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

Editor's note: this is a revision of an earlier version of this article. The revision includes new material.Senator Mark Steven Kirk, Illinois Republican, urges Republican colleagues to “man-up” and just cast a vote on Obama’s nominee for the U.S. Supreme Court, Judge Merrick Garland, whose views on America’s Constitution, according to Senator Kirk, are “a lot like Justice Scalia.” Really? But that's what he said as noted, with approval on the liberal web blog, "Think Progress," in a March 18, 2016 article titled, "Republican Senator says Colleagues Should 'Man Up' And Vote On Merrick."Yet, not even Obama has the audacity to suggest that Judge Garland’s ideology and jurisprudence are even remotely like that of Justice Scalia; and Senator Kirk's attempt to shame the United States Senate Committee on the Judiciary through Kirk's use of the term, 'man-up,' is nothing more than a child's dare or is otherwise incoherent. Indeed, the mainstream New York Times admits that, ideologically, Judge Garland is well to the left of Justice Anthony M. Kennedy.” See, the NY Times article published, March 17, 2016, titled, “Where Merrick Garland Stands: A Close Look at His Judicial Record.” And, we know that Justice Kennedy, the “swing-vote,” stands ideologically well to the left of Justice Scalia. So, who is Senator Kirk kidding? Indeed, how is it that a United States Senator, a Republican at that, would support Obama’s call for Senate action on Obama’s nominee for the U.S. Supreme Court in the first place? Might there be something about Senator Kirk that doesn’t quite ring true?We were curious about Senator Kirk’s own position on the Second Amendment. So, we checked. What we have found is disconcerting to say the least but does much to explain Senator Kirk’s support of Obama’s nominee for U.S. Supreme Court Justice.It turns out that NRA gives Senator Kirk, the Republican, a rating of “D.” See, "Mark Kirk on Gun Control." Senator Kirk does beat Senator Bernie Sanders. Sanders candidly, exuberantly remarks that NRA currently rates him, “F.” But, a “D” rating by NRA, no less than an "F" rating, is hardly cause for celebration. Such a dismal rating by NRA is definitely not something a Republican U.S. Senator to be proud of. Senator Kirk does, understandably, prefer to keep that fact quiet -- spoken in whispers, if at all. In fact, in 2010, NRA rated Kirk “F,” according to the weblog, "sunlightfoundation." Not surprisingly, Senator Kirk supports the Brady Bill, and was, apparently, the only Republican who voted for the 2013 ban on rifles that are considered "assault weapons” by antigun groups. Perhaps, Senator Kirk ought, himself, to “man-up,” and admit to the American public he is a hypocrite who is deliberately leading both the American public and Congress astray by urging his Republican colleagues to cast a vote on Obama’s nominee for the U.S. Supreme Court.The Christian Monitor, in a 2013 article, titled, "Obama's quiet ally: Who's behind gun control bill no one is talking about," is on point in calling  Senator Kirk, Obama’s “quiet ally.”  But, even The Christian Monitor could not have envisioned, at that time how portentous its 2013 'quiet ally' reference to Senator Kirk would be. For, three years later Senator Kirk is now, in fact, lending his support to Obama’s nominee, Judge Merrick Garland; and, in so doing, actively defying Republican Senators Mitch McConnell and Chuck Grassley, and, in fact, going to war against the Republican Party, by operating in the background as Obama’s “quiet ally.”Senator Kirk’s assertion that Judge Garland is of the same ideological bent as the late Justice Scalia is an abominable lie. Senator Kirk certainly knows the assertion to be untrue and he is unashamedly fomenting an outrageous lie. Apparently, it is okay, though, to assert a bald-faced lie to the American people to accomplish a desired goal.Republicans like Senator Kirk, who infect the Republican party with schemes poisonous to the well-being of the Republic and destructive to our sacred Bill of Rights, give cover to Obama, who can then plausibly and piously argue: see, even Republicans understand I intend to safeguard Americans’ Bill of Rights, and that I will, especially, safeguard and defend Americans’ Second Amendment right through commonsense actions and commonsense nominations and appointments to the federal courts. One thing is clear: if Judge Garland secures a seat on the U.S. Supreme Court, the tenuous balance that existed for some time between the Court’s right-wing Justices and the Court’s left-wing Justices will be lost. The Court will swing violently to the left and that will be reflected in the Court’s decisions.Consider what one reviewer in a recent NY Times article, published March 18, 2016, -- titled, “What Do You  Need to Be a Justice?” – had to say. Ian Millhiser, senior fellow at the Center for American Progress, and the author of the article, said, in his NY Times Op-Ed, “Some of the court’s worst decisions were the product of rigid ideology. But many are rooted in the fact that the justices in the majority lacked what President Obama said he was looking for in a nominee: ‘an understanding of the way the world really works.’”An “understanding of the way the world really works?” Millhiser took that quote from the SCOTUSblog, which posted certain remarks of Obama, supporting his nomination of Judge Merrick Garland to the U.S. Supreme Court. Explicating one of three points he was looking for in his nominee, Obama said: “. . . a keen understanding that justice is not about abstract legal theory, nor some footnote in a dusty casebook. It’s the kind of life experience earned outside the classroom and the courtroom; experience that suggests he or she views the law not only as an intellectual exercise, but also grasps the way it affects the daily reality of people’s lives in a big, complicated democracy, and in rapidly changing times. That, I believe, is an essential element for arriving at just decisions and fair outcomes.” Obama also says that anyone he nominates to the U.S. Supreme Court "will have an independent mind, rigorous intellect impeccable credentials, and a record of excellence and integrity," and that the person he appoints will be someone who "recognizes the limits of the judiciary's role." On a cursory inspection this may all sound reasonable and noble. But how much of it rings true? And, further, is there anything in Obama's remarks that, on deep reflection, do not suggest something ominous. Let’s analyze and extrapolate what Obama is really saying here.A perusal of Obama's remarks illustrates an inconsistency. He plainly states, in his remarks, that he wants a person who "recognizes the limits of the judiciary's role, someone who will not legislate from the Bench. But, that singularly critical and, in fact, correct point, is at odds with the third point he makes, although obliquely, namely that he seeks a person who holds a certain philosophy, akin to Obama's own, suggestive of utilitarian ethical concerns which, then, if acted upon  may very well amount to adjudicating a case on the basis of social theory irrespective of legal constraints. So, Obama is saying that U.S. Supreme Court decisions should not be decided merely through an application of America’s own case law; its own history; its own case law precedent. Rather, those who sit on the high Court should decide a case in terms of how a decision impacts the lives of people who reside in this Country, whether they are here legally or not. By extension, he is asserting that U.S. Supreme Court decisions should also take into account how a decision impacts people globally. He is saying that the U.S. Supreme Court should take into account the manner in which  U.S. Supreme Court decisions reflect multicultural values. This last point entails a consideration of and belief in utilitarian ethical systems along with notions of moral relativity.So, Obama is asserting and maintaining that a U.S. Supreme Court decision should encompass a worldwide perspective, and not simply one that reflects our Nation's values, manifested in our unique Bill of Rights, our unique history, our own culture, our own legal precedent. Obama is arguing for a cosmopolitan approach to U.S. Supreme Court decision-making. Obama is, then, definitely, espousing enacting law -- legislating law -- from the Bench, not merely interpreting law -- the latter of which is the high Court's principal duty and responsibility.The Judicial authority of the U.S. Supreme Court does not encompass the Legislative Authority of Congress as set forth with particularity in Article I of the U.S. Constitution; and, neither the Legislative authority of Congress nor the Judicial Authority of the U.S. Supreme Court encompasses the Executive authority of the President of the United States as set forth with particularity in Article II of the U.S. Constitution. The demarcation of duties and responsibilities of each Branch of the Federal Government is established by and codified in the Constitution, and the duties and responsibilities of one is never to cross over into the domain of the other. But, Obama has deliberately and unconscionably argued for expanding the legislative functions of Congress into the domain of the Executive Branch and now suggests that the Judicial Branch of Government ought to do the same. In fact, Obama has himself used the power of the Executive Branch to unlawfully encroach into the Legislative arena, either by failing to execute the laws of Congress -- which we see in his adamant refusal to enforce existing immigration laws and which we see through his unlawful use of executive directives to curtail the free exercise of the right to keep and bear arms under the Second Amendment, and which we see in both his callous indifference to a citizen's right to be free from unreasonable searches and seizures and in the expansion of police and intelligence activities into areas that clearly transgress Congressional enactments.Obama has, apparently, no reservation about using the Office of the Chief Executive to make law, thereby transcending Constitutional authority to faithfully execute the laws, whenever he feels compelled by his personal morality and multicultural propensities and political philosophy to override the Separation of Powers Doctrine. And, he demonstrates the same contempt for the Separation of Powers Doctrine when he pompously suggests the U.S. Supreme Court should inject utilitarian ethics and multiculturalism into its decision-making, thereby uprooting 200+ years of carefully developed and cautiously applied American jurisprudence.What Obama is looking for in a U.S. Supreme Court Justice and what he sees in Judge Merrick Garland is someone who shares his personal Weltanshauung -- his personal world view: someone who is prepared to, and who would, upend our entire legal philosophical system by  secreting moral relativity and geopolitical considerations and trans-national, multinational goals and objectives into U.S. Supreme Court decision-making. Obama’s ideal candidate for the U.S. Supreme Court manifests a view for deciding cases also held by the left-wing U.S. Supreme Court Justice, Stephen Breyer, as laid out methodically and comprehensively in his book, “The Court and the World: American Law and the New Global Realities.” Justice Breyer’s jurisprudence is a mélange of laws, values, social mores, and ethical systems that extend well beyond a consideration of our own Constitution, our own laws, our own precedent. Justice Breyer’s  jurisprudence – one reflected in the liberal wing of the U.S. Supreme Court – is an anathema. It undermines our Constitution, our laws. It undercuts the very sovereignty of our Nation and the sanctity of our Bill of Rights.What is noticeably lacking in Obama’s praises of Judge Garland Merrick and in Obama’s recitation of the factors he deems important in an individual who sits on the high Court is any mention of the need to consider how the core of our rights and liberties, codified in the Bill of Rights of the U.S. Constitution, is to be protected – indeed, that the core of our fundamental rights and liberties ought be protected at all. Apparently, Obama doesn’t consider our Bill of Rights, around which American U.S. Supreme Court jurisprudence is built, to be particularly important in this new age, in this new world, that Obama envisions, in which the very concept of the ‘Nation State’ is perceived as a relic, eventually to be discarded in favor of a neo-corporate, financial world union.By the way, in the event anyone believes that Obama does not consider, would not consider, or has not considered the role a Judge's personal philosophy plays in Obama's consideration of a nomination of a person to the high Court, think again. In a February 16, 2016 article, titled, "Obama Filibustered Justice Alito, Voted Against Roberts," appearing in the conservative weblog, "front page mag," the author, Daniel Greenfield demonstrates Obama's clear attention to a Judge's philosophical bent. No one can reasonably attack the ability, intellect, credentials, and integrity of Chief Justice John Roberts and Associate Justice Samuel Alito; yet, President Obama, as U.S. Senator Barack Obama, has voiced serious reservations for these nominations of President George W. Bush to serve on the high Court, and chose not to support the nomination of either one of them. So, when Obama asserts that, what he is looking for in a person who serves as a U.S Supreme Court Justice is a person whose analysis of cases will, when the need arises, "be shaped by his or her own perspective ethics, and judgment," he is being duplicitous. For, he will not consider a person, as a nominee, whose perspective, ethics, and judgment do not coincide with his own. Otherwise, he would have voted for and supported Chief Justice Robert's nomination and Associate Justice Alito's nomination to the high Court. We know, of course, that the values expressed in America’s Bill of Rights are not universally emulated by many Western Countries. In particular it is abundantly clear that America’s Second Amendment, far from being praised by other Countries, especially those comprising the EU, is often disparaged. But, it is disparaged in part, no doubt, because in no other Country in the World does a nation’s government accept and respect the idea that a nation’s government exists only by grace of the people, of the nation’s citizenry.America’s Second Amendment, however, makes absolutely clear that the federal Government exists only by the grace of the American people. The federal Government does not “own” the American people. We are free citizens in a free Republic, not enslaved subjects residing in an autocratic realm. The federal Government cannot dispense with our Bill of Rights; nor is it permitted to erode the fabric of our Nation’s sovereignty through international treaties and conventions that the American people are little if ever adequately aware of, nor their representatives in Congress ever completely privy to.America’s Bill of Rights – certainly the Second Amendment – is perceived by the left-wing of the U.S. Supreme Court as representing ideas and values no longer reflective of the modern age. But, the founders of our Republic were no fools. They knew that the rights and liberties set down in stone in the Bill of Rights were “constants” that never change, never become obsolete, and must never change or be perceived as obsolete if our Republic is to continue to exist in the form envisioned by our founders. Justice Scalia knew this, respected this, and his decisions reflected that principle – a principle omnipresent in his decisions.Justice Scalia believed that U.S. law must dictate and inform all U.S. Supreme Court decisions and that the Bill of Rights – all ten of them – must never be compromised or be considered relevant only to a bygone era. The left-wing of the high Court does not agree with this. They hold to the idea that Americans’ rights and liberties only have meaning relative to a particular era – that Americans’ rights and liberties are not “constants” applicable to all eras. That idea percolates through their legal opinions, and is often reflected in their own ad hoc and peculiar jurisprudence.The notion that our Bill of Rights transcends all time is considered an aberration and antithetical to the reasoning of the left-wing of the high Court because that notion is not compatible with “the way the world really works” today, as Obama says. All the more reason, then, for the U.S. Supreme Court to hold fast to the principle that Americans’ rights and liberties are “constants,” never-changing absolutes, as our founders perceived them and meant for them to be as applied to the continued existence of our Nation State as a Sovereign Nation State and as a free Republic – never subordinated to another nation or subsumed into a larger political or economic union, like the EU.Americans’ sacred rights and liberties are never to be seen as outmoded. They are never to be cast aside when deemed, by some on the high Court, to be incompatible with the “way the world really works” – with global realities, according to Justice Stephen Breyer, as laid out in his book, and as echoed by President Obama in his praises of Judge Merrick Garland.Judge Garland is certainly not cut from the same cloth as Justice Scalia. If Judge Garland does acquire a seat on the high Court as an Associate Justice, he would definitely fit in with such fellow travelers as Justices Breyer, Ginsberg, Kagan, and Sotomayor. Certainly, that is what President Obama, and, apparently, one “Republican” Senator, Mark Steven Kirk, would like very much to see.[separator type="medium" style="normal" align="left"margin-bottom="25" margin_top="5"] Copyright © 2015 Roger J Katz (Towne Criour), Stephen L. D’Andrilli (Publius) All Rights Reserved. 

