WHY DO SOME STATE GOVERNMENTS AND THE FEDERAL GOVERNMENT BLATANTLY DEFY SECOND AMENDMENT RULINGS OF THE UNITED STATES SUPREME COURT?

POST-BRUEN—WHAT IT ALL MEANS AND WHAT ITS IMPACT IS BOTH FOR THOSE WHO SUPPORT AND CHERISH THE RIGHT OF THE PEOPLE TO KEEP AND BEAR ARMS AND THOSE WHO DO NOT; THOSE WHO SEEK TO UNDERMINE AND EVENTUALLY DESTROY THE EXERCISE OF THE RIGHT AND THOSE WHO SEEK TO PRESERVE AND STRENGTHEN THE RIGHT BOTH FOR THEMSELVES AND THEIR DESCENDANTS

MULTI SERIES

PART FOURTEEN

WHY DO SOME STATE GOVERNMENTS AND THE FEDERAL GOVERNMENT BLATANTLY DEFY SECOND AMENDMENT RULINGS OF THE UNITED STATES SUPREME COURT?

Scarcely eight years had passed since ratification of the U.S. Constitution in 1788 when the question of the power and authority of the U.S. Supreme Court came to a head in the famous case of Marbury versus Madison. The High Court made its authority felt in a clear, cogent, categorical, and indisputable language in this seminal 1803 case.The facts surrounding the case are abstruse, generating substantial scholarly debate. But what some legal scholars discern as having little importance to the logical and legal gymnastics the Court at the time had to wrestle with, and upon which legal scholars, historians, and logicians have directed their attention today, has become a cause célèbre today:“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. . . . This is of the very essence of judicial duty.” Marbury vs. Madison, 5 U.S. 137; 2 L. Ed. 60; Cranch 137 (1803)Article 3, Section Two of the U.S. Constitution establishes the powers of the Court:“The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution. . . .” The Constitution’s Framers sought to make the import of the articles and amendments to it as plain and succinct. And they did a good job of it.Even so, ruthless, powerful individuals in the Federal Government and in the States ever strive to thwart the plain meaning and purport of the U.S. Constitution in pursuit of their own selfish interests, imputing vagaries to language even where the language is plain and unambiguous to serve their own selfish ends to the detriment of both Country and people. And that ruthlessness extends to those who, with vast sums of money at their disposal, influence these “servants of the people,” in pursuit of and to achieve their own nefarious interests and goals.Back then, over two centuries ago, when the U.S. Supreme Court agreed to hear the case of Marbury vs. Madison, the Court deftly side-stepped the delicate political and legislative issues of the day that gave rise to the case and carved out the Court’s own territory.The High Court made two points abundantly clear:One, the U.S. Supreme Court does not answer to either the Executive or Legislative Branch. It is not to be perceived as a poor stepchild of either of those two Branches. It is a Co-Equal Branch of the Federal Government.Two, on matters impacting the meaning and purpose of the U.S. Constitution, neither the U.S. President nor Congress can lawfully ignore the Court’s rulings. This means that, where the Court has spoken on challenges to unconstitutional laws, finding particular laws of Congress to be unconstitutional, Congress has no lawful authority to ignore and countermand those rulings, or circumvent those rulings by enacting new laws that purport to do the same thing as the laws that the Court has struck down. Nor can the U.S. President cannot override the Constitutional constraints imposed on his actions.The States, too, are forbidden to ignore Supreme Court rulings, striking down unconstitutional State enactments. Nor are the States permitted to repurpose old laws or create new laws that do the same thing—operate in violate of the U.S. Constitution.  Jump forward in time to the present day.The Federal Government and all too many State and municipal Governments routinely defy the High Court’s rulings, engaging in unconstitutional conduct.But this defiance and even contempt of the High Court rulings leaves an American to ponder, “why?”Even cursory reflection elucidates the answer to that question. The answer is as plain as the text of Article Three, Section 2 of the Constitution, itself.The High Court has neither power over “the purse” that Congress wields, nor power over the Nation’s “standing army” the Chief Executive controls.Yet, the fact remains the U.S. Supreme Court is the only Branch of Government with ultimate say over the meaning of the U.S. Constitution, as Marbury made clear, well over two hundred years ago. To say what the Constitution means, when conflict or challenge to that meaning arises is within the sole province of the High Court.Unfortunately, without