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CONGRESSMAN CHRIS COLLINS’ SECOND AMENDMENT GUARANTEE ACT (“SAGA”): A GOOD START BUT NOT A FINISHED PRODUCT
THE SECOND AMENDMENT GUARANTEE ACT
INTRODUCTION
The seminal Second Amendment Heller case (District of Columbia vs. Heller, 554 U.S. 570, 128 S. Ct. 2783, 171 L. Ed. 2d 637 (2008)) made categorically clear and unequivocal that the right of the people to keep and bear arms is an individual right unconnected with one’s service in a militia; and the seminal Second Amendment McDonald case (McDonald v. Chicago, 561 U. S. 742, 780, 130 S. Ct. 3020, 177 L. Ed. 2d 894 (2010)) that followed Heller, two years later, made clear that the right of the people to keep and bear arms—an individual right—applies to the States as well as to the federal Government. Unfortunately, many State Legislatures, along with many legislators in Congress and, worst of all, many jurists on State or Federal Courts strongly oppose the holdings and reasoning of the Majority in Heller and McDonald. This animosity carries over to and is reflected in poorly drafted legislation and in poorly crafted legal opinions. Occasionally, though, State Legislatures and Congress get it right, and do draft laws recognizing the fundamental right of the people to keep and bear arms. Congressman Chris Collins’ (NY-27) Second Amendment Guarantee Act (“SAGA”) that the Congressman recently introduced in Congress is just such a bill. We heartily support the Congressman’s efforts. But, what might we expect?
WHAT IS THE POSSIBILITY OF PASSAGE OF THE SECOND AMENDMENT GUARANTEE ACT?
Unfortunately, not good. We take our cue from other pro-Second Amendment bills. We have yet to see movement on several national handgun carry reciprocity bills that presently exist in a state of limbo, locked up in Committee. Even if Congressman Collins’ bill makes it out of Committee, and, further, is voted on and passes a full House vote, it likely would be held up in the Senate where it must garner a super majority—60 votes—to pass and see enactment. The bill likely would not pass as a “stand-alone” bill in any event. That means the bill would have to be tacked on to other legislation to have any chance of passage. But, assuming the bill were enacted, what might we expect from it?
WHY DID CONGRESSMAN COLLINS DRAFT THE SECOND AMENDMENT GUARANTEE ACT AND WHAT IS THE PURPOSE OF THE BILL?
Congressman Collins, a Representative of New York, obviously had Governor Cuomo’s signature anti-Second Amendment legislation, the NY Safe Act, in mind, when he drafted this bill; for the bill, if enacted, is, ostensibly at least, at loggerheads with a key feature of the Safe Act—Section 37 of the Act—the Section that bans the possession and sale of all firearms defined as ‘assault weapons.’According to the Congressman’s Press Release “Congressman Chris Collins (NY-27) has proposed new measures for protecting Second Amendment rights by introducing legislation to limit states authority when it comes to regulating rifles and shotguns, commonly used by sportsmen and sportswomen. The Second Amendment Guarantee Act (SAGA) would prevent states from implementing any regulations on these weapons that are more restrictive than what is required by federal law. Upon passage of this bill, most of the language included in New York State’s Secure Ammunition and Firearms Enforcement (SAFE) Act of 2013 signed into law by Governor Cuomo would be void." But, is that true? Is the Press Release accurate? Or, does the Press Release presume more about the bill than what the bill produces, in the event the bill, as drafted, sees the light of day and becomes law?
WHAT DOES THE BILL SAY?
The bill (H.R. 3576), amends Section 927 (Effect on State Law) of Chapter 44 (Firearms), of Title 18 (Crimes and Criminal Procedure) of the U.S. Code.As presently enacted Section 927, says:“No provision of this chapter [18 USCS §§ 921 et seq.] shall be construed as indicating an intent on the part of the Congress to occupy the field in which such provision operates to the exclusion of the law of any State on the same subject matter, unless there is a direct and positive conflict between such provision and the law of the State so that the two cannot be reconciled or consistently stand together.”Collins’ bill deletes the first word of Section 927—the word, “No,”—and replaces that word with the phrase, “Except as provided,” and, then adds language, establishing, inter alia, that States cannot enact laws pertaining to rifles and shotguns that are “more restrictive. . . with respect to such a rifle or shotgun.” In pertinent part, Congressman Collins’ modification of Section 927 of Title 18 sets forth:“A State or a political subdivision of a State may not impose any regulation, prohibition, or registration or licensing requirement with respect to the design, manufacture, importation, sale, transfer, possession, or marking of a rifle or shotgun that has moved in, or any such conduct that affects, interstate or foreign commerce, that is more restrictive, or impose any penalty, tax, fee, or charge with respect to such a rifle or shotgun or such conduct, in an amount greater, than is provided under Federal law. To the extent that a law of a State or political subdivision of a State, whether enacted before, on, or after the date of the enactment of this subsection, violates the preceding sentence, the law shall have no force or effect. For purposes of this subsection, the term ‘rifle or shotgun’ includes any part of a rifle or shotgun, any detachable magazine or ammunition feeding device, and any type of pistol grip or stock design.”What does the modification of Section 927 of Title 18 of the U.S. Code purport to do; and what does the modification of Section 927 of Title 18 of the U.S. Code mean?To understand the import of Congressman Collins’ bill, it is first helpful, in this instance, to understand what those who oppose it would do to challenge it, assuming the Second Amendment Guarantee Act does become law—which is far from clear given Democrats’ hysterical aversion to the Second Amendment and Republicans’ constant foot-dragging.
IF ANTIGUN GROUPS AND LEGISLATORS CHALLENGE THE BILL IN THE EVENT IT BECAME LAW, UNDER WHAT GROUND MIGHT THE BILL BE CHALLENGED?
Congressman Collins’ bill is likely to face stiff opposition and resistance in Congress prior to enactment—assuming it even moves out of Committee—as it would almost certainly be challenged, inter alia, on Constitutional, Tenth Amendment grounds were the bill to become law.What does the Tenth Amendment say? The Tenth Amendment to the U.S. Constitution says: The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people. The Tenth Amendment has always been a sticky wicket, especially in matters involving the Second Amendment because the matter of firearms’ regulations and licensing, apart from the regulation and licensing of machine guns, short-barreled rifles and shotguns, and destructive devices, falls, traditionally, within the police powers of a State. Although the federal Government has, in the last several decades, amassed ever more powers unto itself, the fact of the matter is that this Nation is a confederation of independent sovereign States. This idea seems to be lost on people, not least of all in light of the present “Charlottesville” episode—a matter which the Arbalest Quarrel will be writing on in the near future, taking the mainstream news media to task for unleashing a wave of opinionated fake news on the matter, and which the mainstream media is egging the Trump Administration to handle, on the federal level, to support Marxist efforts to erase our Nation’s history, traditions, and core values.Yet, the federal Government cannot indiscriminately, lawfully, run roughshod over the States and the people. In the matter of Congressman Collins’ bill, the Second Amendment Guarantee Act, this creates something of a quandary; for, the bill—as the Congressman articulates through his Press Release—substantially preempts States’ rights on matters of firearms regulations and licensing. The paramount question is this: if Congressman Collins’ bill does become law, can those, who would then seek to mount a Tenth Amendment challenge against it, likely succeed in the Courts? The answer isn’t clear, but, a careful analysis of the bill’s text suggests the bill can survive a Tenth Amendment challenge, as it was carefully drafted to sidestep just such a challenge. Why do we say this? Well, looking at the Tenth Amendment issue, the actual drafter or drafters of the bill made clear the intent of the Act to supersede State regulation of and licensing of firearms; for, Congress would, under the Second Amendment Guarantee Act, be exercising its authority to regulate firearms moving in interstate commerce. It is a categorical, unequivocal principle of law that Congress has plenary power to regulate goods moving in interstate commerce under the Commerce clause. On that matter, no legitimate legal question exists, as the U.S. Supreme Court has made this point abundantly clear.“As we observed in Lopez, [United States v Lopez (1995) 514 U.S. 549, 131 L. Ed. 2d 626, 115 S. Ct. 1624] modern Commerce Clause jurisprudence has ‘identified three broad categories of activity that Congress may regulate under its commerce power.’ 514 U.S. at 558 (citing Hodel v. Virginia Surface Mining & Reclamation Assn., Inc., 452 U.S. 264, 276-277, 69 L. Ed. 2d 1, 101 S. Ct. 2352 (1981); Perez v. United States, 402 U.S. 146, 150, 28 L. Ed. 2d 686, 91 S. Ct. 1357 (1971)). ‘First, Congress may regulate the use of the channels of interstate commerce.’ 514 U.S. at 558 (citing Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241, 256, 85 S. Ct. 348, 13 L. Ed. 2d 258 (1964); United States v. Darby, 312 U.S. 100, 114, 85 L. Ed. 609, 61 S. Ct. 451 (1941)). ‘Second, Congress is empowered to regulate and protect the instrumentalities of interstate commerce, or persons or things in interstate commerce, even though the threat may come only from intrastate activities.’ 514 U.S. at 558 (citing Shreveport Rate Cases, 234 U.S. 342 (1914); Southern R. Co. v. United States, 222 U.S. 20, 32 S. Ct. 2, 56 L. Ed. 72 (1911); Perez, supra, at 150). ‘Finally, Congress' commerce authority includes the power to regulate those activities having a substantial relation to interstate commerce, . . . i.e., those activities that substantially affect interstate commerce.’ 514 U.S. at 558-559 (citing Jones & Laughlin Steel, supra, at 37). United States v. Morrison, 529 U.S. 598, 609; 120 S Ct. 1740, 1749; 146 L. Ed. 2d 658, 670 (2000).”So, the Second Amendment Guarantee Act would likely survive a Tenth Amendment challenge. But, the strength of the bill, as drafted, also poses a weakness, notwithstanding. For, while State laws, such as New York’s SAFE Act and Maryland’s Firearm Safety Act, cannot, if Collins’ bill is enacted, most likely preclude importation of firearms into their State—including and importantly so-called assault weapons, as importation of such firearms affects interstate commerce and federal law, would, under the Second Amendment Guarantee Act, preempt State law in matters affecting interstate commerce—still, once the firearms are presented in States such as New York and Maryland, it isn’t clear, from the present language of the bill, that firearms’ dealers would be able to sell or trade such “assault weapons” to individuals residing in those States, so long as laws such as the SAFE Act and the Firearm Safety Act are in effect. And, those Acts would still be in effect. For, contrary to Collins’ Press Release, restrictive State gun laws, such as the NY Safe Act, do not, ipso facto, become nugatory. A legal challenge to the constitutionality of New York’s Safe Act and Maryland’s Firearm Safety Act would have to be made. But, once made, it is still unclear whether the Safe Act and the Firearm Safety Act could not prevent transfers of "assault weapons" to individuals, not under disability, within the State, on the ground that regulation of "assault weapons" was being conducted intrastate, thereby not affecting interstate commerce.The question, from the standpoint of those challenging restrictive gun legislation existent in States such as New York, Maryland, California, Hawaii, and others, then becomes whether so-called “assault weapons” that some States wish to ban and, at present, have banned outright, can be sold as “protected” firearms under federal law, once they are in a State, such as New York. If so, that means, then, that States could not legally proscribe the transfer, ownership, and possession of those weapons, try as they might. The issue raised by the Second Amendment Guarantee Act is analogous to the matter pertaining to machine guns, submachine guns, and selective fire weapons, as federal law completely preempts the field concerning those weapons, which means that States have absolutely no legal power to enact laws involving the regulation, licensing, and disposition of those kinds of weapons in their States. Federal law completely preempts the field in matters involving the licensing, regulation, and disposition of machine guns. Language in Section 922 (Unlawful Acts) of Title 18 of the U.S. Code makes clear the intent of Congress to preempt the field, in its entirety, in matters pertaining to the transfer and ownership and possession of machine guns. Paragraph “o” of Section 922 of Title 18 says,“(1) Except as provided in paragraph (2), it shall be unlawful for any person to transfer or possess a machinegun.(2) This subsection does not apply with respect to—(A) a transfer to or by, or possession by or under the authority of, the United States or any department or agency thereof or a State, or a department, agency, or political subdivision thereof; or(B) any lawful transfer or lawful possession of a machinegun that was lawfully possessed before the date this subsection takes effect [effective May 19, 1986].”Curiously, the expressions, ‘firearm,’ ‘rifle,’ ‘shotgun,’ and ‘machine gun,’ are not defined in Section 922 of Chapter 4 (Firearms) of Title 18 of the U.S. Code, where a person might expect to find them, but in Section 5845 of the Internal Revenue Service Code of the U.S. Code, 26 USCS § 5845. In 26 USCS § 5845(b), “The term ‘machinegun’ means any weapon which shoots, is designed to shoot, or can be readily restored to shoot, automatically more than one shot, without manual reloading, by a single function of the trigger. The term shall also include the frame or receiver of any such weapon, any part designed and intended solely and exclusively, or combination of parts designed and intended, for use in converting a weapon into a machine gun, and any combination of parts from which a machinegun can be assembled if such parts are in the possession or under the control of a person.”Keep in mind that Congressman Collins’ bill modifies Section 927 of Title 18 of the U.S. Code only, which deals with federal preemption of State law regulation of firearms, generally, but the bill modifies nothing in Section 922 of Title 18, where one would expect to find an assertion of those particular firearms and firearms’ components that federal law is preempting States from regulating and there is no modification of Section 5845 of Title 26 (Internal Revenue Code) where firearm terminology is specifically defined. And, it is in Section 922 of Title 18 of the U.S. Code that we see federal preemption of regulation of machine guns; and it is in that same Section of Title 18 that, in 1994, Congress expressly banned ownership and possession of “assault weapons,” nationally—as part of antigun efforts that orchestrated enactment of the “Violent Crime Control and Law Enforcement Act of 1994.” A national ban on the transfer of and ownership of so-called “assault weapons,” along with a ban on LCMs, was set forth in federal law, subsumed in Section 922 of Title 18 of the U.S. Code. But inclusion of an “assault weapons” provision of Section 922 of Title 18 of the U.S. Code, which added a paragraph “v” which made it “unlawful for a person to manufacture, transfer, or possess a semiautomatic assault weapon,” and inclusion of a ban on large capacity magazines, set forth in paragraph “w” of Section 922 of Title 18 of the U.S. Code, which made it “unlawful for a person to transfer or possess a large capacity ammunition feeding device,” both expired in September of 2003. Those provisions of Section 922 of Title 18 of the U.S. Code were never reauthorized, despite subsequent and numerous efforts by antigun politicians to do so.Since the impetus for the Second Amendment Guarantee Act was predicated, obviously and reasonably, on Congressman Collins' laudable desire to negate the impact of the NY Safe Act on the federal level, through the federal preemption—since Albany appears either unwilling or incapable of repealing the NY Safe Act on the State level itself—we can infer that the Second Amendment Guarantee Act was designed principally to preclude States, such as New York, from banning substantial numbers of semiautomatic firearms that’s State antigun legislators, with great fanfare, cast into the category of “assault weapons.”Congressman Collins, a staunch proponent of the Second Amendment, clearly seeks, through enactment of his bill, to provide Americans the converse—the flipside—of efforts to curb exercise of the right of the people to keep and bear arms. The Second Amendment Guarantee Act, as some would argue, proscribes States from regulating all categories of rifle and shotgun, thereby curbing, with one fell swoop, attempts by any State Legislature to impose specific restrictions on the ownership and possession of one large category of firearms, those subsumed under the nomenclature “assault weapons,” and curbing, as well, attempts by any State Legislature to impose size restrictions on ammunition magazines.But, does Congressman Collins’ bill, that modifies Section 927 of Title 18 of the U.S. Code, make federal preemption of regulation of assault weapons and other firearms’ components absolutely clear?Once again, as presently enacted Section 927 says:“No provision of this chapter [18 USCS §§ 921 et seq.] shall be construed as indicating an intent on the part of the Congress to occupy the field in which such provision operates to the exclusion of the law of any State on the same subject matter, unless there is a direct and positive conflict between such provision and the law of the State so that the two cannot be reconciled or consistently stand together.”Collins’ bill deletes the first word of Section 927—the word, “No,”—and replaces that word with the phrase, “Except as provided,” and, then adds language, establishing, inter alia, that States cannot enact laws pertaining to rifles and shotguns that are “more restrictive. . . with respect to such a rifle or shotgun.” But, and this is an important, but, is such language enough to negate restrictive State firearms’ legislation such as the NY Safe Act? We don’t think so—thus, the failings of the bill, in its current form. For, what do the words, ‘more restrictive with respect to such a rifle or shotgun,’ mean, here?The reader must understand that federal law preemption of firearms, Sections 921, et. seq., of Title 18 of the U.S. Code, is directed essentially to a specific class of firearms, namely machine guns. As made clear in paragraph "o" of Section 922 of Title 18 of the U.S. Code, Federal law preempts the field as to those kinds of firearms only, and the language of the law makes federal preemption in matters involving the regulation of machine guns patently clear. Congressman Collins’ bill is silent on the subject of so-called “assault weapons”—which some believe Congressman Collins’ bill, if enacted, would adequately address, and which it must address if it were to do what it purports to do: preclude States from prohibiting the transfer and possession of firearms that New York’s Safe Act and Maryland’s Firearm Safety Act prohibit, expressly, and prohibit outright--"assault weapons."Had Congressman Collins’ bill been more explicit and precise, we believe that language should appear in Section 922 of Title 18 of the U.S. Code that would work in tandem with the language appearing in Section 927 of Title 18 of the U.S. Code. And, in Section 5845 of Title 26, we would like to see language that clearly and specifically defines the expression 'semiautomatic weapons.' And, in Section 922 of Title 18, we would like to see language that sets forth the lawful transfer of all semiautomatic weapons to individuals, not under disability. The federal preemption Statute, namely, Section 927 of Title 18, as modified in the Second Amendment Guarantee Act would then make federal preemption of the entire field of semiautomatic firearms abundantly and categorically clear. Ideally, language modifying Section 5845 of Title 26, and modifying Sections 922 and 927 of Title 18 of the U.S. Code would establish federal preemption of the entire field of firearms but--and this next point is critical--only to the extent that such modifications serve to enhance the citizen’s right to keep and bear arms under the Second Amendment. We have no desire to see federal preemption leading to mass registration of firearms and draconian licensing measures on the federal level that we already see much too often on the State level.Ideally, language in the Congressman’s bill would have set forth, in Section 922 of Title 18 of the U.S. Code explicit protection of all commercial transactions, among all the people, who are not under disability (as categories of disability are set forth with particularity in paragraph “g” of Section 922 of Title 18), involving all firearms—rifles, shotguns and pistols, whatever the configuration or mode of operation of those rifles, shotguns, and pistols; and, further, Collins’ bill should have included language doing away with BATFE licensing of such firearms as well, which, in the case of machine guns, involves a lengthy, time-consuming, expensive and mentally exhaustive process that does nothing to enshrine the Second Amendment right of the people to keep and bear arms, as exercise of that fundamental right is unduly hampered by a multitude of administrative obstacles. Lastly, we would like to see firearms’ licensing at both the State and Federal levels ended. As a parenthetical note, we point out that Congressman Collins’ bill is altogether silent on the matter of handguns which means that, under his bill, handguns would not be subject to federal preemption. States would still be able to impose draconian restrictions on the American citizenry in matters involving handguns. But, why should Americans suffer the indignity of exhaustive, extensive, and expensive firearms’ regulatory hurdles at all?One doesn’t need a license to freely exercise one’s right of free speech—at least at the moment—although leftwing groups—most notoriously, the so-called “ANTIFA,” an anarchist/communist, domestic terrorist group (as much as any other terrorist group that this Country formally recognizes), is doing its best to constrain the right of free expression in this Country. Why must one secure a license to exercise a fundamental natural right of self-defense, as firearms are the best means available to secure one's safety and well-being when threatened and access to firearms, for those not under disability (as set forth in paragraph "g" of Section 922 of Title 18 of the U.S. Code), is guaranteed under the Second Amendment!Congressman Collins’ modification of Section 927 of Title 18 of the U.S. Code, alone, does not, we believe, adequately establish federal preemption of firearms’ regulation because the purpose of Section 927 is simply designed to preclude conflict between State and Federal firearms laws. That is the Section’s only purpose. Its purpose is not to define the kinds of firearms that fall under the auspices of federal preemption—which is addressed, and is meant to be addressed in Section 5845 of Title 26 of the U.S. Code (referred to more specifically as the Internal Revenue Code of the U.S. Code) and does not set forth the manner in which federal preemption of firearms is specifically addressed, as is the case with machine guns, as set forth in paragraph "o" of Section 922 of Title 18 of the U.S. Code. We also note that the Congressman’s bill, as drafted, uses the permissive ‘may,’ rather than the obligatory ‘shall’ suggesting, then, that States might still regulate firearms, transecting, then, federal preemption, rather than being totally eclipsed by it. Furthermore, as drafted, Congressman Collins’ bill does not adequately establish the kinds of firearms that he intends federal law to preempt. The draft language of the bill simply sets forth that State law “may not” enact a law “that is more restrictive, or impose any penalty, tax, fee, or charge with respect to such a rifle or shotgun or such conduct, in an amount greater, than is provided under Federal law.” But, federal law, Sections 921 et. seq., direct attention to machine guns. Federal law does not address so-called “assault weapons”—semiautomatic weapons and, in New York, revolving cylinder shotguns (which are also defined as 'assault weapons'). Consider: had federal law still imposed federal licensing requirements on “assault weapons,” as it once had, in 1994, then New York’s SAFE Act and Maryland’s Firearm Safety Act, regulating such weapons, likely would have been struck down as unlawful under Section 927 because Federal law had, at that time, in effect, at least, preempted the field as to the regulation of assault weapons and large capacity magazines. What this means is that such restrictive State gun laws, regulating or proscribing ownership and possession of “assault weapons,” at that time, would either have been redundant, if otherwise consistent with federal law, or unlawful, if inconsistent with federal law.
CONCLUSION
The bottom line: In its present form, Congressman Collins’ Second Amendment Guarantee Act (“SAGA”), is a good start toward giving the Second Amendment full effect, as the framers of our Bill of Rights intended. And the Congressman is to be commended for his effort. But the bill, as drafted, leaves, we feel, too much uncertainty, in its present form, to be effective in defeating restrictive, draconian State gun measures like the New York’s Safe Act and Maryland’s Firearm Safety Act, contrary to the opinions of some. More work on the bill is needed. But, such work would, we feel, certainly be a worthwhile endeavor._________________________________________________________________Copyright © 2017 Roger J Katz (Towne Criour), Stephen L. D’Andrilli (Publius) All Rights Reserved.
UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT PERFORMS A SURPRISE SWITCHEROO TO THE CONSTERNATION OF D.C. GOVERNMENT, MAINSTREAM MEDIA, ANTIGUN GROUPS, AND ANTIGUN LEGISLATORS, IN WRENN CASE
APPELLATE COURT VACATES ORDERS OF LOWER DISTRICT COURT AND REMANDS WITH INSTRUCTIONS TO ENTER PERMANENT INJUNCTIONS AGAINST ENFORCEMENT OF DISTRICT’S “GOOD-REASON” ANTIGUN LAW.
