions, seemingly well-learned and well-reasoned, merely obscure an intent to defeat the Second Amendment despite clear guidance from the U.S. Supreme Court.The threat posed by an activist Judiciary to the preservation of our basic liberties, as envisioned by the founders of our Free Republic is very real, not to be reasonably denied. And that threat posed to our Second Amendment right of the people to keep and bear arms is ultimately greater than that posed by either a recalcitrant Congress or a derelict Press.The danger posed by an activist Judiciary is greater and graver to our sacred rights and liberties because the Judiciary is the final arbiter of what our law means and, therefore, how the law impacts our lives.As our Constitution sets forth, Congress makes the law we live by. The Executive enforces the law that Congress enacts. But, as the grand interpreter of the law—what the law means and whether the law is consistent with the U.S. Constitution—whether a law shall operate at all, and, if so, the effect it has on our lives—it is for the Judiciary to say. It is not for Congress to say; and it is not for the U.S. President to say; and it is certainly, not for the Press to tell the American people what the law of the Land is.No! The Judiciary, alone, is the final arbiter of what the law is. Some may think the Judiciary wields less power than the two other Branches of Government. After all, the Judiciary does not have the power of the purse, which, along with the unequivocal and singular power to make law, exists in Congress alone. The Judiciary does not wield power over the military, or over the federal police agencies, or over the vast intelligence apparatuses, all of which fall within the direct purview of the Executive. But, as the final arbiter of our law—what the law means and how the law is to be applied—assuming we remain a Nation ruled by law, truly ruled by law, and not by men—no American should underestimate the power the Judiciary wields over our lives.Even the most uninformed citizens among us knows full well the power of the Judiciary in the matter of immigration. That has been on full display. That power can and, most recently has tied the hands of the U.S. President, as Commander in Chief of our Nation, taxed with the singular duty to protect the People of our great Nation from all threats both foreign and domestic.President Donald Trump, promising to do his best to defend this Nation against imminent and serious threat posed by Islamic terrorists —clearly among his most important duties as U.S. President—has been constrained and frustrated in that effort due to the machinations of the U.S. Court of Appeals for the Ninth Circuit and thereafter by the U.S. District Court of Hawaii—Courts that have, through their actions, placed the welfare of this Nation and the physical safety of its citizens at considerable risk as those Courts, through their opinions, demonstrate that the wishes of non-citizens who seek to emigrate to America from failed States are to be given more consideration than are the health and well-being of this Nation and the physical safety of American citizens. And, it doesn’t stop there, with immigration.Activist U.S. District Court and U.S. Circuit Court of Appeals judges express their disdain of the Second Amendment and their continued defiance of the U.S. Supreme Court through decisions that rein in the right of the people to keep and bear arms. They denigrate the import and purport of our Second Amendment through manipulation of legal doctrine.If our pronouncement be undiplomatic, untactful toward the Judiciary, so be it. This is not a time for niceties. For the decisions of the Judiciary—the words expressed in opinions—are proof of political activism that strike at the heart of the health, welfare, and safety of our Nation and at the import and purport of our Bill of Rights.No less has the Fourth Circuit, in our estimate, manipulated legal doctrine, in denigration of U.S. Supreme Court precedent. Obscuring opinion in arcane legalese does little to disguise the fact that legal opinions coming out of this Circuit in the recent Kolbe case are antithetical to and involve a misunderstanding—whether consciously deliberate or incautiously but honestly mistaken—of the rulings and reasoning of the Heller Court.The Fourth Circuit relies for support, in part, on similar rulings of its sister Courts, most notably, those of the Second, Third, Seventh, and Ninth Circuits. By relying for support on opinions of their sister Courts, the Fourth Circuit aims, it seems to us, to deflect honest criticism away from itself, thereby suggesting that similar rulings of these other Courts that belie the rulings, reasoning, and clear guidance of the majority opinion, penned by Justice Scalia, in Heller, do somehow demonstrate that the Fourth Circuit does give due consideration to the holdings and reasoning of Heller, rather than contradicting the holdings and reasoning of that seminal Second Amendment case. But that is not the case at all.We firmly believe—as we have explained and will elucidate yet further—the Fourth Circuit Court of Appeals, en