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

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

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

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

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

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

DO OTHER JURISDICTIONS CRIMINALIZE POSSESSION OF STUN GUNS?

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

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

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

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

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

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

PART 2A

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

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

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

PART 1

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

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

THE SECOND AMENDMENT

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

ANALYSIS OF THE PARKER CASE

The Appellants, Parker and others, are residents of the District of Columbia. They wanted to carry their handguns in their own homes for self-defense, but the District of Columbia prohibits anyone from having an operable handgun in the home for the purposes of immediate self-defense. The Appellants brought action against the District of Columbia, claiming that the D.C. code violated their Second Amendment “right to keep and bear arms.” The U.S. District Court for the District of Columbia sided with the Appellee government, District of Columbia, finding that the D.C. code did not violate Appellants Second Amendment right to keep and bear arms because, according to the U.S. District Court, the “right to bear arms” only accrues to one who serves in a militia.Appellants, residents of the District of Columbia, appealed. The United States Circuit Court of Appeals for the District of Columbia disagreed with the lower Court. Reversing the U.S. District Court’s decision, the United States Circuit Court of Appeals for the District of Columbia dealt squarely with the issue as to the meaning of and impact of the prefatory and operative portions of the Second Amendment and whether, on the one hand, “the right to keep and bear arms” is an individual right, as Appellant, District of Columbia residents maintain, or whether, on the other hand, “the right to keep and bear arms” is a collective right that applies only to those who serve in a militia, as the Appellee, District of Columbia had argues.In finding for the Appellant residents, against the District of Columbia, the United States Circuit Court of Appeals for the District of Columbia pointed out that the wording of the operative clause also indicates that “the right to keep and bear arms” was not created by government, but rather preserved by it. The United States Circuit Court of Appeals specifically rejected the Appellee District of Columbia’s claim that the phrase, “keep and bear arms” has only a military purpose related to the “militia.” Two of the three Judges on the Circuit Court sided with the Appellants in the case and thereupon reversed the decision of the U.S. District Court.The losing party in the Parker case, namely the District of Columbia, then petitioned the U.S. Court of Appeals for reconsideration, asking the United States Court of Appeals to hear the case en banc. What this means is that the Appellee District Columbia petitioned to have the entire United States Circuit Court of Appeals for the District of Columbia hear the case.Keep in mind that, although Judge Garland serves as Judge on the United States Court of Appeals for the District of Columbia, there are several U.S. Circuit Court Judges. Generally, a panel of three Circuit Court Judges hears a case on appeal from the lower District Court.Judge Garland did not sit on the three-man panel in the Parker case. We are not, though, left merely to speculate as to how he might have ruled in Parker had he served as one of the three original Judges who heard the case. We do have an inkling as to how Judge Garland would have ruled, and therein rests one reason, at least, why the U.S. Senate, on behalf of the American people and on behalf of the well-being of Americans’ Bill of Rights, has no desire to so much as contemplate the nomination, during the remaining months of Obama’s term as U.S. President.Likely, Judge Garland would have ruled against the Appellant D.C. residents and for the District of Columbia in Parker. We know this because of a further action involving the Parker case that transpired before the case was heard by the U.S. Supreme Court, renamed, District of Columbia vs. Heller.Now, no party, in any jurisdiction, can insist, as a matter of right, to have an entire United States Circuit Court of Appeals to reconsider its own decision. A United States Circuit Court of Appeals will do so only if a majority of the Court’s Judges agree to reconsider the decision, in which case the entirety of the Court will rehear the case – that is to say – the Court will hear the case, en banc.There are ten Judges on the D.C. Circuit. Only four of those ten agreed to hear the Parker case en banc. Notably, Judge Garland was one of those four Judges. The case is Parker vs. District of Columbia, 2007 U.S. App. LEXIS 11029 (D.C. Cir. 2007).We really do not need to spend an inordinate amount of time speculating as to why Judge Garland had sought to have the Parker case reheard by all ten United States Circuit Court of Appeals judges. Yes, Judge Garland may have thought – as some news sources infer – that the Second Amendment issue was important enough to warrant a hearing by the entire Court, so that all of the Judges could weigh in. After all, the Parker case dealt directly and squarely with the fundamental right of the people to keep and bear arms. But, likely, there was more to Judge Garland’s desire to have an en banc hearing of the case. And it is just this: if Judge Merrick Garland really feels strongly about Americans’ fundamental rights and liberties, as had Justice Scalia, it is likely that Judge Garland would have voted with the majority of the Court. That means he would have voted against taking up the Second Amendment issue again in an en banc hearing of the case. For, what more could be gained through an en banc hearing of the case? The majority opinion, which supported Appellants’ Second Amendment right to keep and bear arms, was clear, and cogent, and unequivocal.  Moreover, a vote in favor of an en banc hearing would, quite probably, invite a reversal of the decision by the three member United States Circuit Court of Appeals panel. A true advocate for the Second Amendment would never have voted in favor of a rehearing. Tactically, it would make no sense. Appellants, District of Columbia residents had already won. The case should have stopped there.Be that as it may, the Appellant, District of Columbia, having failed to secure a rehearing of the Parker case by the full United States Court of Appeals for the District of Columbia thereupon petitioned the U.S. Supreme Court. The Supreme Court, of course, agreed to hear the case. Parker vs. District of Columbia was renamed District of Columbia vs. Heller. Justice Scalia, writing for the Majority, affirmed the decision of the United States Circuit Court of Appeals for the District of Columbia by a narrow margin: 5 to 4.Granted, while it is not absolutely clear that Judge Garland would not have voted with the Majority in Heller, had he sat on the U.S. Supreme Court, the fact that he voted for en banc review of Parker, as a Judge sitting on the U.S. Circuit Court of Appeals for the District of Columbia, strongly suggests an unhappiness with and uneasiness with the panel's decision -- 2 to 1 in favor of Appellant District of Columbia residents -- a decision clearly supporting the right of the people to keep and bear arms; hence, we may reasonably conclude a general  reluctance on the part of Judge Garland to view the Second Amendment right of the people to keep and bear arms generally favorably and expansively. Imagine, then, Judge Garland's decision in Heller, had he sat on the U.S. Supreme Court. Would he not have sided with the liberal-wing in that case? And, if so, would not the Heller case have been decided differently? Would not the Heller case reflect the reasoning of the U.S. District Court in Parker, rather than the decision of the U.S. Circuit Court of Appeals for the District of Columbia in that case -- a U.S. District Court decision specifically undermining rather than strengthening the right of the people to keep and bear arms?A second and, perhaps, even stronger clue suggesting that Judge Garland is not likely to be a strong proponent of the Second Amendment -- and, indeed, someone who is likely to eviscerate the Second Amendment rather than strengthen it -- is evidenced from a perusal of the United States Court of Appeals for the District of Columbia’s decision in NRA vs. Reno, 216 F.3d 2000 (D.C. Cir. 2000). Judge Garland did have a hand in that decision and, while the case does not deal directly with the meaning of language in the Second Amendment, the case does deal with matters impacting the Second Amendment, and negatively impacting the Fourth Amendment as well.In Part 2 of this article, we will explicate the NRA case for you and explain why, more likely than not, Judge Garland is not a proponent of the Second Amendment -- not by a long shot -- and that, for this reason alone, the United States Senate Committee on the Judiciary should not consider Obama’s appointment of Judge Garland to the U.S. Supreme Court, as an Associate Justice.To be continued. . . .[separator type="medium" style="normal" align="left"margin-bottom="25" margin_top="5"] Copyright © 2015 Roger J Katz (Towne Criour), Stephen L. D’Andrilli (Publius) All Rights Reserved.

FIRST AMENDMENT UNDER ATTACK . . . IN CHICAGO WHERE THE SECOND AMENDMENT IS TRAMPLED ON!