the capacity to withhold funds over the operation of Government, nor power to enforce its judgments by force of arms, the Court’s rulings are all too often, blatantly ignored or cavalierly dismissed.As if this weren’t bad enough, the mere fact of the Court’s authority is now actively contested.Audaciously, some individuals in Government, in the Press, and in academia, have recently argued the U.S. Supreme Court’s authority to say what the law is, should not be vested in the High Court, regardless of the strictures of Article Three, Section Two of the U.S. Constitution.Consider, an Op-Ed, titled, “Should the Supreme Court Matter So Much?” The essay appeared in The New York Times, and not that long ago, in 2018, written by Barry P. McDonald, an attorney and Law Professor no less who exclaims:“When the founders established our system of self-government, they didn’t expend much effort on the judicial branch. Of the roughly three and a half long pieces of inscribed parchment that make up the Constitution, the first two pages are devoted to designing Congress. Most of the next full page focuses on the president. The final three-quarters of a page contains various provisions, including just five sentences establishing a ‘supreme court,’ any optional lower courts Congress might create and the types of cases those courts could hear.Why was the judicial branch given such short shrift? Because in a democracy, the political branches of government — those accountable to the people through elections — were expected to run things. The courts could get involved only as was necessary to resolve disputes, and even then under congressional supervision of their dockets.It was widely recognized that the Supreme Court was the least important of the three branches: It was the only branch to lack its own building (it was housed in a chamber of Congress), and the best lawyers were seldom enthusiastic about serving on it (John Jay, the Court’s first chief justice, resigned within six years and described the institution as lacking ‘energy, weight and dignity’).When disputes came before the Supreme Court, the justices were expected to ensure that Americans received ‘due process’ — that they would be ruled by the ‘law of the land’ rather than the whims of ruling individuals. In short, the Court was to play a limited role in American democracy, and when it did get involved, its job was to ensure that its judgments were based on legal rules that were applied fairly and impartially.What about the task of interpreting the Constitution? This question is the subject of some debate, but the founders most likely believed that each branch of government had the right and duty to determine for itself what the Constitution demanded, unless the Constitution was clearly transgressed. If the Constitution was clearly transgressed, the Supreme Court had a duty to hold Congress or the president accountable — but only in the case before it. The founders almost certainly did not envision a roving mandate for the Supreme Court to dictate to Congress, the president or state governments what actions comported with the Constitution (unless they were a party to a case before it).” The question of interpreting the Constitution is the subject of some debate? Really? Apparently, this Law Professor, Barry McDonald, has wholly forgotten the import of Marbury versus Madison, a case burnt into the mind of every first-year law student. His remarks are eccentric, disturbing, and disheartening.If the Framers of the U.S. Constitution really had such a low opinion of the High Court, they would not have constructed a Government with a Third Branch but would have subsumed it into one of the first two? Obviously, the Framers thought enough about the singular importance of the U.S. Supreme Court, to include it in the framework of the Federal Government, and as a co-equal Branch of that Government.It is one thing to ignore the U.S. Supreme Court’s rulings because of an antipathy toward those rulings and claim the Court can’t do anything about it anyway because the Court hasn’t power to enforce its rulings. That is bad enough. But it is quite another thing to argue the Court has no reason to exist, ought not to exist, and thereupon rationalize doing away with the Third Branch of Government or otherwise reducing its authority to render rulings to a nullity by Executive Branch or Legislative Branch edict.Application of alien predilections, predispositions, and ideology to the Nation’s governance is a path to abject tyranny; to dissolution of the Republic; defilement of the Nation’s culture and history and heritage; destruction of societal order and cohesion; and