banc, having taken its cue from the U.S. District Court of Maryland and from the opinions of various sister Courts, strained to find a loophole in the Heller case to justify finding Maryland’s Firearm Safety Act to be legal. There isn’t any. So, the Fourth Circuit created one out of whole cloth.The gravest error of the Courts of the Fourth Circuit consists in the application of a standard of review that the Heller Court specifically rejected. Proceeding from an improper footing, an erroneous decision—but one the Fourth Circuit obviously wanted—could not but follow from the application of the wrong standard.Happy the Fourth Circuit would be, as would other United States Circuit Courts that elicit similar sympathies, if Heller were simply overturned. Were Judge Merrick Garland to have sat on the high Court, that pipedream for the antigun movement would come to pass. There is no doubt about that. Clearly, that was one end that Barack Obama had in mind which is why he nominated Merrick Garland to Associate Justice of the U.S. Supreme Court. It was one end that Hillary Clinton would have had in mind were she to have been elected U.S. President. For, she would certainly have been elated to sit Judge Garland on the high Court. Thankfully, neither the previous U.S. President or the one who would be Queen will never get their wish.If Judge Neil Gorsuch is confirmed and he should be and undoubtedly will be—despite a Democratic threat of filibuster of his confirmation which is now unfolding—the Heller case should remain untouched—even if ignored by various Circuit Courts as we see in Kolbe. Heller is the first case that extends—albeit tacitly—the idea that, where the very core of a fundamental right is attacked in a government action—a facial challenge to that governmental action will be given proper consideration.The U.S. Supreme Court made clear enough in Heller, to the surprise and, we are sure, much to the consternation of the D.C. Government and to the U.S. Circuit Court of Appeals for the District of Columbia, that the U.S. Supreme Court would not shrink from applying facial challenge methodology to an action by government that attacks the core of the Second Amendment even if that had not previously been done. We should see that methodology applied as well in Kolbe if Kolbe or a similar case is heard by the U.S. Supreme Court. We hope and trust and pray that Judge Gorsuch sits on the high Court as the Ninth Justice when this happens.We continue with our analysis of the Kolbe case with Part Five of our multi-series article, to be posted shortly._________________________Copyright © 2017 Roger J Katz (Towne Criour), Stephen L. D’Andrilli (Publius) All Rights Reserved. 

SENATOR KIRK CAN’T WHITEWASH MERRICK GARLAND; THE RECORD SPEAKS FOR ITSELF

Editor's note: this is a revision of an earlier version of this article. The revision includes new material.Senator Mark Steven Kirk, Illinois Republican, urges Republican colleagues to “man-up” and just cast a vote on Obama’s nominee for the U.S. Supreme Court, Judge Merrick Garland, whose views on America’s Constitution, according to Senator Kirk, are “a lot like Justice Scalia.” Really? But that's what he said as noted, with approval on the liberal web blog, "Think Progress," in a March 18, 2016 article titled, "Republican Senator says Colleagues Should 'Man Up' And Vote On Merrick."Yet, not even Obama has the audacity to suggest that Judge Garland’s ideology and jurisprudence are even remotely like that of Justice Scalia; and Senator Kirk's attempt to shame the United States Senate Committee on the Judiciary through Kirk's use of the term, 'man-up,' is nothing more than a child's dare or is otherwise incoherent. Indeed, the mainstream New York Times admits that, ideologically, Judge Garland is well to the left of Justice Anthony M. Kennedy.” See, the NY Times article published, March 17, 2016, titled, “Where Merrick Garland Stands: A Close Look at His Judicial Record.” And, we know that Justice Kennedy, the “swing-vote,” stands ideologically well to the left of Justice Scalia. So, who is Senator Kirk kidding? Indeed, how is it that a United States Senator, a Republican at that, would support Obama’s call for Senate action on Obama’s nominee for the U.S. Supreme Court in the first place? Might there be something about Senator Kirk that doesn’t quite ring true?We were curious about Senator Kirk’s own position on the Second Amendment. So, we checked. What we have found is disconcerting to say the least but does much to explain Senator Kirk’s support of Obama’s nominee for U.S. Supreme Court Justice.It turns out that NRA gives Senator Kirk, the Republican, a rating of “D.” See, "Mark Kirk on Gun Control." Senator Kirk does beat Senator Bernie Sanders. Sanders candidly, exuberantly remarks that NRA currently rates him, “F.” But, a “D” rating by NRA, no less than an "F" rating, is hardly cause for celebration. Such a dismal rating by NRA is definitely not something a Republican U.S. Senator to be proud of. Senator Kirk does, understandably, prefer to keep that fact quiet -- spoken in whispers, if at all. In fact, in 2010, NRA rated Kirk “F,” according to the weblog, "sunlightfoundation." Not surprisingly, Senator Kirk supports the Brady Bill, and was, apparently, the only Republican who voted for the 2013 ban on rifles that are considered "assault weapons” by antigun groups. Perhaps, Senator Kirk ought, himself, to “man-up,” and admit to the American public he is a hypocrite who is deliberately leading both the American public and Congress astray by urging his Republican colleagues to cast a vote on Obama’s nominee for the U.S. Supreme Court.The Christian Monitor, in a 2013 article, titled, "Obama's quiet ally: Who's behind gun control bill no one is talking about," is on point in calling  Senator Kirk, Obama’s “quiet ally.”  