U.S. Under Attack: Chicago, Trump, Outrage . . . And the Trampling of Our Constitution

The American public must ask and a serious investigation to find answers must ensue: did the disruption in an auditorium in the City of Chicago, at a rally for the leading Republican candidate for President of the United States, that occurred Friday evening, March 12, 2016, just happen or did it happen because someone or some group intended for a riot to happen?In other words, was the disruption in Chicago that led to cancellation of a rally for the leading Republican candidate for U.S. President, on the eve of the most important Super Tuesday 2016 primary elections, a happenstance – a mere spontaneous outpouring of anger and rage expressed by certain unhappy segments of the population toward the leading Republican candidate, as the mainstream media is playing this, or was the disruption something more – a staged event in and of itself – carefully orchestrated and choreographed by certain powerful and ruthless interests that are willing to do and, apparently, are capable of doing whatever it takes to destroy the momentum of a popular political candidate for the highest Office in the Land?At the moment the public can only speculate as to the root cause for the disruption. One thing is certain, though. Our Bill of Rights is under attack and has been under incessant assault for many years. Our Second Amendment “right of the people to keep and bear arms” has, for many years, slowly and systematically suffered erosion through Congressional enactments and State action. If the leading Democratic Party contender for the Office of U.S. President gets the nod and ultimately secures the Oval Office, the right of the people to keep and bear arms will likely cease to exist except as a short footnote in the history texts. And, what shall become of other fundamental rights and liberties of the People?The Fourth Amendment to the U.S. Constitution guarantees that “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.” Since the early years of the twenty-first century, that fundamental right has been quietly and systematically eroded by federal Government intelligence and police apparatuses – all in the name of promoting “safety” for the collective, for the masses, generally. But, one would be hard-pressed to find, through a careful reading of the U.S. Constitution, any clause, sentence, or passage that authorizes the federal Government to undermine an individual citizen’s fundamental right to privacy – the sacred right to be left alone and the sacred right clearly setting forth that an individual’s personal effects are to remain free from unreasonable searches and seizures, as entailed by and codified under the Fourth Amendment – ostensibly to promote and ensure public safety; and one would be hard-pressed to find, through a careful perusal of the U.S. Constitution, any clause, sentence, or passage that authorizes the federal Government to undercut the fundamental right of an American citizen to keep and bear arms – the inviolable right of the individual to take responsibility for one’s personal security, as entailed by and codified in the Second Amendment – ostensibly to promote and ensure public safety.Yet the federal Government – especially in recent years – incessantly, unashamedly, and unapologetically invades the sanctity of both these natural and fundamental rights – all under the mask, the guise, of ensuring public safety. But, there is nothing – absolutely nothing – in the United States Constitution, either explicitly or impliedly, that authorizes the federal Government, under any set of actual events or, as we are more likely to see, under any set of contrived circumstances, to denigrate the fundamental, natural rights and liberties of the people – the rights and liberties that are clearly, cogently, and unambiguously set down in the first Ten Amendments to the United States Constitution.And, what of the First Amendment guarantee? The First Amendment as set forth in the Bill of Rights says, in meaningful part: “Congress shall make no law . . . abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble. . . .”For many years the American people have been asleep. They have been fed pabulum by the mainstream media as the rug has been pulled out from under them. But, as law-abiding Americans, hard-working citizens, have seen their wages stagnating, their jobs shipped overseas or given over to foreigners here – whether those foreigners are in this Country legally, having secured temporary visas, or are in this Country illegally, having simply walked across unsecured borders – Americans have begun to wake up. The Americans are now placing their support behind candidates who have not been paid off by wealthy, powerful, ruthless interests to do the bidding of their sponsors.All bets are off now. Those powerful, ruthless interests that have been slowly, quietly, insidiously taking over our institutions, rewriting our history, forcing an alien morality and an alien culture down our throats are now aghast that the American public is no longer falling into lockstep behind the newly minted puppets or, in one case, a dusted off old puppet. The American public is no longer listening to the vapid, insipid, soothing, carefully rehearsed melodies that the song writers have composed for their ears, as sung to the public by their string pullers in sweet-sounding three part harmony.There is, in this U.S. Presidential election cycle, one candidate from each major political Party who dares to speak his mind rather than parrot the views of paid sponsors. That fact bothers the ruthless interests that have slowly taken over this Country. It has made them uneasy. It is even making them frantic. These ruthless interests are devising ways – legal, quasi-legal, and even illegal – to silence those candidates they have not been able to buy and whom they can never control.The University administration officials in Chicago must certainly have known that elements would be attending the political rally on Friday who were not interested in hearing what one particular candidate from one particular political Party had to say. They were only interested in creating a disturbance, to silence a voice, and these University officials must take responsibility for the disturbance that did occur and that occurred quite spectacularly on their turf. And, they did, indeed, silence a voice, if but for a moment and only for a moment.In a City that has in place some of the most stringent gun control measures anywhere in the Country – in a City that requires its citizenry to place full stock in the police to protect it – University officials did not take sufficient advantage of police utilization to protect those individuals who sought simply to attend a political rally to hear what one candidate for high political Office has to say. University administration officials should have seen to it that the right of free speech and right of the people to peaceably assemble – rights guaranteed under the First Amendment of the U.S. Constitution – was assured. Instead those officials chose to send the First Amendment down the toilet just as the City of Chicago had, years ago, sent the Second Amendment down the toilet.Had there been an adequate police contingent at the auditorium on that Friday night, the police would certainly have been able to vet those individuals who sought attendance at the event, permitting entry only to those who honestly and sincerely wished to hear what one candidate for President of the United States had to say, and turning away those who sought to prevent the candidate from exercising his guaranteed freedom of speech and voicing his beliefs, his views, his policies and in his typical blunt, candid manner. And, in their desire to prevent an American citizen from exercising his right of free speech, those individuals who attended the political rally for the purpose of disrupting it showed their defiance of and contempt for the First Amendment, and, for some of those individuals, their obvious ignorance of the import and purport of the First Amendment.Make no mistake, the American people bore witness to a savage beating that took place the other night in Chicago, a beating abetted by both a complacent University administration and a treacherous news media. But, it wasn’t an individual who was harmed. It was the sanctity of the First Amendment itself that was savagely assaulted Friday night. Yet, that fact was hardly mentioned by the mainstream media either during the disturbance, nor at any time thereafter. Instead the mainstream media, at the behest of those interests that control it, have placed blame squarely and bizarrely on the candidate who was compelled to cancel the event and who was thereby silenced! The First Amendment freedom of speech died that night and without a whisper of its death.The mainstream media – the press – mentions the First Amendment in passing but never takes the First Amendment to heart. The press has lost its focus and direction, its purpose. It sensationalizes rather than enlightens. It seeks merely to sell a product, a commodity, rather than to inform and educate the American public.The mainstream media further denigrates the freedom of speech, guaranteed under the First Amendment, by demanding that the candidate apologize for the disturbance. Really? To whom and for what ought the candidate apologize?The First Amendment provides for and guarantees the right of every American to speak his or her mind, even if the ideas expressed are unpalatable, even repugnant to some individuals. Certainly, the public has a right to hear from a candidate, who seeks the highest Office in the Land, that candidate’s views on those topics and matters impacting all Americans. And each American may choose to hear, or not, what that candidate has to say. But no candidate should be silenced on the ground that some people do not like what the candidate has to say.There are mechanisms for peaceful protest. But, no person is permitted, in our Democracy, under our First Amendment guarantees of freedom of speech and freedom to peaceably assemble, to shut out the voice of another person with whom one happens to take exception. To understand  Americans’ First Amendment guarantees is to appreciate the benefit it serves in a Democratic society and free Republic. For those few among us who do not appreciate the First Amendment, they should view it as the obligatory cost of living in a Democratic society and free Republic; and, if they are not content with that, such individuals ought to leave the Country.Of late we see our institution of higher education – an institution that should welcome diverse expression of thought – becoming decidedly intolerant, inhospitable to any view that is deemed inconsistent with a particular bland norm. That intolerance, that pretentious, impertinent, pious regard for the irrefutability of one’s own set of beliefs and values is now spilling over and into the political arena. Certainly, the American public has the right under the First Amendment to hear, unfiltered and unmediated, the thoughts of those individuals who seek to secure the highest Office of the Land.No candidate for public Office should be ostracized and denigrated simply because some individuals think that person’s views extend beyond the pale. No candidate should ever be silenced. The American public has the right to hear all viewpoints, to hear all sides of a debate. The First Amendment dies when the freedom of speech and the right to peaceably assemble, is shattered because some people don’t like the message recited and personally abhor the manner of recitation. Odd it is that the press – our press – that should be the first to recognize and defend the freedom of speech – becomes, instead, the voice of oppression that would gag free speech. Is the press – colloquially and affectionately referred to, in times past, as the “fourth estate” – not now, less an independent and necessary institution of a democratic society and free Republic, and more reminiscent of and, in fact, reduced merely to a tool of government – a tool of oppression that one witnesses in despotic nations?How is it, then, that we see our First Amendment guarantees crumbling before us? The public must understand: the First Amendment freedom of speech guarantee does not guard against offending one. It was not designed to do so. It was never designed to do so. An adult should not be so easily offended anyway. And the U.S. Supreme Court has never held that the freedom of speech clause has such parameters carefully woven around it, to protect the sensibilities of peculiarly sensitive souls. The American public ought to be made of sterner stuff.The mainstream media, instead of supporting a candidate’s right to speak freely, in accordance with the First Amendment guarantee, has the temerity to denigrate America’s fundamental First Amendment right of free speech. And, what does the mainstream media – the press – suggest a candidate for the highest Office in the land ought acquiesce to? Just this: timidity, banality, sophistry, careful modulation in thought and speech lest this or that sensitive or ignorant soul be offended. Nonsense!The American people are not supposed to think too deeply lest they begin to see what roils beneath the surface; lest they see through the vapidity of the puppet masters’ “talking heads;” lest they come to recognize the cupidity and ruthlessness of the creatures who seek to destroy the sanctity of the individual; lest they become aware that their Constitution is becoming no more than a curious relic of a by-gone age; lest they come to realize the loss of a free Republic, through the loss of the Bill of Rights; and lest they come face-to-face with the very real possibility of annihilation of a once great sovereign Nation State.[separator type="medium" style="normal" align="left"margin-bottom="25" margin_top="5"] Copyright © 2015 Roger J Katz (Towne Criour), Stephen L. D’Andrilli (Publius) All Rights Reserved. 

JUSTICE THOMAS SPEAKS OUT IN THE VOISINE CASE

UNITED STATES vs. VOISINE

PART 1

This is the first of a three part series article.Anyone 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 in the Voisine case. 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 the coming months 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 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.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 for 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 those 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.

FBI vs. APPLE: Surrender Privacy for Security?