abasement and subjugation of a sovereign people. The Nation is on a runaway train, running full throttle, about to make an impact with a massive brick wall.The New York Times just loves to publish articles by credentialed individuals who hold views well beyond the pale of those held by their brethren if those views happen to conform to, and strengthen, and push the socio-political narrative of the newspaper’s publishers and editorial staff.Use of such dubious, fringe views to support a viewpoint is a classic example of “confirmation bias,” an informal fallacy.There are dozens of informal fallacies. And the American public is force-fed ideas that routinely exemplify one or more of them.This defiance of State and Federal Government actors to adhere to the Court’s rulings and even to contest the authority of the Court is most pronounced, most acute, and, unfortunately, most prevalent, in matters pertaining to the import of fundamental, unalienable rights and liberties of the American people—and none more so than the citizen’s right of armed self-defense.Consider——In the first decade of the 21st Century, the U.S. Supreme Court ruled clearly and unequivocally in Heller versus District of Columbia that the right of the people to keep and bear arms is an individual right, unconnected with one’s service in a militia. Associate Justice Antonin Scalia penned the majority opinion.Among its other rulings in Heller, the High Court held the District of Columbia’s blanket ban on handguns impermissibly infringes the core of the Second Amendment. It thereupon struck down the D.C. ban on handguns as unconstitutional.And the Court also held a person has a right to immediate access to a handgun in one’s self-defense. Not surprisingly, Anti-Second Amendment jurisdictions disliked these rulings and were intent on disobeying them, and arrogantly defied the Court.Looking for an excuse to defy Heller, these jurisdictions argued that Heller applies only to the Federal Government, not to them. That led to an immediate challenge, and the High Court took up the case in McDonald vs. City of Chicago.Here, Justice Alito writing for the majority, opined the Heller rulings apply with equal force to the States, through operation of the Fourteenth Amendment.Did the Anti-Second Amendment States abide by the Court’s rulings, after McDonald? No, they did not!They again defied the Court, conjuring up all sorts of reasons to deny to the American citizen his unalienable right to keep and bear arms in his self-defense.The States in these Anti-Second Amendment jurisdictions claimed that, even if a person has a right to armed self-defense inside his home, the right to do so does not extend to the carrying of a handgun outside the home.The State and Federal Courts in these jurisdictions conveniently misconstrued the Supreme Court’s test for ascertaining the constitutionality of Government action infringing exercise of the right codified in the Second Amendment. These Anti-Second Amendment jurisdictions also placed bans on semiautomatic weapons, fabricating a legal fiction for them; referring to them as “assault weapons.”  American citizens challenged the constitutionality of all these issues. And many of these cases wended their way up to the U.S. Supreme Court, only to be thwarted because the Court could not muster sufficient support among the Justices to deal with the flagrant violation of Second Amendment Heller and McDonald rulings and reasoning.One of these cases was the 2015 Seventh Circuit case, Friedman versus City of Highland Park, Illinois.The liberal wing of the Court didn’t want the case to be heard. That was no surprise.But, apparently, Chief Justice John Roberts, and Associate Justice Anthony Kennedy didn’t want to hear the case either.Justices Clarence Thomas and Antonin Scalia were furious and said so in a comprehensive dissenting opinion.Had the Court taken up the Friedman case, Americans would have been spared this nonsense of “assault weapon” bans. The Court would have ruled these bans unconstitutional on their face, in which event the Federal Government and Anti-Second Amendment State governments would be hard-pressed to make a case for wasting valuable time and taxpayer monies dealing with an issue the High Court had ruled on. Unfortunately, the Friedman case and many others were not taken up by the Court.Americans are compelled to continue to spend considerable time and money in challenging a continuous stream of unconstitutional Second Amendment Government action. And often, this is a futile expenditure of time, money, and effort, albeit a noble and necessary one all the same._________________________________________