But, even The Christian Monitor could not have envisioned, at that time how portentous its 2013 'quiet ally' reference to Senator Kirk would be. For, three years later Senator Kirk is now, in fact, lending his support to Obama’s nominee, Judge Merrick Garland; and, in so doing, actively defying Republican Senators Mitch McConnell and Chuck Grassley, and, in fact, going to war against the Republican Party, by operating in the background as Obama’s “quiet ally.”Senator Kirk’s assertion that Judge Garland is of the same ideological bent as the late Justice Scalia is an abominable lie. Senator Kirk certainly knows the assertion to be untrue and he is unashamedly fomenting an outrageous lie. Apparently, it is okay, though, to assert a bald-faced lie to the American people to accomplish a desired goal.Republicans like Senator Kirk, who infect the Republican party with schemes poisonous to the well-being of the Republic and destructive to our sacred Bill of Rights, give cover to Obama, who can then plausibly and piously argue: see, even Republicans understand I intend to safeguard Americans’ Bill of Rights, and that I will, especially, safeguard and defend Americans’ Second Amendment right through commonsense actions and commonsense nominations and appointments to the federal courts. One thing is clear: if Judge Garland secures a seat on the U.S. Supreme Court, the tenuous balance that existed for some time between the Court’s right-wing Justices and the Court’s left-wing Justices will be lost. The Court will swing violently to the left and that will be reflected in the Court’s decisions.Consider what one reviewer in a recent NY Times article, published March 18, 2016, -- titled, “What Do You  Need to Be a Justice?” – had to say. Ian Millhiser, senior fellow at the Center for American Progress, and the author of the article, said, in his NY Times Op-Ed, “Some of the court’s worst decisions were the product of rigid ideology. But many are rooted in the fact that the justices in the majority lacked what President Obama said he was looking for in a nominee: ‘an understanding of the way the world really works.’”An “understanding of the way the world really works?” Millhiser took that quote from the SCOTUSblog, which posted certain remarks of Obama, supporting his nomination of Judge Merrick Garland to the U.S. Supreme Court. Explicating one of three points he was looking for in his nominee, Obama said: “. . . a keen understanding that justice is not about abstract legal theory, nor some footnote in a dusty casebook. It’s the kind of life experience earned outside the classroom and the courtroom; experience that suggests he or she views the law not only as an intellectual exercise, but also grasps the way it affects the daily reality of people’s lives in a big, complicated democracy, and in rapidly changing times. That, I believe, is an essential element for arriving at just decisions and fair outcomes.” Obama also says that anyone he nominates to the U.S. Supreme Court "will have an independent mind, rigorous intellect impeccable credentials, and a record of excellence and integrity," and that the person he appoints will be someone who "recognizes the limits of the judiciary's role." On a cursory inspection this may all sound reasonable and noble. But how much of it rings true? And, further, is there anything in Obama's remarks that, on deep reflection, do not suggest something ominous. Let’s analyze and extrapolate what Obama is really saying here.A perusal of Obama's remarks illustrates an inconsistency. He plainly states, in his remarks, that he wants a person who "recognizes the limits of the judiciary's role, someone who will not legislate from the Bench. But, that singularly critical and, in fact, correct point, is at odds with the third point he makes, although obliquely, namely that he seeks a person who holds a certain philosophy, akin to Obama's own, suggestive of utilitarian ethical concerns which, then, if acted upon  may very well amount to adjudicating a case on the basis of social theory irrespective of legal constraints. So, Obama is saying that U.S. Supreme Court decisions should not be decided merely through an application of America’s own case law; its own history; its own case law precedent. Rather, those who sit on the high Court should decide a case in terms of how a decision impacts the lives of people who reside in this Country, whether