PRELUDE TO COMPREHENSIVE ANALYSIS OF THE U.S. COURT OF APPEALS FOR THE D.C. CIRCUIT CASE, WRENN VS. DISTRICT OF COLUMBIA
The decision handed down very recently, in Wrenn vs. District of Columbia, 2017 U.S. App. LEXIS 13348 (D.C. Cir. July 25, 2017), supporting the right of the people to keep and bear arms, would not have been possible were it not for the landmark U.S. Supreme Court case, District of Columbia vs. Heller, 554 U.S. 570; 128 S. Ct. 2783; 171 L. Ed. 2d 637 (2008). Justice Antonin Scalia’s glorious and sublime legacy will forever be tied to that one singularly important case: a case that stands as a living testament to Justice Scalia’s service to and his great love for this Nation and for its people. In that singular, seminal case, District of Columbia vs. Heller, 554 U.S. 570, Justice Scalia threw down the gauntlet at those malevolent forces that seek to tear down the fabric of our Free Republic as they whittle away at the Nation’s sacred Second Amendment. They shall not have an easy time of it as the Second Amendment now stands front in center in the Nation’s psyche as a meaningful reminder to those who seek to disassemble our Nation and who seek to tear down and reconfigure our Bill of Rights out of all semblance to that as conceived by the framers of it. They will learn: our Bill of Rights and, especially, our Second Amendment, will not be toyed with.Through Heller three points are made abundantly clear. One, the right of the people to keep and bear arms is no longer to be dismissed as a subordinate right. The right expressed is fundamental, second in importance to no other right that comprises the Bill of Rights to the U.S. Constitution. Two, the right, as codified in the Second Amendment, is capable of vindication and shall ultimately be vindicated in our Courts of law when Government, whether State or Federal, dares blithely to trample upon it. And, three our Nation stands preeminent above all other Nations on this Earth. The founders of our Nation took great pains to establish that such Government they happen to form shall serve—must serve—at the behest of and at the pleasure of the Nation’s people, responsive to and responsible to the Nation’s people. The founders of our Nation forged that understanding in the Bill of Rights to the U.S. Constitution. The Second Amendment of the Bill of Rights provides the mechanism to make that fact poignantly clear to anyone or any group who might disagree with that idea and who would dare wish to test the resolve of the American people.Tyranny cannot arise where the citizenry stands armed against the imposition of it. Implicit in the language of the Second Amendment is the idea the individual’s existence as an individual, separate and apart from any group affiliation, remains always sacrosanct and inviolate. Any threat to individuality constitutes a threat to the sanctity of one’s personal security and well-being—a threat to one’s personal integrity. Thus, the language of the Second Amendment also implies the right of the individual to take responsibility for his own life, his own protection, his own personal safety and well-being. Government cannot do this, and the law makes clear that it is not Government’s duty or responsibility to do this. It is not Government’s duty or responsibility to protect the security and integrity of the individual, and case law makes this point clear. But, in turn, this means the Government must not intrude on one’s life. Each of us, in this Nation, has the right to be free from Government interference and meddling. Each of us has the right to protect the integrity of his person—of his self—from the tyranny of Government and from threats posed to one’s self by others who would dare do one harm.No other Country will recognize or acknowledge these sacred truths. We know this because no other Country has codified in its own constitution or in any other legal writing of that Country the right of the people to keep and bear arms.Contrary to notions promulgated by propagandists or apologists for restricting the exercise of the fundamental and natural right of the people to keep and bear arms, this right is not archaic. It is not anachronistic. It is not to be construed, as some ignorant or ignoble people may wish perhaps, to convey it, as mere anomaly, or peculiarity, or curiosity, or annoyance. It is the very instantiation of the sovereignty, sanctity, and inviolability of the individual self.The right of the people to keep and bear arms is, therefore, as meaningful and purposeful today as it was in the day the founders of our Nation codified and enshrined this sacred natural, preeminent, fundamental right in the Bill of Rights of the U.S. Constitution. The founders of our Nation’s federal Government knew that the forces that seek to waylay a Nation’s people—to crush a Nation’s people into submission—lie ominously about—secretly, silently, malevolently. The founders of our Nation therefore sought a mechanism to fervently prevent or, at least, to forestall the subjugation of a Nation’s people—to forestall or prevent the subjugation of a people from the greatest and gravest and most insidious threat existent to our Nation’s people—a threat posed not from outside the Nation—but from the bowels within it. They sought to create an insurmountable hurdle to those secretive, powerful, evil forces that might seek then as now, the creation of a one world government—a government seemingly promoting the well-being of the planet’s people, but intent on crushing everyone, for the benefit of a few. Thus, our Nation’s founders drafted a short but prominent statement reminding those who may seek to destroy the American people, in body, mind, and spirit, and who may seek to dismantle this Nation State, that they will have a difficult time of it—that they will find the implementation of their insidious plan difficult, if not impossible—but certainly, impracticable—precisely because of those words etched in stone, impervious to erasure, that are, forever, our sacred Second Amendment to the U.S. Constitution.The majority opinion in District of Columbia vs. Heller, 554 U.S. 570; 128 S. Ct. 2783; 171 L. Ed. 2d 637 (2008), penned by Justice Scalia, made clear, unmistakable, unequivocal, and categorical that the Second Amendment bespeaks an individual right of the people to keep and bear arms and that the right of the people to keep and bear arms logically entails the right of self-defense. In that seminal case, as well, the high Court’s majority made clear, unmistakable, unequivocal, and categorical that Government cannot legally preclude the right of each of us to defend ourselves with a handgun in one’s own home.Does that mean that one’s right of self-defense stops at the doorstep of one’s home? Not at all. Yet, the forces that would crush the American people into submission went quickly and quietly to work to undermine the Heller rulings. They attempted and continue, to this very day, to attempt to undermine Heller. They do this through State Legislatures; through Congress; through mainstream news organizations; through grass root efforts, organized and funded by those despicable, disreputable, but powerful, highly secretive, and incommensurably wealthy overseers who seek to destroy our sacred Bill of Rights; and, most unfortunately, the forces that would crush the American people into submission do this through our Courts.While politicians and media attempt to whittle away at the Heller rulings through pompous oratory and misleading and dubious assertions, their fellow travelers in the Courts attempt to whittle away at Heller through obfuscation and through use of arcane legalese that serves to hide the misapplication of law, and that is designed to hoodwink the lay person, not attuned to the intricacies of legal thought.But, with Heller, the floodgates are open. The right expressed in the Second Amendment to the U.S. Constitution can no longer be simply and summarily dismissed as a subordinate right or, worse, as a dead letter—a meaningless assertion without force or substance.The case handed down by the D.C. Circuit, yesterday, in Wrenn vs. District of Columbia, 2017 U.S. App. LEXIS 13348 (D.C. Cir. July 25, 2017), is the latest case to deal directly with a core Second Amendment issue. Does the right of use of a handgun in one’s self-defense in one’s home extend to the carrying of a handgun in one’s self-defense—which implies the carrying of a handgun in public—namely, outside the home. If so, defense of self, then, does not stop at the doorstep of one’s home, and Government is enjoined from creating arbitrary standards to restrict one’s right to carry a handgun for self-defense outside the home.The decision was correctly decided in favor of plaintiffs but it came through a convoluted, circuitous path through the lower District Courts; and the ultimate decision, wasn’t unanimous. One Judge, in the three-Judge panel that decided the case, dissented from the majority opinion.The jurist who wrote the opinion for the Majority, Judge Griffith, began, thus: “Constitutional challenges to gun laws create peculiar puzzles for courts. In other areas, after all, a law’s validity might turn on the value of its goals and the efficiency of its means. But gun laws almost always aim at the most compelling goal—saving lives—while evidence of their effects is almost always deeply contested. On top of that, the Supreme Court has offered little guidance. Its ‘first in-depth examination of the Second Amendment’ is younger than the first iPhone. District of Columbia v. Heller (Heller I), 554 U.S. 570, 634, 128 S. Ct. 2783, 171 L. Ed. 2d 637 (2008). And by its own admission, that first treatment manages to be mute on how to review gun laws in a range of other cases. See id. at 634. But listening closely to Heller I reveals this much at least: the Second Amendment erects some absolute barriers that no gun law may breach. This lesson will prove crucial as we consider the challenges presented in these cases to the District of Columbia’s limits on carrying guns in public.”Judge Griffith, concluded the Wrenn opinion with this: “To watch the news for even a week in any major city is to give up any illusions about ‘the problem of handgun violence in this country.’ Heller I, 554 U.S. at 570. The District has understandably sought to fight this scourge with every legal tool at its disposal. For that long struggle against gun violence, you might see in today’s decision a defeat; you might see the opposite. To say whether it is one or the other is beyond our ken here. We are bound to leave the District as much space to regulate as the Constitution allows—but no more. Just so, our opinion does little more than trace the boundaries laid in 1791 and flagged in Heller I. And the resulting decision rests on a rule so narrow that good-reason laws seem almost uniquely designed to defy it: that the law-abiding citizen’s right to bear common arms must enable the typical citizen to carry a gun.”Judge Griffith obviously took pains to appease the angry antigun mob with a few sops. But, he made clear, if only tacitly, alluding to Justice Scalia’s assertions in Heller, that Government restrictions on one’s right to keep and bear arms, predicated on securing the safety of society does not invariably take precedent over the individual’s right to keep and bear arms. Clearly, Government restrictions on the sacred right of the people to keep and bear arms, grounded on notions of protecting society as a whole, in order to secure the safety and tranquility of the collective, of the hive, is doubtless false, fatuous. What Government is truly undertaking in restricting the exercise of the right of the people to keep and bear arms is to constrain and control the people—to protect Government and the “elites” from the visible “threat” posed to their own unlawful usurpation of authority. Thus, restrictive gun legislation is contrary to the very import and purport of the Bill of Rights, as envisioned by the framers.As with the Kolbe case (Kolbe vs. O’Malley, 42. F. Supp. 3d 768 (D. Md. 2014); vacated and remanded, Kolbe vs. Hogan, 813 F.3d 160 (4th Cir. 2016); rev’d en banc, Kolbe vs. Hogan, 849 F.3d 114 (4th Cir. 2017) ), that the Arbalest Quarrel will continue to analyze, the Arbalest Quarrel will provide an in-depth analysis of the Wrenn case as well.Keep in mind that both cases, Kolbe and Wrenn, involve two core Second Amendment issues, and those two issues go hand-in-hand.Kolbe involves the issue as to what firearms are protected under the core of the Second Amendment. The Wrenn case involves the issue as to what constitutes good cause or, rather, whether, one must establish cause at all to carry a handgun—to be able, then, lawfully to carry a handgun; and that issue necessarily implicates the notion of where a person may exercise the right: namely, whether the right to defend one’s life with a handgun exists only inside the home, or outside the home, as well. Plaintiffs in Kolbe have filed for an extension of time for U.S. Supreme Court review of their case. The $1,000,000.00 question in Wrenn is: what will the Defendant, District of Columbia do, now that the U.S. Court of Appeals for the D.C. Circuit effectively struck down the restrictive District of Columbia handgun carry Statute?This state of affairs is odd to say the least and exasperating for government, for no State government has, in recent times, coming on the heels of Heller, failed to secure a win at the U.S. Court of Appeals level, in spite of the rulings and reasoning of the majority in Heller. Consider: Plaintiffs--namely, those individuals and entities filing complaints alleging government violation of the core of the Second Amendment--who lost at the U.S. Circuit Court level, in those critical cases implicating the core of the Second Amendment. Plaintiffs then filed for U.S. Supreme Court review, but failed to obtain review. Four U.S. Supreme Court Justices must vote to hear a case. We know that Justices Scalia and Thomas had voted to review U.S. Court of Appeals decisions in Friedman v. City of Highland Park, 784 F.3d 406, 2015 U.S. App. LEXIS 6902 (7th Cir. Ill., 2015) and in Jackson v. City & County of San Francisco, 746 F.3d 953, 2014 U.S. App. LEXIS 5498 (9th Cir. Cal., 2014) because Justices Scalia and Thomas wrote scathing comments, indicting the decisions of the U.S. Circuit Courts in those cases and tacitly voiced, vociferously, their disapproval of those jurists--Justices--on the high Court who failed to vote in favor of review of the cases. Likely, Justice Alito cast a third vote in favor of review of the Friedman and Jackson cases, consistent with the votes cast by Justices Scalia and Thomas; but three votes is insufficient to support U.S. Supreme Court review. Recently, the high Court also rejected a writ of certiorari in Peruta v. Cnty. of San Diego, 824 F.3d 919, 2016 U.S. App. LEXIS 10436 (9th Cir. Cal., June 9, 2016). Justice Thomas wrote a comment, amounting to a vehement denunciation of the Ninth Circuit Court of Appeal's decision in that case. The comment obviously alluded, as well, to more than slight chastisement of those Justices on the high Court who voted against review of Peruta. Justice Gorsuch, the most recent Justice to sit on the U.S. Supreme Court, now joined Justice Thomas in dissenting the denial of the writ of certiorari. In each of those cases--Friedman v. City of Highland Park, 784 F.3d 406, 2015 U.S. App. LEXIS 6902 (7th Cir. Ill., 2015), Jackson v. City & County of San Francisco, 746 F.3d 953, 2014 U.S. App. LEXIS 5498 (9th Cir. Cal., 2014), and Peruta v. Cnty. of San Diego, 824 F.3d 919, 2016 U.S. App. LEXIS 10436 (9th Cir. Cal., June 9, 2016)--the U.S. Circuit Courts of Appeal in the Seventh and Ninth Circuits, clearly and, to our minds, unconscionably, revolted against the clear and categorical pronouncements of Heller and, further, deliberately and wrongly failed to heed to U.S. Supreme Court precedent. In so failing to follow high Court precedent, those recalcitrant U.S. Circuit Courts of Appeal denigrated our system of laws that relies for its efficacy, efficiency, and consistency on adherence to case law precedent.At this moment it isn't clear what the Defendant, District of Columbia, will do having lost in Wrenn. There are three options. One, the District of Columbia can file its own petition for review of the case to the U.S. Supreme Court. If the District of Columbia does this, the high Court may very well decide to hear the case as Wrenn's connection to Heller--emanating as it does in the same jurisdiction--begs for a hearing if the District of Columbia dares to take the case up. Two, the District of Columbia can request an en banc review of the adverse decision. While en banc review--that is to say, a hearing of the full complement of U.S. Court of Appeals Judges of the D.C. Circuit to review the decision of the three-Judge panel--is not guaranteed, as an appellant cannot demand en banc review as a matter of right any more than a petitioner can demand that the U.S. Supreme Court accept petitioner's writ of certiorari (in fact, the high Court accepts very few cases for review), there is, we believe, albeit unfortunately, in all likelihood, more than an even chance that the decision of the three-judge panel would be reversed, since the D.C. Circuit, like the Ninth Circuit, has a deep-set aversion to the Second Amendment. Three, the District of Columbia can let the ruling of the three-Judge panel in Wrenn stand. This means the District of Columbia will become a "shall-issue" handgun carry jurisdiction. For supporters of the Second Amendment, as true Americans, faithful to the strictures of the Bill of Rights as defined by and understood by the framers, are, this last scenario is an acceptable situation. For, while the decision of the D.C. Circuit Court of Appeals does not constitute binding precedent in other jurisdictions, the decision does constitute support, that sister jurisdictions might adopt.One cautionary note to those individuals who seek to carry a handgun in the District of Columbia on the basis of the Wrenn decision: Be advised that to do so, one must still obtain a license to carry a handgun, issued by the appropriate authorities in the District of Columbia. Do not attempt to carry a handgun in the District of Columbia without first obtaining a valid District of Columbia handgun license! It is a serious offense to do so; and penalties are harsh.One last note: Assuming the decision in Wrenn is not overturned by the U.S. Court of Appeals for the District of Columbia Circuit, hearing the case en banc, in the event the full complement of Judges decides to hear the case, or, in the alternative, assuming the decision in Wrenn is not overturned by the U.S. Supreme Court, in the event the District of Columbia petitions the high Court for review of the case and the high Court accepts review of Wrenn vs. District of Columbia, 2017 U.S. App. LEXIS 13348 (D.C. Cir. July 25, 2017), that means one more United States jurisdiction is slowly, if grudgingly, commencing to comply with the rulings of Heller. That also means that we, supporters of full exercise of the right to keep and bear arms as codified in the Second Amendment, are one step closer to realization of our goal of National handgun carry reciprocity. It is time for Congress to get off its duff and act to make National handgun carry reciprocity a reality!______________________________________________Copyright © 2017 Roger J Katz (Towne Criour), Stephen L. D’Andrilli (Publius) All Rights Reserved.
KOLBE VS. HOGAN: A SECOND AMENDMENT CASE DECISION THAT IS CONTRARY TO THE RULE OF LAW
MARYLAND’S FIREARM SAFETY ACT: ATTACKING THE CORE OF THE SECOND AMENDMENT THROUGH THE VENEER OF PROMOTING PUBLIC SAFETY.
WHAT DOES THE RULE OF LAW REALLY MEAN?
KOLBE VS. HOGAN
PART NINE
Politicians love to pontificate, tirelessly, grandiosely, often meaninglessly. We hear them say that our Country is ruled by law, not by men, proclaiming, indefatigably, assiduously, pompously, but ingenuously, how important the rule of law is in a free Democratic Republic and how much importance they attach to the concept of the rule of law—that is to say, how much importance they attach to the concept of the rule of law over men as opposed to law ruled over by men.Yet, as with any overused expression—the rule of law phrase no less so than any other expression becomes trite, over worn. The phrase has been, through much misuse and overuse by politicians and political pundits and hacks, reduced to cliché with little if any real effect and efficacy behind it. It is recited with little thought and care as to its import. So, we should step back and ask what the phrase means as used in the sentence: our Country is a Nation ruled by law, not by men. What does that sentence as a proposition to live by—for the people to be governed by—really mean, were it in fact adhered to, rather than given mere lip service? It means just this: no person, regardless of position, wealth, status, or station, stands above our Constitution, our Bill of Rights, our system of laws, our jurisprudential authority. That is the intent at any rate, lofty as that intent is, and so often disregarded.We, Americans, are supposed to be governed by laws, but laws and jurisprudential standards, consistent with the dictates of our Nation’s Constitution, sublimely overseen by our Nation’s Bill of Rights. That is as the framers of our Nation’s Constitution with its preeminent Bill of Rights intended. That is as the founders of a free Republic envisioned. That is as our Nation was always supposed to be. What happened to change this?Quietly, subtly, seemingly irrevocably we are sliding into the throes of tyranny, which, by definition, means a Nation ruled by men—by the dictates of men—not by law.
HOW TYRANNY ARISES IN A FREE REPUBLIC
How may tyranny arise in a free Republic—in our free Republic?Tyranny arises in one of three ways. It arises, first, when our Legislative Branch drafts and enacts laws that subvert our Constitution or subvert our Bill of Rights. We see this, firsthand, through Congressional enactment of laws that undermine the searches and seizures clause of the Fourth Amendment and Congressional enactment of laws that whittle away at the right of the people to keep and bear arms as codified in the Second Amendment to the U.S. Constitution. We see this also when laws designed to protect the integrity of our borders are not adhered to. How often do we hear by Congressional Democrats and by Congressional Centrist Republicans that the Nation’s immigration laws are broken—a scarcely disguised phrase that means we have millions of illegal immigrants in our Nation whom—some would argue—cannot feasibly, from a pragmatic standpoint, be returned to their native Countries or that—as others may argue— ought not, from some moral imperative, be returned to their native Countries; and, so, we should amend our immigration laws to allow these illegal immigrants to remain in our Country, providing all of them with amnesty and, eventually, with de facto, if not de jure, citizenship.Yet we ought to ask, before Congress either amends our present immigration laws or repeals the laws outright and rewrites the laws in full, how is it that we have eleven or twelve million illegal immigrants in our Nation? Where did they all come from? How did they happen to be here? It is not as if eleven or twelve million immigrants surreptitiously crept across our borders overnight. They came in dribs and drabs over decades. That would suggest that our present immigration laws are not broken at all and that they never were broken. It is simply that the federal Government never adequately, zealously enforced the laws we have. Similarly, it may be convenient and useful for some to say that we have a problem with gun violence and that we should curtail civilian citizen ownership and possession of firearms. But, to account for gun violence, is the problem to be found in the millions of law-abiding civilian citizens who own and possess firearms or is it, rather, in the lack of enforcement of federal and State criminal laws that the problem of gun violence truly rests? Do we then ask of Congress that it enact further gun laws directed against the citizen civilian population? Would that really address the problem of gun violence that is the product of criminal misuse of firearms? Tyranny arises when Congress—the First Branch of Government—either fails to enforce the useful laws—those designed to preserve and strengthen our Nation’s values and traditions, and our rights and liberties—or enacts useless or bad laws—laws at odds with our values and traditions, and at odds with our sacred rights and liberties.Tyranny arises, second, when the Chief Executive of the Nation, the Second Branch of Government unilaterally undermines our Constitution and our Bill of Rights, occurring through executive edict and fiat, essentially subsuming the functions of the Legislative Branch, unconscionably into the Executive Branch. We saw this firsthand with Barack Obama’s misuse of executive directives, most glaringly, those directives weakening our immigration laws and those directives weakening the right of the people to keep and bear arms, and those directives aimed at weakening our moral codes.We would have seen this through the misuse of executive directives had Hillary Clinton assumed the Office of the U.S. President. Where a U.S. President ignores the laws enacted by Congress or where a U.S. President actively contravenes the laws of Congress, or where a U.S. President creates his or her own laws through edicts and directives adverse to the laws laid down by Congress, thereby becoming a law unto himself, this is tyranny. This means our Nation is ruled by men, not by law.In these two instances the Legislative and Executive Branches of our Government often take their orders from powerful, secretive interests, desirous of supplanting the U.S. Constitution and the Bill of Rights in the pursuit of personal nefarious interests at odds with the rule of law, at odds with the Separation of Powers Doctrine, and at odds with the rights and liberties and protections secured for the benefit of the American people under the Nation’s Bill of Rights. Thus, we would see our Country proceeding inexorably toward ruin. We would see our Country, as an independent, sovereign Nation and as a free Republic, in jeopardy.But, there is a third threat to our Nation’s continued existence as a free Republic and as an independent sovereign Nation, second to no other Nation.Tyranny arises, third, when our Judiciary--the third Branch of our Government—comprising our Federal Courts--go awry, ignoring its own case law precedent, peppering and lacing case decisions, not with the law as it exists, but with law as individual jurists would like that law to be, creating new “law” out of whole cloth—new law that undermines, rather than safeguards, our Bill of Rights—new law that supports a jurist’s personal philosophical convictions and beliefs—such personal philosophical convictions and beliefs that, taken to the extreme, disassemble our sacred rights and liberties—that, taken to the extreme, supplant our rights and liberties with artificial constructs, denigrating the very idea inherent in our legal system, namely that our Constitution, our Bill of Rights, reign supreme—second to those of no other nation, and no group of nations, and no international tribunals.The threat to our Nation—our Nation as a Free Republic, grounded in and overseen by our Bill of Rights, codifying natural law, our fundamental rights, supreme, emphatic—is most serious, most grievous, and most egregious when that threat derives from an overzealous, freewheeling Federal Judiciary, operating from a personal philosophical perspective, one at odds with the import and purport of our Nation’s Bill of Rights, one in contravention to clear case law precedent that promotes uniformity, consistency in our body of law.The threat posed by a federal judiciary that eschews case law precedent constitutes a serious breach and the most serious threat to our Nation and to the rule of law, for the federal Judiciary, as the Third Branch of our Government, as the interpreter of law, is the final bastion of “the rule of law.”If a federal judiciary forsakes its duty under the law, tyranny arises in the most devious way imaginable, for it is in the third Branch of Government—with its learned practitioners of the law—most adept at subverting the law if it so chooses—doing so secretly, within the interstices of complex terminology and argot—that the lay American public becomes hoodwinked, thinking that its rights and liberties are other than the way the public might think--less than they may have imagined--less than they really are. That is where the true subversion of the rule of law occurs.The Second Amendment case ((Kolbe vs. O’Malley, 42 F. Supp. 3d 768 (D. Md. 2014); vacated and remanded, Kolbe vs. Hogan, 813 F.3d 160 (4th Cir. 2016); rev’d en banc, Kolbe vs. Hogan, 849 F.3d 114 (4th Cir. 2017)), illustrates how far some federal courts will go to decide cases in contravention to United States Supreme Court precedent, doing so through dissimulation, through dissembling; and, in so doing, acting in league—whether conscious or not—with those unscrupulous interests in Congress and with those sanctimonious interests in the mainstream media, and with those hardened, confident, powerful, shadowy, ruthless interests behind the scene—to undermine our most sacred right—the right of the American people to keep and bear arms in their own defense, in defense of their families, and in defense of all American people— against tyranny.It is one thing for Courts to denigrate the sanctity of the Second Amendment through misapprehension of the law. It is quite another for Courts to denigrate the sanctity of the Second Amendment through deliberate misapplication of the law. Unconscious misapprehension of the law in judicial decision-making may be pardonable although its impact on the lives of Americans is harmed just the same, albeit contained. Deliberate misapplication of the law in judicial decision-making isn’t pardonable. It operates as a betrayal. That betrayal suffuses itself throughout the body of our Nation’s law, throughout the entirety of our system of law, throughout our jurisprudence, weakening the very heart of the Constitution—the Bill of Rights, negating the principle that we are a Nation ruled by law, not by men.Part Ten of the Arbalest Quarrel analysis of the disastrous Fourth Circuit Kolbe decision follows forthwith, where we begin our in-depth analysis of the lower U.S. District Court of Maryland that first decided Kolbe. We explain how the lower Federal Court contravened U.S. Supreme Court case precedent, rendering a decision wholly at odds with the holdings and reasoning of District of Columbia vs. Heller, 554 U.S. 570; 128 S. Ct. 2783; 171 L. Ed. 2d 637; 2008 U.S. LEXIS 5268 (2008).______________________________________________Copyright © 2017 Roger J Katz (Towne Criour), Stephen L. D’Andrilli (Publius) All Rights Reserved.
THE MILITIA CLAUSE IN THE SECOND AMENDMENT: IT IS, UNFORTUNATELY, STILL AT LOGGERHEADS WITH THE INDIVIDUAL RIGHT TO KEEP AND BEAR ARMS
Maryland's Firearm Safety Act: Attacking The Core Of The Second Amendment Through The Veneer Of Promoting Public Safety
KOLBE VS. HOGAN:
PART EIGHT
Those Lower Federal District Courts And Higher Federal Circuit Courts Of Appeal That Seek To Disarm Americans, Do So In Clear Denigration Of The Core Of The Second Amendment And In Clear Defiance Of The U.S. Supreme Court Decision And Reasoning In Heller.
When deconstructing the history of Kolbe, (Kolbe vs. O’Malley, 42. F. Supp. 3d 768 (D. Md. 2014); vacated and remanded, Kolbe vs. Hogan, 813 F.3d 160 (4th Cir. 2016); rev’d en banc, Kolbe vs. Hogan, 849 F.3d 114 (4th Cir. 2017)), legal commentators and laymen generally ignore the issue whether the prefatory militia clause still constrains the right of the people to keep and bear arms. They do so for an obvious reason. After all, the U.S. Supreme Court held, in District of Columbia vs. Heller, 554 U.S. 570; 128 S. Ct. 2783; 171 L. Ed. 2d 637 (2008), that the Second Amendment protects an individual right to possess a firearm unconnected with an individual’s service in a militia. Thus, one might reasonably assume that a sacred shibboleth of the antigun movement and of the antigun movement’s benefactors in Congress, in the media, in finance, and in several of the Courts, may finally be laid to rest. Yet, that isn’t true at all. Those opposed to Heller's rulings maintain the case was wrongly decided and must, at some point, be overturned. Those jurists who share the antigun establishment's sympathies thereupon render rulings as if Heller never existed. The influence of old dogma sets in and pervades judicial opinions. One, though, should not be surprised about this. After all, the Heller case was decided narrowly, sharply demarcated along liberal wing/conservative wing lines.Those Justices opposed to the Heller rulings made clear their disagreement of and, indeed, their disdain for the methodology employed by, the positions embraced by, and the legal and logical conclusions deduced from the premises accepted by the Court's majority in reaching their conclusions. For, the Heller Court majority accepted, as axiomatic, and, in the first instance, that the right of the people to keep and bear arms is a natural right, preexistent in man and not a privilege bestowed on man by the State, through Government. It is Government that is an artificial construct, not the rights and liberties, codified in the Bill of Rights. This sacred principal, that the right of the people to keep and bear arms is a natural right, preexistent in man, is consistent with the framers' belief concerning the concept of natural rights, inherent in man. Such rights and liberties, preexistent in man, forever rest beyond the power of the State, through its Government, to intrude upon and to destroy. This sacred precept, the dissenting Justices, in Heller, would not accept, could not accept, would never accept. Thus, the conclusions they reached in Heller were the opposite to, diametrically opposed to those conclusions drawn by the Court's majority. The philosophical differences dividing liberal wing and conservative wing Justices are much ingrained, and marked. Those philosophical differences manifest in the Court’s majority opinion and in the two dissenting opinions. Those differences continue to play out in the rulings and reasoning of the judges who sit on the lower U.S. District Courts and on the higher U.S. Circuit Courts of Appeal. The differences cannot be reconciled. They will never be resolved. The differences are deep set, visceral, as well as intellectual. Surely, the Justices of the U.S. Supreme Court were aware of the nature of and extent of the philosophical differences that lay between them, that informed their notions of the individual's relation to Government. They pushed back and pushed back hard against the majority opinion in Heller, written by Scalia. But the dissenting opinions in Heller, penned by Justices Stevens and Breyer, who also concurred in each other's opinions, in Heller are legally and logically weak. The reasoning of the dissenting Justices is logically faulty, often internally inconsistent, incoherent, and clearly antithetical to the framers' ideas concerning the fundamental rights and liberties of Americans.But the dissenting Justices, unlike the majority in Heller, whose conclusions follow from sound premises, cannot overcome a singular hurdle. It is a hurdle that weakens their position and ultimately makes their position untenable, ultimately reducing their argument to a reductio ad absurdum. The dissenting Justices must accept one premise that is a basic assumption of the Heller Court majority, namely that the right of the people to keep and bear arms can, at least in theory, under the dissenting Justices' thesis, be vindicated. This is critical. For, if the right of the people to keep and bear arms cannot be vindicated, then the right does not exist, and the right codified in the Second Amendment reduces the Second Amendment to a nullity as the right sits empty in the Second Amendment, as a bald face lie. Of course the dissenting Justices hold contempt for the right embodied in the Second Amendment. But, they dare not say that. They cannot say that even as inconsistencies in their position illustrate that the right codified in the Second Amendment simply cannot, under their thesis, be vindicated. It is a painful thing to see--and their contempt for the right codified in the Second Amendment lurks, like some hideous beast, just beneath the surface of their legal opinions.Justice Stevens, in the first paragraph of his dissenting opinion, joined by Justices Souter, Ginsburg and Breyer, says, “The question presented by this case is not whether the Second Amendment protects a ‘collective right’ or an ‘individual right.’ Surely it protects a right that can be enforced by individuals. But a conclusion that the Second Amendment protects an individual right does not tell us anything about the scope of that right.” District of Columbia vs. Heller, 554 U.S. at 636; 128 S. Ct. at 2822; 171 L. Ed. 2d 684. Yet, Justice Stevens lays out this odd gambit, proclaiming unconvincingly and, in fact, inconsistently, that, the individual right of the people to keep and bear arms can be vindicated, notwithstanding that the right is tied exclusively to one’s connection with and service in a militia. But, is not the right of the people to keep and bear arms, then, as argued by Justice Stevens, a collective right, after all? If so, the right cannot be an individual right. It is one or the other, not both; and it must be one or the other. But, the two are mutually exclusive. But, if the right of the people to keep and bear arms is a collective right, after all, then, how is the right ever to be vindicated? We constantly get back to the same problem with the dissenting Justice's thesis. Justice Stevens' opening paragraph does not set forth a vehicle through which he might argue, soundly, that a right exists under the Second Amendment that can be vindicated. And, the point that he puts forth in the opening paragraph of his dissenting opinion, namely, that the distinction between individual rights and collective rights is not a critical question before the Court is false.Justice Stevens attempts to conflate the concept of individual rights and collective rights, ostensibly to support the notion that the right of the people to keep and bear arms that he proclaims to be tied solely to one's connection with a militia, can be vindicated. He knows that collective rights cannot be vindicated. So, he posits that the reader can and should dispense with the individual right/collective right distinction in the context of the Second Amendment. He dismisses the importance of the distinction as irrelevant, when, in fact, it is critical to an understanding of the import and purport of the sacred right embodied in the Second Amendment. Still, he posits, up front, that the reader can and should dispense with the individual right/collective right distinction. We should not dispense with the individual right/collective right distinction, from the legal standpoint, because doing so is an affront to the framers' idea of the right of the people to keep and bear arms as a natural right, governed by natural law--that the right is not, then, man-made, and, therefore, ought not be constrained by man-made laws. And, we cannot dispense with the individual right/collective right distinction from a logical standpoint, because doing so, in the context of the import of the right of the people to keep and bear arms would, then, be incoherent. Justice Stevens presents this assertion as an assumption to be accepted, as reasonable. It isn't. It is a proposition the truth of which must be proved. He does not prove it. Justice Stevens asserts it anyway, as a given, as a naked assumption, and then proceeds on his merry way with his argument that the right to be vindicated does exist; and that the right can exist within the notion of connection with one's service in a militia--a collective right, after all, a collective right that does not and cannot exist legally, and, more importantly, a right that does not and cannot exist logically. Justice Stevens thereupon, negates, tacitly, at least, the truth of the assumption he makes, and his argument, existing as it does on that single false assumption, collapses in, on itself. But, Justice Stevens continues with his faulty logic, undeterred. After surmising that the right of the people to keep and bear arms can be vindicated in the context of an individual's connection with a militia, Justice Stevens continues with the crux of his thesis, namely that the Second Amendment's dependent clause, that he refers to as a "preamble," carries the force of the right. Justice Stevens argues that the right of the people to keep and bear arms is conditioned by, limited by the "preamble." Justice Stevens claims that the preamble is critical to an understanding of the meaning of the right established. He emphasizes the importance of the "preamble" to the Second Amendment when he should know that, in law, a preamble never carries, within it, a legally enforceable right at all. Enforceable rights do not exist in the preambles to contracts, laws, or even constitutions. Rights exists in the operative portions of contracts, laws, and constitutions. The right of the people to keep and bear arms is not conditioned by the dependent, antecedent clause of the Second Amendment. The right is contained solely in the independent, operative clause of Second Amendment. And, in that operative clause of the Second Amendment there is no qualification or condition, limiting the extent of the right. Moreover, as an embodiment of a natural law, the right of the people to keep and bear arms cannot be conditioned anyway.Nonetheless Justice Stevens emphasizes the importance of the antecedent clause, the preamble. He opines, “The preamble to the Second Amendment makes three important points. It identifies the preservation of the militia as the Amendment’s purpose; it explains that the militia is necessary to the security of a free State; and it recognizes that the militia must be ‘well regulated.’ In all three respects it is comparable to provisions in several State Declarations of Rights that were adopted roughly contemporaneously with the Declaration of Independence.” District of Columbia vs. Heller, 554 U.S. at 640-641; 128 S. Ct. at 2824-2825; 171 L. Ed. 2d 686-687. Were Justice Stevens correct—an opinion still held erroneously by many lower U.S. District Court judges and higher U.S. Circuit Court of Appeals judges as well—a question arises whether there is anything left to the right of the people to keep and bear arms that shall not be infringed. For, if the right of the people to keep and bear arms extends merely to one’s service in a militia, does not that interpretation essentially destroy the right embodied in the Amendment? It does; and, in fact, that is the point Justice Scalia was getting at in Heller when taking Justice Stevens to task, and it is a point that Justice Stevens was never able to effectively counter, try as he did.Justice Stevens was, apparently, astute enough to recognize the problem with his position. It’s a problem that transcends legal considerations. It is one that rises to the level of a logical defect in his thesis. He therefore felt compelled to respond to it, albeit he did so in a footnote. But Justice Stevens response is confusing and ultimately logically unsatisfactory.Attempting to circumvent Justice Scalia’s point, Justice Stevens asserted in his typical roundabout, fashion that, “The Court assumes—incorrectly, in my view—that even when a state militia was not called into service, Congress would have had the power to exclude individuals from enlistment in that state militia. See ante, at 600, 171 L. Ed. 2d, at 662. That assumption is not supported by the text of the Militia Clauses of the original Constitution, which confer upon Congress the power to ‘organiz[e], ar[m], and disciplin[e], the Militia,’ Art. I, § 8, cl. 16, but not the power to say who will be members of a state militia. It is also flatly inconsistent with the Second Amendment. The States' power to create their own militias provides an easy answer to the Court's complaint that the right as I have described it is empty because it merely guarantees ‘citizens' right to use a gun in an organization from which Congress has plenary authority to exclude them.’ Ante, at 600, 171 L. Ed. 2d, at 662.” District of Columbia vs. Heller, 554 U.S. at 655 fn 20; 128 S. Ct. at 2833 fn 20; 171 L. Ed. 2d 695 fn 20. Justice Stevens argues in his dissenting opinion that Congress cannot exclude one’s right to keep and bear arms. But, suppose a State should decide to exclude one’s right to keep and bear arms. What then does that make of the individual right of the people to keep and bear arms and in what manner would a person be able to vindicate that right against one’s own State? But, there is a more serious problem. For, even as to Congress, if one surmises that the right of the people to keep and bear arms is bound up in the notion of a militia, Congress may very well have plenary power to disband a State militia. In fact, it has done so, and has emphasized its power over a State’s militia even during the infancy of this Nation. That means the right of the people to keep and bear arms either exists within the context of a man-made construct--a militia--and, if so, the right, then, does not exist and never existed at all, or the right exists, quite simply, independently of, and always did exist independently of, one's connection with a militia. The right must exist, then, in the individual. A State’s militia, as an organized body of men simply no longer exists. Congress has seen to that. Congress itself has essentially destroyed the organized militia of every State through legislation in which a State’s National Guard is essentially a component of the United States Army, while the Air National Guard of a State is a component of the United States Air Force. “Today, the states’ security personnel are not militiamen, but principally are the members of local law enforcement—and the bulk of counterterrorism work will fall to them.” “The Security Constitution,” 53 UCLA L. Rev. 29, 141-142 (October 2005), by Jason Mazzone, Professor of Law, Brooklyn University Law School. Expanding upon the point, the author says, in a footnote, “In thinking about modern translations and applications of the Constitution, one error must be avoided: equating the National Guard with the old militia. The National Guard claims to be the direct descendant of the militia. See National Guard Website, History, http://www.arng.army.mil/history (last visited July 27, 2004). In fact, the National Guard originated in the early twentieth century as a part of the national military. See Act of Jan. 21, 1903 (the Dick Act), ch. 196, 32 Stat. 775 (promoting the efficiency of the militia, and for other purposes and forming the Organized Militia as the ‘State National Guard,’ in accordance with the organization of the Army, and with federal funds and army instructors); Act of June 3, 1916 (National Defense Act), ch. 134, 39 Stat. 166 (making the National Guard part of the Army). Moreover, the National Guard is nothing like the old militia. The cornerstone of the Constitution's militia was universal service (by adult white men), whereas the National Guard is an entirely voluntary corps. The militia originated as a local institution under the authority of the states, but the National Guard is, by law, part of the national military, run by, paid for, and mobilized by the national government. See Uviller & Merkel, supra note 425, at 142-43. Indeed, ‘the militia . . . was designed and supported as an alternative to the professional standing army of the central government. The modern National Guard, then, is not just different from the militia referred to in the Constitution, it is in many ways, its antithesis.’ Id. at 153-54 (concluding that there is today no functionally equivalent entity of the old militia). The militia was not only separate from the national army, it was meant to outnumber and overpower it. (Recall Madison's claim about what a half million militiamen could do to twenty-five or thirty thousand regulars. See supra text accompanying note 177.) Today, though, more than 1.4 million troops belong to the regular United States military establishment - the Army National Guard has about 360,000 members. Uviller & Merkel, supra note 425, at 143. The distinction between the old militia as an alternative to a standing army and the National Guard as the army itself is symbolized by a further difference: who takes care of the weapons. Militiamen kept their guns at home because they might need them at any moment to rise up in arms against oppression. Weapons for use by National Guardsmen are kept under lock and key in federal armories. Further, the only armed fighting Guardsmen do is at the direction of the government itself. See id. at 143-44. (Without pressing the point too far, police officers today keep and maintain their own weapons; it is also a fair assumption that to the average citizen, seeing a police officer, gun in holster, patrolling a street, is less startling than seeing a Guardsman in fatigues with an M16.) For all of these reasons, it is wrong to read the Constitution's militia provisions as referring today to the National Guard. At the same time, the federal government can, of course, deploy the National Guard - as part of the national military - for homeland security purposes.” 53 UCLA L. Rev. 29, 141-142 fn 621 (October 2005), by Jason Mazzone, Professor of Law, Brooklyn University Law School.To tie the right of the people to keep and bear arms into the notion of a "militia" or into the descendent of the militia--the National Guard, which is essentially a part of a "standing army"--the very thing the framers sought, in the codification of the right in the Second Amendment to be a guard against--turns the right into a blasphemous, ludicrous caricature. Justice Stevens must have known of the disingenuousness of his remarks in Heller. One can forgive Justice Stevens’ intellectual fallibility. But one cannot forgive, nor should one forgive, blatant hypocrisy.Eleven years prior to Heller, Justice Stevens wrote his dissenting opinion in Printz vs. United States, 521 U.S. 898, 117 S. Ct. 2365, 138 L. Ed. 2d 914 (1997). This was a case where, as in Heller, not incidentally, Justices Souter, Breyer, and Ginsburg concurred in Justice Stevens' dissenting opinion. Justice Stevens' dissenting opinion in Printz may be perceived as a precursor to his dissenting opinion in Heller, in which the Justice elaborates on his desire for a strong federal Government to thwart the excesses of the public--where excess means the existence of an armed citizenry. Justice Stevens' contempt for the Second Amendment--a contempt shared by the liberal wing of the Court that concurred in his opinion--is on full display in Printz. Again, as in Heller, Justice Stevens' twists his words, arguing, in Printz, essentially that the Federal Government must require the individual States to clamp down on an "armed citizenry." This according to Justice Stevens, in his usual twisted logic, serves as a guard against tyranny. For, if the Federal Government should, on its own, simply create a vast bureaucracy to clamp down on an armed citizenry, that would certainly lead to tyranny. But, does there exist a difference? In Printz, a case cited by the author of the aforementioned law review article, the U.S. Supreme Court—in an opinion penned by Justice Scalia, for the majority—invalidated a portion of the Brady Handgun Violence Prevention Act that prohibits the Federal Government from commandeering State Executive Officials from enforcing Federal law. Justice Stevens and the other liberal wing contingent of the high Court took exception to that. Justice Stevens argued that Congress was well within its power to compel a State's assistance in fighting “the epidemic of gun violence”—which, Stevens felt the Brady Act was enacted to combat.With his proclivity to contort ideas through verbal legerdemain, Justice Stevens argued, in Printz, that tyranny is less likely to occur in our Nation when the Federal Government can and ought to compel the States to act in its behest than were the Federal Government simply to “create vast national bureaucracies to implement its policies.” Printz vs. United States, 521 U.S. at 959, 117 S. Ct. at 2396, 138 L. Ed. 2d at 959 (1997). Extrapolating from Printz, one might reasonably argue that Stevens makes a similar case in his dissenting opinion in Heller. Tyranny, for Stevens is less likely to occur when the Federal Government can compel the States to constrain possession of firearms in the citizenry than were the Federal Government to create a vast National bureaucracy to do the job itself. But, in terms of the result, this is truly a distinction without a difference. If the militia is identified with the National Guard and the National Guard is essentially an adjunct of the United State Army and if the individual’s right to keep and bear arms is a function of one’s connection with a State militia qua a State’s National Guard, wherein is the right to keep and bear arms, existent in the individual, to be vindicated? If the threat, as Justice Stevens sees it, as evidenced in his dissenting opinion in Printz, is found in the very existence of an armed citizenry as situated apart from that armed citizenry’s connection with a State’s militia qua National Guard, as merely an adjunct of the Federal Government’s standing army, then wherein is one to envision anything left of the Second Amendment as a right to be vindicated?Does it matter whether it is the State that constrains the individual or the State that constrains the individual on behalf of and at the behest of the Federal Government, or the Federal Government that constrains the individual on its own behalf and at its own behest? Tyranny is the end result in any event, however one chooses to look at it.________________________________________________Copyright © 2017 Roger J Katz (Towne Criour), Stephen L. D’Andrilli (Publius) All Rights Reserved.