NEW YORK GOVERNOR KATHY HOCHUL UNFAZED BY CHALLENGES TO NEW YORK GUN LAW: “GO FOR IT,” SHE RETORTS!

One of the most persistent and virulently Anti-Second Amendment jurisdictions, that has spurred numerous challenges to unconstitutional and unconscionable constraints on the Second Amendment through the decades, is New York.In 2020, four years after Associate Justice Antonin Scalia died, under disturbingly suspicious circumstances, and shortly after Justice Anthony Kennedy retired from the Bench, and the U.S. Senate confirmed President Donald Trump’s first nominee, Brett Kavanaugh, to a seat on the High Court, the Court took up the case, NYSRPA vs. City of New York—often referred to colloquially as the “NY Gun Transport” case. An extensive explication of that case is found in a series of AQ articles posted on our website. See, e.g., our article posted on April 27, 2020, and reposted in Ammoland Shooting Sports News on the same date. A second U.S. Supreme Court case, coming out of New York, NYSRPA versus Bruen, officially released on June 23, 2022, ruled New York’s “proper cause” requirement unconstitutional.New York Governor Kathy Hochul and the Democrat Party-controlled Legislature in Albany thereupon struck the words “proper cause” from the State’s Gun Law, the Sullivan Act, codified in Section 400.00 of the State’s Penal Code. But, doing so served merely as a blind.Had the Hochul Government refrained from tinkering with the rest of the text of the Statute and other Code sections, it might well have avoided further constitutional challenges from justifiably irate New Yorkers. It did not.Hochul and Albany did not stop with the striking of “proper cause” from the Gun Law. It went well beyond that. Her Government and Albany wrote a detailed set of amendments to the Gun Law. The package of amendments, titled the “Concealed Carry Law Improvement Act,” “CCIA,” do not conform to the Bruen rulings but, rather, slither all around them. On a superficial level, deletion of the words “proper cause” might be seen by some, as Hochul and Albany had perhaps hoped, to forestall legal challenge. But, if challenge came, time would be, after all, on the Government’s side. And Hochul knew this.The Government has money enough to fight a protracted Court battle. The challenger, more likely, does not. Even finding a suitable challenger takes considerable time, exorbitant sums of money to file a lawsuit, and substantial time to take a Second Amendment case to the U.S. Supreme Court. And it is far from certain the Court will review a case even if a petition for hearing is filed, for the Court grants very few petitions.For well over a century the New York Government has inexorably whittled away at the right of armed self-defense in New York. And it has successfully weathered all attacks all the while. The New York Government wasn’t going to let the U.S. Supreme Court now, in the Bruen case, to throw a wrench into attaining its end goal: the elimination of armed self-defense in New York. Much energy went into the creation of the CCIA. It is a decisive and defiant response to the U.S. Supreme Court and furthers its goal to constrain armed self-defense in the public sphere.Likely, given the length, breadth, and depth of the CCIA, the Government saw Bruen coming, long before the case was filed, and had ample time to draft the contours of the CCIA a couple of years ago. A clue that another U.S. Supreme Court case, challenging New York’s Gun Law, would loom, presented itself in Associate Justice Samuel Alito’s dissenting opinion, joined by Justices Clarence Thomas and Neil Gorsuch.  Justices Alito, Thomas, and Gorsuch had made known their strong disapproval of the way the “Gun Transport” case was handled, after the Chief Justice and Associate Justice Brett Kavanaugh cast their lot with the Anti-Second Amendment liberal wing of the Court, allowing the case to be unceremoniously and erroneously shunted aside, sans review of the merits of the case. A day of reckoning with New York’s insufferable Gun Law was coming. The Government of New York could not reasonably doubt that. The core of the Gun Law would be challenged, and the U.S. Supreme Court would hear that challenge. The Government likely worked up a draft response to an antagonistic U.S. Supreme Court ruling on the core of the Gun Law in 2020, shortly after the New York “Gun Transport” case ruling came down. That draft response would become the CCIA.The Government likely completed its draft of the CCIA well before Bruen was taken up by the High Court. The Government had only to fine-tune the CCIA immediately after oral argument in early November 2021. And the Government did so. Hochul almost certainly received advance notice of the text of the majority opinion within days or weeks after the hearing before the New Year had rung in. Nothing else can explain the speed at which Albany had passed the CCIA and Hochul had signed it into law: July 1, 2022, just eight days after the Court had released the Bruen decision, June 23, 2022.The CCIA amendments to the Gun Law integrate very nicely with and into other recent New York antigun legislation, passed by Albany and signed into law by Hochul. Thus, contrary to what the Governor’s website proclaims, the amendments were not “devised to align with the Supreme Court’s recent decision in NYSRPA v. Bruen.” Rather these amendments were devised to align with other New York antigun legislation. What does this portend for New Yorkers? Those New Yorkers who had hoped to be able to obtain a New York concealed handgun carry license with relative ease will now find procuring such a license no less difficult than before the enactment of the CCIA.Most hard-hit are those present holders of New York City and New York County unrestricted concealed handgun carry licenses. The “proper cause” hoop that present holders of such concealed handgun carry licenses were able to successfully jump through is of no use to them now. These renewal applicants must now satisfy a slew of new requirements—more draconian than the original ones they had previously successfully navigated. All New York concealed handgun carry applicants are now in the same boat. And meeting the new requirements are exceedingly difficult. Despite the clear intent of the Bruen rulings, to make it easier for more Americans to obtain a New York concealed handgun carry license, it is now harder. Likely, very few individuals will be able to successfully pass through the hurdles necessary to obtain a New York license the CCIA requires. Thus, getting a license will remain a coveted prize, difficult to gain as previously, and likely even more so.And the few individuals who do happen to secure a valid New York concealed handgun carry license will find themselves in a precarious situation for all the troubles they had in getting it.These new license holders will find exercise of the right of armed self-defense outside one’s home or place of business, in the public realm, full of traps and snares that did not previously exist. And there is something more alarming.The mere act of applying for a concealed carry license—whether the license is issued or not—now requires the applicant to divulge a wealth of highly personal information that, hitherto, an applicant never had to divulge, and the licensing authority had never asked an applicant to divulge. And, if a person fails to secure a license, his personal data will remain in his State police file, indefinitely, and will likely be turned over to the DOJ, DHS, ATF, IRS, and/or to a slew of State or Federal mental health agencies. All manner of harm may be visited upon the person that otherwise would not have occurred had the individual not bothered to apply for a New York concealed handgun carry license in the first place. To apply for a New York concealed handgun carry license, an applicant may unwittingly be alerting both the New York Government and the Federal Government that he is a “MAGA” supporter, and therefore a potential “Domestic Terrorist.” And, if so, he is then targeted for special treatment: surveillance, harassment, exploitation, or extortion. And he cannot claim a violation of his Fourth Amendment right to be free from unreasonable searches and seizures because he voluntarily relinquished that right when he applied for a concealed handgun carry license.If one thinks this is farfetched, consider the excesses committed by the Biden Administration directed to average Americans in the last several months.We explore these troubling matters, in connection with the application requirements for a New York concealed handgun carry license, in the next few articles.____________________________________Copyright © 2022 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.