they are here legally or not. By extension, he is asserting that U.S. Supreme Court decisions should also take into account how a decision impacts people globally. He is saying that the U.S. Supreme Court should take into account the manner in which  U.S. Supreme Court decisions reflect multicultural values. This last point entails a consideration of and belief in utilitarian ethical systems along with notions of moral relativity.So, Obama is asserting and maintaining that a U.S. Supreme Court decision should encompass a worldwide perspective, and not simply one that reflects our Nation's values, manifested in our unique Bill of Rights, our unique history, our own culture, our own legal precedent. Obama is arguing for a cosmopolitan approach to U.S. Supreme Court decision-making. Obama is, then, definitely, espousing enacting law -- legislating law -- from the Bench, not merely interpreting law -- the latter of which is the high Court's principal duty and responsibility.The Judicial authority of the U.S. Supreme Court does not encompass the Legislative Authority of Congress as set forth with particularity in Article I of the U.S. Constitution; and, neither the Legislative authority of Congress nor the Judicial Authority of the U.S. Supreme Court encompasses the Executive authority of the President of the United States as set forth with particularity in Article II of the U.S. Constitution. The demarcation of duties and responsibilities of each Branch of the Federal Government is established by and codified in the Constitution, and the duties and responsibilities of one is never to cross over into the domain of the other. But, Obama has deliberately and unconscionably argued for expanding the legislative functions of Congress into the domain of the Executive Branch and now suggests that the Judicial Branch of Government ought to do the same. In fact, Obama has himself used the power of the Executive Branch to unlawfully encroach into the Legislative arena, either by failing to execute the laws of Congress -- which we see in his adamant refusal to enforce existing immigration laws and which we see through his unlawful use of executive directives to curtail the free exercise of the right to keep and bear arms under the Second Amendment, and which we see in both his callous indifference to a citizen's right to be free from unreasonable searches and seizures and in the expansion of police and intelligence activities into areas that clearly transgress Congressional enactments.Obama has, apparently, no reservation about using the Office of the Chief Executive to make law, thereby transcending Constitutional authority to faithfully execute the laws, whenever he feels compelled by his personal morality and multicultural propensities and political philosophy to override the Separation of Powers Doctrine. And, he demonstrates the same contempt for the Separation of Powers Doctrine when he pompously suggests the U.S. Supreme Court should inject utilitarian ethics and multiculturalism into its decision-making, thereby uprooting 200+ years of carefully developed and cautiously applied American jurisprudence.What Obama is looking for in a U.S. Supreme Court Justice and what he sees in Judge Merrick Garland is someone who shares his personal Weltanshauung -- his personal world view: someone who is prepared to, and who would, upend our entire legal philosophical system by  secreting moral relativity and geopolitical considerations and trans-national, multinational goals and objectives into U.S. Supreme Court decision-making. Obama’s ideal candidate for the U.S. Supreme Court manifests a view for deciding cases also held by the left-wing U.S. Supreme Court Justice, Stephen Breyer, as laid out methodically and comprehensively in his book, “The Court and the World: American Law and the New Global Realities.” Justice Breyer’s jurisprudence is a mélange of laws, values, social mores, and ethical systems that extend well beyond a consideration of our own Constitution, our own laws, our own precedent. Justice Breyer’s  jurisprudence – one reflected in the liberal wing of the U.S. Supreme Court – is an anathema. It undermines our Constitution, our laws. It undercuts the very sovereignty of our Nation and the sanctity of our Bill of Rights.What is noticeably lacking in Obama’s praises of Judge Garland Merrick and in Obama’s recitation of the factors he deems important in an individual who sits on the high Court is any mention of the need to consider how the core of our rights and liberties, codified in the Bill of Rights of the U.S. Constitution, is to be protected – indeed, that the core of our fundamental rights and liberties ought be protected at all. Apparently, Obama doesn’t consider our Bill of Rights, around which American U.S. Supreme Court jurisprudence is built, to be particularly important in this new age, in this new world, that Obama envisions, in which the very concept of the ‘Nation State’ is perceived as a relic, eventually to be discarded in favor of a neo-corporate, financial world union.By the way, in the event anyone believes that Obama does not consider, would