The Fourth Amendment Deserves No Less Respect And Protection From Government Encroachment On A Sacred Right And Liberty Than Does The Second Amendment

The U.S. Constitution Constrains, And Was Meant To Constrain, Power Grabs By The Federal Government

A sovereign nation cannot long prevail among other sovereign nations without a central government. This is axiomatic. The founders of our Republic certainly knew this. But the founders of our Republic also knew that a nation’s central government is invariably at odds with individual liberty. A natural tension exists between government on the one hand and the rights and liberties of the citizenry, on the other. The Constitution the founders drafted for the American people is indicative of and serves, at once, as recognition of the conundrum our founders faced: that a strong central government is incompatible with individual liberty. A strong central government would eventually destroy individual liberty by amassing power unto itself at the expense of individual liberty unless a nation’s constitution places express curbs on such accumulation of power and unless the citizenry of a nation remains ever vigilant that those curbs are stringently adhered to.The founders of our Nation dealt with the conundrum by creating a Constitution that embraces three fail safe devices. The founders hoped and trusted that these three fail safe devices would operate as an effective counterforce against the destructive impulses of government to acquire ever more power for itself and, in so doing, reduce, or end altogether, the exercise of individual rights and liberties. The three fail safe devices are: one, a three branch system of government; two, clear delineation of and demarcation of the powers each branch is permitted, lawfully, to hold and wield; and three, a Bill of Rights. The three branch system of government precludes outright concentration of legislative, executive, and judicial functions in any one person or group of people. Each branch serves to check the power of the other two branches. This is what is meant by the phrase “checks and balances.” The “Separation of Powers” doctrine is also a feature of our three branch system of Government. The “Separation of Powers” means that each branch of our central – federal – Government has its own distinct function with no overlap or, at worst, with very minimal overlap.The delineation of powers each branch wields prohibits both the amassing of additional powers by that branch of Government and the encroachment of one branch of Government on the purview of the other. Each branch of Government has, then, through the exercise of a specific function, a limited set of powers. If the Constitution does not prescribe a specific power for that branch of Government, such power cannot be lawfully exercised by that branch.Lastly, the Bill of Rights secures for the people not only specific enumerated rights and liberties but reserves to the people unenumerated rights as well. The Ninth Amendment to the U.S. Constitution provides: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” And, the Tenth Amendment provides that “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 powers of our central – federal – Government are, then, limited, since the Constitution sets forth the powers each branch of Government may wield, consistent with the primary function of each branch. The powers residing in the States and in the people, on the other hand, are essentially open-ended. Moreover, the rights and liberties of the people are unbounded as they include both specific, especial enumerated rights and liberties and unenumerated rights and liberties. Importantly, the rights and liberties of the people, as codified in the Bill of Rights do not stem from the federal Government. They are neither a privilege bestowed by Government onto the people; nor are they a license issued by Government to the people. The rights and liberties are considered by the founders of our Republic to be preexistent in the people. The rights and liberties of the American people are neither created by government nor fashioned by the founders. The Bill of Rights simply codifies natural rights and liberties that are part of humanity that our federal Government – unlike the central governments of most other nations – are required, under our Constitution to respect.Our Bill of Rights is, in essence, a codification of and assertion of the fundamental rights and liberties preexistent in the people. That fact is clear from the context of the U.S. Constitution. Since the federal Government is not the source of those rights and liberties, the federal Government cannot lawfully circumvent those rights and liberties. If the Government were to do so, the Nation, as a free Republic, as our founders intended, would cease to exist. If anything at all remained of our Nation, it would be but ornamental coverings, trappings. The Nation – our Nation – would be merely a dried husk, an empty shell.

OUR FOREFATHERS' FEAR THAT THE FEDERAL GOVERNMENT  MIGHT ONE DAY ENCROACH UPON THE RIGHTS AND LIBERTIES OF THE AMERICAN PEOPLE IS WELL-FOUNDED

The American people are aware, today, as the founders of our Republic had long ago feared that the Nation’s federal Government’s true and natural impulse – and that of many State Governments, as well, and often at the behest of the federal Government – is to encroach on the rights and liberties of the people. We see this as the federal Government slowly but insistently encroaches on and infringes the right of the people to keep and bear arms. We are seeing State and local governments also encroaching on and infringing the right of the people to keep and bear arms. The infringement of the fundamental right of the people to keep and bear arms, is, at once, noticed by the people. For, the American people either have access to firearms or they do not. They either exercise complete control over their firearms or they do not. The right to keep and bear arms, as codified in the Second Amendment, as with all rights and liberties, is intangible, but the expression of the right – possession and ownership of the firearm – is not. A firearm is a tangible, physical object. The loss of one’s firearms to government is immediately and emphatically felt by the gun owner.The loss of other rights, however, such as the loss of “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures,” may not be immediately and emphatically felt because both the right and, in many instances, the expression of that right are both intangible. Yes, the seizure of one’s papers, or smart phone, or personal computer amounts to the capture of physical items. But, the content is what the government is really after and content is intangible. If government can “lift” that content without even obtaining the physical hardware, unlawful invasion of the privacy right in that content is lost. Loss of “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures,” may not be recognized but it does exist and it is no less critical to the safeguarding of a free Republic than is the Second Amendment “right of the people to keep and bear arms.”All of our rights and liberties, as codified in our Bill of Rights, are critical to our survival as a free Republic!

GOVERNMENT ATTACK ON THE FOURTH AMENDMENT

The Fourth Amendment right of the people to be free from unreasonable searches and seizures is under attack by the federal Government – most noticeably and ominously since enactment of the Patriot Act. Recently, the FBI demanded that Apple Computer, Inc., -- maker of the iPhone -- unlock the encrypted data held in the iPhone of one, Syed Rizwam Farook.You may recall that Farook, an American citizen and Islamic jihadist, together with his wife, a foreign born, non-American Islamic jihadist, went on a murderous rampage, murdering 14 American citizens and injuring another 22 in San Bernardino, California. This occurred late last year. The Government has finally acknowledged that this incident amounts to an Islamic terrorist attack on U.S. soil.The FBI has obtained Farook’s iPhone but, the content is encrypted. The FBI has said that, despite several attempts, it has been unable to unlock the phone to obtain access to the content. The FBI has therefore enlisted the aid of Apple to assist the FBI in its efforts but complains that Apple has been uncooperative. In a lawsuit filed against Apple the Government contends, as reported in mainstream newspapers, that Apple refuses to assist the FBI in unlocking the content of the iPhone. The implication is that, through its failure to comply with the FBI’s order, Apple Computer is deliberately preventing the federal Government from performing a basic function on behalf of the American people, as expressed in the Preamble to the United States Constitution: “We the People of the United States, in Order to . . . provide for the common defence . . . do ordain and establish this Constitution for the United States of America.” Is this simply an instance of a major computer company inappropriately and inexplicably refusing to assist the federal Government in the Government’s efforts to provide for the common defence of the Nation as the mainstream media, on behalf of the FBI, asserts, or is there more to this?The federal Government, through its docile and compliant servant, the mainstream media, has certainly sought to create the impression that Apple Computer’s actions are unlawful and even unpatriotic because Apple is thwarting the Government’s legitimate attempt to fight terrorism on behalf of the American people. But Apple Computer takes strong exception to the charge. In an open letter posted on the internet, Tim Cook, Chief Executive Officer of Apple, sought to exemplify and clarify the issues, saying in principal part:“For many years, we have used encryption to protect our customers’ personal data because we believe it’s the only way to keep their information safe. We have even put that data out of our own reach, because we believe the contents of your iPhone are none of our business.We were shocked and outraged by the deadly act of terrorism in San Bernardino last December. We mourn the loss of life and want justice for all those whose lives were affected. The FBI asked us for help in the days following the attack, and we have worked hard to support the government’s efforts to solve this horrible crime. We have no sympathy for terrorists.When the FBI has requested data that’s in our possession, we have provided it. Apple complies with valid subpoenas and search warrants, as we have in the San Bernardino case. We have also made Apple engineers available to advise the FBI, and we’ve offered our best ideas on a number of investigative options at their disposal.We have great respect for the professionals at the FBI, and we believe their intentions are good. Up to this point, we have done everything that is both within our power and within the law to help them. But now the U.S. government has asked us for something we simply do not have, and something we consider too dangerous to create. They have asked us to build a backdoor to the iPhone.Specifically, the FBI wants us to make a new version of the iPhone operating system, circumventing several important security features, and install it on an iPhone recovered during the investigation. In the wrong hands, this software — which does not exist today — would have the potential to unlock any iPhone in someone’s physical possession.The FBI may use different words to describe this tool, but make no mistake: Building a version of iOS that bypasses security in this way would undeniably create a backdoor. And while the government may argue that its use would be limited to this case, there is no way to guarantee such control.Some would argue that building a backdoor for just one iPhone is a simple, clean-cut solution. But it ignores both the basics of digital security and the significance of what the government is demanding in this case.In today’s digital world, the “key” to an encrypted system is a piece of information that unlocks the data, and it is only as secure as the protections around it. Once the information is known, or a way to bypass the code is revealed, the encryption can be defeated by anyone with that knowledge.The government suggests this tool could only be used once, on one phone. But that’s simply not true. Once created, the technique could be used over and over again, on any number of devices. In the physical world, it would be the equivalent of a master key, capable of opening hundreds of millions of locks — from restaurants and banks to stores and homes. No reasonable person would find that acceptable.The government is asking Apple to hack our own users and undermine decades of security advancements that protect our customers — including tens of millions of American citizens — from sophisticated hackers and cybercriminals. The same engineers who built strong encryption into the iPhone to protect our users would, ironically, be ordered to weaken those protections and make our users less safe.We can find no precedent for an American company being forced to expose its customers to a greater risk of attack. For years, cryptologists and national security experts have been warning against weakening encryption. Doing so would hurt only the well-meaning and law-abiding citizens who rely on companies like Apple to protect their data. Criminals and bad actors will still encrypt, using tools that are readily available to them.Opposing this order is not something we take lightly. We feel we must speak up in the face of what we see as an overreach by the U.S. government.We are challenging the FBI’s demands with the deepest respect for American democracy and a love of our country. We believe it would be in the best interest of everyone to step back and consider the implications.While we believe the FBI’s intentions are good, it would be wrong for the government to force us to build a backdoor into our products. And ultimately, we fear that this demand would undermine the very freedoms and liberty our government is meant to protect.”Tim Cook, on behalf of the Company, claims that the Company has cooperated with the FBI in the past and desires to continue to do so. But, according to Tim Cook, the FBI is demanding of Apple something much more ambitious than the FBI would wish for the American public to know – and something clearly dangerous to preservation of individual rights and liberty. According to Tim Cook, the FBI is ordering Apple not merely to assist it in unlocking the contents of one iPhone – that of the dead Islamic terrorist – but to develop a new operating system that, once designed and installed in all iPhones would allow the FBI to gain access to encrypted data from every iPhone the Company produces. If Tim Cook’s account of the matter is true, then the Government is demanding that Apple create – in common parlance – a backdoor key. This key would enable the federal Government to peruse, at will, the content of every iPhone that Apple manufactures. Encryption, then, can be easily defeated. If encryption can be easily defeated, then the very import of encryption ceases to exist and no iPhone is secure.Millions of people, both in this Country and worldwide, use iPhones for work and business. Apple’s customers rely on Apple to provide them with security that is impenetrable to anyone other than the owner of the phone. Apparently, Apple has been very successful on that score. But, if the FBI is requiring Apple Computer to compromise the security of every iPhone it makes – although superficially claiming interest in obtaining data from only one iPhone – then the FBI’s ambitions are far-reaching and truly ominous. The FBI is treading uncomfortably on the Fourth Amendment.To say the FBI can be trusted to use a backdoor key sparingly, wisely and consistent with our system of laws and with the U.S. Constitution, strains credulity and is naïve in the extreme, especially in light of the FBI’s past mistakes. Moreover, as Apple has pointed out, and as computer engineers from other firms concur, the creation of an iOS that bypasses security invites hacking by criminal gangs and foreign governments.It is difficult enough today for the average person and businessperson to protect his or her computer devices from the myriad viruses, worms, spybots, ransomware, and other assorted malware that daily infect computers. This has become a disturbing fact of life. Customers who spend hard-earned money on a particular smart phone, tablet, PC, and on other computer devices depend on the reputation and integrity of the manufacturer to provide the customer with a reliable device and a secure device. That the FBI would require – as Apple Computer contends – a computer device maker to compromise the integrity of all of its iPhones, not only encroaches on the Americans’ Fourth Amendment privacy interest but is also harmful to Apple’s business.The FBI has, apparently, nothing to say, about protection of the public’s Fourth Amendment privacy right, but has much to say about the idea that Apple Computer’s real interest in this matter extends merely to business concerns and maintaining its Market share. The mainstream media, on behalf of the Government, has pressed the FBI’s accusation, in lengthy news reports and commentary, pointedly attacking Apple, arguing that Apple’s reluctance to give the FBI what it wants – a backdoor key – is predicated on shallow business concerns. Even so, protection of free market capitalism is not to be construed as an improper, if unstated, motive of Apple; for our economic system, predicated on free market capitalism, is a bulwark of our free Republic. Moreover, even if – as the FBI asserts, and, as the mainstream media echoes on its behalf, and, as the public may reasonably infer and concede – Apple Computer is more interested in preserving its market share, that it fails to assert, than in protecting, as it overtly states, the iPhone user’s privacy and security – consistent with “the right of the people to be free from unreasonable searches and seizures,” – the fact that the Fourth Amendment is implicated at all is enough to warrant the American public’s grave concern in what the FBI demands of Apple. Thus, Apple’s underlying business motive in the case at bar is at most a tangential issue here, designed to divert the public’s attention away from the federal Government’s penultimate goal of creating “the surveillance society” as a conjunct of America’s “Police State.” If, in fact, as Tim Cook says, the FBI is demanding a backdoor key to unlock encrypted content on every apple iPhone, then the federal Government is in the process of undertaking a frontal assault on Americans’ Fourth Amendment “right of the people to be free from unreasonable searches and seizures,” because the sanctity of and security of sensitive personal and business data would be placed in jeopardy if Apple Computer is ultimately compelled to create a backdoor key for the FBI. Apple’s iPhones would be open to continuous unlawful federal government surveillance and to breaches by foreign governments and criminal organizations as well. Of that, there can be no doubt. One’s ability to confidently and securely protect his or her private communications and sensitive data from prying government eyes and from the nefarious actions of criminal organizations would inevitably be severely weakened.Of course, the federal Government has been attempting for some time now to compel all computer companies to provide the government with backdoor keys to enable Government to unlock, as it wishes, encrypted content held in every American’s computer devices.So, we must ask: is the federal Government, disingenuously, insidiously, even arrogantly, using the Farook episode to garner public support for further unlawful Government intrusion into the private lives of Americans, under the guise of providing for the common defence of the Nation, but contrary to the precept of the Fourth Amendment? If so, this is not something new. The public has seen this before. For the same technique has been used by antigun groups as well when seeking to garner public support for legislation to weaken the Second Amendment right of the people to keep and bear arms. Then, as now, the mainstream media willingly trumpets the call of those forces that seek to upend the Bill of Rights. The antigun groups jump on one horrific incident of gun violence, perpetrated by one or a few lunatics, or criminals, or Islamic jihadists and, through that one, particular incident, coax the public to support measures that further weaken and eventually curtail the Second Amendment right of the people to keep and bear arms. Of course curtailment of a fundamental right and basic liberty is presented to the public, not as a loss but as a benefit, namely that, for the good of society – the collective, the masses – an American must surrender his or her firearms. If you do not buy into that – and know sane, rational American should – you should not buy into the argument proffered by the FBI that, for the good of society, you must allow Government to pry into your sensitive private data – into your personal and business life – and trust that the Government will use good judgment and refrain from doing so except when necessary “to provide for the common defence” of the Nation.