JUSTICE: FOR OR AGAINST THE SECOND AMENDMENT? A COMMENTARY ON PRESIDENT OBAMA’S NOMINEE FOR ASSOCIATE JUSTICE ON THE U.S. SUPREME COURT: JUDGE MERRICK GARLAND

JUSTICE GARLAND: A REPLACEMENT FOR JUSTICE SCALIA? NOW, IF ONE DOES NOT SUPPORT THE BILL OF RIGHTS; OR NEVER IF ONE CARES ABOUT AMERICA’S BILL OF RIGHTS!

PART 1

PRESIDENT OBAMA'S SHORT LIST FOR JUSTICE ON THE U.S. SUPREME COURT: FIRST, SOTOMAYOR, KAGAN; THEN KAGAN; AND NOW, GARLAND

Now that President Obama has nominated a judge to the U.S. Supreme Court, a few pertinent questions arise. What will the Senate do? What ought the Senate do? And, most importantly, what do we, the American people, know about the individual Obama has nominated to replace a respected – indeed, a revered – Supreme Court Justice, a man whose shoes cannot easily be filled, Justice Antonin Scalia.Before we get to the third question, let us respond briefly to the first two. The U.S. Constitution sets forth the authority of the U.S. President to nominate an individual to the U.S. Supreme Court. But the Constitution does so with a most important caveat. Article 2, Section 2 of the U.S. Constitution sets forth, in pertinent part that the President, “. . . shall nominate, and by and with the Advice and Consent of the Senate, shall appoint . . . Judges of the supreme Court.”Many news sources are turning this matter into a major spectacle – castigating the U.S. Senate for allegedly dragging its feet in handling this nomination. But, there is nothing in the U.S. Constitution that requires the U.S. Senate to do anything. It need not proffer its advice and consent; and, if it does not, then the appointment cannot be made. In this instance the U.S. Senate has good reason not to proffer its advice and consent.The appointment of a Justice of the U.S. Supreme Court is not to be taken lightly. The appointment of a Supreme Court Justice is for life. A poor decision can undermine the rights and liberties of all Americans. A poor decision can weaken our Republic. The Court’s decisions mold and shape our institutions and impact the life of every American citizen for decades. So, in a very real sense, A U.S. Supreme Court Justice wields  more power than the President of the United States. Would President Obama’s nominee truly faithfully support and defend the Constitution of the United States?President Barack Obama has, to date, nominated two Justices to the United States Supreme Court, and the U.S. Senate has confirmed them. They are Justices Elena Kagan and Sonia Sotomayor, two liberal-wing Justices. No one can reasonably contest the sufficiency of the legal and judicial experience of these two Justices; nor can anyone reasonably contest the intellectual acumen of Justices Kagan and Sotomayor. In most cases, Americans may reasonably assume that the individuals, nominated by the United States President and subsequently confirmed by the U.S. Senate to serve as Justices on the U.S. Supreme Court, do have the necessary intellectual gifts, necessary moral stature and character, and necessary experience to serve as Justices on the U.S. Supreme Court. But is that enough?Many news sources suggest that the academic credentials of a nominee, along with that nominee’s intellectual capacity, and along with the breadth and depth of that nominee’s judicial and legal experiences, and, along with that nominee’s necessary moral bearing, stature and character are all the factors the U.S. Senate need consider to support confirmation of a nominee to the highest Court in the Land. But are satisfaction of those factors enough. Are those factors, alone, sufficient to support confirmation of a nominee to the U.S. Supreme Court? The answer is a resounding, “no.” For, before the United States Senate confirms a nominee, the U.S. Senate should definitely take a close look at the prior judicial decisions of a particular nominee if that nominee had happened to serve in a judicial capacity on a lower court prior to his nomination. Such is no less true of Judge Merrick Garland in the event the U.S. Senate does consider the President’s nominee at all.The U.S. Senate must ask, and the American public has a right to know, whether a given nominee – if he or she is to ascend to the position of Justice on the U.S. Supreme Court – is truly likely to render decisions faithful to the U.S. Constitution and, in particular, whether that nominee would render decisions supportive of an American citizen’s fundamental rights and liberties as codified in the Bill of