DOES THE SECOND AMENDMENT CODIFY NATURAL LAW, PREEXISTENT IN THE INDIVIDUAL, OR IS THE RIGHT OF THE PEOPLE TO KEEP AND BEAR ARMS A MAN-MADE CONSTRUCT?
Maryland's Firearm Safety Act: Attacking The Core Of The Second Amendment Through The Veneer Of Promoting Public Safety
KOLBE VS. HOGAN
PART SEVEN
The Underpinnings Of The Second Amendment Right Of The People To Keep And Bear Arms
Against the backdrop of every major Second Amendment case rests a fundamental and profound philosophical question. The question is this: does the right of the people to keep and bear arms exist as a quality, feature, attribute, aspect, condition, or characteristic intrinsic to the individual, existing, then, within the individual, or is the right to be perceived as an endowment, bestowed on the individual by others, something, then, extrinsic to the individual—existing, if at all, outside the individual? If the right of the people to keep and bear arms is extrinsic to the individual, this means the right is a human invention. It is a construct, convention, or contrivance. It is a thing created by and then granted to, licensed to, or bestowed upon the individual by another entity, say the State, through Government. But, if it is a thing bestowed upon the individual by the State, then the right does not belong to the individual. The right belongs to the State. The State may, then, at its discretion, at its whim lawfully withdraw or rescind the right so bestowed upon the people. That means the right of the people to keep and bear arms is less a right than a privilege of the people to keep and bear arms—a privilege which the State may grant, or cede, or license to an individual, for a time, and, thereafter, at the State’s pleasure, rescind or withdraw. The individual has no legal recourse to contest the privilege rescinded or withdrawn except to the extent that law set forth in statute—also a creation of the State, through the State's government, yet another man-made construct—allows.If, however, the right of the people to keep and bear arms is an inherent quintessential quality, feature, attribute, characteristic, condition or aspect of each person, existing within an person qua an autonomous individual, this means, by logical implication, the right exists outside of and independently of the State. If so, the right of the people to keep and bear arms operates as an extraordinary constraint on the State’s power, through Government to regulate and control the exercise of the right. For the right is indefeasible, immutable, archetypal, preexistent in the soul of man, and therefore resting beyond space and time. In its purest application, the right of the people to keep and bear arms is absolute. The right cannot be constrained without also restraining and constraining the sanctity and inviolability of the individual soul. The right of the people to keep and bear arms--the operative clause of the Second Amendment--is not, then, a creation of man. The Second Amendment to the U.S. Constitution is simply a codification of, and an acknowledgment of the right preexisting in the individual. It is not a thing that can, lawfully, be defeated through legislation or really destroyed by the State, through government since it was never a thing enacted through legislation or granted or licensed to the individual by grace of the State through the State's Government. To suggest otherwise is mere pretense and artifice. The right of the people to keep and bear arms as a right, preexisting in the individual, is not a novel idea. The U.S. Supreme Court made the point in 1879, as Justice Antonin Scalia reminds those jurists who may have forgotten this critically important fact or who may simply have chosen to ignore it or belittle it. Justice Scalia says, "The very text of the Second Amendment implicitly recognizes the pre-existence of the right and declares only that it 'shall not be infringed.' As we said in United States v. Cruikshank, 92 U.S. 542, 553, 23 L. Ed. 588 (1876), '[t]his is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence. The second amendment declares that it shall not be infringed. . . ." Columbia vs. Heller, 554 U.S. 570, 592; 128 S. Ct. 2783, 2797-2798; 171 L. Ed. 2d 637, 657-658 (2008). How a Court perceives the right of the people to keep and bear arms informs a Court's resolution of all Second Amendment cases that come before it. Does a Court perceive the right of the people to keep and bear arms as a primordial, preeminent right preexisting in the individual, consistent with the framers' beliefs when the framers codified the right within the Bill of Rights as the Second Amendment to the U.S. Constitution, and as recognized by the U.S. Supreme Court as early as 1879 in the Cruikshank case and as reiterated by Justice Scalia, writing for the majority, in the 2008 Heller case, or does a Court simply view the right of the people to keep and bear arms as a man-made construct or invention, no more so nor less so than any man-made statute, code, rule, regulation, or ordinance? If a Court chooses to deny, or chooses to ignore, or, if a Court simply chooses, seemingly and conveniently, to forget the import of the operative clause of the Second Amendment--the right of the people to keep and bear arms--as several United States District Courts and United States Circuit Court of Appeals are wont to do, as the United States Court of Appeals for the Fourth Circuit has done as seen in its disastrous Kolbe decision, the Second Amendment will lose its strength, its efficacy. The right, though, does not cease to exist. It cannot ever cease to exist because the right is deathless. The right exists in a person's very being. But, if a Nation fails to recognize and accede to the import of the right of the people to keep and bear arms, the right remains dormant, and a nation, any nation--but, in particular, our Nation--will loses its soul that would seek to deny to the individual his or her natural birthright. Tyranny will, then, inevitably, rear its ugly head, and if tyranny should arise, our Free Republic will surely fall, for the existence of a Free Republic is incompatible with the existence of autocracy even as government heads assert the continued existence of a republic in an attempt to assuage public consternation, public doubt, public enmity, and to quell rebellion--rebellion that would be impossible to effectuate anyway with the loss of a citizen army with the denial of one's natural right to keep and bear arms. Thus, the philosophical underpinnings of the sacred right embodied in the Second Amendment to the United States Constitution cannot be overstated. It is the hallmark of this Nation and of this Nation's regard for the autonomy, sanctity, and inviolability of the individual, as this is in accord with the framers' own core beliefs in codifying The right of the people to keep and bear arms within the Bill of Rights as the Second Amendment to the U.S. Constitution, and as, subsequently recognized by the U.S. Supreme Court in 1879 in the Cruikshank case and as reiterated by Justice Scalia, writing for the majority, in 2008, in the seminal Heller case. And it is the ultimate "fail-safe device" against tyranny. The attempt, any attempt by a Court to denigrate the right of the people to keep and bear arms is nothing less than an apostasy.Unfortunately, as we have seen, although Courts will acknowledge the seminal Second Amendment case, District of Columbia vs. Heller, 554 U.S. 570; 128 S. Ct. 2783; 171 L. Ed. 2d 637 (2008), as they must when faced with a Second Amendment issue, this acknowledgement does nothing, of itself, to restrain courts from often blatantly ignoring the rulings of that seminal case, and, in so doing, ignoring the jurisprudential principles that ought guide judicial conduct in the resolution of a case before it, and, more so, committing the cardinal sin of undercutting the sacred precepts of our Nation. The Heller case has cast the right of the people to keep and bear arms in stark relief. Lower Federal District Courts and higher Circuit Courts of Appeal can no longer hide their animus toward the Second Amendment by contending that the import of the Second Amendment has never been adequately resolved by the Courts or by academicians. The Heller case makes abundantly clear, in no uncertain terms, that the right of the people to keep and bear arms is a fundamental right and, more, a preexisting right, intrinsic to the individual, a right unconnected with one's service in a militia.The high Court has provided clear guidance for resolution of cases that involve government actions that attack the core of the right of the people to keep and bear arms. Lower federal courts that ignore the clear intent of and clear reasoning of the seminal Heller case, do so at their peril. For they can no longer hide behind obfuscating language if they choose to ignore the holdings of the case and the reasoning of the Court's majority in rendering those holdings. They can no longer claim that the meaning and purport of the right of the people to keep and bear arms is still in doubt. The Kolbe case ((Kolbe vs. O’Malley, 42. F. Supp. 3d 768 (D. Md. 2014); vacated and remanded, Kolbe vs. Hogan, 813 F.3d 160 (4th Cir. 2016); rev’d en banc, Kolbe vs. Hogan, 849 F.3d 114 (4th Cir. 2017)) is the latest in a line of poorly decided and poorly reasoned--and extremely dangerous--cases cascading through the legal system from Courts that directly and routinely and unabashedly attack the core of the right of the people to keep and bear arms. Kolbe is a case that aptly illustrates a U.S. Circuit Court of Appeal’s caustic attitude toward Heller, and, by extension, aptly illustrates the Court's disregard for application of case precedent to the Second Amendment cases before it; the Court's disregard for the sanctity of the American citizen as an autonomous individual; and the Court's refutation of the importance of adherence to the core traditions, values, and belief system as reflected in the Constitution and in the Republican form of Government that our framers created and passed down to us.The Kolbe case aptly demonstrates that, once a Court disagrees with the philosophical underpinnings of the Second Amendment—that the right of the people to keep and bear arms exists within man, and not as a thing extrinsic to man—that Court will invariably rule for the State, against the individual. It will do so in clear contravention to and in clear defiance of case precedent, as set by the U.S. Supreme Court in Heller, and will do so in ostensible contemptuous disregard of our Nation’s historical traditions and in disregard of our Nation’s substantial jurisprudential history, manipulating law to derive a result consistent only with the Court's personal flawed philosophy, remarking, in its opinion, what, in the Court's view, the Second Amendment ought to say, rather than in adhering to what the Second Amendment does say, as clarified through the rulings and reasoning of the Heller majority.
THE BILL OF RIGHTS, AS A COMPONENT OF THE U.S. CONSTITUTION, STANDS PREEMINENT; FOR THE BILL OF RIGHTS, UNLIKE THE CONSTITUTION’S ARTICLES AND SUBSEQUENT AMENDMENTS, CODIFY NATURAL LAW, NOT MAN-MADE LAW.
The framers of our Constitution accepted, as axiomatic, that a critical component part of that Constitution —the normative rights and liberties, of the Bill of Rights—are, in a critical manner, wholly unlike the main body of the Constitution. For, although the structure of Government is man-made, the rights and liberties codified in the Bill of Rights, are not man-made. The rights and liberties, set forth in the Bill of Rights are not social or political constructs, conventions, contrivances, or mechanisms. The framers knew that any Governmental form they created could, even with the best checks and balances in place, can still devolve into tyranny. The framers understood that the greatest threat to the sanctity and inviolability of each person, each American citizen—is the threat that the Federal Government might one day devolve into autocracy, into totalitarianism, into tyranny. To guard against this possibility, to offset the insinuation of tyranny, lurking behind the corner of every government formed by man, the founders of our Nation and framers of our Constitution, established, as a critical component of our Nation’s Constitution, an indelible Bill of Rights.The Bill of Rights comprises a set of primary, primordial, fundamental, natural laws that Government must adhere to lest Government devolve into tyranny. These natural laws rest well beyond the power of the Federal Government, lawfully, to destroy. Preeminent among the natural laws that constrain the possibility of a despotic Government is the Second Amendment to the U.S. Constitution.The framers understood that an armed citizenry protects the entirety of the Bill of Rights and that an armed citizenry is the single best guardian against and check on a Federal Government run amok and that an armed citizenry is the ultimate bastion against tyranny. Some jurists, though, do not appreciate the threat posed to a free Republic, in the absence of an armed citizenry. They don’t accept this. They are philosophically predisposed to regard an armed citizenry with trepidation, with suspicion; as a potential threat against public order. So, they don't accept the necessity of an armed citizenry. They do not and will not accept the emphatic command to the State, to a State's Government, to the Court itself, as a component of the State, of the Government. They do not accept, will not accept the idea that the Second Amendment is to be revered, respected, preserved, strengthened, exalted, as the framers intended. They don't accept this. But, they must. The Heller holdings and the legal and logical reasoning of the Court's majority, as penned by the late Justice Scalia, fell upon those courts, that find the Second Amendment anachronistic, like a ton of bricks. They don't like the holdings and they do not agree with the Heller majority's reasoning. So, they slither around Heller, pretending to adhere to it rather than truly complying with it, rendering decisions, antithetical to Heller, and, therefore, antithetical to the import and purport of the Second Amendment.
WHY THE HELLER CASE IS TRULY CRITICAL TO U.S. SUPREME COURT JURISPRUDENCE
The Heller case is generally cited for its principal holding: that the right of the people to keep and bear arms is an individual right, exclusive of a person’s connection with a militia. But, in dicta, the Court's majority spoke, at several points, of the “natural right” of self-defense and resistance. To the framers of our Constitution, the right of the people to keep and bear arms is not a creation of government. The right exists intrinsic to man, as natural law, not man-made law. Justice Antonin Scalia refers to the right of the people to keep and bear arms as a natural right several times in the opinion he penned for the majority of the high Court, citing to the historical writings of the Second Amendment that he reports in the Heller case. Not surprisingly, the dissenting Justices for their part, notably Justices Stevens and Breyer, who penned penned two separate dissenting opinions, do not. The dissenting Justices do not even allude to the notion of a right of the right of the people to keep and bear arms in the context of natural law and natural rights.The dissenting Justices on the high Court do not accept the facticity of the rights and liberties of man as codified in the Bill of Rights, as natural rights. These Justices—and many other judges that fill the seats on the lower U.S. District Courts and that fill the seats on the higher U.S. Circuit Courts of Appeal—do not and will not accept as axiomatic that the Bill of Rights comprises a set of indefeasible rights and liberties.The liberal wing of the high Court and the liberal jurists of the lower Federal District and higher Federal Appellate Courts take as a jurisprudential principle, that the right of the people to keep and bear arms is no less a social, political, and legal construct than any other part of the law. For such jurists, the idea that the right of the people to keep and bear arms bespeaks natural law, outside one’s service in a militia, is not only false, it is patently ridiculous. Their opinions are infused with the notion that the Bill of Rights may be lawfully violated if utilitarian demands so dictate. None of the dissenting Justices in Heller would, though, make such a remark overtly and none have done so. But, since none of the dissenting Justices accept as axiomatic that the right of the people to keep and bear arms codifies a natural right, they fail to see how discordant their position is when they proclaim that such right of the people to keep and bear arms that exists is contingent only on one’s service in a militia. For, one might reasonably ask that, if a person's right to keep and bear arms is tenable only in the event one serves in a militia, then under what circumstance or set of circumstances might an individual ever vindicate the right so violated, if such right operates only in connection with one's service in a militia? And, if the right cannot be vindicated, is the right, then, not simply nugatory?Justice Stevens, in his dissenting opinion, joined by Justices, Souter, Ginsburg and Breyer, attempts, unsuccessfully, to skirt as de minimis the question whether the Second Amendment codifies an individual right to keep and bear arms as opposed to a collective right. In the first sentence of his dissenting opinion, Justice Stevens says, “The question presented by this case is not whether the Second Amendment protects a ‘collective right’ or an ‘individual right.’ Surely it protects a right that can be enforced by individuals. But a conclusion that the Second Amendment protects an individual right does not tell us anything about the scope of that right.” District of Columbia vs. Heller, 554 U.S. at 636; 128 S. Ct. at 2822.* How is the individual right to be vindicated legally--indeed, how is the individual right to be vindicated logically--if that "individual" right is subsumed under or in connection with one's service in a militia? Is that right not, then, a mere "collective" right? But, if the right of the people to keep and bear arms is a "collective" right, how is that collective right to be vindicated? Is a collective right of the people to keep and bear arms, a right in any legal or logical sense at all?Justice Stevens undermines the import of his own remark as he directs the entirety of his argument to the thesis that the right of the people to keep and bear arms is merely and solely tied to one’s service in a militia. The scope of the right is, apparently, the issue Stevens seemingly wrestles with in his dissenting opinion because he must realize the logical flaw inherent in it. Justice Stevens attempts to respond to Justice Scalia's logical argument that, on Justice Stevens' interpretation of the right codified in the Second Amendment, there is nothing in "the scope of the individual right" left to be protected. Justice Stevens cannot and does not adequately argue that there is something left of the individual right to be protected on his peculiar interpretation of the Second Amendment, because, once Justice Stevens accepts, as a premise, that the right of the people to keep and bear arms rests principally upon the person’s service in a militia, he cannot escape the implication of that premise, namely that there exists no individual right of the people to keep and bear arms left to be protected, as he has severed the right, which exists only in the operative clause of the Second Amendment, from the prefatory clause, and, in so doing, he attempts, unsatisfactorily and unjustifiably, and, indeed, incoherently, to insinuate the right into the prefatory clause. But, there is no legal or logical, or linguistic way in which he might reasonably do this. Thus, the right of the people to keep and bear arms cannot be protected, which is to say vindicated, in any manner, because the right is contained, according to Justice Stevens, in the prefatory, dependent clause of the Second Amendment. The prefatory clause, though, has, in its very language, no operative force. It talks of no right at all. So, there is nothing in the prefatory clause that can be vindicated. Justice Scalia laid bare the problems with Justice Stevens argument. Justice Stevens, for his part, had no adequate rejoinder. Justice Scalia, writing for the majority, pointed out that, "The Second Amendment is naturally divided into two parts: its prefatory clause and its operative clause. The former does not limit the latter grammatically, but rather announces a purpose. The Amendment could be rephrased, 'Because a well regulated Militia is necessary to the security of a free State, the right of the people to keep and bear Arms shall not be infringed [citation omitted]. . . . Logic demands that there be a link between the stated purpose and the command. The Second Amendment would be nonsensical if it read, 'A well regulated Militia, being necessary to the security of a free State, the right of the people to petition for redress of grievances shall not be infringed.'" District of Columbia vs. Heller, 554 U.S. at 577; 128 S. Ct. at 2789; 171 L. Ed. 2d at 648, 649 (2008).** Moreover, if one assumes for purpose of argument that a right does exist or can be implied in the prefatory clause of the Second Amendment, that somehow carries over to the independent, operative clause, that still doesn't help to salvage Justice Stevens' argument. For, the State, through Government is, then, and, in fact, must be, the final arbiter not only of what firearms the individual may possess but whether the individual may possess any firearms at all, outside of that individual’s connection with a militia. But, if that were so, then, once it is posited that the Government has sole authority to regulate the kinds of firearms a person may possess in his or her individual capacity, or whether a person may possess any firearms at all, then, the right of the people to keep and bear arms, as a right exercised by the individual, is subject to the whim of Government. The right, then, is not a real right at all, as the "right" may very well be regulated out of existence. The right, then, is ephemeral. It simply falls away. This is the salient problem with Kolbe and those cases that, like Kolbe, accept, at least tacitly, the absolute power of Government to dictate the kinds of firearms that Americans may possess and, ultimately, whether Americans may possess any firearms at all.We continue with our exegesis of Kolbe in light of the Heller case in Part Eight of this series._________________________________________________________*Did Justice Stevens pilfer from a law review article having failed to acknowledge the source? Consider and compare the remarks in the first paragraph of Justice Stevens' dissenting opinion in Heller to the following statements that appeared in a law review article written nine years before the high Court decided Heller: "There are two relevant Second Amendment questions. The first question is whether the right belongs to the individual. Professor Yassky [David Yassky, The Sound of Silence: The Supreme Court and the Second Amendment - A Response to Professor Kopel, 18 St. Louis U. Pub. L. Rev. 189, 190 (1999) (debating scope of individual's rights under Second Amendment)] believes the question to be confused because 'all constitutional rights - even those most obviously concerned with government structure rather than individual freedom - ultimately belong to individuals in the sense that individuals can sue to vindicate them.' The proper question assumes that the Second Amendment recognizes some individual right but asks what the scope of the right is. This article argues that the scope of the individual right is limited to those circumstances in which the individual participates in a government militia." From, "The Inconvenient Militia Clause of the Second Amendment: Why the Supreme Court Declines to Resolve the Debate Over the Right to Bear Arms," 16 St. John's J.L. Comm. 41 (Winter 2002), by Robert Hardaway, Elizabeth Gormley, and Bryan Taylor. **Curiously, after Justice Stevens retired from serving on the United States Supreme Court, he attempted, apparently, as set forth in his book, published in April of 2014, titled, "Six Amendments: How and Why We Should Change the Constitution," to come to grips with if not to circumvent the problem, with his thesis as pointed out by Justice Scalia. Justice Stevens' contended, as set forth in his dissenting opinion in Heller, that a way exists through which the right of the people to keep and bear arms" may be vindicated. Justice Scalia explained that, under Justice Stevens approach, though, that, under Justice Stevens' thesis, there is no manner in which the individual right of the people to keep and bear arms can be vindicated, that, under Justice Stevens' thesis, the right is nugatory. Justice Scalia had proved that the right of the people to keep and bear arms cannot be vindicated through the prefatory clause, "A well-regulated militia being necessary to the security of a free State," because the right--on the plain meaning of the language of the Second Amendment--does not exist in the prefatory, dependent clause and cannot logically be transported into "the right of the people to keep and bear arms shall not be infringed" exists in the operative, independent clause only, for that is where the right is expressly stated.There is no logical, rational reason or basis for inserting the right of the people to keep and bear arms into the prefatory clause and tying the intrinsic right of the individual, inextricably, to that individual's connection with a militia. For, there is no mechanism for vindicating the right when the right is tied to one's connection with a militia. Thus, there is no right to be vindicated and the Second Amendment, as a codification of and assertion of a right, would be, must be nugatory. Apparently realizing this and not acceding to the idea that the right of the people to keep and bear arms is an individual right, preexisting in the individual, not connected with service in a militia--as these ideas are not philosophically acceptable to Justice Stevens--Justice Stevens suggests, in his book, that the Second Amendment should be rewritten as: "A well-regulated militia being necessary to the security of a free State, the right of the people to keep and bear arms when serving in a militia shall not be infringed." Justice Stevens apparently sees this rendition of the Second Amendment--which, by the way, does not comport with any such suggestion by any of the framers of our Constitution--as a tenable way to get around the late Justice Antonin Scalia's contention that, on Justice John Paul Stevens interpretation of the right of the people to keep and bear arms, there is nothing left of the right to be vindicated. Justice Stevens apparently believes that, in his novel rendition of the Second Amendment, the right of the individual is, now, successfully limited but still vindicated, and the Second Amendment is not, then, nugatory as he has now tied the right of the people to keep and bear arms specifically, linguistically, indisputably, to a person's connection with a militia. The right is duly limited but expressly stated in the operative clause. But, there is still a problem, and it is a problem quite apart from the fact that Justice Steven's reworking of the Second Amendment fails to comport with any view of the import of the Second Amendment as set forth by any of the framers of the U.S. Constitution, and it is a problem that cannot be surmounted through the rewriting of the Second Amendment, which, is, by any account, an extremely drastic way to respond to the fatal flaw in his argument. For, even accepting, on logical grounds, that there is something to be made of Justice Stevens' redraft of the Second Amendment as a way to avoid the flaws in his position, as he has set forth that position in his dissenting opinion in Heller, the question arises how a group right, that is to say, a collective right, is to be vindicated. Justice Scalia had remarked on this point as well, in pointing to another flaw in Justice Stevens' position, that Justice Scalia referenced in the majority opinion he penned, in Heller. How, one might ask, might one petition the Courts for vindication of a right purportedly tied to one's service in a militia? Moreover, suppose the militia, "necessary to the security of a free State" though it be, as set forth in the prefatory clause, ceases to exist. Wherein is the right, that one may exercise, be vindicated if there is no right left to be exercised? What, really, is there left of the right? One may ask: was there ever truly a right that might be vindicated at all? As Justice Scalia pointed out, the necessity for the armed citizen lay not in the existence of the militia but in the force of arms of the citizenry that the citizenry brought to the militia and that made a militia possible. Justice Scalia, writing for the majority said, ". . . the threat that the new Federal Government would destroy the citizens' militia by taking away their arms was the reason that right--unlike some other English rights--was codified in a written Constitution." District of Columbia vs. Heller, 554 U.S. at 599; 128 S. Ct. at 2801; 171 L. Ed. 2d at 662 (2008). It is the right of the people to keep and bear arms, that is to say, in the individual ownership of and possession of firearms, in and of itself, that is critical to the exercise of and vindication of the right, a right unconnected to service in a militia or in connection with any other man-made creation; and in that exercise of the right intrinsic to, immutable, indestructible, preexisting in each person, where each person is perceived as an autonomous individual, whose individuality must remain sacred and inviolate, would the security of a free State be preserved. An armed citizenry resides in what remains, today, of the true militia, namely, the unorganized militia, and that unorganized militia is not equivalent to or equated with, nor is it to be considered equivalent to or equated with the "organized militia," namely, the National Guard of each individual State that exists as a reserve military arm of and for the Federal Government, as dictated by Federal Statute.Better it would have been for Justice Stevens to accept that his thesis regarding the Second Amendment is wrong and that Justice Scalia is correct and that Justice Scalia was correct all along. But, Justice Stevens doesn't accept the plain meaning of the Second Amendment; he refuses to do so on a deep, visceral level. Justice Stevens absolutely refuses to accept the plain meaning of the Second Amendment as set forth in the Constitution, and in refusing to accept the plain meaning of the Second Amendment, Justice Stevens is taking exception with and contending with the deeply held beliefs of the framers of our Constitution. So, Justice Stevens is compelled to hold onto the legally deficient, logically unsound, and ethically dubious notion of an individual right of the people to keep and bear arms that happens to be tied to and exercised only by one's service in or connection with a militia.In point of fact, though, the "organized militia," as such no longer exists. It has been subsumed into and, more accurately, replaced by the "National Guard," which has become a reserve component of the federal Government, subject to federal control. This might not bother Justice Stevens although it might be of concern to others. Justice Stevens seems to be more concerned with the logical coherency and consistency of his position, as well he should be, that requires that a right exercised by an individual must, in a logical sense, to be considered a true right at all be capable of vindication if violated. Justice Stevens seems less concerned over the practical application of the right that is to be vindicated, though, which, consistent with his thesis, is a contingent matter, after all, contingent on the existence of a militia. If there exists no militia, then, apparently, the failure of the condition precedent does not negatively impact the fact that a right may, at least, logically, if not empirically, that is to say, factually, be vindicated. In other words, the right to be exercised, albeit, one tied to the militia, under Justice Stevens' thesis, does always exist. For, Justice Stevens does, after all, in his redraft of the Second Amendment, retain the words, "shall not be infringed." So, if the militia exists, then the right may, Justice Stevens would argue, be vindicated. If the militia does not exist, the right, although it still exists, cannot be exercised and cannot be vindicated. The success or failure of a right to be vindicated is a function of the existence of the militia. But, then, what does it mean to say the right, supposedly, always exists? This is a tortuous attempt at legal and logical manipulation of concepts to give credence to an idea that Justice Stevens, doesn't even truly accept--that the right of the people to keep and bear arms {a right that shall not be infringed by anyone or any entity} if such right truly exists, beyond the power of the State to lawfully destroy, must be a right preexistent, immutable, indestructible, and absolutely capable of exercise in all instances, for all time, beyond the possibility of any conceivable contingency that might serve to make the right impossible of exercise (as for example the nonexistence of a militia). Thus, merely tacking on this or that phrase to a proposition, in a dubious attempt to erode an indestructible right and in an attempt to overcome an insurmountable, logical flaw that exists in his argument, the retired Justice, John Paul Stevens cannot successfully sidestep the problem inherent in Justice Stevens' thesis that the late Justice Antonin Scalia had perceptively pointed to in Heller. Anyway, the proposed redraft of the Second Amendment, insufferable and ludicrous as that proposed redraft is, appears, then, to be, in part, at least, Justice Stevens belated answer to the late Justice Antonin Scalia's sharp attack on the weaknesses of Justice Stevens' argument as evinced in Justice Stevens' dissenting opinion in Heller.________________________________________________________Copyright © 2017 Roger J Katz (Towne Criour), Stephen L. D’Andrilli (Publius) All Rights Reserved.