NOTHING LESS THAN THE CONTINUED EXISTENCE OF AMERICANS’ FUNDAMENTAL RIGHTS AND LIBERTIES ARE AT STAKE

Americans should never for one moment doubt that Government will, if the public is not continually astute and vigilant, undermine the rights and liberties of the American people. The federal Government is continually pressing the public to relinquish its rights and liberties for such security the federal Government says it can and will provide Americans in the alternative. Americans have seen before where this has gone and they know where this is headed. Nothing good can come of it.The federal Government wishes to know what Americans are thinking. It wishes to control Americans’ thoughts and will do so by gaining entry to their secrets in derogation of the Fourth Amendment, just as it seeks to control Americans’ speech, in derogation of the First Amendment, and as it intends to control Americans’ access to firearms, in derogation of the Second Amendment. All of this is done under the guise of providing for the common defence of the Nation. But, the Nation suffers all the same as Government power increases commensurately with a decrease in the rights and liberties of the American people. What is occurring today in America is demonstrative of the founders’ greatest fear: that Government would turn on the people. As the doctrine of the separation of powers collapses, as the parameters of Government exercise of power extends, and as the rights and liberties of the American people continues to erode, the continued existence of our Nation as a free Republic begins to crumble.Congressional Republicans and Democrats who play along with the carefully orchestrated charade and pretense of providing for the common defence of the Nation are not doing Americans a service. They should be protecting Americans rights and liberties. They are not. Instead, they are actively, insidiously, at work destroying those very rights and liberties, in defiance of and contemptuous of the oath of Office they have taken. They are a disgrace to this Nation and to its People.The web blog, Salon, had an interesting point to make about Governmental lust for power, desire for control over the citizenry, and its attack on the Fourth Amendment, when it stated the other day:“Security officials keep the public focus on the limits of surveillance rather than on its excesses; at the very same time, the frequent exposure of new surveillance capacities perversely functions to normalize those excesses. If widespread surveillance is ordinary, it cannot be shocking. Instead, the anomaly becomes whatever surveillance capability lies just beyond law enforcement’s capability or authorization.”If Americans are to place their faith in something of value, that faith should rest first and foremost in the Bill of Rights. Americans’ faith will be ill-spent if that faith is placed solely in institutions of Government; in the empty words of politicians; in the propaganda spouted through the mainstream media on behalf of Government and on behalf of groups bent on destroying the Bill of Rights; in the operations of Government intelligence agencies and federal police forces who claim to provide for the common defence of the Nation, at the expense of the rights and liberties of the American people. Government, after all, does not have a vested interest in preserving Americans’ rights and liberties. It never does. The primary interest of our federal Government – indeed, of all central governments is acquisition of power for itself. If the Bill of Rights is to remain tenable, if it is to exist as something more than a mere but empty expression of the sanctity of the individual, the public must be cognizant of the natural tension that exists between a strong central government and the rights and liberties of the citizenry. If the citizenry willingly accedes to the loss of their rights and liberties, what truly remains of the Nation? Security proffered by Government? But security – real security – of the Nation – for our Nation – truly rests in the rights and liberties of the people as codified and sanctified for the people by the founders of the Nation in our Bill of Rights. CONCLUSIONIf you are harboring any second thoughts about the sanctity of and importance of your Fourth Amendment privacy rights, or about the critical importance of the Bill of Rights to our Nation’s survival as a free Republic, generally, consider where the greater threat to your rights and liberties reside: Islamic terrorists threatening our shores or a central, federal Government that hungrily amasses for itself ever more power, ostensibly for our benefit if we would be ever so kind to allow the Bill of Rights to fall by the wayside?We invite reader comment on this 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.

THE TRUE BASIS OF EXECUTIVE OVERREACH

“Rex Non Potest Pecarre”: The King Can Do No Wrong

Dost there exist any limit to the power of a person who dareth claim absolute power unto himself? If so, where doth the boastful claim lie if not in the arrogance of one's moral perfection?In England, during the Middle Ages, Monarchs did indeed wield absolute power over the conduct and, in fact, over the very lives of the populace – the subjects – in their realm. But, apart from the actual ability to wield absolute control over the lives of the denizens of the realm and to craft laws in whatever manner the Monarch wished, a question arose as to the legitimacy of a Monarch’s executive decrees and actions.In the Eighteenth Century, an English jurist, William Blackstone, developed a rationale for the legitimacy of a Monarch's absolute power, going so far as to say that the King not only is incapable of doing wrong, but is incapable of even thinking that he can do wrong. In essence this means that subjects of the realm have no redress in law for alleged wrongs. Another way of saying this is that the King has absolute immunity. But, why is that? For this reason: the subjects of the realm have no redress, and, what is more, the King's subjects have no need of redress. They have no redress because the idea that redress is necessary presumes the King could do wrong and, in fact, has committed a wrong for which redress is required. But, since the King cannot do wrong, no wrong has been committed by him that would require redress. If a subject of the realm dared claim the King committed a wrong, the King had absolute immunity anyway. And, woe to that person who would claim the King wronged him.What does this have to do with us, the American people, at the present time? One would think, nothing. After all, our system of government is referred to as a Free Republic, not an Absolute Monarchy, and it is predicated on a system of checks and balances.

Overreach: Governance By A Personal Notion Of What Is Right?

In a Free Republic, unlike an Absolute Monarchy, the maxim, “the King can do no wrong," is an anathema. To negate any possibility of our government resembling the English Monarchic system -- where legislative, executive, and judicial functions were concentrated in one person, the King -- the founders of our Republic created a tripartite, or three Branch system. The powers of each Branch of our Government were carefully demarcated and delineated. Law-making functions, executive functions, and judicial functions would not and could not be concentrated in any one individual or group of individuals. Let us consider the above commentary in light of America’s present situation.We see in the actions of the present U.S. President, Barack Obama, and in one of the candidates for U.S President, namely and especially, Hillary Rodham Clinton, an insidious attempt to slither around the notion that America still has and, indeed, ought to continue to have, a representative form of government where executive functions, legislative functions, and judicial functions reside in three separate but co-equal bodies.What specifically is most disturbing about Barack Obama’s governance is his claim to act in accordance with his personal notions of what is right. Through issuance of executive orders Obama has essentially rewritten Congressional immigration and firearms legislation.The President's actions amount to executive overreach of the most ambitious and disturbing and egregious sort, and these illegal actions stem from Obama's arrogant belief in his own moral superiority. How often has Obama said that he will act if Congress does not and that he does so when he feels that it is the morally right thing to do. Do not Obama's words entail that the failure of Congress to act means that Congress is immoral? Obama is extremely presumptuous; he is disrespectful of our three Branch system of Government; and he is contemptuous of Congress.One's infatuation with one's moral superiority is extremely dangerous when one can exert control over others. One's feelings of grandiosity is the basis for executive overreach, and suggests that one suffers from megalomania.Obama deceptively claims he is not making law, only implementing law that Congress has itself made. In so saying Obama would have the American people believe that his immigration orders are not an unlawful encroachment on the singular authority of Congress “to establish an uniform rule of naturalization” under Article 1, Section 8 of the U.S. Constitution. And Obama would have the American people believe that his recent executive directives that, in pertinent part, redefine what it means “to be in the business of selling firearms,” are neither an unlawful constraint and infringement on “the right of the people to keep and bear arms” under the Second Amendment of the Constitution, nor an unlawful encroachment on the authority – the sole authority – of Congress “To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof,” under Article 1, Section 8 of the U.S. Constitution.” Obama is fooling no one.Now, Obama adamantly maintains that his executive directives on both immigration and firearms’ regulations do not involve the making of law but consist only in acting within the authority granted to a U.S. President, under Article 2, Section 3 of the Constitution that says, the President “shall take Care that the Laws be faithfully executed.” But the assertion is no more than a platitude. For, Obama has also been heard to assert or strongly suggest on numerous occasions that, “if Congress doesn’t act, I will.” This is tantamount to saying, “I am the King” and “legislative power to make the law, amend the law, or to ignore the law, as well as the power to execute the law reside, alone, in me.” Obama often punctuates his edicts with the claim that, “when Congress doesn’t act, I will when it is the right thing to do.” This latter remark harks back to the English doctrine of the notion that “the King can do no wrong,” which is to say that the King is the holder of absolute moral authority and absolute legal authority.Many commentators have said that Obama’s misuse of executive orders amount to “executive overreach.” But, in truth, Obama’s directives go beyond mere “executive overreach.” Obama’s executive directives and actions do much, much more. His actions erode the public’s confidence in the sanctity of the U.S. Constitution and diminish the public’s trust in the continued well-being and efficacy of a free Republic.This brings us to the matter of Hillary Rodham Clinton’s push to claim the mantle of “Queen of the Commonwealth of America.” There is much to be said about Clinton’s past and present actions to cast substantial doubt on her character to adequately and diligently represent this Nation. But, one episode is so damning that it taints the very Office of President should Clinton gain entry to it.Clinton’s use of a private email server to conduct sensitive government business transcends the bounds of propriety and descends into conduct that, if not facially criminal, certainly calls into question her ability and willingness to conduct the Nation’s business in the best interests of the Nation’s citizenry, consistent with and respectful of the Country’s Constitution and the Country’s institutions.If the Director of the FBI, James Comey, fails to recommend that criminal charges be brought against Clinton, this may involve placing political considerations and concerns above legal ones. For, imagine what occurs if Comey does recommend criminal charges against Clinton. Loretta Lynch, Attorney General, must decide whether to indict Clinton. How would she act? Would she not consult with the President? If so, what Would President Obama have her do? Would not the President be obliged to allow the Attorney General to bring criminal charges against Hillary Clinton and to prosecute Clinton zealously, in the interests of justice, in accordance with the maxim that no American citizen – even the rich and powerful – is above the law?Obviously, Clinton would have to bow out of the race if she were indicted on criminal charges. But, whether or not criminal charges are ultimately brought against Hillary Clinton, that is beside the point. The mere perception of serious wrongdoing on her part – and there is much of that – should be sufficient grounds for her to bow out of the race for U.S. President. And Clinton would bow out if she were a person of integrity whose salient concern was the well-being of the Nation and the American people. Sadly, she is not a person of integrity.A person with integrity would think more about the well-being of the Nation, its laws, its system of Government, its people, and less about satisfying his or her sense of self-aggrandizement. But, then, Hillary Rodham Clinton isn’t one of those people.Clinton cares not one whit what the American people really think about her. She is disdainful of everyone. Even those who would vote for her do so, oddly enough, even when acknowledging that Clinton utterly lacks integrity, honesty, and sincerity – three endearing qualities existing in any person of honor and certainly qualities an American would and should expect in the U.S. President. Those qualities, though, aren’t part of Hillary Clinton’s make-up. Those qualities are not part of her nature. But, then, why should they be? To anyone who might be heard to complain, Clinton would likely say, as she has said dismissively and even derisively to those who challenged her handling of the Benghazi incident: “What difference does it make?” Indeed! What difference can it make to one in whose bosom lies absolute moral authority? After all, “The Queen can do no wrong!”[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.  