Rights. The United States Senate Committee on the Judiciary, presided by Senator Chuck Grassley, Republican Iowa, obviously has its doubts in the present instance and, rightfully so, and this would account for the Committee’s reluctance to consider President Obama’s nominee – his third –  especially since Obama will soon be leaving Office and a Republican Party candidate for U.S. President may very well be taking his place.Republican Senators are asking and we must ask as well: what do Americans really know about President Obama’s nominee, Judge Merrick Garland? What is Judge Garland’s position on the Bill of Rights? Is he a strong proponent of individual Rights and Liberties, as codified in the Bill of Rights, or isn’t he?Each Justice, who presently sits on the U.S. Supreme Court, certainly has a definite idea how he or she construes the Bill of Rights. A few construe the Bill of Rights literally and narrowly, giving particular weight to our founders’ view of it. On this view a U.S. Supreme Court Justice would ascribe to the idea that our founding founders believed that, regardless of the current fashion of any particular age, the import and purport of our fundamental rights and liberties remain constant from one generation to the next. They are not to be tampered with. Justice Scalia certainly fell into this camp. Other Justices tend to consider fundamental rights and liberties of Americans apropos of conditions as they exist in American society and in the world today. Those Justices happen to think our Bill of Rights is malleable; that it is subject to change in accordance with popular opinion vis-à-vis political mandates. They have a decided predilection for legislating from the Bench. The Bill of Rights, though, has nothing to do with one’s being comfortable with it or with particular Amendments within it. The Bill of Rights is what it is. It is not a thing to be toyed with. It is not to be subjugated or changed, along with popular culture. The Bill of Rights defines clearly and explicitly what rights and liberties we, as Americans, are entitled to exercise as a free people, living in a free Republic.The point here is that a particular philosophy, regarding the Bill of Rights, has considerable impact on how a Justice ultimately will decide a case. An opinion by a simple majority of Justices on the U.S. Supreme Court affects us all. It affects America’s institutions. It affects the very nature of and continued existence of our Nation, as conceived by the founding fathers.So, contrary to what the left, reporting through a compliant media,  maintains, the question the United States Senate Committee on the Judiciary must wrestle with extends well beyond a nominee’s native ability, intellectual gifts, judicial and legal experience, and moral bearing and character. The question the United States Senate Committee on the Judiciary must wrestle with is subtle and complex. As it pertains to President Obama’s nominee, Judge Merrick Garland, the question goes to the manner in which Judge Garland perceives the Bill of Rights. For, the manner in which Judge Garland perceives our fundamental rights and liberties will color his perception of the cases that come before him. Does he tend to view our fundamental rights and liberties as Justices Breyer, Ginsburg, Kagan, and Sotomayor do – as transitory, ephemeral and infinitely malleable? Or, does Judge Garland view our fundamental rights and liberties in the same vein as Justices Alito and Thomas do, and as Justice Scalia did? Or, perhaps, Judge Garland’s perception of our fundamental rights and liberties fall somewhere in the middle, commensurate with the views of Justice Kennedy and Chief Justice Roberts.As the Wall Street Journal reports, Judge Garland says, “Fidelity to the Constitution has been the cornerstone of my professional life.” Well, one would certainly expect as much. But, that really doesn't take us anywhere. That assertion doesn’t tell us anything about how Judge Garland would really decide a case involving Americans’ fundamental rights and liberties.Each current Justice would certainly assert “fidelity to the Constitution,” and that Justice would honestly believe the assertion. The assertion is little more than a platitude. But, within the U.S. Constitution, the Bill of Rights speaks squarely to the fundamental rights and liberties of the people. In any one case before the U.S. Supreme Court, those rights and liberties will be strengthened or weakened by the Majority on the Court.