RATIONALIZING AWAY THE RIGHT OF THE PEOPLE TO KEEP AND BEAR ARMS: THE LENGTHS SOME COURTS WILL GO "TO DISARM" HELLER
Maryland's Firearm Safety Act: Attacking The Core Of The Second Amendment Through The Veneer Of Promoting Public Safety.
KOLBE VS. HOGAN:
PART SIX
Kolbe Is Not Merely An Example Of A Poorly Decided Case; It Is Illustrative Of The Way In Which Courts, Antithetical To The Second Amendment Right Of The People To Keep And Bear Arms, Use Legal Argot To Disguise Their Contempt For And, Indeed, Abhorrence Of Our Sacred Right And Their Disdain For The Heller Court Rulings.
To understand the Kolbe case*—to truly understand its diabolical import—it is incumbent to delve into the intricacies and nuances of the seminal 2008 U.S. Supreme Court case, District of Columbia vs. Heller, 554 U.S. 570; 128 S. Ct. 2783; 171 L. Ed. 2d 637 (2008). It is difficult to appreciate the lengths to which some federal courts will go to undermine the right of the people to keep and bear arms as codified in the Second Amendment to the U.S. Constitution; and it is difficult to appreciate just how horrific the decision in Kolbe is—certainly to those who take seriously the right of the people to keep and bear arms—without considering the thought that went into the Heller decision, as penned by the late Justice Antonin Scalia, writing for the Majority of the high Court.Heller is the most important Second Amendment case to come out of the U.S. Supreme Court since the 1939 case, U.S. vs. Miller, 307 U.S. 174; 59 S. Ct. 816; 83 L. Ed. 1206 (1939). The high Court in Heller has, for the first time in the Court’s history, enunciated and elucidated several critical precepts that constitute the impetus for the Framers' inclusion of the Amendment in the Bill of Rights. The import of the Heller case rulings and reasoning of the Court's Majority can be reasonably perceived as the purest, clearest recognition by the high Court, to date, of the Framers' expression of the inviolability of and sanctity of the individual, within the Nation State. This is seen in the individual's position of and status, in this Nation State, as the armed citizen. The armed citizen stands above the Federal Government. The armed citizen stands as the guarantor of and guardian of a Free Republic. The armed citizen stands as the resolute and absolute check against tyranny. These points frighten those that espouse a collectivist society, operated by powerful interests that lurk unseen in the interstices of Government and in the World at large. It is not the criminal element that is feared by these collectivists. It isn't the occasional lunatic that is feared by these collectivists. It isn't even Islamic terrorists that is feared by these collectivists. No! It is the armed citizen that these collectivists fear; and they use, for propaganda purposes, the criminal psychopath, the lunatic, and the rapacious Islamist terrorist as a rationale for disarming the average, rational law-abiding, American citizen--the one element that, alone, can prevent the collapse of a Free Republic and the shredding of the U.S. Constitution. For, it is the end of our Free Republic and the erasing of the U.S. Constitution and of our sacred Bill of Rights that is the endgame for these silent, secretive, seductive, seditious collectivists. The Second Amendment and the Heller case stand, like a massive, impenetrable, concrete wall in their way.The following ten precepts follow from the rulings of District of Columbia vs. Heller, 554 U.S. 570; 128 S. Ct. 2783; 171 L. Ed. 2d 637 (2008):First, the right of the people to keep and bear arms is a natural right, preexistent in the people. Second, since the right of the people to keep and bear arms is a natural right, preexistent in the people, the right is not to be considered man-made; the right is not, then, a creature of Statute, created by government. Third, since the right of the people to keep and bear arms is not a right created by government, the right cannot be lawfully taken away from the people by government. Fourth, the Second Amendment exists merely as a codification of the right of the people to keep and bear arms. That means the right doesn’t flow from or spring into existence due to its presence in the U.S. Constitution as the Second Amendment. Rather, the Second Amendment exemplifies—is a literal token for—the intangible, indestructible right that preexists in the people. Fifth, the right of the People to keep and bear arms is an individual right, unconnected to one’s service in a militia. Sixth, the dependent clause, “a well-regulated militia being necessary to the security of a free State” does not function as a limitation on the right of the people to keep and bear arms. The words, “a well-regulated militia being necessary to the security of a free State,” functions merely as a rationale for the codification of the right in the Constitution. The prefatory, dependent clause is not the operative clause and must not be taken as such. For, it is not the militia that has the right to keep and bear arms and it is not one’s service in a militia that serves as a basis upon which the right, if any, to keep and bear arms, exists; for, once again, the right to keep and bear arms preexists in the people. Seventh, the 'people' refers to each individual American. The term, as utilized in the Second Amendment is not referring to 'people' in a collective or group sense. Eighth, to minimize the operative clause, “the right of the people to keep and bear arms,” in relation to the prefatory clause, “a well-regulated militia being necessary to the security of a free State—not only denigrates the right inherent in the people, but destroys any notion that the right of the people to keep and bear arms exists inherently, primordially, intrinsically, in the individual. Ninth, the right of the people to keep and bear arms is not a social construct, but exists within the essence of man. Tenth, the right of the people to keep and bear arms exists immutably, independently in the individual self, completely apart from all social, political, or legal systems. The Court’s Majority in Heller accepts these precepts. The dissenting Minority Justices did not, and do not, and to date—along with like-minded Federal Appellate and District Courts, and like-minded antigun groups and like-minded mainstream media publishers, editors, and journalists, and like-minded legislators at the local, State and federal levels—the distaste for the Heller rulings, among those who have no regard for the Second Amendment, remains strong, virulent.Local and State governments that draft codes, regulations, and Statutes in denigration of the plain, explicit meaning of the Second Amendment, do so at their peril for they are operating in clear defiance of our Constitution; they are demonstrating ignorance of the Framers’ intentions; they are exhibiting disdain for the rulings of the U.S. Supreme Court in Heller; and, therewith, they do show an abject lack of concern for the rights and liberties of the American people.Worse, yet, lower federal District Courts and higher federal Appellate Courts that dare to uphold rather than strike down unconstitutional laws that collide with the right codified in the Second Amendment show their disdain for legal precedent when they opine injudiciously and deprecatingly the inscrutability of Heller and try, ignominiously and duplicitously, to distinguish Heller from the case before them, thereby forsaking all sound judgment and jurisprudential consideration to obtain a ruling that meets with their personal feelings of what the law pertaining to fundamental rights ought to be, rather than what the law is.The Heller case is notable for dispelling—decidedly, decisively completely—any lingering doubt that antigun groups and like-minded Courts, and the mainstream media might have that the Second Amendment bestows, upon Americans, a collective right to bear arms only—a right to bear arms connected with one’s service in a State militia and nothing more. Thus, local and State governments hell-bent on curbing the Second Amendment and Courts of competent jurisdiction that are called upon to give their imprimatur on Statutes and codes and regulations that are inconsistent with the Second Amendment and inconsistent with U.S. Supreme Court precedent are caught in a vise. So, how do they proceed?These renegade State governments and their fellow travelers in the federal Court system operate as if the Heller rulings don’t exist. The Governments continue to draft and to enact draconian gun laws, inconsistent with and detrimental to the meaning and purport of the Second Amendment, while lower federal courts and the higher federal Appellate Courts, working in lockstep with these renegade governments defy U.S. Supreme Court precedent, rather than render decisions in deference to it, albeit no doubt, concerned that their decisions will be overturned—as well they should—by the U.S. Supreme Court if the high Court accepts the case for hearing.Of course, the hope of those who oppose the Heller decision and who seek to chisel away at the imposing immutability of the right of the people to keep and bear arms has been dashed. Opponents of the Heller decision had expected, but failed, to place on the high Court, Judge Merrick Garland who had sat, and now, once again sits, on the U.S. Court of Appeals for the D.C. Circuit. Judge Garland is an intractable foe of the fundamental right of the people to keep and bear arms—Americans’ most sacred right. The reaction of those in the Government bureaucracy, and those in the Courts, and those in Congress, and those in the mainstream media that seek de facto repeal of the Second Amendment through the overturning of Heller, is palpable, visceral—more so now that a Judge, nominated by U.S. President Donald Trump, and confirmed by the United States Senate, and who respects U.S. Supreme Court precedent, sits on the high Court, Justice Neil Gorsuch.Now that Justice Neil Gorsuch has taken his seat on the United States Supreme Court, Americans have a man who will give due regard to the rulings in Heller—rulings that Judge Merrick Garland, were he to sit on the high Court instead, would, with the other liberal wing Justices, most certainly, shred. There's no doubt about that. With Justice Neil Gorsuch on the high Court, however, the legacy of the late Justice Antonin Scalia, as ardent defender of Americans’ fundamental right to keep and bear arms as codified in the Second Amendment, should remain secure. But, no one individual can ever guarantee that our Bill of Rights will remain secure. Federal Court cases such as the Kolbe case illustrate that lower Federal District Courts and higher U.S. Circuit Courts of Appeal that disagree with the Heller Majority’s legal and logical reasoning, jurisprudential methodology and philosophy, and the Majority’s precedential holdings, will slither around the clear, precise, emphatic instructions of the Heller Court to uphold draconian gun laws that strike at the core, the essence, of the Second Amendment right--laws that, are, then, like Maryland's Firearm Safety Act, per se unconstitutional.
THE DISSENTING JUSTICES DISAGREEMENT WITH THE MAJORITY’S RULINGS IN HELLER IS NOT PREDICATED ON FINE POINTS OF LAW BUT RESTS ON PROFOUND PHILOSOPHICAL DIFFERENCES CONCERNING WHERE THE FOUNTAIN OF RIGHTS AND LIBERTIES OF MAN DRAW THEIR STRENGTH, THEIR VERY EXISTENCE: WHETHER FROM MAN-MADE SOCIAL CONSTRUCTS, AS THOSE DISSENTING JUSTICES BELIEVE, OR FROM RIGHTS AND LIBERTIES PREEXISTENT IN MAN THAT THEREFORE TRANSCEND ALL SOCIAL, POLITICAL, AND LEGAL CONSTRUCTS, AS THE MAJORITY OF THE HELLER COURT BELIEVES.
The dissenting Justices disagreed strenuously, mightily with the Majority’s reasoning, conclusions, and decisions in Heller. This disagreement between the liberal wing of the high Court and the Court’s conservative wing bespeaks more than a mere difference in approach to legal decision-making. No! The disputation is more profound and sublime. Disputation extends to the essence of a Jurist’s being. Writing for the Majority, Justice Scalia refers several times to the right of the people to keep and bear arms as a “natural right.” Reference to the phrase, “natural right” is not to be dismissed as affectation. Justice Antonin Scalia would have none of that. Every word the late Justice had penned has clear, precise, and critical meaning. The right of the people to keep and bear arms, as a natural right, means that the right exists inherently in man. The right of the American people to keep and bear arms is not a creation of man. It is not a creature of Statute. It is not to be deigned merely a social construct as a thing devoid of clear, irrefutable, power. No! The right to keep and bear arms exists over and above the Constitution itself. The right of the people to keep and bear arms stems from the Divine. The Right needs no proof. It needs no clarification. It needs no justification.The Bill of Rights as constituted in—as an imposing component of the United States Constitution —acknowledges through the codification of the right of the people to keep and bear arms—the preeminence of the right that existed prior to the creation of the Country, as an independent, preeminent and Sovereign Nation. But the right of the people to keep and bear arms is not forsaken with the creation of the Nation State, nor is the right discounted or reduced in some sense through the creation of the Nation State. Rather, the Nation exalts the right, and, in so doing exalts the individual to be and remain individual.The right of the people to keep and bear arms is not and cannot be limited or constrained. Any attempt to do so by government operates as a betrayal of the relationship of individual to State. For this Nation State has, itself, limited powers. The People do not. Thus, it is that the Federal Government, through which the Nation State operates, obtains its power and authority by grace of the People. The People created the Government of the United States and it is within the power and right and duty of the American people to dismantle that Government if it devolves to tyranny. The Heller decision has, then, far-reaching implications, as the right of the people to keep and bear arms, preexistent in the people—and therefore existing in the people prior to the creation of the Constitution—reiterates the Framers’ intention that the Nation is the servant of the people, and not that the people are servants—merely subjects—of the State.Thus, Justice Scalia takes strong exception to Justice Stevens’ remark, set forth in Justice Stevens’ dissenting opinion in District of Columbia vs. Heller, 554 U.S. at 678, 679; 128 S. Ct. at 2845, that the Majority’s opinion, somehow rests for support merely upon Second Amendment “drafting history.” Justice Scalia makes short work of that, saying: “Justice Stevens relies on the drafting history of the Second Amendment—the various proposals in the state conventions and the debates in Congress. It is dubious to rely on such history to interpret a text that was widely understood to codify a pre-existing right, rather than to fashion a new one.” District of Columbia vs. Heller, 554 U.S. at 603; 128 S. Ct. at 2804. Not surprisingly, none of the dissenting Justices—not one—accepts as axiomatic, as self-evident, that the right of the people to keep and bear arms is intrinsic to the very being of an American. Drafting history—however language of the Second Amendment is ultimately formulated, as Justice Scalia makes clear, does no more than to codify the right—the natural right of the people to keep and bear arms.A codification of a preexistent right is not equivalent to and, by logical implication, it is not instrumental in creating the right. Justice Scalia makes plain that the Second Amendment merely codifies a preexisting right; that the Framers’ did not create the right and did not importunately, intend to create rights. There is nothing in any of the various gyrations that the written Amendment went through to so much as suggest that the right of the people to keep and bear arms is to be construed as a right the framers had created for the American people. Such an idea would have been ridiculous to them and the suggestion would probably have been abhorrent to them, as well.
THE DISSENTING JUSTICES, IN HELLER, EITHER HAVE NO CONCEPTION OF THE FRAMERS’ BELIEF IN THE NOTION OF NATURAL RIGHTS AND LIBERTIES THAT EXIST IN MEN OR THEY DON’T CARE, PREFERRING INSTEAD TO READ OUR BILL OF RIGHTS IN RELATION TO THE CONSTITUTIONS AND BELIEF SYSTEMS OF OTHER COUNTRIES AS SUCH CONSTITUTIONS EXIST AT THE PRESENT TIME—TOGETHER WITH NOTIONS ANTITHETICAL TO THE VERY CONCEPT OF NATURAL RIGHTS AND LIBERTIES.
Justices Stevens and Breyer and the other Justices who dissented in the Heller case refuse to accept the Second Amendment as anything more or other than a creation of man. This is clear from their exposition. Thus, Justices Stevens and Breyer and the other dissenting Justices consider the right of the people to keep and bear arms as nothing more or other than a mere social construct. It isn’t remarkable, then, that the dissenting Justices would argue that the right of the people to keep and bear arms is tied merely to service in a militia; but, in so tying the right to the militia, the dissenting Justices do more than merely set forth a misguided interpretation of the Framers’ belief in the truth and sanctity of a natural right of the people to keep and bear arms, these Justices essentially eviscerate the right—a critical point that Justice Scalia, looking at the writings of a professor, judge, and Civil War commentator, Thomas Cooley, aptly propounds. See District of Columbia vs. Heller, 554 U.S. at 617; 128 S. Ct. at 2812.The point made—that the dissenting Justices’ position, tying the right of the people to keep and bear arms singularly to service in a militia, functions, logically, to destroy the right—is one that cannot be overemphasized. For it is not a minor point. It is one critical to understanding the logical impasse that exists between the liberal wing of the high Court and the conservative wing. For, differences in viewpoint commence and proceed on a very basic level. The differences in viewpoint suffuse and percolate through the reasoning of each of the two wings of the high Court and manifest as an irrefutable and irreconcilable conflict among the Justices on a level transcending mere disagreement about the law. The import of the Second Amendment as the dissenting Justices view it and as the high Court’s Majority view it may be likened to a chasm that cannot be bridged. The differences are deep-seated, intractable, grounded in unshakeable convictions of philosophical and ethical dimensions. They reflect distinctive notions concerning the relation of individual to State. The one accepting as axiomatic that rights and liberties are government constructs and, as such, those rights and liberties can be lawfully amended, disregarded, or erased altogether. The other accepting as self-evident that rights and liberties are indelibly imprinted in the individual—existing beyond space and time—part of the soul of the individual, critical to a person’s essence, and beyond a government’s lawful ability to change, disregard or eliminate.We continue with our exposition of Kolbe and the importance of Heller in Second Amendment case decisions in Part Seven of this series.________________________*Case History: Kolbe vs. O’Malley, 42. F. Supp. 3d 768 (D. Md. 2014); vacated and remanded, Kolbe vs. Hogan, 813 F.3d 160 (4th Cir. 2016); rev’d en banc, Kolbe vs. Hogan, 849 F.3d 114 (4th Cir. 2017)________________________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.
KOLBE VS. HOGAN: KILLING THE SECOND AMENDMENT
“Bubble Guns" In The Fourth Circuit Take Pot Shots At Heller In The Circuit's Poorly Reasoned Opinion
PART ONE
THE KOLBE CASE: INTRODUCTION
On February 21, 2017, antigun establishment judges of the U.S. Court of Appeals for the Fourth Circuit decided a case—one directly and negatively impacting the Second Amendment right of the people to keep and bear arms. The case, Kolbe vs. Hogan, 813 F.3d 160 (4th Cir. 2016, rev'd, Kolbe vs. Hogan ____ F.3d ____ (4th Cir. 2017) (en banc), 2017 U.S. App. LEXIS 2930, is the latest in a slew of badly decided and badly reasoned cases coming down the pike since the late Justice Antonin Scalia penned the majority opinion in the seminal Second Amendment U.S. Supreme Court case, District of Columbia vs. Heller, 554 U.S. 570, 128 S. Ct. 2783 (2008). What we are seeing are U.S. Circuit Court of Appeals openly defying the clear import and purport of Heller. We are seeing U.S. Circuit Courts of Appeal—the Second, Fourth, and Seventh U.S. Circuit Courts of Appeal—operating in open revolt to the U.S. Supreme Court on Second Amendment cases.The high Court, in Heller, made abundantly clear that the right of the people to keep and bear arms is an individual right—a right unconnected to a person’s connection with a militia. Two years later, question arose whether the Heller decision applies to the States. The U.S. Supreme Court, Justice Samuel Alito writing for the majority in the case McDonald vs. City of Chicago, 561 U.S. 742, 130 S. Ct. 3020 (2010), held that the individual right to keep and bear arms applies to the States no less so than to the federal government. The U.S. Court of Appeals for the Fourth Circuit obviously has clear disdain for the Second Amendment to the U.S. Constitution, and, concomitantly, disaffection for the Heller and McDonald cases that provide a firm foundation for the Second Amendment’s preservation and provide welcome relief to those Americans who wish to exercise their right under it.
WHERE TO BEGIN?
Where do we begin on our analysis of the atrocious decision of the Fourth Circuit in Kolbe. The import of this awful decision rests, first, upon the majority’s disregard for the precedential holdings of Heller and McDonald. The majority shreds the legal principle of stare decisis, which requires courts to uphold prior decisions lest the foundation of our system of case law fall apart. The import of this absurd decision rests, second, on the Court’s clear contempt for the explicit fundamental right of the people to keep and bear arms, codified in the Second Amendment to the U.S. Constitution. And, this atrocious decision rests, third, on the majority’s clear rebuke of U.S. Supreme Court Justice Scalia’s legacy.
WHY IS THE KOLBE CASE, IN PARTICULAR, CRITICAL TO THOSE WHO WISH TO SAFEGUARD THE RIGHT OF THE PEOPLE TO KEEP AND BEAR ARMS UNDER THE SECOND AMENDMENT?
Since 2008, when the Heller decision became the Law of the Land, there have been several cases wending their way up through the various Circuit Courts that have dealt directly or tangentially, and disparagingly, with the Second Amendment. What makes the Kolbe case so important to those Americans who hold dear the Second Amendment to the U.S. Constitution is that the decision openly defies Heller.One, the Kolbe decision amounts to a direct, frontal assault against the right of the people to keep and bear arms. Two, the decision is a disrespectful and unrestrained attack on the methodology that Scalia employed when the Justice wrote his opinion for the majority in Heller. Now, the Fourth Circuit, writing its damning opinion in Kolbe, won’t admit its denigration of the Second Amendment and, by extension, its disrespectful attitude toward Justice Scalia. After all, the decisions of the high Court are the Supreme Law of the Land, and lower courts, State and federal, are legally bound to respect and to apply rulings, holdings, and reasoning of the high Court.
HOW DO LOWER COURTS UNDERMINE RULINGS AND HOLDINGS OF U.S. SUPREME COURT CASES THEY DO NOT LIKE?
If a lower court doesn’t like a holding of the U.S. Supreme Court, it has weapons in its arsenal. Lower courts use these weapons against a U.S. Supreme Court holding if, one, the lower court disagrees with the decision of the high Court, and, two, if a lower court disagrees with the philosophy of law underlying the ruling of the high Court, and, three, if a lower court disagrees with the legal and logical methodology employed in support of the high Court’s ruling in a case.One technique a lower court uses to undercut a high Court ruling is to argue a distinction in fact patterns. We see this in Kolbe. Of course, a reputable* court would attempt to discern similarities in the facts of a case before it, before the court goes hither and yon, denying obvious similarity in fact patterns. A lower court should give maximum effect to a ruling of the U.S. Supreme Court but may feel less compelled to do so if it can, plausibly, demonstrate a distinction in fact patterns between the facts as presented in a case before the high Court and the facts as presented in a case being heard in a lower court.The U.S. Court of Appeals for the Fourth Circuit, in Kolbe opined that the facts of the Heller case are wholly unlike those in Kolbe. The Court is wrong.Why do we say that the Fourth Circuit is wrong? First, the critical facts in Kolbe are in several critical ways, identical to those in Heller. A couple of Plaintiffs in Kolbe, as with the Plaintiffs in Heller, are individuals who are under no disability. They are average law-abiding, rational, sensible, sane American citizens whose right to own and possess firearms is undeniable. Second, the D.C. Government in Heller, and the Maryland State Government in Kolbe, both enacted laws to ban outright an entire category of firearms that American citizens traditionally and commonly employ for self-defense. In our analysis of the Kolbe case, to follow, we will demonstrate how the U.S. Court of Appeals for the Fourth Circuit attempts to skirt clear U.S. Supreme Court precedent to ignore and undercut Heller and, in so doing, allows stand a restrictive Maryland firearms law that is unconstitutional and inconsistent with the Heller decision. The sad result is that average, law-abiding, sane American citizens who seek to own and possess firearms they had traditionally owned and possessed for decades, can no longer do so. Thus, notwithstanding that the gun ban enacted in Maryland applied originally only to residents of the State of Maryland and to those passing through the State, the Fourth Circuit decision directly impacts the right of American citizens in the five States that comprise the Fourth Circuit: North and South Carolina, Virginia and West Virginia, and Maryland. All individuals of these five States are now denied their right to keep and bear arms, guaranteed under the Second Amendment because they are denied their right to keep and bear an entire category of firearms they had traditionally owned—firearms that the American public commonly owns and possesses for self-defense.Second, lower courts that harbor a strong disdain for the ruling in Heller and who thereby harbor a disdain for the Second Amendment to the U.S. Constitution, misconstrue—whether deliberately and callously or, if not deliberately and callously, then certainly carelessly and recklessly—the reasoning of the high Court. The lower court substitutes for the high Court’s reasoning, its own flawed reasoning—reasoning, that lends support to a conclusion the lower court seeks, rather than to the conclusion the high Court requires that the lower court reach.In Kolbe, the Fourth Circuit applied a standard of review that the majority in Heller, and, in particular, Justice Scalia, who wrote the opinion, had rejected outright. We explain this in detail when we proceed with a comprehensive case analysis of Kolbe.Third, lower courts that harbor a strong dislike for the Second Amendment and who attempt to meander around the clear and cogent reasoning, rulings, and holdings of the high Court often, in our estimate, consider matters wholly outside the purview of the law, namely political matters. If so, this clouds judicial judgment, as application of the law to the facts of the case is colored by personal biases and feelings rather than by reasoned, seasoned, Judicial thought. In the process, judicial neutrality and integrity is lost as partiality enters into judicial decision-making. Thus, the rule of law is denied one or the other party to a lawsuit.As we proceed with our analysis, we make abundantly clear the extent to which the U.S. Court of Appeals for the Fourth Circuit considers matters, it appears to us, outside of legal constraints—matters that have no legitimate, legal, or, for that matter, logical connection to or bearing on how this Second Amendment case ought to be decided.The dreadful decision in Kolbe, also operates as a warning to the U.S. Senate Judiciary Committee. The Committee better get cracking on holding a confirmation hearing of the President’s nominee, Neil Gorsuch to the U.S. Supreme Court. It must do so because the Kolbe case must not stand unchallenged. The antigun forces have slowly chiseled away at Heller through other poorly reasoned and decided cases. But, Kolbe is most dire because this decision, more so than other Second Amendment cases coming down since Heller and McDonald, constitutes a direct assault on U.S. Supreme Court precedent, and, if allowed to stand, unchallenged, severely weakens the Second Amendment and will undoubtedly embolden other antigun federal Circuit Courts that wish to chisel away at Heller.Make no mistake, Plaintiffs in Kolbe vs. Hogan will take this case to the U.S. Supreme Court. They must, for the decision here is antithetical with the holdings set forth and reasoning evinced in the seminal Heller and McDonald cases.With Gorsuch on the high Court, the Justices will likely vote to hear this case. The Justices must hear this case. The case must be overturned, lest the legal precedents of Heller and McDonald be continually ignored by State Governments.What is Kolbe vs. Hogan really all about and why are the issues presented in it critical to the safeguarding of our Bill of Rights? We explain in Part 2 of this series.______________________________________*CLARIFICATION AND QUALIFICATION: The Fourth Circuit Courts, as with Courts of any other federal Circuit, are Courts of competent jurisdiction and, therefore, is competent to rule on the legal and factual issues that come before it. The authors of this article do not intend to assert expressly or impliedly that the Fourth Circuit Courts or that the Courts of any other Federal Circuit are not competent to rule on the cases that come before them. The term, 'reputable,' is not and was not used here to impugn the honor of Fourth Circuit Courts and is not and was not directed to impugn the honor of any other federal Court. While we disagree vehemently with the decision and reasoning of the majority in the Kolbe case, we do admit that use of a term that would suggest that a Court might act dishonorably was wrong on our part, and for that we admit error and apologize for even suggesting the casting of aspersion on any Court. That said, we believe, as we will illustrate through a comprehensive analysis of the Kolbe decision and, eventually, in an analysis of similar decisions of various sister Courts--that political and ideological considerations pepper the reasoning and conclusions of many Courts as they wrestle with the core of the Second Amendment. The fact of the matter is, and we take this to be axiomatic, that every individual--whether judge, attorney, or layman--has a political philosophy, and it is clear to us that political philosophies are interjected into judicial opinions. We firmly believe, as we will show, in this multi article series, that legal precedent, which should be adhered to, often is not. Yet, if a Court wishes to overturn precedent, it should say so. Obviously, only the U.S. Supreme Court can legally overturn its own decisions. Lower Courts, State and Federal, must adhere to legal precedent set by the U.S. Supreme Court. We feel that the Fourth Circuit, in Kolbe, and certain decisions handed down by federal Courts in other Circuits, most prominently, in the Second, Third, Seventh, and Ninth Circuits, as well as the Fourth, have not abided by the holdings and reasoning of Heller and that this can only, and ultimately, be attributed to the insinuation of political philosophy into decision making--as much in judicial opinion, where we, unfortunately see it, as anywhere else. Since insinuation of political philosophy pervades Kolbe, and similar cases coming out of other Circuits, controversial though that statement may be, and as that is the underlying point of our criticism of Kolbe, we do not walk away from it, but embrace it.Our Second Amendment is not to be toyed with. The right of the people to keep and bear arms is the defining feature of our American heritage, for it is the primary safeguard against tyranny, and it informs our Government that the American people control their destiny. Our destiny is not controlled by those who have been given, for a time, extensive authority. For they govern in our name, for our benefit. They do not govern in their own name, for their own benefit. Somewhere along the line, in the years that have gone by, that idea has been lost. It should be found. The Second Amendment encourages those who govern us that ultimate authority rests with the American People, and the Second Amendment is a constant reminder to those who govern us where it is that true authority rests. It is not through the First Amendment, as the Press has, itself, lost its way. It is not through the Fourth Amendment unreasonable searches and seizures clause, as that has been blatantly ignored, even unconscionably refuted by Government, as illustrated through Government's actions. It is not through the due process and equal protection clauses of the Fifth and Fourteenth Amendments, which have grown more tenuous, through time. It is only through the continued existence of the Second Amendment. And even the fundamental right to keep and bear arms is slowly but inexorably being whittled away, in spite of Heller--a case that exists to remind Government that some members of the U.S. Supreme Court intend for the American People to retain ultimate authority over Government and responsibility for their own lives.______________________________________Copyright © 2017 Roger J Katz (Towne Criour), Stephen L. D’Andrilli (Publius) All Rights Reserved.