GUNS ARE VIRULENT VIRUSES: WIPE THEM OUT!

Guns are virulent viruses: wipe them out! Consider the phrase as a slogan. Mull it over in your mind. Really think about it: the phrase’s nuances, its connotations. Now, suppose a member of the public who has never given firearms much thought is continually bombarded with the slogan: “Guns are virulent viruses: wipe them out!” He hears the slogan on the evening news. He sees it in the newspapers. Pundits voice it loudly on the radio. Pastors preach it to their congregations. The public comes to see that firearms are indeed virulent viruses. Of course they must be wiped out! Perception is reality. Isn’t it?Clinical psychologists and political propagandists know very well that, how a person perceives reality – how a person perceives the world around him – becomes the world a person lives in. No one knows this better than members of the antigun movement and those that support its efforts, including antigun legislators and billionaire globalists, all of whom see, in America’s Second Amendment, something incompatible with the new pan-Western ethos. They unabashedly seek not only to repeal the Second Amendment to the U.S. Constitution, but to debase it, to demolish it, to obliterate it.The mainstream media is a useful vehicle for conveying the messages of the antigun movement. Thus, of late, we are witnessing a twist to the antigun movements’ messaging – a twist at once subtle but noteworthy. The mainstream media – the pawns of and at the behest of antigun groups and like-thinking intellectual and business “elites” both here and abroad, and of their friends and fellow travelers in Congress, in State Legislatures across the Nation, and in the Oval Office – has made a pronounced and explicit change to its messaging.Heretofore, the public has been conditioned to associate guns with criminals, with lunatics, with terrorists. The phrase, “gun violence,” has been, and rightly so, inextricably tied to the individual – the sentient being responsible for the gun violence. The antigun movement has now, as a matter of strategy, completely severed that connection. The mainstream media, the voice of the antigun movement, is addressing guns as the sole true scourge of all violence associated with guns and paying less heed to the individuals who wield the guns and who commit violence with them.Consider a few examples. In the July 31st 2016 edition of the NY Times, the editorial staff, in an article proclaiming the paper's endorsement of Hillary Clinton for the Democratic Party nomination, said, “Mrs. Clinton is a strong advocate of sensible and effective measures to combat the plague of firearms.”A firearm, though, is merely a tool, a physical object, manufactured from metallic or non-metallic materials. By referring to the firearm, a non-living object as a “plague,” antigun groups, through the mainstream media, are subtly, diabolically changing the public’s perception of them. They are slowly, subtly nudging and shifting the manner in which the public perceives gun violence – shifting the public’s perception of gun violence away from the criminal, and the lunatic, and jihadist as the primary agents of violence, who happen to use a firearm to commit acts of unconscionable violence, and shifting the public’s perception toward the firearm itself as the primary agent of violence.The firearm is depicted today as a virus that infests human beings. Not surprisingly, the numerous antigun movement requests for CDC studies into the “plague of firearms” is consistent with the incongruous attempt to associate firearms with virulent viruses that, as with all disease viruses, must be eradicated. Indeed, one left-wing web blog, "The Iowa Daily Democrats," supportive of the antigun movement’s efforts, in an article, with the emotionally charged title, "Guns: Democrats vow to end the American Plague," unashamedly and viciously attack the Second Amendment right of the people to keep and bear arms, by comparing firearms, incongruously, to virulent viruses. The world-wide web is filled with this claptrap. The public’s attention and perception is directed to guns as the primary agent for violence, rather than to the sentient beings who wield the guns and who, alone, logically, are solely responsible for the violence committed with guns.The firearm, as the primary actor of violence, relieves the human actor of moral and legal responsibility. This idea is preposterous, of course. But, the rationale behind it is diabolically clever. It is the antigun movement’s response to the gun advocate’s argument that the law-abiding gun owner – tens of millions of us – do not and never will pose a "gun" problem. But, if guns are construed as disease viruses, then the mere existence of them is the problem. What sane person wants to be a carrier of a virulent disease? Obviously, no one. Ergo, a healthy society must eradicate the plague of firearms. This means the government can and must – and will – forcibly remove guns from those otherwise law-abiding members of society who feel comfortable living with the plague of firearms. This, of course, is all for the best – the Second Amendment be damned!The stratagem places in high relief the salient goal of the antigun movement which really has little if anything to do with – and never did have anything to do with – criminal use of firearms. The stratagem  has everything to do with dispossessing the law-abiding citizen of his or her firearms, that is to say, elimination of the firearm from American society. Thus, the U.S. becomes a society not unlike that of the UK, or Canada, or Australia.Newspapers across America are jumping on the “guns are the problem” bandwagon, directing the public’s attention away from the individuals who create the violence and redirecting the public’s attention onto the mechanism itself: the gun as disease virus.The Plain Dealer, A Cleveland, Ohio newspaper, in an editorial appearing on Sunday, January 3, 2016, by George Rodrigue, under the title, "Fear, facts, and the question of guns: George Rodrigue," minimizes the importance of the Islamic jihadists who were responsible for dozens of deaths in San Bernardino, California, and emphasizes the implement – the gun – that they used. The writer says, “[l]ast month, two radicalized Muslims [and note the absence of the word ‘terrorist’ to describe these two] shot 36 people at a San Bernardino holiday party. That touched off an anti-Muslim backlash, along with a wave of new gun purchases. Those reactions overestimate the risk of domestic Islamic terrorism, and underestimate the risks of firearms.” What?The writer of this Cleveland Plain Dealer editorial is strongly suggesting to the reader that the jihadists are not the primary agents of the despicable acts of violence they caused. It was the firearm’s fault. The killers were only along for the ride. The writer of the editorial is bluntly telling the reader that, if Islamist terrorists kill Americans, we, Americans, are to blame the gun for this – for our acquiescence to the existence of guns in our Nation – and we are not to blame the terrorist because there are more guns than terrorists in America. This means, according to the writer of the editorial, that more guns kill Americans than Islamist terrorists do. So, guns, according to Rodrigue, pose a greater threat to Americans, are more dangerous to Americans and, therefore ought to be despised more by Americans than ought the threat posed by Islamic terrorists. This is ludicrous. For those college students happening to take an introductory course in formal and informal logic, discerning and describing the numerous fallacies inherent in the Cleveland Plain Dealer editorial would make for an illuminating, educational exercise.If the antigun movement, and its supporters both here and abroad, succeed in their singular, all-consuming effort to end lawful ownership and possession of firearms, the right of the people to keep and bear arms will have been erased from the collective consciousness of the American people. The Second Amendment will no longer exist as a natural, right preexistent in the people. It will exist only as an obscure, fragmentary footnote in history, devoid of legal efficacy. In time the notion that the American people actually had a fundamental right to keep and bear arms – a right that could not be infringed by government – will become but a distant memory, relegated to folklore. The United States will have ceased to exist as a free republic.The antigun movement doesn’t care. It is oblivious to the import of the Bill of Rights and to the notion of America as a free republic if such is conditioned on the existence of a right that the movement finds repugnant to its sensibilities. It intends to infect the entirety of the American public with its own psychosis.Oh, how much easier, it would have been to constrain civilian ownership and possession of firearms if the Second Amendment had never existed or had, at least, excluded the cogent, independent and insufferable clause, “the right of the people to keep and bear arms shall not be infringed.” That it does exist, the antigun movement intends to change the public’s perception of guns so that the public will become, eventually, amenable to relinquishing them. Public perception can be molded. It is infinitely malleable.So, remember, perception = reality. If the public comes to associate guns as living things and, too, as things, inherently evil, the public will come to feel ill simply to come into contact with a firearm. If guns are associated with disease viruses, which humankind obviously and with good reason, has a natural antipathy and, indeed, understandably, a raw, intrinsic fear of – think of Typhus, the Black Death, the Bubonic Plague, Influenza, the Ebola virus – then, naturally, and with good reason, the public will perceive firearms as a thing to be despised, and loathed, and feared. The antigun movement treats the American public like Pavlov’s dog.So it is that antigun groups, through the mainstream media, have devised a new stratagem for getting rid of guns: equate guns with virulent viruses, and hit the public hard with that message.The ludicrousness of the idea is lost in the perception of it that affects – and is meant to affect – a person on an emotional, visceral level.Perception is, after all, reality![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 ULTIMATE GOAL OF THE ANTIGUN MOVEMENT