THE SECOND AMENDMENT

Of the specific Rights and Liberties expressed in the first Eight Amendments – all critical to a Free Republic – none of those Rights and Liberties speak more loudly to the unique character of the United States than does our Second Amendment. In no other Constitution of any other Nation on the face of this Earth does there exist any Right boldly setting forth: “. . . the right of the people to keep and bear arms shall not be infringed.”Yes, a few nations do permit the citizenry to keep and bear arms but in every such case that “right” is not really a right at all because the purported “right” emanates from government. It does not reside in the people. The “right” expressed is more in the nature of a grant by a nation’s government, or a license, or a privilege.But, the Second Amendment of the Bill of Rights of the United States Constitution operates as a right in the purest sense – preexistent in each individual. If there exists any doubt about that, Justice Scalia, writing for the majority, in the seminal case, District of Columbia vs. Heller, 554 U.S. 570, 128 S. Ct. 2783, 171 L. Ed. 2d 637 (2008), laid that doubt to rest.What the United States Senate Committee on the Judiciary should really be asking, assuming it decides to consider the matter of Judge Merrick Garland’s appointment to the U.S. Supreme Court – or not, as consistent with its prerogative under Article 2, Section 2 of the U.S. Constitution – is this: would Judge Garland if he were to gain the U.S. Supreme Court, tend to weaken or strengthen our Bill of Rights? We can use the Second Amendment as a good example here. How might we explicate this? Just so: would the Heller case have been decided differently if – in a parallel world – Justice Garland had worn the robes of Justice Scalia?Do we have any clues? Well, we have two important clues. The first involves the case Parker vs. District of Columbia, 478 F.3d 370 (D.C. Cir. 2007).Important Note: the Parker case is the seminal Second Amendment Heller case. The Parker case was renamed District of Columbia vs. Heller when the U.S. Supreme Court agreed to hear the case.