WHY MUST AMERICANS HAVE TO JUSTIFY THEIR RIGHT TO OWN AND POSSESS FIREARMS?
A ROAD TRIP WITH A HANDGUN: THE CASE FOR UNIVERSAL STATE CONCEALED HANDGUN CARRY RECIPROCITY
PART FOUR: THE CONNECTICUT FIREARM APPLICATION PROCEDURE FOR ACQUIRING AN UNRESTRICTED CONCEALED HANDGUN CARRY LICENSE
THE CIRCUITOUS, TORTUOUS ROUTE TO OBTAINING MULTIPLE UNRESTRICTED CONCEALED HANDGUN LICENSES AS EXPERIENCED BY OUR INTREPID CITIZEN, MR. WRIGHT.
SUBPART ONE: RECAP
One year ago, the Arbalest Quarrel commenced a detailed examination of the perils, snares and frustrations the law-abiding American citizen encounters and faces for seeking no more than to exercise his or her natural right of self-defense. We followed an individual as he undertakes the time intensive, expensive, and exasperating task of acquiring concealed carry handgun licenses from multiple jurisdictions.The individual whom we followed in the exercise isn’t fictional. He is an actual person. We use a pseudonym for this person to protect his identity. We refer to this individual as Mr. Wright. Mr. Wright is an American citizen and successful businessman. He currently holds several handgun licenses. All but one are concealed handgun carry (CONCEALED CARRY WEAPON) (“CCW”) licenses.Mr. Wright conducts business in several States. The nature of Mr. Wright’s business involves the transporting of assets of considerable monetary value. Doing so, makes him a tempting target for armed robbers, jeopardizing his personal safety and well-being. A handgun provides Mr. Wright with the most effective means available for personal protection.
MANY JURISDICTIONS REQUIRE THE LAW-ABIDING AMERICAN CITIZEN TO JUSTIFY HIS NEED FOR A CCW.
Why should the law-abiding citizen have to justify the need for a CCW. After all, is not the right of self-defense basic, immutable, indisputable, and intrinsic? Did not the founders of the Republic recognize the primacy of the right of self-defense and, so, codify that quintessential right in the Bill of Rights of the United States Constitution? If so, why must the law-abiding American citizen have to justify the carrying of handgun for self-defense? Yet, a few jurisdictions, notably New York City—the City where Mr. Wright has his main business offices—require the prospective holder of an unrestricted concealed handgun carry license to do just that. An individual must convince, to the satisfaction of the NYPD licensing officer, why he or she feels the need to carry a handgun for personal protection.Establishing a rationale upon which to test the suitability for issuance of a concealed handgun license may, to some, may seem perfectly reasonable. It isn’t. The standards established may seem pragmatic and coherent. They aren’t. On close inspection, they are completely arbitrary and superficial. In existence in New York and in several other jurisdictions around the Country for many years—even decades in some instances—we may think the laws practical, necessary, “common-sense” application of the police powers of the State? But, are they? To grow accustomed to this or that law and practice and belief does not make such law reasonable, rational, or—if that law conflicts with our jurisprudence and with our Constitution —lawful. Thus we have "unlawful laws." That isn’t an oxymoron. An abundance of unlawful laws exists—and many of them are directed to firearms’ regulation, unlawfully restricting one's right to own, possess, and use firearms.
WHY MUST A LAW-ABIDING AMERICAN CITIZEN HAVE TO CONVINCE A GOVERNMENT LICENSING OFFICIAL THAT HE OR SHE REQUIRES A FIREARM FOR SELF-DEFENSE? WHY MUST A LAW-ABIDING AMERICAN CITIZEN HAVE TO JUSTIFY HIS OR HER RIGHT TO KEEP AND BEAR ARMS FOR SELF-DEFENSE IF SELF-DEFENSE IS A QUINTESSENTIAL, NATURAL, PRIMARY AND PRIMORDIAL RIGHT AND IF A HANDGUN IN THE HANDS OF THE LAW-ABIDING AMERICAN CITIZEN, TRAINED IN THE USE OF THAT HANDGUN, HAS, THROUGH THE POSSESSION OF THAT HANDGUN, THE BEST MEANS AVAILABLE TO SECURE HIS OR HER LIFE AND WELL-BEING AGAINST THOSE WHO WOULD THREATEN THAT LIFE AND WELL-BEING?
A business person who does most of his business in cash and who carries thousands of dollars on his person on his way to a bank, a few times a week, is a tempting target indeed to a robber looking to make a killing through little effort. But a drug addled lunatic may be perfectly willing to kill another person for a few bucks and think nothing of it. If, then, a rational law-abiding person must justify to the satisfaction of a licensing official why issuance of a concealed handgun carry license is warranted for him but not for myriad others—which a prospective holder of a CCW must do in New York City if he is to have any real chance of securing a license to lawfully carry a handgun concealed on his person on the streets of New York City—the ludicrousness of the exercise becomes, on even a cursory inspection, painfully apparent.It really comes down to the fact that one person asks, begs really, for the privilege of defending his or her life and makes the case, why he or she faces more danger to life than someone else and therefore ought to be allowed to carry a handgun for self-defense? What must a person do to prove he or she needs a firearm for self-defense in the City of New York, but that others do not? How might one prove that certain factors in his or her life satisfactorily distinguish his or her life from that of others, justifying the issuance of a CCW? In so doing, the right of self-defense—quintessential and primary, and primordial—reduces to mere privilege, an exercise one must excel in to justify one's right to exist. The right to be free from threats to life becomes a luxury, bestowed on a few through Government largess. The Government becomes a gatekeeper, deciding the value of human life--by extending to one individual the coveted unrestricted, concealed carry license, and withholding it from others.Of course, some might disagree with this assessment, arguing, on behalf of the antigun crowd, that the right of self-defense is not at issue. They would argue either that a handgun does not make a person safer or that, if it does, the danger to society outweighs the value a gun provides to individuals within society. Let’s parse that.Certainly, a person trained in the proper operation of a handgun has the most effective means currently available to protect his or her life and well-being against imminent threats to that life. We need not debate that. The statement is self-evident, axiomatic, true. But, do guns in society make for an unsafe society? The antigun crowd answers that question with an unequivocal, "yes." Yet, the antigun crowd begins with their conclusion, "guns in society make a society less safe," and then attempt to gather statistics to support the conclusion they assume to be true before the fact. Their conclusion is really not a conclusion derived from true premises, then, but an assumption. They take that assumption, and attempt to find data to support it, excluding data that refutes it. By emphasizing the gun, as an implement of harm, they minimize the import of the agent, the causal factor, truly responsible for harm. They also ignore that the agent may use other objects to harm innocent life: knives, axes, bombs and, as we have seen of late, both in Europe and in this Country, trucks. So, the availability or unavailability of guns is beside the point.The problem of violence in society is a function of the agent of violence in society, not the implement. Implements are not agents. Implements are not sentient beings. But antigun proponents place little, if any, emphasis on the agent. The value of life to the antigun proponent is a function of utility. Antigun proponents consider life and well-being from the standpoint of maximizing utility. For them, the truth of that statement is a given. They reason that getting guns out of the hands of more people—namely law-abiding citizens—will, ipso facto, reduce the number of deaths in society. That assertion is conjecture, not fact and it is false.Antigun proponents know criminals and lunatics and terrorists will harm individuals with guns, knives—and, as we have seen played out recently—trucks—truly anything at hand; and they will use whatever it is that is available to maximum effect, devising ever more devious ways to maximize the harm they are capable of doing to innocent life. So, as antigun proponents attempt to maximize utility for society by zeroing in on guns, alone, the violent among us are devising ways to maximize harm to individuals within society--through anything that is available. Ultimately, it is individuals within society that are harmed. They are harmed by two agents: the violent among us--predominately, criminals, and lunatics, and Islamic terrorists--and by antigun groups that would deny to law-abiding individuals the best means available to the law-abiding citizen in which to protect innocent human life, the firearm.Ultimately, antigun proponents do not really care if an innocent life is lost so long as society in general—the collective, the hive—is secure. That idea is blunt, but true, for it follows logically from and is implicit in the philosophy of antigun proponents even if they expressly deny it. That idea plays out in myriad restrictive, ludicrous gun laws existent in federal and State Statutes and existent in County and City ordinances and codes and regulations. But, that idea of antigun proponents--that ethical position, utilitarianism, specifically, consequentialism--a moral theory that looks to the consequences of an agent's actions and not on the intentions of the agent, a theory that seeks to maximize utility for society as a whole, placing greater value on the well-being of society, the collective, the hive, than on the well-being of the individual in society--is inconsistent with the ethical position of the founders of our Republic who saw the sanctity of the individual as preeminent.The founders remarked in their writings, and, as we see, they embodied in the Bill of Rights and in the Articles of our Constitution the idea of the transcendent supremacy of each American, as an individual.The founders realized that Government must have limited powers and that, ultimately, it is for the individual to take responsibility for his or her own life, and responsibility for his or her own well-being, and responsibility for his or her own happiness.Restricting the individual's access to firearms--thereby prohibiting the individual from possessing the best means available to reducing threat to life and well-being--operates no less than a refutation of the sanctity of the individual. The founders of the Republic would not be pleased.In our next article, we take a close look at the procedures for obtaining a CCW in Connecticut. We follow Mr. Wright as he familiarizes himself with the procedures for obtaining a Connecticut CCW and completes his application for a Connecticut concealed handgun carry license.Copyright © 2017 Roger J Katz (Towne Criour), Stephen L. D’Andrilli (Publius) All Rights Reserved.
EVEN WITH TRUMP AS PRESIDENT NATIONAL HANDGUN CARRY RECIPROCITY IS FAR FROM A DONE DEAL
NATIONAL CONCEALED HANDGUN CARRY—LIKE SELF-DEFENSE—IT’S A RIGHT, NOT A PRIVILEGE.
PART THREE
WHY DO MANY AMERICANS OBLIGE THOSE WHO SEEK TO DESTROY THE SECOND AMENDMENT TO THE U.S. CONSTITUTION?
Americans are fortunate Donald Trump won the election and will soon take the oath of Office. That assumes the Electors in the Electoral College don’t do the old switcheroo and elect someone else. And, make no mistake, there exist rogue elements within the Electoral College. They intend to cast their vote in a manner contrary to the will of the residents of their State. But, casting aside a nightmare scenario, we fully expect the President-elect, Donald Trump, to take the oath of Office as planned, on January 20, 2017.Even so, national concealed handgun carry reciprocity is and will remain far from a done deal. Donald Trump cannot order national concealed handgun carry reciprocity by Presidential edict, and Democrats in Congress will fight to constrain Republican attempts to enact such legislation. There is much resistance to this both inside and outside the Nation’s Capitol Building and we must be prepared for a drawn-out fight. Expect the new Senate Minority Leader, Democrat, Charles Schumer, and Senator Richard Blumenthal, Democrat-Connecticut, outspoken ardent--in fact, virulent--critics of the Second Amendment, to lead the charge against national concealed handgun carry reciprocity. Recently, both of these Senators, well aware of the American public's push to strengthen the Second Amendment right of the people to keep and bear arms--now that Hillary Clinton is politically dead and Donald Trump will soon occupy the White House--have blared out their intent to filibuster any Republican effort to enact national concealed handgun carry reciprocity legislation. The antigun movement has suffered an extraordinary setback and those of us who cherish the right of the people to keep and bear arms, deeply engraved in our Bill of Rights, must press our advantage.But, we Americans who cherish our Bill of Rights and, especially, our sacred right to keep and bear arms, must overcome decades of resistance to gun ownership and possession. The seeds planted by the antigun groups have sprouted weeds throughout our Country. These weeds must be cut and their roots pulled out. There has been significant resistance to the very preservation of our sacred Second Amendment and the antigun forces will see national concealed handgun carry legislation as an unconscionable expansion of the right guaranteed to Americans under the Second Amendment, and not as a mere exemplification of our natural right to keep and bear arms. Resistance resides in the psyche of those individuals who resent the very idea of guns in the hands of civilian Americans; and such resistance that insinuates itself into the psyche of individuals is worse—far worse—to the preservation, let alone strengthening, of our Second Amendment, than any one piece of antigun legislation. We say this because psychological conditioning has, potentially, greater consequences and far more reaching and damaging impact on the preservation of our Second Amendment than any one piece of restrictive federal or State gun legislation.Antigun legislation, on federal, State, or local level, is more a symptom, the effect of insidious psychological conditioning on the collective American psyche. But for the weakening of the American psyche and spirit, such legislation would never—could never— achieve a foothold in our laws, in our legal system. That it does so is illustrative of the power of propaganda and demonstrative of the ruthlessness and power of forces at work in our Nation that seek to destroy our sacred Second Amendment.Already antigun groups are marshaling their forces in Congress. They are stiffening their resolve to fight and defeat any attempt to implement national concealed handgun carry reciprocity legislation. How might antigun groups and powerful, wealthy, ruthless, collaborators, here and abroad, who fund and support those groups, effectively thwart our efforts? We get an inkling through a look at the past strategies utilized by antigun groups.Antigun groups make substantial use of slogans. Slogans convey messages. Slogans allow for the creation of associations in the mind of the target audience. The public is familiar with two of these: “commonsense gun laws” and “gun laws we can live with.” Antigun groups use slogans to attract members to their cause.Organizational names of antigun groups carry antigun messages too. Consider Michael Bloomberg’s group: “Everytown for Gun Safety.” How did the well-heeled Bloomberg come up with that name? Did he invent it or did an advertising firm, retained by Bloomberg, come up with that through brainstorming sessions and group study of the effectiveness of the name as a device to shepherd the masses to the antigun cause? If the latter, we wouldn’t be surprised.Slogans are examples of memes. What is a ‘meme?’ A meme is a mental virus.Antigun groups like “Everytown for Gun Safety,” and the “Coalition to Stop Gun Violence,” inject memes insidiously into the public psyche through their tool, the mainstream media.“Everytown for Gun Safety” and the “Coalition to Stop Gun Violence” are themselves examples of memes—of mental viruses. Antigun groups know the value of memes in shaping, molding, and manipulating public thought processes. They employ memes assiduously. It is part of their strategy, their plan for undermining our cherished Second Amendment right of the people to keep and bear arms.Antigun groups like “Everytown for Gun Safety,” and “Coalition to Stop Gun Violence,” inject deadly memes into the public psyche, not unlike a heroin junkie who injects poison into his veins. The mainstream media is the syringe antigun groups employ to inject their venom, antigun memes, into the public’s psyche.The word, ‘gun,’ invariably factors into the memes of antigun groups. They employ the word, ‘gun,’ constantly and, whenever they do, they use the word, 'gun,' as a pejorative, as an invective. This is no accident. Their attack on guns--and on the very word, 'gun,'--is always carefully planned and calibrated, to leave no doubt in the mind of the target audience, the American public, that guns have--as they see it--no redeeming value. The public is expected to accept antigun group presumptions about guns at face value, without criticism, without scrutiny, no less so than a member of a cult is expected to accept, at face value, as self-evident true, cult dogma as spouted by the cult leader.Memes, utilized by antigun groups, induce, in those susceptible to the messaging, bizarre and ludicrous thoughts about guns.Antigun groups use memes to instill in the public psyche a phobic reaction toward guns. The antigun groups are very good at this. They have been at it for a long time. They have honed their skills well.The messaging operates both overtly on the conscious mind and subliminally on the subconscious of those individuals—and there are many—susceptible to reception of the message. Antigun groups, through the mainstream media, suggest that guns are more than mere inanimate objects. They suggest that guns are sentient beings—evil sentient beings.Antigun groups create the impression that the “the gun,” is a scourge on society—more a scourge on society than the lunatic, the psychopathic Islamic terrorist, or the common criminal, that wields “the gun” to harm others.The mainstream media propagates and bolsters dangerous memes about guns. It does so endlessly, relentlessly, vigorously, tediously, boisterously, indefatigably, shamelessly.The result: many Americans develop a morbid, unnatural, fear of guns. Those adults, susceptible to such messaging instill their pathological fear of guns in their children. Antigun groups intend to inculcate in the mind of each American, beginning in early childhood, an irrational fear and loathing toward “the gun.” The unreasonable fear of guns has a name. It’s called hoplophobia.The imbecilic notions antigun groups attribute to guns and the lunacy antigun groups project on the public about guns percolate and permeate throughout society. The antigun groups, through the mainstream media, thrust their lunacy on the public, creating hysteria in sensitive, susceptible individuals. Many individuals are immune. But many others are not. Not content to project their lunacy toward guns on adults, antigun groups shamelessly, unabashedly project that same lunacy onto impressionable children.The lunacy pervades our public school systems. Were they successful, antigun groups wouldn’t need to fight to repeal the Second Amendment. The public, molded and shaped like clay from early childhood, would demand it.How pervasive is this lunacy? Consider: in the 1950’s a child could bring a toy stainless steel cap gun to school and no one would raise an eyebrow—not parents, not school teachers, not school administrators—but not so today.Today, a child who so much as points a finger, suggestive of a gun, at another student at school, is suspended. Is that not strange? Click here for one example. Is this an anomaly? Unfortunately, no. The instances are legion. An internet search picks up many examples.School officials call their draconian measures zero-tolerance policy. But, zero-tolerance policy toward what: that we must fear our own shadow and instill such fear in our children too? Is not such draconian, bizarre action by school officials indicative of aberration in their own psyches rather than an indication of aberration in the psyches of school children? Yet, school officials find fault with the children, not themselves—removing them from school, suggesting, perhaps, these children undergo psychiatric counseling. Really?Antigun groups promote the nonsense, the lunacy, perpetrated by public school systems. Antigun groups proclaim that a harsh response toward gun possession is necessary. They argue such response bespeaks precautions both public schools and society at large are obliged to take and are obligated to take for the good of society, for the good of the societal collective—applying the dubious ethical theory of utilitarian consequentialism to the body politic.But, why? What is their motivation? Antigun gun groups say that draconian measures are necessary because we “live in a different world, today;” “we live in a more dangerous world.” We do? How so?Are we to conclude the threat of global thermonuclear war during the 1950s—over a half century ago—against an adversary like the Soviet Union and its allies, the Soviet Bloc Nations—infinitely more sophisticated and threatening than the Islamic radical savages we contend with today—bespoke a peaceful time, a tranquil era for Americans? Not so for those of us living during that period. And, we did not fear the gun then. Why should we fear the gun now? No need then; no more so now. The absurdity of antigun group assertions, when seen in this comparative light, is plain.What Americans are doing in response to such visible threats that do exist, toward criminals and Islamic terrorists, is contrary to the expectations and wishes of the antigun groups. Americans are arming themselves with—horror of horrors—guns; and they are doing so in record numbers.The self-arming of Americans is alarming to antigun groups. The self-arming of Americans isn’t the response antigun groups want; it isn’t the response antigun groups expect. But it is occurring.Yet, if we take the antigun groups at their word—if the world is a dangerous place today—we would expect Americans—resilient and resourceful Americans—to take personal responsibility for their own well-being. True that was in the past. True that is now. True that will always be so long as our Bill of Rights remains sacred. Why should the response of many Americans to threats to personal safety—acquisition of a firearm—be so unexpected even if unnerving to antigun groups?Perhaps antigun groups take too many of their cues from their international benefactors. Such people cannot appreciate the singular uniqueness of Americans’ Second Amendment. They cannot understand the import of notions of individual, personal responsibility and personal fortitude upon which our Bill of Rights is grounded.Most Americans realize personal safety and well-being devolve upon themselves, not on any greater authority, and not on the police. The court cases, Hartzler vs. City of San Jose, 46 Cal. App.3d 6 (Cal. Ct. App. 1975) and Riss vs. New York, 22, N.Y.2d, 240 N.E.2d 860 (N.Y. 1968), make this point clear—a point antigun groups acutely ignore, postulating, misleadingly, disingenuously, that the police do serve the residents of their respective communities and that is enough, that is sufficient to provide for the residents of the community all the protection the residents need. But is it?Police departments do serve residents, yes. But, residents are served as a collective body. The police are required to provide for the welfare of the community as a whole. But, must they provide protection to individuals within a community, apart from offering protection to specific public officials? The answer is, “no.” They need not do so and, in fact, do not.Americans understand that possessing firearms ensures their own individual safety and well-being as is each American’s right, and each American’s duty to self and family. The police are not required by law to provide that task even if particular departments had the money and the manpower to do so. Even, then, there would be good reason for the police not to do so, as case law makes clear. Hence, the duty to provide for one’s personal safety rests invariably, inevitably, on the individual. Our Second Amendment codifies that sacred, natural right.A firearm—the gun—is the most effective means of ensuring one’s safety and well-being when one’s life is threatened. Still, the antigun groups attack our Second Amendment. They attack the sanctity of each American’s individual life. Their attack on the right of each individual American citizen to defend his or her life with the most effective means of doing so is facially inconsistent with our Bill of Rights. Their position is, rationally, altogether inexplicable, and, on moral grounds, indefensible and irreverent.Their attack against the Second Amendment of our Constitution is no less an attack on our Nation State and no less an attack on our National Identity insofar as their position is an affront against the sanctity of our Constitution; for our Constitution is the foundation of our Nation and the clearest expression of our National Identity. Yet, the concepts of ‘national identity’ and ‘nation State’ are anathema to powerful, ruthless internationalists—creatures that seek an end to the natural independence and sovereignty of our Nation State and of all nation states; an end to national heritage and history; an end to national identity; an end to each nation’s right to self-governance; an end to the right of each of us, as individuals, to be and remain individual.One only need concentrate on the collective horror the EU experience and experiment has wrought on individual Nation States: the insidious attack on notions of National Identity and National Sovereignty—to realize what can yet befall us. The Nations of Europe fell for the lies of EU proponents. They thought they could maintain their political identities even as they ceded their economic authority. They were wrong. But, there is now a most welcome backlash.We might learn from their example. Better it would be if we stay clear of the worst of entangling alliances as “free trade” agreements require, as they compel—as they move us inexorably closer to an EU style arrangement with other nations—leading inevitably to the destruction of our Nation State, our National Identity, our Constitution.The mere existence of our Second Amendment operates as a visible threat to those invisible, insidious forces, lurking in the shadows. These denizens of hell seek no less than the abject surrender of our National Sovereignty. They seek no less than the subordination of our laws to those of foreign courts and foreign tribunals. They seek no less than the shredding of our unique Constitution. The strengthening of our Second Amendment is something these powerful, ruthless interests cannot abide. They will use their tools and puppets—including the mainstream media, antigun groups, various members of Congress, and the ignorant, frightened, misguided sheep among us—to constrain any attempt to implement national concealed handgun carry reciprocity legislation. Passing such legislation is a major step toward preserving our singular way of life as an independent sovereign Nation and preserving the two most sacred pillars upon which our Nation rests: one, that government operates at the behest of the American people, not the other way around; and, two, that the Bill of Rights codifies natural rights that forever secure in the American citizen, sacred rights existent in that American as an individual.In our Country, the individual must never hear to be told that he must sacrifice his sacred right of self-defense to the seemingly greater need, the greater good, of an amorphous collective mass—that his right of personal self-defense through possession of a firearm manifests as a danger to the collective security of the masses and must, therefore, be curbed, restrained, denied.We have our work cut out for us. The depth and breadth of that work will become clear as we post further articles on national concealed handgun carry reciprocity._________________________________Copyright © 2016 Roger J Katz (Towne Criour), Stephen L. D’Andrilli (Publius) All Rights Reserved.
CONCEALED HANDGUN CARRY RECIPROCITY AMONG THE FIFTY STATES AND IN ALL U.S. TERRITORIES MUST BECOME A REALITY.
NATIONAL CONCEALED HANDGUN CARRY—LIKE SELF-DEFENSE—IT’S A RIGHT, NOT A PRIVILEGE.
CONCEALED HANDGUN CARRY RECIPROCITY AMONG THE FIFTY STATES AND IN ALL U.S. TERRITORIES MUST BECOME A REALITY.
PART TWO
THE RIGHT OF SELF-DEFENSE IS EMBODIED IN OUR SECOND AMENDMENT.
The instinct for self-preservation is primary, primal, primordial. We take that statement as axiomatic, self-evident, true. It is fact, a given. The assertion requires no proof. A person need look but to his or her own response to a threat of attack to recognize the inherent truth of the assertion.A rational person will defend his or her life against any threat to that life. The urge to defend one’s life against a threat to it stems from the instinct for self-preservation. Those assertions, too, are axiomatic, self-evident, true. The assertions require no proof and they require no justification.Since we take, without need for proof or justification, the urge to defend one’s life from external harm as natural and universal, we draw from that notion a normative, ethical prescription. It is this: a person has the right to defend his or her life from threat of harm, and will do so. Most people, we think, would agree with this assertion as well.But, consider the assertion, “the right of the people to keep and bear arms shall not be infringed.” The assertion embodies two correlates. The first correlate is that a person has the inherent right of self-defense. The second correlate is that a person has the right to defend one’s life with a firearm. The first correlate is simply a reiteration of the aforesaid assertion that, “a person has the right to defend his or her life from threat of harm, and will do so,” which most people, we postulate would, accept as true without need for proof.Some people, though, namely, those who accept the rhetoric of antigun zealots would object to the second correlate. We, though, do not; nor would the founders of our Republic. For us, as with them, the natural right to defend one’s life with a firearm is axiomatic, self-evident, true. The truth of the assertion derives, straightforwardly, from the instinct for self-preservation. We need not proffer proof or justification for the truth of the second correlate.The firearm is the most effective means to defend one’s life, and the founders of our Republic knew this. The founders of our Republic codified this natural right of self-defense in the Second Amendment to the U.S. Constitution. The right of the people to defend one’s life with the most effective means of doing so is prominently etched in the Second Amendment of the Bill of Rights of the U.S. Constitution.The Second Amendment is one of ten basic, principal rights and liberties set forth in the Nation’s Bill of Rights. The Nation’s Bill of Rights is a critical part of the Nation’s Constitution; and, our Nation’s Constitution would not be complete without it. For, our Bill of Rights operates as a check on federal Government power. Our Constitution establishes a Government, beholden to and answerable to the American people. The Bill of Rights makes that point poignantly clear. The Nation’s Constitution establishes a federal government, and establishes, as well, the parameters of the powers and authority of the three Branches of Government. But, the Constitution that creates the federal Government and that establishes the powers and authority of each Branch, does not also create the predicate rights and liberties of the People.The rights and liberties of the People predate the Constitution. Our sacred rights and liberties exist intrinsically in the very being of each American citizen. The Constitution didn’t create or ordain our fundamental rights and liberties. And, Government did not bestow those rights and liberties on us. So, neither the Government, nor the Constitution, can take our sacred rights and liberties from us.The Bill of Rights operates essentially as both an acknowledgement of the existence of our sacred rights and liberties—lest any Government functionary attempt to proscribe our rights and liberties—and as a constant reminder to those in the Government, that Government operates at the pleasure of the People. That means the People can dismantle Government when Government oversteps its authority and operates in accordance with its own mandate, contrary to the Will of the People.Government functionaries must understand they are not to toy with our sacred rights and liberties; nor are they to undercut any of our sacred rights and liberties. Yet some Government officials do just that. They believe that our Bill of Rights can be shaped, molded, changed, even done away with.They are wrong. Americans have demonstrated how out-of-touch such people are. With the election of Donald Trump to the U.S. President, a vast swathe of the American populace has made abundantly clear: we want our Country back, and we will take our Country back from those, like Hillary Rodham Clinton, who believe, essentially, that they operate by divine right. They most certainly do not.Our Bill of Rights and, especially our Second Amendment, exist as essential codifications of natural rights that remain as vibrant and as true today as they did during the birth of our Nation. Our public Officials cannot undermine, them, disregard them, or repeal them—ever! Hillary Clinton didn’t heed the warning. She sought, through the power of the mainstream media to persuade the American public to disavow its birthright, to passively permit its fundamental right of the people to keep and bear arms to be forfeited, done away with. Neither she, nor her powerful, wealthy sponsors appreciated the intelligence and determination and resolve of millions of Americans.
WE, AMERICANS, ARE AT A CROSSROADS.
The American people have seen their Second Amendment right to keep and bear arms eroded under the Obama Administration. With the election of Donald Trump as our 45th President, we have thrown a wrench in the antigun agenda. For the moment, we have stopped the ruthless internationalist benefactors who fund the antigun agenda.With defeat of Hillary Rodham Clinton, the antigun forces have lost their principal ally, their principal weapon for defeating the Second Amendment. The antigun forces are weakened but not undone.The paramount aim of national and international antigun efforts is de facto repeal of the Second Amendment. Make no mistake about that. They aim to destroy gun ownership and possession in our Country. That means they seek to undercut the individual’s right of self-defense. What is their motivation? The answer is simple. They seek to break the back of our National resolve, of our heritage, of our culture, of our National identity. If they can destroy our most sacred, natural right, they have eliminated a core, defining attribute of our Nation—the right of the people to keep and bear arms shall not be infringed. Our Nation, as an independent, sovereign Republic would, if they were successful, totter on its very foundation.So, we know the impetus for the antigun forces. But, why do many average, law-abiding citizens fall prey to the messaging of the antigun forces?We discuss this in Part Three of the Arbalest Quarrel’s comprehensive multipart series on National concealed handgun carry. We also explain in Part Three how the Arbalest Quarrel has fought the myriad lies about firearms and about our Second Amendment as fomented and perpetrated on the American people by powerful, ruthless, internationalists and by antigun zealots and by those who, through their ignorance, support the actions, policies and goals of antigun groups, operating, as they do, through the mainstream media and through their puppets in Government.By exposing, to the light of day, the lies perpetuated by those bent on destroying our sacred right of the people to keep and bear arms, we succeed in strengthening our Second Amendment. It therefore will come to pass that we will see universal concealed handgun carry in the Nation’s fifty States and in the Nation’s sixteen territories. Understand, this will become a reality but only if the resolve of the American people never wavers. We must all do our part if we are to be successful in our endeavor.[separator type="medium" style="normal" align="left"margin-bottom="25" margin_top="5"] Copyright © 2016 Roger J Katz (Towne Criour), Stephen L. D’Andrilli (Publius) All Rights Reserved.