The ultimate goal of the antigun movement is this: the universal elimination of civilian firearms’ ownership and possession. This is true and incontrovertible. Everything the antigun movement does is directed to the attainment of that goal. Nothing the antigun movement does diverges from the path to that goal. When asked to admit the truth of the assertion, the antigun movement, and its sounding board, the mainstream corporate media, will deny it, curtly and vehemently. But, the antigun movement’s actions belie its blunt denial.Realization of the movement’s goal amounts to de facto repeal of the fundamental right of the people to keep and bear arms – a right expressed clearly and cogently, succinctly and indelibly, in the Second Amendment to the U.S. Constitution. Yet, if there exist any residual doubt as to the import of that right, the U.S. Supreme Court laid such doubt to rest in the 2008 Heller and 2010 McDonald decisions.In Heller the Supreme Court held: “the Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home.” This right, the high Court maintains, operates as a constraint on the federal government. The question subsequently arose, in McDonald, whether the Heller holding applies to the States as well. The high Court held that it did, asserting, clearly, categorically, unequivocally, “the Due Process Clause of the Fourteenth Amendment incorporates the Second Amendment right recognized in Heller.”Still, the antigun organizations, and many lower courts amenable to their views, resist Heller and McDonald, and continue to advance strategies altogether inconsistent with the High Court’s holdings. The arguments – actually rationalizations – for more and more restrictive gun measures may be distilled to the following: one, no one needs a gun because the police will protect you; two, curtailing civilian gun ownership precludes gun violence and gun accidents; three, civilized people don’t want guns and are repulsed by them; four, since no one can know who, among the population, will go off “half-cocked” – presenting a danger to self or others – it is best to curtail civilian gun ownership and possession; and, five, the Second Amendment is obsolete; no other Country has anything like it, and the U.S. shouldn’t either. These five arguments are a ragbag of elements gleaned from utilitarian ethics, psychology, sociology, politics, economics, and even aesthetics. But they all embrace one central tenet: governmental control of the American public.The antigun movement does not recognize the sanctity and autonomy of the individual, which is the linchpin of the Bill of Rights. Rather, the antigun movement sees each individual American as a random bit of unharmonious energy, running hither and yon – an individual who is likely to harm self or others unless appropriately constrained for his or her own good and for the good of the greater society. A firearm in the hands of a civilian lessens government’s ability to control that individual. Ergo, the government must keep the two – firearm and individual – separated. What NRA works to keep conjoined, antigun groups wish to sever and keep disjoined.As the antigun movement works incessantly, inexorably toward its ultimate goal, the movement invariably butts up against the NRA, which the movement routinely and pejoratively refers to as the “gun lobby.” But, the antigun movement refrains from referring to itself as the “antigun lobby.” Now, lobbying activities are protected speech under the First Amendment to the U.S. Constitution, and NRA is open about its lobbying efforts on behalf of its millions of members. Yet the antigun movement cloak’s its own lobbying activities and blatantly panders to the U.S. President. President Obama, for his part, has not shied away from using the power of his Office to further the agenda of the antigun movement through issuance of executive actions, and he has formally announced, in January of 2016, his intention to do so.Now, Congress, under Article 1 of the U.S. Constitution, has sole authority to make law. The question is whether Obama’s antigun measures operate within the framework of existing Congressional firearms laws, as he claims, or operate beyond the boundaries of existing law. That Congress might obtain some resolution of that question, U.S. Senator Richard C. Shelby, R-Ala., Chairman of the Subcommittee On Commerce, Justice and Science, requested Attorney General Loretta Lynch to appear at a hearing, held on January 20, 2016, to discuss the President’s recent executive actions.Senator Shelby made abundantly clear that the President does not have the authority to tell Congress what it must do. But the President has done just that, using the mechanism of executive directives, crafted by the Attorney General, herself, to conduct an “end-run” around Congress. The President isn’t asking Congress and the American people for permission to do what he wants to do. He is telling Congress and the American people what he’s going to do and cajoling both Congress and the American people to get on board with his game plan. That is extreme hubris.If the antigun movement is able to harness the Office of the President to craft its own laws to further a personal agenda, in defiance of both Congressional legislation and U.S. Supreme Court decision, then the Constitution is belittled and the Republic is endangered.[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.

NRA: THE AMERICAN PEOPLE’S VOICE

Antigun Groups Curry Favor with the President to Further Personal Agenda and to Attack the NRA

Nothing speaks more clearly and cogently of the duplicity and hypocrisy existent in Obama’s efforts to undermine the right of the people to keep and bear arms than the personal attacks he levels against NRA. The singular aim of NRA is nothing less than defense of the inalienable, natural, and fundamental right to keep and bear arms – clearly and cogently articulated and codified in the Bill of Rights, as the second of ten critical, enumerated rights.We all know that the President and the various antigun interest groups habitually refer to NRA, disparagingly, as the “Gun Lobby.” They do this to suggest that NRA represents a small, select interest group, namely, gun manufacturers, whose singular objective is to make money from the sale of firearms. If true, NRA would be a “trade” group. Now, trade groups, on behalf of their members, do lobby Congress. And, there is nothing wrong with that. But, NRA is not a trade group.Although firearms’ manufacturers – which, by the way have their own trade groups – may benefit tangentially from the efforts of NRA to secure the sacred right of people to keep and bear arms, NRA does not represent gun manufacturers, and NRA is not an organization that comprises gun manufacturers. To the contrary, NRA is composed of American citizens – millions of Americans. Americans do not become members of NRA because they are interested in making money off NRA’s efforts. Americans become members of NRA because they know the United States will not long stand as a free republic if the right of each American to keep and bear firearms is curtailed. NRA is one organization that embodies and engenders the spirit of America as a free republic.The salient purpose of the NRA is to protect and preserve, for Americans the sanctity of the Second Amendment to the U.S. Constitution. It works on behalf of its members, certainly, but, in fact, it works on behalf of all Americans who cherish their Bill of Rights.NRA does lobby on behalf of its members, just as the antigun interest groups lobby on behalf of their members, although the antigun groups’ members amount to a miniscule fraction of Americans. Moreover, unlike the antigun groups that are essentially nothing more than a lobbying vehicle for those individuals and cabals both here and abroad who wish to erode the Bill of Rights and to destroy the Second Amendment, NRA is much more than a lobby group.The Arbalest Quarrel has written extensively on the many services NRA provides for average Americans, law enforcement, and, traditionally, for the U.S. military. Readers are invited to read the Arbalest Quarrel's extensive article on the history of the NRA, posted on April 8, 2015.President Obama and Hillary Clinton and the antigun groups attack the lobbying efforts of NRA. But, there is nothing wrong in the act of lobbying, per se. Lobbying is an activity protected under the First Amendment. And, it would hardly do for the antigun forces in this Country to attack the NRA on the ground that NRA's lobbying efforts are wrongly directed to defending and preserving one of America’s inalienable, natural, and fundamental rights, especially in light of the lobbying efforts of the antigun groups that are directed to attaining the opposite end – the tearing down of a sacred right that the founders of a free republic gave to us. And it would hardly do for antigun groups to attack the NRA's defense of the Second Amendment when those same antigun forces openly declare, albeit disingenuously, that they do not wish to tear down the Second Amendment, when they seek to do just that. For, if they were serious in their assertions and declarations that they do in fact support the Second Amendment, then they would not be continuously, endlessly, and vociferously attacking NRA. That they do incessantly attack NRA, their hypocrisy and duplicity is glaringly obvious for all to see.At the behest of the President and at the behest of the antigun groups the mainstream media argues, emphatically, but falsely, that NRA represents and conducts lobbying activities on behalf of firearms' manufacturers, whose interests, the selling of firearms, play well to the ignorant among America’s populace who are conditioned, through the power of the mainstream media, to equate guns solely with violence – that is to say – with nothing good, even as that violence, as everyone knows, is produced, not by the tens of millions of law-abiding gun owners but, rather by a notably few, the very worst who live among us – namely, career criminals, psychopathic gang members -- many of whom have entered and remain in the U.S. illegally -- assorted lunatics and, of late, radical and radicalized Islamic jihadists.But, it is one thing for antigun groups to attack the NRA, as an organization whose goal it is to preserve the right of Americans to keep and bear arms, and to attack, too, those Americans who choose to exercise that right. It is quite another for the President to do so. Why is that? For this reason: when the President of the United States attacks NRA and, by extension, attacks millions of Americans who simply wish to exercise their fundamental right to keep and bear arms, the President is, himself, operating as a lobbyist for a specific interest group, at the detriment of the interests of another group. In this instance we see the President, Barack Obama, representing groups whose interests – the destruction of the Second Amendment and the erosion of the other nine Amendments – are at odds with the well-being of a free republic and with the safeguarding of the Bill of Rights.The duplicity and hypocrisy of the President of the United States are obvious and self-evident. President Obama and, before him, President Clinton, have used the power and influence of the Office of the Chief  Executive, to condemn the lobbying efforts of the NRA and, in so, doing, they have played favorites: furthering the dubious interests of those interest groups whose avowed goal is the dismantling of the Second Amendment to the U.S. Constitution and the undermining of our Bill of Rights.In contradistinction to the underhanded, secretive use of the Office of the President (the Chief Executive of the Nation) by antigun interest groups to further their own nefarious, insidious objectives, NRA’s lobbying efforts have been subject to full disclosure, have been directed to the most honorable of goals – preservation of Americans’ fundamental right to keep and bear arms set forth with specificity in the Second Amendment to the U.S. Constitution – and have been directed to securing appropriate legislation through Congress, not through the Office of the President.The right of an interest group to lobby Congress to further that group’s objectives, if those objectives are properly disclosed, is legitimate, fully protected political speech, under the free speech clause of the First Amendment to the U.S. Constitution. On the other hand, the antigun groups, apart from lobbying Congress to further their own ends – upending the Second Amendment through the Legislative process – have, inappropriately, sought intervention by the Chief Executive, as well -- have, in fact, concentrated their lobbying campaign on the Chief Executive because Congress won't do their bidding. They trust that the Chief Executive will. But that means the Chief Executive is expected to legislate antigun laws on their behalf. And that is monstrous. We see the ludicrousness of President Obama's message to the public: asserting that he must intervene because Congress won't legislate in this area, but then asserting that he isn't making new law but simply operating within the constraints of present Congressional legislation! While an interest group is not prohibited from seeking special favor of, or groveling before, or currying favor from the Chief Executive, such instant and easy access to the President of the United States by one group, to the detriment of others, is fraught with danger especially when this behind-the-scenes actions of noxious special interest groups, namely and specifically, antigun interest groups, furthers goals that are diametrically opposed both to the well-being of a free republic and to the safeguarding of the Bill of Rights upon which a free republic depends for its survival.One must wonder whether President Obama’s recent impermissible promulgation of antigun legislation, through the device of executive directives, was not inspired by, or, more to the point, directed by antigun interest groups. Did not these antigun interest groups – angered by the failure of Congress to extend the parameters of the national instant criminal background check system of the “Brady Handgun Violence Prevention Act of 1994” – exert pressure on the President – convincing Obama, who was amenable to their goals anyway, to use the power of his Office to further the antigun agenda along precisely because Congress wouldn’t? And, does not this circumvention of Congress by the antigun interest groups constitute an illegitimate exertion of influence by these groups on the Executive, contrary to and irrespective of the will of the American people? Do not the actions of Obama amount to a compounding of fault, having allowed his Office to be a conduit for illegal law-making?Indeed, one antigun group, “the Brady Campaign to Prevent Gun Violence,” has, for decades, attempted to use the power of the Executive to further its own nefarious goals.The Brady Campaign, an antigun lobbying group, had appealed directly to President Carter, in the 1970s, to harass gun owners; and Carter did just that. The Brady Campaign had little success with the Republican Presidents, Reagan and H.W. Bush. But, then, Bill Clinton entered the picture. The Brady Campaign sent a confidential memorandum to the White House, setting out exactly what the Brady Campaign antigun interest and lobbying group wanted from and expected to obtain from Clinton, including, inter alia, licensing requirements and registration for handgun owners, bans on firearms, defined as ‘assault weapons,’ waiting periods, and a required “arsenal license” for anyone who owned 20 firearms or more.The Brady Campaign sought to use the power of the Executive Branch to put pressure on the Legislative Branch to further the interest of a small, virulently antigun segment of the population. Obviously, the Brady Campaign and other antigun groups have been working behind-the-scenes in recent times, as well, to push Obama to accede to their desires. Since Obama harbors anti-Second Amendment, antigun sentiments, anyway, he has been all-to-willing to use the power and influence of his Office to push the agenda of these groups – especially now, as he, in his final year of Office, is no longer afraid of offending Congress.If Hillary Clinton becomes her Party’s nominee and, thereafter, gains the Presidency, her Administration will be essentially an extension of her husband’s previous Administration, and the Brady Campaign and other antigun lobbying groups will continue to exert inappropriate, illegitimate, and, in fact, illegal influence over Hillary Clinton, just as they had exerted such influence over her husband and over Obama.Clinton, as we know, is more than merely amenable to this influence. She will be enthusiastic about using the Office of the Presidency to further the antigun agenda, even as this means by-passing Congress, and notwithstanding that Congress has sole authority to enact the laws of the Land, consistent with its law-making powers under Article I, Section 8 of the U.S. Constitution. If Hillary Clinton is successful in securing the Office of President of the United States, Americans will see further erosion of their Second Amendment right to keep and bear arms. They will see the continued erosion, too, of the Separation of Powers Doctrine as the Executive Branch amasses ever more power unto itself.You can help prevent Hillary Clinton’s ascendancy to the highest Office of the Land. If you are an NRA member, that is good. If you are a “Life Member” of the NRA, that is even better. America’s interests in preserving the Second Amendment and in preserving, as well, the other Nine Amendments of our Bill of Rights, are enhanced, and the influence exerted by the anti-American, antigun interest groups are, contrariwise, diminished, as NRA accrues more members. We ask that you encourage your family and friends to become members of NRA. And, please do not forget to vote![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.