ANALYSIS OF THE PARKER CASE

The Appellants, Parker and others, are residents of the District of Columbia. They wanted to carry their handguns in their own homes for self-defense, but the District of Columbia prohibits anyone from having an operable handgun in the home for the purposes of immediate self-defense. The Appellants brought action against the District of Columbia, claiming that the D.C. code violated their Second Amendment “right to keep and bear arms.” The U.S. District Court for the District of Columbia sided with the Appellee government, District of Columbia, finding that the D.C. code did not violate Appellants Second Amendment right to keep and bear arms because, according to the U.S. District Court, the “right to bear arms” only accrues to one who serves in a militia.Appellants, residents of the District of Columbia, appealed. The United States Circuit Court of Appeals for the District of Columbia disagreed with the lower Court. Reversing the U.S. District Court’s decision, the United States Circuit Court of Appeals for the District of Columbia dealt squarely with the issue as to the meaning of and impact of the prefatory and operative portions of the Second Amendment and whether, on the one hand, “the right to keep and bear arms” is an individual right, as Appellant, District of Columbia residents maintain, or whether, on the other hand, “the right to keep and bear arms” is a collective right that applies only to those who serve in a militia, as the Appellee, District of Columbia had argues.In finding for the Appellant residents, against the District of Columbia, the United States Circuit Court of Appeals for the District of Columbia pointed out that the wording of the operative clause also indicates that “the right to keep and bear arms” was not created by government, but rather preserved by it. The United States Circuit Court of Appeals specifically rejected the Appellee District of Columbia’s claim that the phrase, “keep and bear arms” has only a military purpose related to the “militia.” Two of the three Judges on the Circuit Court sided with the Appellants in the case and thereupon reversed the decision of the U.S. District Court.The losing party in the Parker case, namely the District of Columbia, then petitioned the U.S. Court of Appeals for reconsideration, asking the United States Court of Appeals to hear the case en banc. What this means is that the Appellee District Columbia petitioned to have the entire United States Circuit Court of Appeals for the District of Columbia hear the case.Keep in mind that, although Judge Garland serves as Judge on the United States Court of Appeals for the District of Columbia, there are several U.S. Circuit Court Judges. Generally, a panel of three Circuit Court Judges hears a case on appeal from the lower District Court.Judge Garland did not sit on the three-man panel in the Parker case. We are not, though, left merely to speculate as to how he might have ruled in Parker had he served as one of the three original Judges who heard the case. We do have an inkling as to how Judge Garland would have ruled, and therein rests one reason, at least, why the U.S. Senate, on behalf of the American people and on behalf of the well-being of Americans’ Bill of Rights, has no desire to so much as contemplate the nomination, during the remaining months of Obama’s term as U.S. President.Likely, Judge Garland would have ruled against the Appellant D.C. residents and for the District of Columbia in Parker. We know this because of a further action involving the Parker case that transpired before the case was heard by the U.S. Supreme Court, renamed, District of Columbia vs. Heller.Now, no party, in any jurisdiction, can insist, as a matter of right, to have an entire United States Circuit Court of Appeals to reconsider its own decision. A United States Circuit Court of Appeals will do so only if a majority of the Court’s Judges agree to reconsider the decision, in which case the entirety of the Court will rehear the case – that is to say – the Court will hear the case, en banc.There are ten Judges on the D.C. Circuit. Only four of those ten agreed to hear the Parker case en banc. Notably, Judge Garland was one of those four Judges. The case is Parker vs. District of Columbia, 2007 U.S. App. LEXIS 11029 (D.C. Cir. 2007).We really do not need to spend an inordinate amount of time speculating as to why Judge Garland had sought to have the Parker case reheard by all ten United States Circuit Court of Appeals judges. Yes, Judge Garland may have thought – as some news sources infer – that the Second Amendment issue was important enough to warrant a hearing by the entire Court, so that all of the Judges could weigh in. After all, the Parker case dealt directly and squarely with the fundamental right of the people to keep and bear arms. But, likely, there was more to Judge Garland’s desire to have an en banc hearing of the case. And it is just this: if Judge Merrick Garland really feels strongly about Americans’ fundamental rights and liberties, as had Justice Scalia, it is likely that Judge Garland would have voted with the majority of the Court. That means he would have voted against taking up the Second Amendment issue again in an en banc hearing of the case. For, what more could be gained through an en banc hearing of the case? The majority opinion, which supported Appellants’ Second Amendment right to keep and bear arms, was clear, and cogent, and unequivocal.  Moreover, a vote in favor of an en banc hearing would, quite probably, invite a reversal of the decision by the three member United States Circuit Court of Appeals panel. A true advocate for the Second Amendment would never have voted in favor of a rehearing. Tactically, it would make no sense. Appellants, District of Columbia residents had already won. The case should have stopped there.Be that as it may, the Appellant, District of Columbia, having failed to secure a rehearing of the Parker case by the full United States Court of Appeals for the District of Columbia thereupon petitioned the U.S. Supreme Court. The Supreme Court, of course, agreed to hear the case. Parker vs. District of Columbia was renamed District of Columbia vs. Heller. Justice Scalia, writing for the Majority, affirmed the decision of the United States Circuit Court of Appeals for the District of Columbia by a narrow margin: 5 to 4.Granted, while it is not absolutely clear that Judge Garland would not have voted with the Majority in Heller, had he sat on the U.S. Supreme Court, the fact that he voted for en banc review of Parker, as a Judge sitting on the U.S. Circuit Court of Appeals for the District of Columbia, strongly suggests an unhappiness with and uneasiness with the panel's decision -- 2 to 1 in favor of Appellant District of Columbia residents -- a decision clearly supporting the right of the people to keep and bear arms; hence, we may reasonably conclude a general  reluctance on the part of Judge Garland to view the Second Amendment right of the people to keep and bear arms generally favorably and expansively. Imagine, then, Judge Garland's decision in Heller, had he sat on the U.S. Supreme Court. Would he not have sided with the liberal-wing in that case? And, if so, would not the Heller case have been decided differently? Would not the Heller case reflect the reasoning of the U.S. District Court in Parker, rather than the decision of the U.S. Circuit Court of Appeals for the District of Columbia in that case -- a U.S. District Court decision specifically undermining rather than strengthening the right of the people to keep and bear arms?A second and, perhaps, even stronger clue suggesting that Judge Garland is not likely to be a strong proponent of the Second Amendment -- and, indeed, someone who is likely to eviscerate the Second Amendment rather than strengthen it -- is evidenced from a perusal of the United States Court of Appeals for the District of Columbia’s decision in NRA vs. Reno, 216 F.3d 2000 (D.C. Cir. 2000). Judge Garland did have a hand in that decision and, while the case does not deal directly with the meaning of language in the Second Amendment, the case does deal with matters impacting the Second Amendment, and negatively impacting the Fourth Amendment as well.In Part 2 of this article, we will explicate the NRA case for you and explain why, more likely than not, Judge Garland is not a proponent of the Second Amendment -- not by a long shot -- and that, for this reason alone, the United States Senate Committee on the Judiciary should not consider Obama’s appointment of Judge Garland to the U.S. Supreme Court, as an Associate Justice.To be continued. . . .[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.