A LOOK AT ONE OF TRUMP’S CHOICES FOR U.S. SUPREME COURT JUSTICE: ALLISON EID
A LOOK AT ONE OF TRUMP’S CHOICES FOR U.S. SUPREME COURT JUSTICE: ALLISON EID
INTRODUCTION TO A CONSIDERATION OF POSSIBLE PEOPLE WHO MAY GAIN A SEAT ON THE U.S. SUPREME COURT
The mainstream media’s endless, nauseating, servile behavior toward Hillary Clinton won’t go away. That same media demonizes Donald Trump. Yet, the possibility of a criminal indictment against Clinton gets scant attention. The powers that crush the public into submission actively embrace a Clinton Presidency.If Hillary Clinton becomes our next President, the Second Amendment will face renewed assault and eventual, inevitable de facto repeal. That isn’t guess. That is fact.Clinton will be in position to anoint the ninth U.S. Supreme Court Justice. Clinton's nominee will receive a hearing and vote. That, too, is not conjecture. That is fact. Senator Grassley's Judiciary Committee cannot feasibly forestall a confirmation vote indefinitely if Clinton secures the Oval Office.If Clinton's first nominee to sit on the high Court isn't confirmed, her second, or third choice likely will be. Once confirmed to a seat on the high Court, the liberal-wing of the Court will have secured its majority: five to four. Any case remotely affecting the Second Amendment that comes before the Court on appeal will almost certainly be taken up. The exercise of the right of the people to keep and bear arms will come under renewed assault.The liberal-wing majority's decision will whittle away at the Heller and McDonald case holdings. The liberal-wing majority may overturn the holdings of those two seminal cases outright.Clinton hasn’t released a list of prospective U.S. Supreme Court candidates, but Trump has. We guess Clinton is content with Merrick Garland—a Court of Appeals Judge for the District of Columbia Circuit who has openly attacked the Second Amendment in two decisions. Clinton will do nothing to risk Garland’s candidacy. Judge Garland is Obama's darling. Clinton would hardly wish to anger Obama as the mainstream news sources have reported, on the day of the posting of this article, June 10, 2016, Obama's endorsement of Hillary Clinton's candidacy. Clinton knows that Garland exhibits the same enmity toward the Second Amendment as she does, and as Obama does. That is a necessary condition for nomination, notwithstanding that neither Obama nor Clinton would say so publically.We know Trump will support the Second Amendment. That isn't bombast. Trump has released a list of candidates. Let’s consider those candidates’ records. We begin with Allison Eid, a Colorado State Supreme Court Justice, who issued the opinion in Regents of the Univ. of Colo. vs. Students for Concealed Carry on Campus, LLC., 2012 CO 17; 271 P.3d 496; 2012 Colo. LEXIS 114; 2012 WL 691538.
FACTS OF THE CASE
The Plaintiff, a student group seeking to carry concealed firearms on campus, sued the University of Colorado’s Board of Regents. The Plaintiff alleged the Board’s weapons policy violates the Colorado Concealed Carry Act (“CCA) and Article 2, Section 13 of the State Constitution’s right to bear arms. The Board of Regent’s Weapons Control Policy prohibits carrying of firearms on campus except for certified law enforcement personnel. Failure to abide by the policy leads to expulsion.The Complaint alleges that three students sought to carry firearms “when traveling to, from, through, or on the campuses of the University of Colorado for self-defense.” One of the students contacted the Chief of Police at the University, in Denver. He sought permission to carry a concealed weapon on campus. Two other students contacted the Chancellor of the University in Colorado Springs. Each of the students asserted they held a valid concealed-carry permit under State Statute, the CCA. The officials denied the requests, citing the University policy.The, Defendant, Board of Regents moved to dismiss, arguing the students had failed to state a claim for relief. The lower District Court agreed. The Court argued that the CCA prohibits only “local governments” in Colorado “from adopting or enforcing laws contrary to the CCA.” The Court said “the Board is not a ‘local government’” and, so, had authority to ban firearms on campus. The lower Court also said, oddly, that “the right to bear arms is not a ‘fundamental right.’” The lower Court also said the right can instead be “highly restricted” by the state’s valid exercise of its police power.” The lower Court then dismissed the complaint, and the students appealed the adverse decision to the next level: the Colorado Court of Appeals.The Court of Appeals focused on “the plain language” of the Statute, and on the State Legislature’s “desire for statewide uniform standards” to include—as the Statute says—“all areas of the State." The Court of Appeals concluded that “all areas of the State” means college campuses too. On the Constitutional issue, the Court of Appeals said the lower District Court applied the wrong standard of review. The Students’ allegations did state a claim for relief. The Court of Appeals thereupon reversed the decision of the lower Court.The Board of Regents appealed the adverse decision to the Colorado Supreme Court. The high State Court affirmed the decision of the Court of Appeals, finding for the Plaintiff Students.
THE STATE SUPREME COURT’S HOLDING AND REASONING
Delivering the opinion of the high State Court, Justice Eid said: “We hold that the CCA’s comprehensive statewide purpose, broad language, and narrow exclusions show that the General Assembly intended to divest the Board of Regents of its authority to regulate concealed handgun possession on campus.” The Colorado State Supreme Court added, “Because we affirm on statutory grounds, we do not consider the Students’ constitutional claim.” Consideration of the constitutional claim is unnecessary here.The high State Court peered closely at the CCA. The Court reasoned that the Colorado General Assembly enacted the CCA because “the General Assembly found that jurisdictions were inconsistent in issuing concealed-carry permits and in identifying ‘areas of the state where it is lawful to carry concealed handguns.’” "The General Assembly found the criteria and procedures for lawfully carrying a concealed handgun ‘should be consistent throughout the state to ensure the consistent implementation of state law.'"The General Assembly pointed out, clearly, concisely, categorically that it was “‘necessary that the state occupy the field of regulation of the bearing of concealed handguns since the issuance of a concealed handgun permit is based on a person’s constitutional right of self-protection and there is a prevailing state interest in ensuring that no citizen is arbitrarily denied a concealed handgun permit and in ensuring that the laws controlling the use of the permit are consistent throughout the state.”The Board of Regents claimed, erroneously, “‘that the CCA does not divest it of its authority to adopt and enforce the Policy [because the Board] holds special, constitutional authority to enact policies governing the University of Colorado.”’The State Supreme Court clarified that local governments—and that includes the Board of Regents—“are expressly prohibited from ‘adopt[ing] or enforce[ing] an ordinance or resolution that would conflict with any provision [of the CCA].’”In conclusion, the Colorado Supreme Court held “that the CCA divested the Board of Regents of its authority to regulate concealed handgun possession on campus.”
CLOSING THOUGHTS ON THE POSITIVE IMPLICATIONS OF JUSTICE EID’S OPINION
Colorado State Justice Allison Eid respects the rule of law. She doesn't impose her will on the people of the State. She sees her job as interpreting the law of Colorado as it exists, not as she may happen to prefer--whatever her personal predilections may be. She recognizes that the State Legislature, the General Assembly, has preempted the field of firearms regulation. Colorado's General Assembly has done this, obviously, to ensure that the right to bear arms as embodied in the State Constitution, and, by logical entailment, the fundamental right of the people to keep and bear arms as codified in the Second Amendment of the U.S. Constitution, as is a right exercised by Americans throughout the State--a right uniformly exercised, throughout the State--is not subject to curtailment by local authorities who happen to disagree with Americans' ownership and possession of firearms.
WHAT HAPPENS TO THE RIGHT OF THE PEOPLE TO KEEP AND BEAR ARMS WHERE STATES PERMIT LOCAL JURISDICTIONS TO IMPOSE THEIR OWN WILL ON THE PEOPLE?
Several State Legislatures do allow jurisdictions within the State to adopt their own rules, codes, and ordinances regulating the carrying of handguns concealed. This is called "Home Rule." Relaxation of State preemption invariably weakens the Second Amendment because local jurisdictions, given the opportunity to flex their muscle through the device of "Home Rule," deny American citizens' right to keep and bear arms. Local jurisdictions do this under the guise of promoting law and order and preventing gun violence even though such rules, codes, and ordinances do nothing to curtail gun violence and do nothing to promote law and order. Actually, such rules, codes, and regulations ensure that criminal gun violence will increase, not decrease.Local rules, codes, and ordinances that curtail a law-abiding citizen's ability to defend his or her life and well-being serve to undercut the fundamental right of the people to keep and bear arms, as codified in the Second Amendment. This creates confusion because the public is bombarded with a myriad of conflicting requirements. This also results in the useless expenditure of police administrative resources better utilized in fighting crime. And this results in the needless expenditure of personal resources. A person, who seeks to exercise his or her natural right of self-defense, under the Second Amendment must spend inordinate amounts of time and money for the privilege of doing so as the sacred right is supplanted by government licensing schemes. Thus favoritism, corruption, bribery, and black market activity begin to germinate and flourish.
COMPARISON OF LEGAL METHODOLOGIES
Consider State Justice Eid’s methodology in deciding cases. Her methodology follows the methodology employed by Justice Thomas and by the late Justice Scalia. Justice Eid looks at “the plain text” of a Statute. She doesn’t read into a Statute what she likes and discard what she may happen not to like. She doesn’t second-guess the State Legislature.Compare State Justice Allison Eid’s methodology and jurisprudence to Judge Merrick Garland, Obama's nominee to sit on the U.S. Supreme Court. Judge Garland decides Second Amendment cases and those cases implicating the Second Amendment by insinuating his personal predilection against the Second Amendment into his decisions. Judge Garland isn’t content in looking at “the plain text” of a Statute if he doesn’t like its meaning. State Justice Eid, unlike Judge Garland, accepts a Statute as it exists. She sees her job as interpreting the law, not rewriting it.Which Jurist is likely to preserve the Bill of Rights for the benefit of all Americans as the founders of our Republic intended? Which Jurist is likely to shred the Bill of Rights because it is an “old document” and must be rewritten, consistent with the Constitutions of other nations, as Justice Ruth Bader Ginsburg and Justice Stephen Breyer apparently would like very much to see? Whom would you like to see sitting on the U.S. Supreme Court: State Justice Allison Eid or U.S. Court of Appeals Judge Merrick Garland?If Donald Trump secures the Office of U.S. President, the Second Amendment will be preserved, even strengthened. We may rest assured of that. If Hillary Clinton secures the Office of U.S. President, she will do everything in her power--and outside her power--to weaken and eventually destroy the Second Amendment. That is her goal. That is the goal of those both inside and outside this Country who seek to eliminate America's Bill of Rights. She will argue it is the mandate of the American people to rewrite and redefine America's Bill of Rights. The American people must crush Hillary Clinton's naked ambition for absolute power.[separator type="medium" style="normal" align="left"margin-bottom="25" margin_top="5"] Copyright © 2016 Roger J Katz (Towne Criour), Stephen L. D’Andrilli (Publius) All Rights Reserved.
LEAHY DEFIES GRASSELY BY HOLDING JUDICIARY COMMITTEE HEARING ON OBAMA’S THIRD U.S. SUPREME COURT NOMINEE: MERRICK GARLAND
"And it proves, in the last place, that liberty can have nothing to fear from the judiciary alone, but would have everything to fear from its union with either of the other departments." Alexander Hamilton, Federalist No. 78, 1788"If it be asked, What is the most sacred duty and the greatest source of our security in a Republic? The answer would be, An inviolable respect for the Constitution and Laws — the first growing out of the last.... A sacred respect for the constitutional law is the vital principle, the sustaining energy of a free government." Alexander Hamilton, Essay in the American Daily Advertiser, Aug 28, 1794
ANTI-SECOND AMENDMENT SENATE DEMOCRATS ON JUDICIARY COMMITTEE STRUGGLE TO CAPTURE A FIFTH SEAT, LIBERAL-WING MAJORITY ON THE U.S. SUPREME COURT, TO RIP APART THE SECOND AMENDMENT OF THE BILL OF RIGHTS
On Wednesday, May 18, 2016, Senator Patrick Leahy, Democrat-Vermont, Ranking member of the Senate Committee on the Judiciary, held an open hearing on Merrick Garland’s nomination. This hearing is the one Leahy had alluded to last month.No, this wasn’t a confirmation hearing on Obama’s third appointment to the U.S. Supreme Court. Senator Charles Grassley, Republican-Iowa and Chairman of the Committee, didn’t preside over the hearing; nor did he appear. No other Republican member appeared. No member of the Committee, Republican or Democrat, should have appeared because Senator Grassley didn’t sanction a hearing on Garland—any hearing. Yet, the Ranking Member of the Committee, Patrick Leahy, held a hearing anyway. He held the hearing in defiance to the will of the Chairman of the Committee. He held the hearing in defiance to the will of the Senate Majority Leader, Mitch McConnell, Republican-Kentucky.Senator Leahy admitted: “I can’t convene a confirmation hearing,” adding, “We’re in the minority.” The “minority” Leahy refers to include: Senators Feinstein, Schumer, Blumenthal, Whitehouse, Franken, Klobuchar, Durbin, and Coons. They all pressed for Garland’s nomination.Why did Senator Leahy hold a hearing against Senator Grassley’s wishes? What did Leahy and other Judiciary Committee members and members of the Democratic Party hope to carry out?Senator Leahy and other Democratic Party members of the Committee on the Judiciary held a hearing not simply to air personal grievances. They did so to push a personal agenda—one inconsistent with the Second Amendment to the U.S. Constitution. Senator Leahy and the Democratic Party Senators virulently oppose “the right of the people to keep and bear arms.” Understand, the Senate Committee on the Judiciary doesn’t merely consider U.S. Supreme Court nominations, Appellate Court nominations and District Court nominations. The Senate Committee on the Judiciary has other important roles. “The Judiciary Committee plays an important role in the consideration of nominations and pending legislation.” Senate Democrats on the Judiciary Committee draft legislation to obstruct “the right of the people to keep and bear arms.” They draft legislation to defeat the Second Amendment under the pretext of serving the citizenry. They hoodwink the public. The goals they aim toward do not serve Americans’ sacred rights and liberties. They watch Americans’ behaviors, habits, and actions to control and constrain Americans. They treat Americans like wayward children. These Legislators are deceitful. They lure us in with pious words. They are America’s betrayers.So, who appeared at Leahy’s unsanctioned, May 23, 2016 “open hearing?” Those whom you would expect: Feinstein, Schumer, Blumenthal, Whitehouse, Franken, Klobuchar, Durbin, and Coons appeared. They all support and press for Garland’s confirmation; and they all oppose “the right of the people to keep and bear arms.”
THE POSITIONS OF DEMOCRATIC PARTY MEMBERS OF THE SENATE JUDICIARY COMMITTEE ON THE RIGHT OF THE PEOPLE TO KEEP AND BEAR ARMS IS CLEAR, CATEGORICAL AND CERTAIN. THEY DARE TO SPEAK FOR ALL AMERICANS, PROCLAIMING: AMERICANS DO NOT NEED AND OUGHT NOT HAVE FIREARMS.
Leahy’s position on the Second Amendment is no secret. For years Leahy pushed Obama’s antigun agenda. The New York Times reported on Leahy’s strategy in 2013. It said, “The view of Mr. Leahy, a Democrat . . . is crucial because the work of his Judiciary Committee will be central to advancing any new gun legislation.” The Committee “will hold hearings on potential gun legislation this month [January] proceed[ing] with Mr. Obama’s request to push legislation that includes a renewal of an assault weapons ban, a limit on magazine size and universal background checks.”Sheldon Whitehouse also signals hostility toward the Second Amendment. During Judge Sotomayor’s confirmation hearing, Senator Tom Coburn, Republican-Oklahoma tried to get her to issue an opinion on whether gun owners have a fundamental right to bear arms.” She wouldn’t make a pronouncement.” Sheldon Whitehouse came to her defense. He said, “he was worried that the judge had been pushed too far, perhaps, in a lobbying way, to expound on an issue that is probably going to come before the Supreme Court. He suggested that a message was being sent that nominees need to signal how they will rule on gun-rights cases. He called it almost unseemly to seek commitments on future cases.”As you might expect, U.S. Supreme Court confirmation hearings are a charade. Leahy isn’t kidding anyone. If Garland received a confirmation hearing, he would say nothing to reveal his antipathy toward the Second Amendment. We know U.S. Supreme Court candidates hide their personal jurisprudential and philosophical predilections during confirmation hearings, as coached, to avoid offending anyone, thereby strengthening their chance at confirmation. Justice Sotomayor hid her antipathy toward the Second Amendment at her confirmation hearing. Judge Garland would do so at his confirmation hearing, were one scheduled. Senator Grassley isn’t planning one. For, if a confirmation hearing were in the offing, Senators Whitehouse, Leahy, Feinstein, Schumer and others would come to his aid, lest he reveal his aversion toward the Second Amendment. Senator Grassley certainly knows this.Thus, Senator Leahy’s intimation that confirmation hearings are effective at eliciting truth is dubious and disingenuous. At the May 23, 2016 hearing, Leahy asserted, “what bothers me is because he [Garland] does not have a hearing and they’re not allowing him to have a hearing, his record is being smeared by outside groups, some of these Pacs, and others. Senate Republicans are denying a distinguished public hearing and a fair opportunity.” "No," Senator Leahy. Judge Garland's record as revealed in our letter to you isn't a smear. It's the plain, unadulterated truth--truth the American public would not learn at a public hearing. That's why Garland won't receive a confirmation hearing; and that's why Garland shouldn't receive one. No person deserves a seat on the high Court who does not respect, in fact, revere our Bill of Rights--all Ten Amendments. Obama and the Senate Judiciary Committee Democrats’ Trifecta bet is: Sotomayor, Kagan, and Garland. Obama is two for three. He aims for all three. For these three the Second Amendment is an anathema. Obama knows this. Otherwise, he wouldn’t have considered them. He wouldn’t have considered them if they were merely neutral on the Second Amendment, much less a proponent of the Second Amendment. Obama wants fanatics on the U.S. Supreme Court. He wants individuals on the U.S. Supreme Court who share his hostility toward the continued existence of our Nation's Second Amendment. Ranking member Senator Leahy and his fellow Democrats on the Judiciary Committee also want fanatics on the U.S. Supreme Court. These cohorts of Senator Leahy willingly support and do their part to promote Obama's antigun agenda.If Garland secures a seat on the high Court, the liberal-wing gains a fifth vote. The liberal-wing then has its majority. The liberal-wing of the U.S. Supreme Court strenuously opposes the fundamental right codified in the Second Amendment.Let’s consider Senator Dianne Feinstein’s position on the Second Amendment. Does the American public truly harbor any doubt? Feinstein’s resentment toward the Second Amendment is well-known, her remarks against gun ownership, legion. She took personally the failure of her bill to ban over two thousand types of firearms but continued undeterred. Charles Schumer also attacks the Second Amendment with passion. In 1994, then “Representative” Schumer, with the late Senator Howard Metzenbaum, Democrat-Ohio, “introduced a ‘kitchen-sink’ bill that covered everything from licensing to lists of weapons to be prohibited. It proved politically ahead of its time.” Richard Blumenthal uses sporadic shooting sprees to couch attacks on the Second Amendment. He said, “he hoped that the latest [2014 Santa Barbara] shooting would ‘provide an impetus to bring back measures that would keep guns out of the hands of dangerous people who are severely troubled or deranged, like this young man was.’” Blumenthal’s remark may sound sensible. But, the remark carries dangerous implications. Millions of American’s would lose their Second Amendment rights. Even if Legislators carefully tailored a law, can Americans trust the federal government to interpret the law narrowly? Not likely! Consider, too, the difficulties in defining English words. How do we define the word, ‘severely,’ as a modifier for the word, ‘troubled’? How do we define the word, ‘deranged?’ Medical doctors don’t use these words. They are not medical terms of art. Lawyers don’t use these words either. They aren’t legal terms of art. They are rhetorical words. They merely suggest but point to nothing.Before we exclude a group of Americans from exercising their Second Amendment rights, give the matter thought. Millions of law-abiding Americans may lose their Second Amendment right “to keep and bear arms” simply because their doctors prescribe an antidepressant for them.What can we glean from Al Franken’s record on the Second Amendment? Franken is cagey, but his contempt for the Second Amendment is obvious. Sure, he sounds like a supporter of the Second Amendment. He says, “Minnesota has a long tradition of gun ownership, and I support Minnesotans’ right to own a gun for collection, protection, and sport. I also believe that the Second Amendment protects that right against both the federal government and the states. But the right to own a firearm is not one to be taken lightly. I believe Minnesota has struck the proper balance, for example, by requiring background checks and live firearms training for carry permits.” Let’s parse one phrase in that passage.We ask, “what does Al Franken mean here by ‘proper balance’ as applied to law-abiding Minnesota residents?" What does Al Franken mean by 'proper balance' as applied to all law-abiding Americans? Franken means strict gun control Consider: Al Franken “voted YES on banning high-capacity magazines of over 10 bullets.” In 2008 Franken said he supports a federal ‘assault weapons’ ban but then oddly claims he supports the Second Amendment. The claim means nothing. It’s a trick. Antigun zealots employ it, continuously, to keep proponents of the Second Amendment at bay, guessing. But Americans recognize the ploy. Antigun zealots won’t rest until the Second Amendment ceases to exist. Franken reiterates antigun sentiment through rehearsed talking points, lacking substance.Senator Klobuchar sponsored an antigun bill, heralded by Michael Bloomberg’s antigun group, “Everytown for Gun Safety.” Klobuchar suggests she, too, supports the Second Amendment. But, she doesn’t. She asserts, “I would do nothing to hurt hunting” but she also says she voted for bans on “assault weapons” and on “high-capacity magazines”—those magazines holding over ten rounds.Senators Klobuchar and Franken don’t understand their actions belie their words.Senator Richard Durbin fiercely attacks the Second Amendment. His distaste for the Second Amendment is as virulent and venomous as Feinstein’s.To his shame Senator Durbin defends U.N. efforts to repeal our Country’s unique and sacred Second Amendment. He voted, “no,” on “Amendment SA 2774 to H.R. 2764, the Department of State’s International Aid bill: To prohibit the use of funds by international organizations, agencies, and entities (including the United Nations) that require the registration of, or taxes guns owned by citizens of the United States.” Previously cited. Senator Vitter, Republican-Louisiana, pointed out, that SA 2774 “is about an effort in the United Nations to bring gun control to various countries through that international organization. Unfortunately, that has been an ongoing effort which poses a real threat, back to 1995. In 2001, the UN General Assembly adopted a program of action designed to infringe on second amendment rights. The Vitter amendment simply says we are not going to support any international organization that requires a registration of US citizens' guns or taxes US citizens’ guns.” Previously cited. Plainly, the UN’s bold attack on America’s Bill of Rights doesn’t offend Senator Durbin. He supports UN efforts to undermine our Bill of Rights.Last, let’s not forget, Senator, Chris Coons position on the Second Amendment. Coons urges President Obama to use executive action to undermine the Second Amendment. Imagine, Coons would sacrifice the Second Amendment and Congressional Article 1, Section 1 Legislative authority to the U.S. President simply to continue a partisan antigun agenda.
A PANEL OF GARLAND SUPPORTERS GATHERED TO BUTTRESS ANTIGUN JUDGE MERRICK GARLAND’S NOMINATION
Ranking Senate Judiciary Committee Member Leahy and fellow Senate Democrats on the Committee contacted associates of Judge Merrick Garland. The panel comprised a former jurist, a law professor, an appellate law attorney and former judge, and a former U.S. Attorney.Each spouted the usual praises: “wonderful judge,” “eminently qualified,” “wonderful human being” “engaged and committed parent,” “sharp, analytical mind,” and so on. Fine traits, yes wanted of all who aspire to sit on the high Court. We have heard them before; we hear them now, constantly. But Judge Garland’s finer qualities aren’t in dispute. His judicial record is.The hour-long hearing comprised a multitude of flowery pronouncements, empty oratory, and, from the Senate Democrats, spiteful insults, criticisms, and whispers.Senator Feinstein piously declared a concern over a Supreme Court constrained, “for a substantial period of time” by a “tie,” “a four to four position.” Senator Leahy says the failure of the high Court to act on cases—given the present 4 to 4 tie—places the Federal Appellate Courts “in limbo.” But Leahy’s statement isn’t true. Feinstein’s remarks and Leahy’s lay bare an agenda, underscored by their assertions. They seek a five to four liberal-wing majority on the high Court. They say consistency among the Circuit Courts is necessary, but is it?Do we want consistency if U.S. Supreme Court rulings weaken Americans’ rights and liberties throughout the Country? Do we Americans want consistency among the Several States if U.S. Supreme Court rulings reflect foreign law antithetical to our traditions and values, and inconsistent with our Bill of Rights? Wouldn’t Americans find judicial rulings peppered and laced with alien jurisprudence and philosophy singularly bizarre? Wouldn’t Americans detest U.S. Supreme Court opinion that undermine their rights? Is not the late Justice Antonin Scalia’s philosophy and jurisprudential approach to U.S. Supreme Court decision-making worth preserving? If so, Senator Leahy’s remark we need a “fully functioning [nine Justice] Supreme Court”—with a five-to-four liberal wing majority—is to wrongheaded.Tie votes are not necessarily a bad thing. If a tie vote occurs, the decisions of the Appellate Courts remain valid. Yes, conflicts in the Circuits exist absent a U.S. Supreme Court decision. But conflicts always exist. The high Court hears only a handful of cases. A liberal wing majority would decide cases contrary to the well-being of the Bill of Rights. A liberal wing majority would also canvass cases to hear—cases involving matters best left to the States under the Tenth Amendment. Consider the remarks of Justin Driver, Professor of law at the University of Chicago. He clerked under Judge Garland from 2005 to 2006. Driver said, “The [U.S. Supreme] Court views itself as articulating general applicable principles, not merely resolving a dispute between a few parties.” How do we square that remark with Professor Driver’s other assertions? Professor Driver asserts, Judge Garland “avoids grand sweeping pronouncements, and keeps the opinions narrow,” that Judge Garland “is measured in his approach to the law,” and that “he honors existing precedent”?How might Judge Garland’s jurisprudence as a Judge on the U.S. Court of Appeals for the District of Columbia Circuit translate to the U.S. Supreme Court on Second Amendment issues? A fifth liberal-wing vote would weaken or overturn, outright, the Heller and McDonald case holdings?
A QUESTION ABOUT IDEOLOGY ON THE SUPREME COURT
Senator Leahy and his fellow Democrats on the Judiciary Committee self-righteously assert a hostility toward ideology. They proclaim the U.S. Supreme Court must remain pure, empty of “politics.” Yet, the U.S. Supreme Court, as the third Branch of Government, is, a political institution. Politics exists in the third Branch no less so than in the other two. Ideology, too, exists. Ideology is not necessarily a bad thing. Ideology defines every person. Each jurist espouses an ideology, and that ideology suffuses each jurist’s decisions. Judge Merrick Garland expressed his ideology toward the Second Amendment in the Parker and Reno cases.
JUDGE MERRICK GARLAND MUST NOT SECURE A SEAT ON THE U.S. SUPREME COURT
We know Judge Garland’s position on Second Amendment issues. We looked at his record. With Obama’s nomination of Merrick Garland to the high Court—a jurist who espouses a philosophy hostile to the Second Amendment—the assault on the Second Amendment continues. The Arbalest Quarrel amply shows Garland’s hostility to the Second Amendment in multiple articles.The conclusion is plain. If Judge Merrick Garland secures a seat on the high Court, we know he would undermine the Second Amendment. The high Court’s liberal wing would have a majority and would undo Justice Scalia’s legacy.If Judge Garland sits on the high Court as Justice Garland, the right of the people to keep and bear arms, as a sacred individual right, will come under renewed assault. Protection of our sacred rights and liberties ought to take precedence over presumed Senate protocol. Senator Leahy doesn’t think so, despite his remarks. He insists a confirmation hearing for Garland is proper. Perhaps for him, not for us. Leahy doesn’t speak for most Americans; neither does Hillary Clinton.In a May 24, 2016 editorial, the Wall Street Journal editorial staff said, “Mrs. Clinton did criticize the Supreme Court [in Heller] for being ‘wrong on the Second Amendment.’” The editorial staff also said, “Mrs. Clinton knows that four liberal Justices dissented from Heller. . . . Justice Ruth Bader Ginsburg, one of the dissenters, told a luncheon of the Harvard Club in 2009 that their dissent was crafted with an eye to helping a ‘future, wiser court’ overturn Heller.” Previously cited. The editorial staff added, poignantly, “If Mrs. Clinton selects Antonin Scalia’s replacement, she knows the Court’s liberals with get their opportunity to overturn Heller. The Second Amendment really is on the ballot this November.” Previously cited.Senator Leahy and other Senate Democrats on the Judiciary Committee want a jurist on the high Court who represent their ideology—one antithetical to the Second Amendment. Hillary Clinton won’t disappoint them if elected U.S. President. Judge Garland is their man. He isn’t ours.[separator type="medium" style="normal" align="left"margin-bottom="25" margin_top="5"] Copyright © 2016 Roger J Katz (Towne Criour), Stephen L. D’Andrilli (Publius) All Rights Reserved.
VOISINE: A SECOND AMENDMENT CASE THAT ISN'T?