not consider, or has not considered the role a Judge's personal philosophy plays in Obama's consideration of a nomination of a person to the high Court, think again. In a February 16, 2016 article, titled, "Obama Filibustered Justice Alito, Voted Against Roberts," appearing in the conservative weblog, "front page mag," the author, Daniel Greenfield demonstrates Obama's clear attention to a Judge's philosophical bent. No one can reasonably attack the ability, intellect, credentials, and integrity of Chief Justice John Roberts and Associate Justice Samuel Alito; yet, President Obama, as U.S. Senator Barack Obama, has voiced serious reservations for these nominations of President George W. Bush to serve on the high Court, and chose not to support the nomination of either one of them. So, when Obama asserts that, what he is looking for in a person who serves as a U.S Supreme Court Justice is a person whose analysis of cases will, when the need arises, "be shaped by his or her own perspective ethics, and judgment," he is being duplicitous. For, he will not consider a person, as a nominee, whose perspective, ethics, and judgment do not coincide with his own. Otherwise, he would have voted for and supported Chief Justice Robert's nomination and Associate Justice Alito's nomination to the high Court. We know, of course, that the values expressed in America’s Bill of Rights are not universally emulated by many Western Countries. In particular it is abundantly clear that America’s Second Amendment, far from being praised by other Countries, especially those comprising the EU, is often disparaged. But, it is disparaged in part, no doubt, because in no other Country in the World does a nation’s government accept and respect the idea that a nation’s government exists only by grace of the people, of the nation’s citizenry.America’s Second Amendment, however, makes absolutely clear that the federal Government exists only by the grace of the American people. The federal Government does not “own” the American people. We are free citizens in a free Republic, not enslaved subjects residing in an autocratic realm. The federal Government cannot dispense with our Bill of Rights; nor is it permitted to erode the fabric of our Nation’s sovereignty through international treaties and conventions that the American people are little if ever adequately aware of, nor their representatives in Congress ever completely privy to.America’s Bill of Rights – certainly the Second Amendment – is perceived by the left-wing of the U.S. Supreme Court as representing ideas and values no longer reflective of the modern age. But, the founders of our Republic were no fools. They knew that the rights and liberties set down in stone in the Bill of Rights were “constants” that never change, never become obsolete, and must never change or be perceived as obsolete if our Republic is to continue to exist in the form envisioned by our founders. Justice Scalia knew this, respected this, and his decisions reflected that principle – a principle omnipresent in his decisions.Justice Scalia believed that U.S. law must dictate and inform all U.S. Supreme Court decisions and that the Bill of Rights – all ten of them – must never be compromised or be considered relevant only to a bygone era. The left-wing of the high Court does not agree with this. They hold to the idea that Americans’ rights and liberties only have meaning relative to a particular era – that Americans’ rights and liberties are not “constants” applicable to all eras. That idea percolates through their legal opinions, and is often reflected in their own ad hoc and peculiar jurisprudence.The notion that our Bill of Rights transcends all time is considered an aberration and antithetical to the reasoning of the left-wing of the high Court because that notion is not compatible with “the way the world really works” today, as Obama says. All the more reason, then, for the U.S. Supreme Court to hold fast to the principle that Americans’ rights and liberties are “constants,” never-changing absolutes, as our founders perceived them and meant for them to be as applied to the continued existence of our Nation State as a Sovereign Nation State and as a free Republic – never subordinated to another nation or subsumed into a larger political or economic union, like the EU.Americans’ sacred rights and liberties are never to be seen as outmoded. They are never to be cast aside when deemed, by some on the high Court, to be incompatible with the “way the world really works” – with global realities, according to Justice Stephen Breyer, as laid out in his book, and as echoed by President Obama in his praises of Judge Merrick Garland.Judge Garland is certainly not cut from the same cloth as Justice Scalia. If Judge Garland does acquire a seat on the high Court as an Associate Justice, he would definitely fit in with such fellow travelers as Justices Breyer, Ginsberg, Kagan, and Sotomayor. Certainly, that is what President Obama, and, apparently, one “Republican” Senator, Mark Steven Kirk, would like very much to see.[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.