JUSTICE THOMAS SPEAKS OUT IN THE VOISINE CASE
UNITED STATES VERSUS VOISINE
PART 1: PRELIMINARY REMARKS
This is the first of a multi-part series article on the most important Second Amendment case to come before the U.S. Supreme Court since the two seminal Second Amendment cases: District of Columbia vs. Heller, 554 U.S. 570, 128 S. Ct. 2783, 171 L. Ed. 2d 637 (2008) and McDonald vs. City of Chicago, 130 S. Ct. 320, 177 L. Ed.2d 894, 2010 U.S. LEXIS 5523 (2010). Two points must be made apropos of this remark before we undertake a comprehensive analysis of the Voisine case, at this juncture, up through the legal argument that goes to the matter whether the present case is properly considered a Second Amendment case at all; and the other point goes to the matter concerning the extent to which lower courts, throughout the Country, whether State or Federal, and the extent to which State Legislatures throughout the Country adhere to the holdings and to the reasoning of the majority opinions in the two cases. The late Justice Antonin Scalia penned the majority oAnyone who keeps abreast of the U. S. Supreme Court knows that Justice Clarence Thomas broke a ten-year silence when he posed questions to counsel during oral argument on February 29, 2016 in the case United States vs. Voisine, No. 14-10154 (S. Ct. Dec. 17, 2015). The other seven Justices retained an austere demeanor. But they must surely have been surprised at Justice Thomas’ uncharacteristic lack of reticence. The Press, for its part, was noticeably, and understandably, thunderstruck.One may speculate why Justice Thomas chose to take part in the questioning of counsel in this case, at this time. Not improbably, Justice Thomas did so, in part, out of deep respect for the memory of Justice Antonin Scalia. Justice Scalia would have had much to say in Voisine as the case touches on two landmark Second Amendment cases: District of Columbia vs. Heller, 554 U.S. 570 (2008) and McDonald vs. Chicago, 561 U.S. 742 (2010). “Heller holds that a law banning the possession of handguns in the home (or making their use in the home infeasible) violates the individual right to keep and bear arms secured by the Second Amendment.”In the subsequent McDonald case, the U.S. Supreme Court held that, “the Second Amendment creates individual rights that can be asserted against state and local governments.” Together, the two cases strengthen the Second Amendment more so than any previous holding of the high Court. The two cases constrain local, State and federal governments from whittling away at Americans’ fundamental right of the people to keep and bear arms in their individual capacity.Justice Scalia wrote the Majority Opinion in Heller, joined by Chief Justice Roberts, and Justices Thomas, Alito, and Kennedy. Justice Samuel Alito wrote the Opinion for the Majority in McDonald, joined by Chief Justice Roberts, and Justices Scalia, Thomas and Kennedy. Not surprisingly, the liberal wing of the Court, comprising Justices Ginsburg, Sotomayor, Kagan, and Breyer dissented, and they did so strenuously.Now, contrary to common belief, the U.S. Supreme Court, does not have to accept and, indeed, does not accept every case that happens to come before it. No one can appeal an adverse decision to the U.S. Supreme Court as a matter of right. Indeed, the Supreme Court grants A Petitioner’s writ of certiorari in only a few cases in any given term. And, in the Court’s information sheet, presented to those who seek to have their case heard, the Court says clearly, even bluntly, that “review on writ of certiorari is not a matter of right but of judicial discretion.”Generally, the high Court will agree to hear a case where there is disagreement and conflict among the various federal Circuit Courts of Appeal. This often takes years to develop. Even so, many cases that the high Court does agree to hear often involve arcane legal issues, very narrow in scope, that are difficult for the non-lawyer to grasp, and, so, quite understandably, difficult for anyone but a lawyer to appreciate. The Voisine case may, at first glance, appear to be just such a case. It isn’t.To be sure there is a complex, arcane issue here, but there is also a straight-forward Second Amendment issue as well. The Second Amendment issue would have been given no consideration at all but for Justice Thomas’ interjection. Be thankful that Justice Thomas spoke up during oral argument. This is not theatrics as presented by the mainstream media. Justice Thomas' questions and remarks were precise, well-honed, to the point and surely took the U.S. Government off guard.In the Opinion to be handed down in another month or so it is unlikely that the Court will not give the Second Amendment issue at least some consideration and will do so precisely because of, one, Justice Thomas’ questions to counsel for Respondent, U.S. Government, two, counsel's responses to the Court, and, three, Justice Thomas' comments. If no other Justice mentions the Second Amendment in the Majority's Opinion, or in a concurring or dissenting Opinion, Justice Thomas most certainly will.Now, a salient issue in Voisine does involve the meaning to be given a word phrase in one particular section of a lengthy federal Statute. Nonetheless, as we heretofore explained, the Voisine case is the first Supreme Court case to be heard by the high Court that does impact the Second Amendment. In fact, Petitioners did timely and properly raise a Second Amendment claim in their Briefs to the United States Court of Appeals for the First Circuit. And that claim was preserved; and that issue was ripe for review by the U.S. Supreme Court when it granted Petitioners’ Writ of Certiorari. Moreover, while the Second Amendment issue was set forth with particularity as a salient issue in Petitioners’ Brief, the Second Amendment claim was not set forth as an issue in the Government’s own Brief in Opposition to the Brief of Petitioners. And the Government, in its Brief in Opposition to the Brief of Petitioners, addressed Petitioners’ Second Amendment claim only perfunctorily, giving little thought to it, seemingly in deference to and happily therefor to the United States Court of Appeals for the First Circuit's treatment of it, for the First Circuit dismissed Petitioners' Second Amendment claim outright.In fact during oral argument before the Supreme Court, the Second Amendment was only mentioned twice and that occurred toward the end of oral argument when Justice Thomas brought the issue up. Justice Thomas did so, in part, as we said earlier, because Justice Scalia certainly would have done so had he lived. And, Justice Scalia would have done so for a very good reason, quite apart from and notwithstanding the otherwise cursory treatment of the Second Amendment issue by the United States Court of Appeals for the First Circuit Court. For Voisine is the first case to come before the Supreme Court that implicates the Second Amendment, however obliquely or tangentially, or seemingly cursorily since the high Court decided the Heller case in 2008 and, subsequently, Heller's important progeny, the McDonald case in 2010, over one-half decade ago.Although the other Justices took great pains to avoid entertaining the Second Amendment issue in Voisine – preferring to address, alone, the meaning attached to a few words in one federal Statute – Justice Thomas would not let the matter rest, much to the satisfaction of Petitioners, who clearly sought to have their Second Amendment issue heard, and much to the chagrin of Respondent, the United States Government, that sought to keep the Second Amendment issue moot.Moreover, by querying Government’s counsel on Petitioners’ Second Amendment claim, Justice Thomas may have been initiating a not so subtle payback to other Justices for a snubbing that both he and Justice Scalia suffered at the hands of those other Justices. For, both Justices Scalia and Thomas were more than a trifle perturbed that the majority of the Justices of the Supreme Court denied certiorari in Friedman vs. City of Highland Park, Illinois, 784 F.3d 406 (7th Cir. 2015). The Seventh Circuit in Friedman clearly manifested its contempt for the high Court’s holdings in Heller and McDonald. Justices Scalia and Thomas clearly wanted, and had expected, the high Court to grant certiorari in Friedman and, by failing to do so, Justices Scalia and Thomas expressed their righteous indignation by drafting a dissenting opinion in Friedman -- an unusual occurrence.Very rarely do Justices explain their reason for refusing to grant a writ of certiorari in a case. Even more rarely will one find a dissenting opinion written by a Justice, expressing disfavor in the failure of the majority of Justices to grant the writ in a case.Surely, had the Supreme Court granted Petitioner’s writ of certiorari in Friedman, Justices Scalia and Thomas would have taken the Seventh Circuit to task for patently ignoring the Heller and McDonald holdings. The Arbalest Quarrel discusses the Friedman case at length in the article, titled, “A Court Of Law That Rejects U.S. Supreme Court Precedent Undermines The Rule Of Law And Undercuts The U.S. Constitution,” posted on December 14, 2015. For our discussion of Friedman and its importance to the Heller and McDonald cases, readers are encouraged to read our article.In spirit Justice Scalia was certainly in attendance during oral argument in Voisine. Since the Supreme Court would not entertain the Friedman case which was a direct and audacious attack by a United States Circuit Court of Appeals on the clear and cogent holdings in Heller and McDonald, Justice Thomas, on behalf of Justice Scalia, clearly intended to raise and, so, did raise Petitioner’s Second Amendment issue in Voisine – a case that the U.S. Supreme Court did decide to entertain.From the get-go it had been clear that no other Justice would weigh in on the Second Amendment implications of Voisine, and take the Government to task. Justice Thomas made certain that Justice Scalia’s disdain for a federal Government that cares not one whit for the sanctity of the Second Amendment would dare not go unchallenged.Americans who understand and can appreciate the importance of our Bill of Rights as the foundation of a free Republic and who can, in particular, understand and appreciate the importance of the Second Amendment as a critical check on the accumulation of power by the Federal Government, and by improvident State governments as well, will do well to ponder the Nation's incredible loss. Justice Scalia, together with Justice Thomas, made adamantly clear that the right of the people to keep and bear arms is an individual right unconnected to a person’s participation in a militia. The Heller decision rankles several Justices on the Supreme Court and many Globalists, both in this Country and outside it, as well, who are working quietly but incessantly and inexorably in the shadows, intent on undercutting America’s Bill of Rights, generally, and undermining America’s Second Amendment, particularly.We know, without doubt, that President Obama – or her royal Majesty, Queen Hillary Rodham Clinton – seek to nominate to the highest Court of the Land, a person who would chomp at the bit to reverse Heller and McDonald on the ground that, for them, the cases are discordant. They are discordant to these judges and to powerful, ruthless individuals because they happen to strengthen rather than weaken America’s Bill of Rights.In Part 2 of this Article, we will deal in depth, with the legal issues in Voisine and you will come to understand, one, why the high Court, apart from Justice Thomas, does not wish to deal with the impact that a negative decision in Voisine would have on the Second Amendment and, two, how it is that a specific question posed by Justice Thomas to counsel for the U.S. Government elicited from counsel a most remarkable, illuminating, and, in fact, frightening comment. You will come to see why a negative holding in Voisine does have negative implications for our Second Amendment.So it is that the mainstream media would much rather keep the dire implications of Voisine in the shadows. We, on the other hand, intend to bring the implications out, for all to see, into the light of day. In so doing, we trust we will help keep the memory of Justice Scalia alive, and in keeping Justice Scalia’s memory alive, preserve, as well, the holdings in Heller and McDonald that bespeak Justice Scalia’s devotion to the import of the Second Amendment. Ever mindful, then, are we of those who are hell-bent in destroying it.[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.
READ THE FINE PRINT: GARLAND’S CONFIRMATION UNDER THE MICROSCOPE
READ THE FINE PRINT: GARLAND’S CONFIRMATION UNDER THE MICROSCOPE
Liberal Law Professors Send Open Letter to Chairman of Judiciary Committee, Senator Charles Grassley, Urging the Senator to Hold a Hearing and Vote on Obama’s Nominee to the U.S. Supreme Court, Judge Merrick Garland.
The Arbalest Quarrel Responds, Sending its Own Letter to Senator Grassley, Rebutting Claims and Assertions of Law Professors.
“For it is a truth, which the experience of ages has attested, that the people are always most in danger when the means of injuring their rights are in the possession of those of whom they entertain the least suspicion.” Alexander Hamilton, Federalist No. 25, 12/21/1787For the moment the stars seem aligned in Mr. Obama’s favor. So much so, he will suffer no one confounding his ambitions to subvert the U.S. Constitution, in order to weaken our Sovereign Nation, thus paving the way for an EU style North American Union. The universe does not bend backwards to President Obama’s beck and call, of course, but that does not stop him from using the power of the U.S. Presidency to obtain what he wants.Before leaving Office, Obama intends to fill the ninth seat on the U.S. Supreme Court. The Senate has confirmed Obama’s previous two short-list candidates to the Supreme Court, Sonia Sotomayor and Elena Kagan, and he is obsessed with and adamant about confirming his third short-list candidate to the high Court before he leaves Office: Judge Merrick Garland. That possibility conveniently materialized with the passing of Justice Scalia. Obama intends to stack the deck, 5 to 4, in favor of the liberal wing of the high Court.The mainstream media has obsequiously acted on Obama’s behalf, bombarding the American public incessantly with articles and editorials, extolling Garland’s many presumed virtues. Public Officials got into the act as well. Vice President Joe Biden heralded Garland’s candidacy in a speech he gave to law students at Georgetown Law School. That speech was followed by one Obama, himself, gave to Chicago Law School Students, where, ironically enough, the President had, at one time, taught “Constitutional law” – with emphasis, since he became President, more on the “CON” and less on the “LAW.” Harry Reid, Senate Minority Leader, added his two-cents on the Floor of the Senate, as well.The cacophony of gushing praise continues unabated through endless iterations. Most disheartening, several liberal law scholars have added their own voice to the mix. They claimed, in a letter sent by email, on March 31, addressed to Senators Grassley and Leahy, that no inference can be drawn from Garland’s judicial record to suggest that Garland would pose a threat to the preservation of the Second Amendment were he to gain a seat on the high Court.The central theme of the scholars’ letter to Senators Grassley and Leahy is that Garland’s actions in the Parker and Reno cases do not illustrate anything that might hint of the Judge’s legal and philosophical views toward the Second Amendment. We, at the Arbalest Quarrel, however, vehemently disagree with that assertion. Parker and Reno tell the public much about Garland’s jurisprudence and methodological approach to Second Amendment legal and logical analysis. The Scholars’ letter is cagey because they hesitate to assert that Garland would be an avid defender of the Second Amendment – which in definitive contrast, as we know, Justice Scalia definitely was.The Arbalest Quarrel therefore felt compelled to send out its own letter to Senator Grassley, in rebuttal to the March 31 letter the Senator received from the liberal legal scholars. We have posted our letter for your review, in an accompanying post on this site. Please see the Professors' March 31 letter sent by email to Senators Grassley and Leahy, for a side-by-side comparison.We feel it important to respond to the letter from academia for another reason. The academicians’ letter marks the first instance, we are aware of, that provides for public consumption something transcending empty praise – insofar as the letter actually discusses the Judge’s decisional law.There are two things Americans must keep uppermost in mind, concerning Obama’s most recent nomination to the U.S. Supreme Court.One, Garland’s jurisprudential philosophy toward the Second Amendment and the methodology he uses to decide legal cases are in perfect sync with those of Justices Kagan and Sotomayor. So, don’t for a second think that Judge Garland is a “centrist” – a word invented by the news media to describe him. As applied to Garland, the word is inappropriate, even deceptive. What is our justification for saying this?Consider the jurisprudential philosophy of Justices Kagan and Sotomayor, Obama’s first two short-list nominees to sit on the U.S. Supreme Court. Their view of the Second Amendment and the methodology they employ to decide cases are now well known. Their attitude toward the Second Amendment, in particular, is not one of deference. It is one diametrically opposed to that of the late Justice Scalia.It would stretch credulity to believe that Obama would nominate a person to the high Court who did not share his own views toward the Bill of Rights in general and toward the Second Amendment in particular. Justices Kagan and Sotomayor clearly share Obama’s views. Judge Merrick Garland is no different. The three Judges, Kagan, Sotomayor, and Garland, think alike, act alike, and operate as one. Together, they comprise three arms of a “Judicial Equilateral Triangle,” by which and through which Obama intends to defeat the Second Amendment.Two, if the Senate acquiesces to the shrill, belligerent cries for a hearing and vote on Garland’s nomination to a seat on the U.S. Supreme Court, Garland likely will be confirmed. How do we know this? Senator Lindsey Graham, Republican South Carolina, who met with Judge Garland, briefly discussed that meeting with Kate Bolduan, broadcast journalist for CNN, on Thursday, April 21, 2016.Yes, Senator Graham did assert there is less than a “snowball’s chance” that the Senate will relent and give Garland a hearing while Obama remains in Office. But, he added a chilling prognostication. He made poignantly clear that, if the next President were to nominate Garland and if the Senate, at that time, proceeds to a hearing and vote, Garland will be confirmed.By the way, Senator Graham, voted to confirm Obama’s previous two nominees to the Supreme Court: Sotomayor and Kagan. He made clear enough, during the CNN interview, he would vote to confirm Garland too were the Senate to hold a hearing on the nomination.During the interview on CNN, Senator Graham referred to Garland, as “a good man,” “a fine man.” The Senator added: “not one blemish on [Garland’s] record.” We must ask: is Senator Graham familiar with the Judge’s decisional law? If so, the Senator does not, apparently, see that Garland’s antagonism toward the Second Amendment constitutes “a blemish.” How many other Republicans would vote to confirm Judge Garland’s nomination to a seat on the U.S. Supreme Court?Of course if Hillary Clinton – who is virtually assured of the Democratic Party nomination for U.S. President – becomes the next President of the United States, assuming she doesn’t face criminal indictment, the Second Amendment will be under incessant attack by the three Branches of Government. It will be under attack in the Halls of Congress; it will be under attack in the Executive Office; and it will be under attack in the highest Court of the Land. The public will witness the liberal wing of the Court systematically out-voting the conservative wing, 5 to 4, on matters directly impacting the Bill of Rights, at every turn. Justice Scalia’s legacy on the high Court will be undone.The bottom line: The U.S. Senate should not and better not accede to a hearing on Obama’s nomination of Garland on the U.S. Supreme Court. We cannot let Obama stack the deck with another liberal Justice who will destroy our sacred Bill of Rights by judicial fiat. Hopefully, a Republican President will succeed Obama and nominate a Jurist to the high Court whose jurisprudential philosophy and methodology for reviewing cases is in the same vein as that of Justice Scalia. But God help the American people if Hillary Clinton becomes the 45th President of the United States. We all know what that portends for the Nation, its citizenry, and for the Bill of Rights. It won’t be pleasant.[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.
JUDGE MERRICK GARLAND DOES NOT ADHERE TO THE METHODOLOGY THAT JUSTICE ANTONIN SCALIA EMPLOYED WHEN DECIDING CASES.
JUDGE MERRICK GARLAND DOES NOT ADHERE TO THE METHODOLOGY THAT JUSTICE ANTONIN SCALIA EMPLOYED WHEN DECIDING CASES.
AN ANALYSIS OF THE CASE NRA VERSUS JANET RENO
PART 7
U.S. Supreme Court Justice Antonin Scalia always adhered to the principle that, when interpreting a Statute, a Judge should look first and foremost to the language of the Statute itself and not attempt to go beyond the language of a Statute in order to decipher its meaning or to force a particular meaning onto a Statute. This is the principle referred to as ‘textualism,’and Justice Scalia was a fervent proponent of it. He was, as well, instrumental in its development during his own tenure as Judge on the United States Court of Appeals for the District of Columbia Circuit. He further developed and refined its use when he was nominated by President Ronald Reagan to serve as an Associate Justice on the U.S. Supreme Court and confirmed by the United States Senate in 1986. He served brilliantly on the Court until his death on February 13, 2016. Other Justices began to employ the methodology of 'textualism' in their own reasoning.Justice Scalia saw, in the utilization of ‘textualism,’ a tool that guards against a Judge inadvertently, or, for that matter, deliberately thrusting that Judge’s personal judicial predilections on a case in order to force through a conclusion and a decision that a Judge wants, rather than a conclusion and decision that is founded on good law and upon sound logic. The judicial theory of ‘textualism’ means that, when a Judge seeks to discern the meaning of a Statute, the Judge looks to what the Statute actually says. That is to say, one looks to the “plain meaning” of a Statute. Textualism also requires a Judge to look only to the plain meaning of a Statute as enacted. One should not and need not go to extraneous sources for information on what a Statute might mean. To do so leads to embellishment and is an anathema to sound legal reasoning.During his tenure as a United States Supreme Court Justice, Justice Scalia had a tremendous impact, not only on the decisions handed down in numerous U.S. Supreme Court cases, but on suggesting how Justices ought to look at cases – that is to say -- the manner in which Justices ought to tackle a case -- applying sound legal and logical reasoning to a case so as to come to a sound legal and logical decision and, just as importantly, what a Justice should avoid doing when deciding a case. The methodology of textualism became incorporated in the legal reasoning of many of the Justices.The Reno case is a textbook example of poor legal and logical reasoning by the Court's majority and aptly illustrates the dangers a Jurist runs into when that Jurist goes beyond the plain meaning of a Statute as enacted. The Reno case would have been decided much differently had Justice Scalia, sitting as Judge Scalia on the United States Court of Appeals for the District of Columbia Circuit, actually heard the case. Justice Scalia would have undoubtedly taken Judges Tatel and Garland to task for looking beyond the plain meaning of 18 U.S.C. § 922(t)(2)(c)(C). For having done so, Judges Tatel and Garland came to the wrong decision in the case. And, they did, so because they looked deep into and took into account the Legislative history of the Statute in question, in order, as they argue, to decipher the meaning of the Statute. They did this when it was unnecessary to do so. They did so because they wished to come to the decision they did. This amounts to intellectual dishonesty, and, indeed, to legal and logical heresy.Judges Tatel and Garland did so, clearly enough, not to derive the correct decision, but, rather, to justify an erroneous decision that might come across as a plausibly correct one. In so doing, they relinquished judicial honesty in order to promote their own brand of legal philosophy and ideology – one that is detrimental to the sanctity of the Second Amendment of the Bill of Rights.
THE CHEVRON CASE
The decision of the Court’s majority – Judges Tatel and Garland – in the Reno case, is also grounded on a misapplication of the U.S. Supreme Court case, Chevron U.S.A. Inc. vs. Natural Resources Defense Council, Inc., 467 U.S. 837, 81 L. Ed. 2d 694, 104 S. Ct. 2778 (1984). Judges Tatel and Garland pointed out that, because NRA had challenged the legality of a federal Statute, administered by a government agency, the Court must employ the two-part Chevron test. That is true enough, and the first part of the test requires a Court to determine whether Congress has directly spoken to the precise issue. In this case, the precise issue is whether the meaning of the phrase, “destroy all records,” of a gun transaction, as the phrase “destroy all records,” appears in the Statute subsection, 18 U.S.C. § 922(t)(2)(c)(C), is clear and unambiguous. If so, that ends the matter. If not, then a Court must go to the second part of the Chevron test and ask whether the agency’s answer -- as exemplified in the rules that an agency promulgates to effectuate the intent of Congress as expressed in a Congressional enactment -- is based on a permissible construction of the statute. In the instant case the Justice Department has promulgated a rule creating an “audit log,” allowing for retention of information concerning a gun transaction within a six-month period.Judges Tatel and Garland decided, erroneously, that Congress did not intend that gun transaction records must be destroyed immediately because, as the Court said, Congress would have drafted the Brady Act legislation to include the word, ‘immediately.’ But, this really begs the question at issue: whether the Statute in question, 18 U.S.C. § 922(t)(2)(c), and, specifically, subsection, 18 U.S.C. § 922(t)(2)(c)(C), is inherently, intrinsically ambiguous because the word, 'immediately,' does not happen to follow the word, 'records,' in the phrase, 'destroy all records.' But, the Court's majority inferred that 18 U.S.C. § 922(t)(2)(c)(C) is inherently ambiguous because the Court's majority, Judges Tatel and Garland, decided that it must look to Legislative history to resolve the presumed ambiguity – when there was no sound legal or logical reason to do so. Having found, in Legislative history, that the House version of 18 U.S.C. § 922(t)(2)(c)(C) contained the word, 'immediately,' but that the Statutory subsection, as redrafted in the Senate version, and as ultimately enacted, did not include the word, 'immediately,' the Court's majority inferred that the omission of the word, 'immediately,' in the final version of the Brady Act, as enacted, was ambiguous as to retention of NICS records.Is this to say that the Statutory subsection as enacted is inherently ambiguous? That is unlikely. For, if that were true, one would have to surmise that Congress had decided, for some bizarre reason, to craft a Statute that Congress knew would be ambiguous. What kind of guidance would that have provided for the Second Branch of Government -- the Executive Branch -- the Branch of Government charged with executing the laws of Congress, under Article 2, Section 3 of the U.S. Constitution. Article 2, Section 3 of the U.S. Constitution requires that the Executive "shall take care that the laws be faithfully executed." More likely, Congress realized that inclusion of a qualifier, in the phrase, "destroy all records," is unnecessary because inclusion of the adverb, 'immediately,' to the phrase, 'destroy all records,' simply creates redundancy. Moreover, had Judges Tatel and Garland not bothered to look at the Legislative history of the Statute, 18 U.S.C. § 922(t)(2)(c), they would not have come across the House version of the Statute in the first place. The Judges simply used a House version of a bill -- that was never enacted -- to argue, after the fact, that the version of the Statute as enacted must be ambiguous, when it never was ambiguous.In looking improperly to Legislative history, Judges Tatel and Garland provided, to their minds at least, a plausible argument to buttress the result they wanted, namely that the Justice Department “audit log” and “retention rule” were consistent with the intent of Congress when Congress enacted the Brady Act, notwithstanding that law and logic dictate another result entirely: that the “audit log” and “retention rule” -- for individuals who are under no disability and, therefore, are lawfully permitted to possess firearms and ammunition -- is not authorized and is patently illegal. Had Judges Tatel and Garland employed the sound jurisprudential methodology developed by Justice Scalia, textualism, they would have avoided the tortuous path that led them to the wrong decision. The Judges would have been compelled to find in favor of NRA, reversing the decision of the United States District Court for the District of Columbia. In that event the decision in favor of NRA would have been unanimous. All three Federal Circuit Court of Appeals Judges, Tatel, Sentelle, and Garland would be in full agreement. Judges Tatel and Garland might not have liked the result deriving from sound legal and logical reasoning, but they would have been intellectually honest about it and their judicial integrity would have be intact. The Separation of Powers Doctrine would have been adhered to, and the American People would not be faced with the prospect of an illegal Government intrusion into the exercise of the fundamental right of the people to keep and bear arms. It is not the Government's business to keep records on law-abiding citizens lawful firearms and ammunition transactions, and it was never the intent of Congress to give the federal Government authorization under the Brady Act, or under any other federal Act, for that matter, to keep tabs on firearms and ammunition that law-abiding American citizens own and possess; nor does the Brady Act, or any other Act of Congress authorize Government to keep records on the mere fact that a firearms' or ammunition transaction has taken place.That Judges Tatel and Garland allowed personal sentiment to override judicial integrity and intellectual honesty – even going so far as to canvass Congressional history to buttress a horribly wrong decision – now allows the Justice Department to maintain an illegal “audit log,” of gun transaction records, that lends itself to the creation of an illicit federal gun registry if such does not already exist. Having found 18 U.S.C. § 922(t)(2)(c)(C) to be inherently ambiguous, the Judges compounded their error by proceeding to Step 2 of the Chevron test which, "affords substantial deference to the agency's interpretation of statutory language." That may be, but it need not be, and would not be had Judges Tatel and Garland refrained from proceeding to Step 2 of the Chevron case in the first instance.The decision of Judges Tatel and Garland tells us that the Janet Reno’s rules for implementing the NICS criminal background check system is all perfectly consistent with Congressional intent in having enacted the Brady Act when the Justice Department’s actions amount to illegal usurpation of the power and authority of Congress, the First Branch of Government. The duties of the Second Branch of Government, the Executive, of which the Justice Department is a part, is limited to executing the laws that Congress creates – not creating law of its own accord. The Justice Department has done so, converting the Brady Act’s NICS instant criminal background check system into an illegal federal gun registry or, at least – in the rules that the Justice Department has promulgated – certainly paving the way for creation of an illicit federal gun registry. And, the Court's erroneous ruling in Reno gives the Justice Department's illicit actions legitimacy.In finding ambiguity in a Statute when no ambiguity exists Judges Tatel and Garland open up a door to grandiose interpretation of Congressional enactments on the part of the Executive Branch. So, if the President -- which includes the entirety of the Executive Branch departments, agencies, and bureaus under the President's control -- takes exception to restrictions in Congressional enactments, the Executive can simply ignore the restrictions and go its own way. This is what happened with the instant criminal background check as applied to individuals who seek to acquire firearms or ammunition. Judges Tatel and Garland have allowed for the creation of a hidden federal gun and ammunition registry, irrespective of and, in fact, in clear defiance of Congressional intent. The decision of the majority in the Reno case is an example, as well, of heinous Judicial activism and is an omen of things to come if Judge Garland succeeds to a seat on the U.S. Supreme Court -- giving the liberal wing of the high Court a critical fifth vote, a clear majority, and an unparalleled opportunity to pursue a Socialist agenda, inconsistent with our core values as exemplified by and preserved in our Nation's Bill of Rights. The liberal wing the high Court will, hereafter, be able to operate unimpeded by the conservative wing of the high Court.
CONCLUSION
Judge Tatel has not been nominated by President Obama to replace Justice Scalia; and, so, the damage that he might inflict on the Bill of Rights, although certainly harmful to the preservation of the Second Amendment is probably not catastrophic. But, Judge Garland has been nominated by Obama to serve as Justice Scalia’s replacement.Judge Garland, sitting on the high Court, as Justice Garland, will be in the strongest possible position not merely to subvert Justice Scalia’s decisional history; Judge Garland will be in a position to subvert Justice Scalia’s jurisprudential philosophy that also includes Justice Scalia’s legisprudential approach to statutory construction – all of which lend to the ultimate demise of the Second Amendment and much of the rest of the Bill of Rights along with it. Understandably, President Barack Obama would like to keep these facts well hidden.[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.
JUDGE GARLAND’S REASONING IS MARKED BY UNSOUND LEGAL REASONING AND FAULTY LOGIC
JUDGE GARLAND’S REASONING IS MARKED BY UNSOUND LEGAL REASONING AND FAULTY LOGIC
AN ANALYSIS OF THE CASE NRA VERSUS. JANET RENO
PART 6
MISUSE OF LEGISLATIVE HISTORY WHEN ATTEMPTING TO DECIPHER THE PLAIN MEANING OF A STATUTE
We have discussed a major flaw in the reasoning of Judges Tatel and Garland in Part 5 of this multi-series article. There is a second, equally serious flaw in the reasoning of Judge Tatel and Judge Garland, when they ruled in favor of Janet Reno, against NRA and, therefore, against the right of the people to keep and bear arms, in the Reno case. The Judges relied on Legislative history to buttress the conclusion they sought, namely, that the Justice Department was not required to destroy NICS records immediately. In the misuse of Legislative history, the Judges committed a cardinal fallacy of logic. They assumed what they needed to prove, namely that failure of Congress to add the word, ‘immediately,’ before the word ‘destroy,’ in 18 U.S.C. § 922(t)(2)(c)(C), means that Janet Reno could unilaterally decide to keep NICS records for 6 months, or 6 years, or for any length of time – even indefinitely, for that matter – because no specific time limit, relating to the destruction of the NICS records, is set forth in the Statute. The idea manifests as a ludicrous idea assumed to be true rather than a conclusion to be derived. And the assumption is predicated on a specific piece of legislative history. They said, “Our conclusion that section 922(t)(2)(C) does not unambiguously require immediate destruction of NICS records finds support in the Act's legislative history. As reported to the House by the Judiciary Committee, the Brady bill contained no destruction requirement at all. See H.R. Rep. No. 103-344 (1993), reprinted in 1993 U.S.C.C.A.N. 1984. The obligation to destroy NICS records was added during floor debate. As passed by the House, the bill stated that the system shall ‘immediately destroy all records’ of allowed transactions. See 139 Cong. Rec. H9098, 9123, 9144 (daily ed. Nov. 10, 1993). The Conference Committee, however, adopted the Senate's version of the destruction requirement, which did not contain ‘immediately.’ Compare 139 Cong. Rec. H9123 (daily ed. Nov. 10, 1993) (House version), with 139 Cong. Rec. S16506 (daily ed. Nov. 19, 1993) (Senate version). It was this version that both houses approved and the President signed.” Judges Tatel and Garland presume that, because inclusion of the word, ‘immediately,’ appeared in the House version of the Bill but not in the final Senate version, the Justice Department could maintain records for some unspecified period of time. This is faulty logical reasoning because the Senate may just as reasonably have assumed that the addition of the adverb, ‘immediately,’ would be redundant, rather than necessary. In fact, inclusion of the word, ‘immediately,’ in the phrase, ‘destroy all records,’ is redundant. Moreover, effective legislative draftsmanship eschews use of adverbs and adjectives. If language in a Statute would seem to require inclusion of such qualifiers in order to avoid ambiguity or vagueness, this would suggest, in many instances, that the drafters did a poor job in drafting a statute in the first place. The use of adverbs and adjectives may be useful in works of fiction, but they are generally to be avoided in legal documents and in legislation.Consider our own Bill of Rights. For example, would the drafters of the Second Amendment have gained anything through the use of adjectives or adverbs, apart from the adjectives, ‘free’ and ‘necessary,’ through the assertion that: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” In the context of the Second Amendment, the adjectives ‘free’ and ‘necessary’ provide context and emphasis for elucidating the idea that only through an armed citizenry shall the American people ever hope to prevent tyranny. This is the reason we have the dependent clause in the Second Amendment at all – a point that even Republican members of Congress and supporters of the Second Amendment will not, to our knowledge, openly admit, preferring to refer only to the right of each individual to provide for his or her self-defense. This is an implication behind the Second Amendment to be sure. But, the true purpose of the Second Amendment is to check the power of the federal Government and its standing army: keeping the federal Government and its standing army “in its place,” that is to say, reminding the federal Government that it serves at the behest and pleasure of the American people and not the other way around. Moreover, in looking to Legislative history of a Statute at all, we find in this legal and logical reasoning of Judges Tatel and Garland something markedly different in their approach to judicial reasoning when compared with the approach employed by Justice Scalia. What we need ask is whether a judge ought to be considering legislative history at all when determining the meaning of a statute. Judges Garland and Tatel obviously say, “yes.” Justice Scalia virtually invariably said, “no.”Although, there is some Supreme Court precedent for looking to the Legislative history of a statute in order to explicate a statute’s meaning, one must use Legislative history gingerly, if at all. Judge Scalia took a very dim view of looking to Legislative history to discern the meaning of a Statute because he felt it is unnecessary to do so, can become a crutch for those who generally look to Legislative history, where, as here, a Judge is attempting to force through a particular outcome and looks to Legislative history simply to buttress that outcome, and, lastly, when relying on Legislative history, a judge is prone to errors in legal reasoning and, this, in turn, more often than not, leads to erroneous legal decisions. Judges Tatel and Garland use Legislative history, erroneously and in fact egregiously. They assumed the Statute in question, 18 U.S.C. § 922(t)(2)(c)(C), was ambiguous precisely because Legislative history refers to an alternate rendering of the Statute that happened to include the word, ‘immediately,’ in the House version that was never adopted by the Senate and never made it to the final enacted version of the Statute. The Judges don’t say this, but that is clear enough from an elucidation of their analysis.The Judges argue that the Statute, 18 U.S.C. § 922(t)(2)(c)(C), is ambiguous, not because a plain reading of the Statute alludes to any instance of ambiguity or vagueness in meaning – it doesn’t – but because Judges Tatel and Garland sought to render a decision in favor of Janet Reno and the Justice Department in order to undermine the Second Amendment; and the use of and reliance on Legislative history gave the Judges the ammunition they needed to make a plausible argument in support of a decision (the conclusion) they wanted – not a decision that happened to follow from legal precedent and sound logic – in other words – a decision that they sought to avoid.The Reno case is one prime example of misuse of Legislative history. The case stands as an object lesson of bad legal reasoning and serves well to explain why Justice Scalia was himself loathe to rely on Legislative history except where ambiguity or vagueness is clear, and demonstrable, and unequivocal on the face of the language of a Statute under review. But that is not at all true in the Reno case. The Statute, 18 U.S.C. § 922(t)(2)(c)(C) is clear and unambiguous on its face – both in the language of the specific clause and in the context of the rest of the Statute, 18 U.S.C. § 922(t)(2)(c). The decision of the Court’s majority in the Reno case, rests on faulty logic and is predicated on the two Judges’ antipathy toward the Second Amendment.In Part 7, the final segment of this multi-part series, we look at a legal methodology known as “textualism.” Justice Scalia was a strong proponent of this methodology for a very important reason. Adherence to the methodology promotes judicial honesty and integrity. Something altogether lacking in the majority’s opinion in the Reno case.[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.
THE FLAWS IN JUDGE GARLAND’S REASONING
THE FLAWS IN JUDGE GARLAND’S REASONING
AN ANALYSIS OF THE CASE NRA VERSUS JANET RENO
PART 5
RECAP
We have been taking a close look at the case, National Rifle Association of America, Inc. vs. Reno, 216 F.3d 122, 2000 U.S. App. LEXIS 15906, 342 U.S. App. D.C. 231 (D.C. 2000). We have done so because an analysis of this Second Amendment case provides us with the clearest barometer of what the American people can expect if President Obama were to successfully position Judge Merrick Garland on the United States Supreme Court as a replacement for the late Justice Antonin Scalia. Judge Garland did not write the opinion. Judge Tatel did. But, Judge Garland agreed with both the decision and the reasoning of Judge Tatel. This means that Judge Garland could have penned the opinion himself. It is clear that Judge Garland does not have a high regard for the sanctity of the Second Amendment to the U.S. Constitution. In fact, coming away from an analysis of the Reno case, it becomes apparent to the perceptive reader that Judge Garland does not have any regard for the sanctity of the Second Amendment. So, if he were to gain a seat on the U.S. Supreme Court, the American people can begin ticking off the minutes of a clock. For, it would be merely a matter of time before Judge Garland, as the fifth critical vote on the liberal wing of the Court undermines and reverses the Justice Scalia not just on the seminal Second Amendment case, District of Columbia vs. Heller, 554 U.S. 570; 128 S. Ct. 2783; 171 L. Ed. 2d 637; 2008 U.S. LEXIS 5268 (2008), but on Justice Scalia’s vast jurisprudence. That should provide conscientious Americans with some necessary food for thought. But, let’s get back to the Reno case.In Part 4 of this multi-part series we began drilling down into the guts of the reasoning of Judges Tatel and Garland. A critical part of the analysis of this case has to do with the meaning of the phrase, ‘destroy all records’ in reference to gun transactions as that phrase appears in a U.S. Code Section, 18 U.S.C. § 922(t)(2)(c)(C) of the Brady Act. What does that phrase mean in the context of the Statute?
DESTROY ALL RECORDS OF THE SYSTEM MEANS JUST THAT: DESTROY THOSE RECORDS AT ONCE!
NRA argues that, in the context 18 U.S.C. § 922(t)(2)(c)(C), inclusion of the adverb, ‘immediately,’ to the phrase, ‘destroy all records,’ is redundant; that it is clear enough in the language of the Statute that Congress intended the NICS to function as a database of information to be supplied to the gun dealer immediately – which it was meant to do – and that, since the execution mandate is immediate – either to allow the transaction to proceed or not to proceed – it stands to reason that, after “the call,” destruction of the records must proceed immediately as well.The Justice Department, though, argues that, nothing in the Federal Statute constrains the Department from holding onto gun transaction records for a period of time. In other words, the Justice Department says that the language of the Brady Act, specifically, the language of the Act, set forth in subsection 18 U.S.C. § 922(t)(2)(c)(C), does not require the Justice Department to destroy the records of the gun transaction immediately.Judges Tatel and Garland agreed with the reasoning of the Justice Department. The Judges opined that the clause, “destroy all records of the system with respect to the call (other than the identifying number and the date the number was assigned) and all records of the system relating to the person or the transfer,” is ambiguous as to whether the Justice Department must destroy the records of the gun transaction immediately precisely because Congress could have added the word, ‘immediately,’ in 18 U.S.C. § 922(t)(2)(c)(C), and refrained from doing so. But is that reasoning sound? Definitely not!The dissenting Judge, on the three Judge panel, Judge Sentelle, agreed with NRA, opining that Congress gave no inherent power to the Justice Department to exceed the power of Congress and that the Justice Department has done just that by promulgating a rule that the Department shall hold onto the records – if necessary, six months – after the date of transfer. Judge Sentelle correctly pointed out that: the Justice Department cannot seize for itself additional powers to decide how long it decides to retain records of a gun transfer. Let’s take dissenting Judge Sentelle’s very reasonable point a step further. Suppose that, instead of use of the words, ‘destroy all records,’ 18 U.S.C. § 922(t)(2)(c)(C) read: “keep all records of the system with respect to the call (other than the identifying number and the date the number was assigned) and all records of the system relating to the person or the transfer.” Now, suppose Janet Reno promulgated a rule allowing the Justice Department to keep all records for six months, or, for six weeks, or for six years, or, for that matter, for sixty years after which the Department would destroy all gun transaction records.Would it be reasonable to infer that, because Congress did not add the word, ‘indefinitely,’ or the word, 'forever,' to the phrase, ‘keep all records,’ the Justice Department would be correct to devise a rule, mandating that the Department shall keep records for a specified period of time, however long or short that period of time might be because Congress did not set forth in the Statute that NICS records must be kept forever, that is to say, ‘indefinitely'? In other words, would it be reasonable to construe the phrase, ‘keep all records,’ as inherently ambiguous or vague because Congress excluded the adjective, ‘forever,’ or the adverb, ‘indefinitely,’ from the phrase, ‘keep all records’? Would the addition of the adjective word, ‘forever,’ or the adverb, ‘indefinitely,’ to the phrase ‘keep all records’ add something, indeed anything, necessary to the meaning of the phrase, ‘keep all records,’ in the context of the Statute, 18 U.S.C. § 922(t)(2)(c)? Does the phrase, ‘keep all records’ so much as suggest that Congress is leaving it up to the Justice Department to decide whether, in the promulgation of rules to give efficacy to the Statute, that the phrase, ‘keep all records’ is straightforward on its face without need for further explication through the addition of the word, ‘forever,’ or ‘indefinitely,’ to the phrase, ‘keep all records;’ and, further, that the Justice Department would be perfectly correct in interpreting Congressional intent, if the Justice Department promulgated a rule that required the Department to keep NICS records for some definite period – whatever that period of time is – but still a period of time that is less than “forever” or “indefinitely” if the language of 18 U.S.C. § 922(t)(2)(c)(C) read, ‘keep all records’ (sans addition of the word, ‘forever,’ or addition of the word, ‘indefinitely’ to the Statute)? Is it not clear enough that the phrase, ‘keep all records’ means nothing more nor less than keep all records forever (or keep all records indefinitely)? If not, what more is to be gained through inclusion of the word, ‘forever,’ or the word, ‘indefinitely’ in the phrase, ‘keep all records?’ But, consistent with the reasoning of Judge Tatel and Judge Garland, it would be perfectly reasonable for the Justice Department to decide to keep NICS records for a specific period of time, less than indefinitely or forever, precisely because the Statute does not include the adverb, ‘indefinitely’ or the adjective, ‘forever,’ in the phrase, ‘keep all records.’ That is to say, the failure of Congress to add the word, ‘forever,’ or the word, ‘indefinitely,’ to the phrase, ‘keep all records,’ manifests ambiguity or vagueness. But, that idea is nonsensical. Moreover, it would be odd, to say the least, were Judges Tatel and Garland to insist that Janet Reno and her Justice Department, in their discretion, could decide to keep all NICS records for a limited period of time simply because Congress failed to assert, in the Statute, ‘keep all records forever’ or ‘keep all records indefinitely.’Yet, for two Judges who obviously have reservations about the sanctity of the Second Amendment it is difficult to believe that they would interpret the Statute as permitting the Justice Department to hold onto firearms’ transaction records for a period of time, but not necessarily indefinitely, were Congress to draft 18 U.S.C. § 922(t)(2)(c)(C) to read, ‘keep all records’ because, on the face of the Statute, ‘keep all records’ means that the Justice Department may ‘keep all records’ for howsoever long the Department wished to keep the records. But, consistent with the Court’s reasoning in the actual case, we would expect the Court to give to the Department of Justice the discretion to decide to keep NICS records for some period of time, less than forever, simply because Congress failed to include the obligatory word, ‘forever,’ or the word, ‘indefinitely,’ in the language of the Statute as ultimately enacted.Had the Statutory section in question been drafted to read, ‘keep all records,’ instead of ‘destroy all records,’ Judges Tatel and Garland, would be compelled to argue – consistent with their reasoning in the actual decision – that inclusion of the word, ‘indefinitely,’ or inclusion of the word, ‘forever,’ in the phrase, ‘keep all records,’ is necessary to the meaning of the phrase in the context of the overall Statute because, without a qualifier, the Statute is inherently ambiguous. Thus, in the absence of inclusion of one or the other word, the Justice Department can in its judgment, reasonably, sensibly keep NICS records for a period of time, namely, a period of time however long or short, relatively speaking, but not, in any event, necessarily indefinitely or forever. This reasoning is patently absurd, and the conclusion drawn from such reasoning would certainly be reprehensible to the sensibilities of Judges Tatel. But the illogical reasoning and resultant outcome both follow from the reasoning of Judges Tatel and Garland in the Reno case, as actually decided.Clearly, the addition of the adjective, ‘forever,’ or the addition of the adverb, ‘indefinitely,’ is unnecessary verbiage precisely because addition of the adverb or adjective to the phrase, ‘keep all records,’ adds nothing critical to the phrase’s meaning whether considered alone or in the context of the overall Statute. Thus, were Congress to have drafted legislation, requiring the Justice Department ‘to keep all records,’ that phrase can rationally, logically mean nothing more nor less than “keep all records (forever) or (indefinitely).” The addition of a qualifier is not necessary for an English speaker and for a rational thinker to have a perfectly clear understanding of the phrase’s meaning.By the same token, adding the adverb, ‘immediately,’ to the verb, ‘destroy all records’ to the Statute, as the Statute was actually drafted, does not add anything critical to the meaning of it. Inclusion of the adverb, ‘immediately,’ is simply redundant. Therefore – and quite sensibly – Congress omitted the word from the final, Senate version of the Statute, 18 U.S.C. § 922(t)(2)(c). But, the reasoning of Judges Tatel and Garland require inclusion of the word, and that is bizarre logic.Perhaps Judge Garland, who has latched onto Judge Tatel’s decision and reasoning in the Reno case, is not such a keen, critical, methodical, meticulous, and logical thinker as Obama and the mainstream media would have the U.S. Senate and the American public believe him to be. Or, on the other hand, perhaps Judge Garland knows exactly what he is doing, and he manipulates both law and logic in a legal case to suit his needs as dictated by and consistent with his philosophy pertaining to the U.S. Constitution and, particularly, pertaining to the Bill of Rights.In Part 6 of this multi-series article we look to further flaws in the reasoning of Judges Tatel and Garland, when the two United States Court of Appeals Judges for the District of Columbia Circuit as can be gleaned from an analysis of the majority opinion the Reno case – a case decision at odds with the import and purport of the Second Amendment to the United States Constitution.[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.
THE GUN CONTROL ACT OF 1968 AND THE BRADY ACT OF 1993
THE GUN CONTROL ACT OF 1968 AND THE BRADY ACT OF 1993
AN ANALYSIS OF THE CASE NRA VERSUS JANET RENO
PART 3
THE LANGUAGE OF THE GUN CONTROL ACT OF 1968
To understand the impetus behind the Attorney General’s actions that led to NRA’s action against the Attorney General and the Department of Justice, we need to take a look at the Gun Control Act of 1968. What does it say? The Gun Control Act of 1968, as set forth in the United States Code, 18 USCS § 922(g) or (n), provides that certain individuals, including, inter alia, convicted felons; fugitives from justice; aliens who are in this Country illegally; persons who have been adjudicated mentally defectives or who have been committed to a mental institution; members of the military who had received dishonorable discharges; individuals who have been convicted of a misdemeanor of domestic violence; or those Americans who have renounced their citizenship; shall not be permitted to possess a firearm or ammunition or to transfer or otherwise transport firearms or ammunition in interstate commerce. Ostensibly, in order to assist a federally licensed dealer in firearms in ascertaining whether an individual, who seeks to own and possess a firearm and/or ammunition, is permitted under State law or under the laws of the United States to do so, Congress enacted the Brady Handgun Violence Prevention Act of 1993. The Brady Act was subsumed into the broader Gun Control Act of 1968, becoming a critical component of the original Act, for antigun groups. The Brady Handgun Violence Prevention Act requires the Attorney General to establish a “national instant criminal background check system,” better known by the acronym, “NICS.” Three provisions of the Brady Handgun Violence Prevention Act, as set forth in 18 U.S.C. § 922(t)(2)(c), require the Justice Department to destroy records of those individuals – those American citizens – who are lawfully permitted, to possess firearms and ammunition under applicable federal law. The Brady Act, 18 U.S.C. § 922(t)(2)(c), does not, however, say anything about destruction of records of those individuals who are not permitted, under 18 U.S.C. § 922(g) or 18 U.S.C. § 922(n), or under State law, to possess firearms or ammunition.The instant background check system is presented by the proponents of the Brady Handgun Violence Prevention Act of 1993, and, as mentioned by the Court in the Reno case, to be a mechanism to assist a lawful, federally licensed dealer in firearms in determining, essentially instantaneously, whether a prospective purchaser of a firearm or firearms and/or ammunition is lawfully permitted, under federal and/or State law, to possess firearms and ammunition. If so, the transfer of one or more firearms and/or ammunition for a firearm is to proceed. Otherwise, the transaction cannot lawfully proceed. But, the Brady Act, as enacted, does not permit the Justice Department to create a backdoor gun registry program. Yet, this is precisely what the Justice Department would be doing if the Justice Department were to maintain NICS records on a firearms or ammunition transaction of a person who is lawfully permitted to own firearms and ammunition, after an NICS check of the prospective buyer of firearms or ammunition demonstrates that the purchaser is under no disability that would otherwise forbid the transaction from proceeding.But, what does 18 U.S.C. § 922(t)(2)(c) actually say about the retention or the destruction of NICS records as to those citizens who are lawfully permitted to possess a firearm. In pertinent part, the Statute says just this:“If receipt of a firearm would not violate section 18 USCS § 922(g) or (n) or State law, the system shall – (A) assign a unique identification number to the transfer;(B) provide the licensee with the number; and(C) destroy all records of the system with respect to the call (other than the identifying number and the date the number was assigned) and all records of the system relating to the person or the transfer.”
THE LEGAL ISSUE
The paramount legal issue in the Reno case is directed to the meaning of the third requirement of 18 U.S.C. § 922(t)(2)(c) as set forth in 18 U.S.C. § 922(t)(2)(c)(C): namely, whether the Statutory section in question, paragraph “C,” prohibits the temporary retention of NICS records after the seller has conducted the NICS gun background check and has determined that the prospective buyer of a firearm and/or ammunition is not under disability that would otherwise preclude the transfer of the firearm or ammunition from going forward. Specifically, the question is whether the clause, “destroy all records of the system with respect to the call (other than the identifying number and the date the number was assigned) and all records of the system relating to the person or the transfer,” means “destroy immediately.”NRA argues that, in the context of the Statute, the defining clause, “destroy all records of the system with respect to the call” means “destroy immediately.” What NRA is saying is that the meaning of the Statute is simple, straightforward and unambiguous; that the unambiguous meaning of the Statute, as enacted, reflects the clear, categorical, and unequivocal intention of Congress; and, lastly, that since the meaning of the Statute is unambiguous on its face, there is no need to investigate the intention of Congress further.But, the Justice Department disagreed with NRA’s interpretation of the phrase, ‘destroy all records.’ And the Justice Department’s disagreement is exemplified in the rule the Department promulgated to effectuate what the Department understood to be the intention of Congress when Congress enacted the Brady Handgun Violence Prevention Act of 1993. That is to say, the Justice Department created an “audit log.” This audit log contains details of gun purchases. Specific information relating to gun purchases and the manner for retention and the length of time of retention of specific information related to all prospective sales of guns or ammunition is codified in the Code of Federal Regulations, namely, 28 C.F.R. § 25.9. Understandably, NRA is very concerned about the Justice Department’s creation of an audit log. For, the Statute, 18 U.S.C. § 922(t)(2)(c), does not speak of an “audit log.” It does not exist in the Congressional Act itself. It is, rather, a creature of the administrative regulations promulgated by the Justice Department to give efficacy to Congressional Legislation -- as the Justice Department happens to interpret that legislation. The creation of an “audit log” originated with the Justice Department. And therein is the rub. Was this necessary? Does the creation of an audit log and rules for retention of firearms' and ammunition transactions a reasonable interpretation of Federal Statute? That is to say, is the creation of an audit log and rules for retention of firearms and ammunition transactions by the Justice Department consistent with Congressional intention?The Justice Department believes so. But NRA argues, understandably, that the existence of an audit log amounts to a backdoor registry – something the Justice Department insists that the audit log isn’t. The Brady Handgun Violence Prevention Act specifically prohibits the creation of a firearms’ registry. As dissenting Judge Sentelle said, “The Brady Act contains an express provision headed ‘Prohibition Relating to Establishment of Registration Systems with Respect to Firearms.’ Pub. L. No. 103-159, Sec. 103(i), 107 Stat. at 1542.” The Section provides that “No Department, agency, officer, or employee of the United States may require that any record or portion thereof generated by the system established under this section be recorded at or transferred to a facility owned, managed, or controlled by the United States or any State or political subdivision thereof.” Presumably, Senate and House Republicans would not have voted for the Brady Act had the Act specifically included or even allowed for the creation of such a federal firearms' registry.
WHAT IS THE JUSTICE DEPARTMENT’S AUDIT LOG?
As a Department of Government, the Justice Department is tasked with promulgating rules to implement NICS. The Justice Department’s rules for NICS are set forth in the Code of Federal Regulations, 28 C.F.R. § 25.6. This rule establishes the “Audit Log.” NRA contends, quite reasonably, that the “Audit Log” is itself a form of registration because the Justice Department is retaining records of a request to purchase a firearm and/or ammunition even if the information that the Justice Department is retaining does not specify the type or kind of weapon and/or ammunition purchased or, for that matter, whether the sales transaction was even completed. In particular the Justice Department creates a tracking number assigned to all firearms’ transactions. This tracking number is referred to as an “NTN.” 28 C.F.R. § 25.2 says this about the NTN: “NTN (NICS Transaction Number) means the unique number that will be assigned to each valid background check inquiry received by the NICS. Its primary purpose will be to provide a means of associating inquiries to the NICS with the responses provided by the NICS to the FFLs.” The audit log also includes a list of names of individuals who are approved to purchase firearms.Judges Tatel and Garland, arguing for the majority of the Court, curiously admit that the Justice Department’s Audit Log could in fact “function as a firearm registry,” which is patently illegal, but then dismiss the very point they make, by asserting that the Audit Log would not be a useful registry because of deficiencies in the system. Are the Judges then implying that the audit log is a firearms’ registry but that, as a registry, Congress and the American people should accept it, and not be concerned about it, because the audit log is not a very good registry? Does this not demonstrate a flaw in the Judges’ reasoning – bad enough for Judge Tatel, but altogether unacceptable for Judge Garland who would, if President Obama had his way, be headed for a seat on the high Court?Judges Tatel and Garland also assert that, even if the Justice Department does keep specific information of firearms’ transactions of those citizens who are permitted lawfully to possess firearms, the audit log data of permitted firearms’ transactions is purged after six months; the data isn't retained indefinitely. So, the question comes down to whether the language of the Brady Act authorizes the Justice Department to keep data, for any length of time, on individuals who are lawfully permitted to possess firearms. Once again, Judges Tatel and Garland are suggesting that keeping records for six months is no big deal. But is it a big deal? It certainly is a big deal if the intention of Congress when it enacted 18 U.S.C. § 922(t)(2)(c) of the Brady Act intended for the Justice Department never to retain records of gun or ammunition transactions that are authorized to go through which means, as NRA rationally argues that the Justice Department is required to destroy those transaction records immediately.The NRA contends, justifiably, that the Justice Department’s audit log rule is patently illegal and that the Brady Act does not permit the Justice Department to keep records for any length of time. Dissenting Judge Sentelle agreed, pointing out that for the Justice Department to promulgate rules specifying retention of records for any length of time amounts to a gross misuse of executive power.Judge Garland, though, agreeing with both the decision and reasoning of Judge Tatel who wrote the opinion for the majority in the Reno case does not see a problem, arising to Constitutional dimensions with the Executive Branch's Justice Department intruding upon the exclusive province of the Legislative Branch of Government. This requires us to ask whether Judge Garland, sitting on the United States Supreme Court, as Justice Garland, would himself utilize the third Branch of Government, the Judicial Branch, not merely to interpret the law but to make law, and, hence, actively use the power of the Judiciary not to preserve and strengthen the Bill of Rights but to weaken, allowing the Executive Branch of Government to usurp ever more powers unto itself at the expense of the People.In the next few articles we will continue our criticism of the majority opinion in the Reno case pointing to further flaws in the reasoning of Judges Tatel and Garland.[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.
JUDGE GARLAND SPURNS NRA OBJECTIONS TO JUSTICE DEPARTMENT COLLECTION OF GUN OWNER INFORMATION UNDER BRADY ACT
JUDGE GARLAND SPURNS NRA OBJECTIONS TO JUSTICE DEPARTMENT COLLECTION OF GUN OWNER INFORMATION UNDER BRADY ACT
PART 2
AN ANALYSIS OF THE CASE NRA VERSUS JANET RENO
INTRODUCTION
President Barack Obama and those who support the nomination of Judge Merrick Garland to the U.S. Supreme Court wax poetic about Judge Garland’s many positive traits, naming among these: great intelligence, perceptive analytical ability, meticulous, methodical attention to detail when deciding a case, personal integrity, collegiality, even modesty – and so forth and so on. But, it is most remarkable that, for all of this effulgent, indeed effusive praise, little, if anything is said by the Judge’s proponents and benefactors about the cases Judge Merrick Garland has actually decided and, too, the reasoning Judge Garland employs when deciding a case.So, to fill in that gap, we look at a critical Second Amendment case that Judge Merrick decided as Judge on the United States Court of Appeals for the District of Columbia Circuit. A close look at that case will give both the U.S. Senate and the American public a nice snapshot of how Judge Merrick Garland, sitting on the U.S. Supreme Court as Justice Associate Justice Garland, would likely decide Second Amendment cases that come before the high Court. The U.S. Court of Appeals case that we will be looking at was decided in the first year of the twenty-first century. It is titled, National Rifle Association of America, Inc. vs. Reno, 216 F.3d 122, 2000 U.S. App. LEXIS 15906, 342 U.S. App. D.C. 231 (D.C. Cir. 2000).Our analysis of this case illustrates that, while Judge Garland may be a meticulous, methodical thinker, this does not mean he is not prone to committing errors in both law and logic; and an analysis of the Reno case illustrates many such errors. These errors are compounded by or, perhaps, due precisely to Judge Garland’s evident antipathy toward the Second Amendment. One’s ideological and philosophical bent toward the Bill of Rights does follow one – all the way to the U.S. Supreme Court.
THE IMPORT OF THE RENO CASE
The Reno case involves the proper meaning to be given to one clause in one paragraph of one section of the Gun Control Act of 1968. The case involves, what, at first glance, may seem to be an uninteresting, arcane issue of pertaining to statutory construction. Yet, the central theme of the case should be of concern to any American who expresses even a modicum of interest in the preserving the Second Amendment. The case pertains to criminal background checks on persons who wish to purchase firearms or ammunition.The use of the criminal background check system devised by the Justice Department operates as an end-run around the Second Amendment because it serves to weaken the Second Amendment of the United States Constitution. The argument evinced by antigun groups and by their proponents in State Legislatures, in the U.S. Congress, and in the White House is that criminal background checks simply help keep guns out of the wrong hands and do nothing to preclude the law-abiding citizen from possessing firearms.What is left unsaid, though, is that gun background checks are often backdoor gun registration schemes or, at least, mechanisms that can evolve into gun registration schemes. This is a decidedly bad thing to countenance in a free Republic. It is just this sort of backdoor scheme that the Justice Department created when it promulgated rules to effectuate the instant background check program enacted by Congress in 1993. The Justice Department had no authority, though, to create what amounts to or, at least, may eventually evolve into, a hidden federal firearms’ registration program. The rules that Reno’s Justice Department created to implement Congressional legislation is cause for alarm. The NRA thereupon brought action against Janet Reno, Attorney General, challenging the legality of the Justice Department’s criminal background check rules related to gun transactions. The United States District Court for the District of Columbia dismissed NRA’s Complaint against the Attorney General. NRA then appealed the adverse decision of the lower United States District Court to the United States Court of Appeals for the District of Columbia Circuit. The case was heard by a panel of three Judges, namely, Judges, Tatel, Garland, and Sentelle. Two of the three Judges, Tatel and Garland, ruled in favor of the Attorney General, against NRA, thereby affirming the decision of the lower Court, against NRA. Judge Tatel wrote the opinion for the majority. Judge Garland, Obama’s nominee to replace Justice Antonin Scalia on the United States Supreme Court agreed with both the decision and the reasoning of Judge Tatel, thereby making Judge Tatel’s opinion essentially his own as well. Judge Sentelle wrote a scathing dissenting opinion.The dissenting Judge agreed with NRA and chastised the Attorney General, Janet Reno, asserting that the national instant criminal background check system “statute establishes that Congress has unambiguously told the Attorney General that she shall not do what she is doing in the regulations.” Judges Garland and Tatel, however, disagreed with NRA's arguments, striking a blow to the Second Amendment. Since two Judges out of three ruled in favor of Janet Reno, we are stuck with bad law.To understand why the Justice Department’s actions do cause and should cause alarm to Americans who hold the Second Amendment sacrosanct and inviolate we need to take a look, briefly, at the Gun Control Act of 1968 and to the Brady Handgun Violence Prevention Act of 1993 that amends the Gun Control Act of 1968. We do so in Part 3 of this multi-series article.[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.