GUN LAWS THAT DO NOT MAKE SENSE, LITERALLY!

A Critical Look at California's New 'Assault Weapons' Bill and a Comparison and Contrast with New York's 'Assault Weapons' Laws

California is playing the child’s game of “leapfrog” with New York and with other States that enact draconian firearms laws. What do we mean by that? Just this: as one State Legislature drafts and enacts ever more draconian gun laws, the other States follow suit and attempt to do the first State, one better. Let’s see how this plays out.The New York State Legislature in Albany, NY, rewrote the law defining the expression ‘assault weapon.’ The Safe Act became effective on January 15, 2013 and was the de facto model for new antigun laws around the Country. The Safe Act was also the de facto model for Dianne Feinstein’s failed effort to enact a new federal assault weapons’ ban and ammunition ban in 2013. Fortunately, Republicans in Congress and the NRA stopped a federal “Safe Act” in its tracks.The Sandy Hook Elementary School shooting incident that occurred on December 14, 2012, in Newtown, Connecticut, was the impetus for – actually the pretext for – implementation of new and highly restrictive gun and ammunition bans.Notwithstanding oppressive gun restrictions in New York, the Safe Act further encroached on Americans' Second Amendment right to keep and bear arms, adding new restrictive provisions to the New York Penal Code and to other Statutory Sections of the Consolidated Laws of New York and making existing gun provisions even harsher.The drafters of the Safe Act aimed to ban ever more types of guns. To make guns bans palatable to the public, the drafters of the Safe Act continued, through the artifice of rhetoric to create the illusion that some firearms were evil. They called these firearms assault weapons.Once a firearm is defined as an ‘assault weapon,’ that firearm becomes, at the stroke of a pen, a “banned weapon.” Under present New York law, specifically, NY CLS Penal § 265.00(22)(A) and (C), firearms, namely, rifles and pistols that, one, are semiautomatic in operation, two, can accept a detachable magazine and – if the first two necessary conditions are met – then three, if those firearms have at least one of a specific set of features as set forth in NY CLS Penal § 265.00(22)(A) or (C). If all three conditions are met, then, under New York law, those rifles and pistols are, by virtue of a legal fiction, ‘assault weapons,’ and are, therefore, banned weapons.Under NY CLS Penal § 265.00(22)(B), Shotguns that are, one, semiautomatic in operation and, two, have at least one of a particular set of characteristics as set forth in NY CLS Penal § 265.00(22)(B) are also ‘assault weapons.’ And the New York Safe Act adds a fourth category of “assault weapons.” Under NY CLS Penal § 265.00(22)(D), Shotguns that utilize a revolving cylinder are, by definition, also ‘assault weapons’ and therefore banned weapons. We have discussed the legal fiction of 'assault weapons' as constructed by the drafters of the New York Safe Act, at length, in previous articles that appear on this site. See in particular: "Cuomo's NY Safe Act and the notion of 'assault weapon;'" "NY Safe: Looking at the 'assault weapon;'" and, "NY Safe: 'assault weapon' definitions.'"At the moment, typical handguns that utilize a revolving cylinder, and rifles that utilize a revolving cylinder – rare as revolving cylinder rifles  are – are not, under present New York law, defined as ‘assault weapons;’ but who can say what the future holds if antigun legislators, like New York Senator Jeffrey D. Klein, continue to control the politics of gun ownership and possession, and draft ever more onerous and heinous gun laws for law-abiding Americans who happen to reside in New York.Let us now compare the definitions for rifles that are also ‘assault weapons,’ as those definitions appear in both the California Penal Code and the New York Penal Code, because CA A.B. 1663, throws a wrench into the mix, specifically in respect to rifles.In the New York Penal Code rifles that are also assault weapons must, as we have said, be semiautomatic in operation and also be capable of accepting a detachable magazine. These are necessary conditions that must be fulfilled before a weapon can be considered an ‘assault weapon’ in New York. If and only if a rifle is semiautomatic in operation and is capable of accepting a detachable magazine, then NY CLS Penal § 265.00(22)(A), says that we look for additional characteristics that a rifle might have if it is to be deemed an ‘assault weapon’ under New York law. So, then, if the rifle has at least one additional characteristic, for example, a second handgrip, or a flash suppressor, or a folding or telescoping stock, or a bayonet mount, then the rifle is, under, NY CLS Penal § 265.00(22)(A), an assault weapon. Otherwise it isn’t.Cal Pen Code § 30515(a)(1), at the moment, reads much like NY CLS Penal § 265.00(22)(A). Cal Pen Code § 30515(a)(1) sets forth three requirements for rifles that are also assault weapons, two, of which, like New York, are necessary conditions that must be fulfilled: one, the rifle must be centerfire semiautomatic in operation, and two, the rifle must have the capacity to accept a detachable magazine. If those necessary conditions are met, then we look to see if the rifle has at least one of several listed features such as, inter alia, a pistol grip, a flash suppressor, a folding or telescoping stock, or thumbhole stock. If these three conditions are met, the firearm in question is an “assault weapon” and, therefore, a banned weapon under California law. Thus, we see that Cal Pen Code § 30515(a)(1), as it presently reads, mirrors NY CLS Penal § 265.00(22)(A) in every critical respect.Even before CA A.B. 1663 was drafted, California “did New York one better.” Under present California law, rifles that are also assault weapons include, under Cal Pen Code 30515(a)(2), “A semiautomatic, centerfire rifle that has a fixed magazine with the capacity to accept more than 10 rounds.” Recall, under New York law, rifles that are also assault weapons must be semiautomatic in operation and be capable of accepting a detachable magazine only. So, under present New York law, no rifle is an assault weapon that happens to have a non-detachable, i.e., fixed, magazine. A rifle might have a magazine that can hold 100 rounds of ammunition. If that magazine is fixed to the rifle, that is to say, if that magazine cannot be readily detached from the body of the rifle, the rifle is not an ‘assault weapon’ under present New York law.In California, on the other hand, under Cal Pen Code § 30515(a)(2), a rifle that has a fixed magazine that is capable of holding more than ten rounds of ammunition is an ‘assault weapon.’ So, in the California Penal Code, unlike the New York Penal Code, a semiautomatic rifle may, under the appropriate circumstances, based on definition, be deemed an assault weapon if the rifle utilizes either a detachable or fixed ammunition magazine.Now, what would CA A.B. 1663 do, if enacted? CA A.B. 1663 modifies Cal Pen Code § 30515(a)(1), which would be amended to read: a rifle is an assault weapon if that weapon is a “semiautomatic centerfire rifle that does not have a fixed magazine with the capacity to accept no more than 10 rounds.” Do you understand the meaning of that sentence? Read it again. In fact, read it several times, but don’t be upset if you continue to scratch your head in bewilderment as to the meaning of that sentence; for, the meaning of that sentence isn’t clear to us either.The California legislators, who drafted that sentence – making liberal use of negatives – apparently derive pleasure from torturing the English language as much as they enjoy torturing those California residents and U.S. citizens who choose to exercise their fundamental right to keep and bear arms. Cal Pen Code § 30515(a)(1), as drafted by the Legislature, is inherently ambiguous. That was obviously the intention of its drafters.Under one interpretation – a more conservative interpretation – a rifle is an assault weapon, in California, if it is a centerfire semiautomatic weapon that can accept a detachable magazine that is capable of holding more than ten rounds. However, under a liberal interpretation of the ambiguous sentence, a centerfire semiautomatic rifle is an assault weapon that can accept a detachable magazine, regardless of the number of rounds of ammunition the magazine might be capable of holding. An argument can be made for either interpretation and, if CA A.B. 1663 is enacted, and thereafter challenged, it will take a court of law to decide which interpretation is correct. You will note, too, something else about the definition of ‘assault weapon’ as promulgated in the revised Cal Pen Code § 30515(a)(1). In the revised Cal Pen Code § 30515(a)(1), there is something missing. In the original version of that statutory section, a centerfire semiautomatic rifle is not deemed to be an assault weapon, unless it have at least one of several enumerated characteristics. That requirement has been eliminated in the revision.Essentially, the new Cal Pen Code § 30515(a)(1) – if CA A.B. 1663 is enacted and codified into law – is the obverse of Cal Pen Code § 30515(a)(2), which reads that a rifle is an assault weapon if it is “A semiautomatic, centerfire rifle that has a fixed magazine with the capacity to accept more than 10 rounds.” But, the idea here is that, under a liberal interpretation of the ambiguous sentence – as the new Cal Pen Code § 30515(a)(1) reads – the number of rounds that a detachable magazine can hold is not decisive or even relevant to the issue whether a centerfire semiautomatic rifle is an assault weapon. So long as a rifle is capable of accepting a detachable  magazine – even if the magazine is capable of holding only one round – that will be sufficient to transform the rifle into an assault weapon, and, therefore, a banned weapon, in California.Let’s distill all of this. So, if CA A.B. 1663, becomes law a rifle is also an assault weapon, and therefore, a banned weapon in California under two scenarios:Under Cal Pen Code § 30515(a)(1), as amended by CA A.B. 1663, a rifle is an assault weapon if it is a centerfire, semiautomatic, and it is capable of accepting a detachable magazine, regardless of the number of rounds that the rifle’s detachable magazine may hold (under a liberal interpretation of the amended statute). And, under Cal Pen Code § 30515(a)(2) – the language which remains unchanged – a rifle is an assault weapon if it is a centerfire, semiautomatic and has a fixed magazine that is capable of holding more than ten rounds.In the continuing game of “leapfrog,” antigun forces in the New York Legislature may be, even now, drafting new legislation, redefining and refining the definition of ‘assault weapon’ to “improve upon” California’s 'assault weapons' fetish. If right of the American people to keep and bear arms, as embodied in the Second Amendment, is to survive in the 21^st Century, it is incumbent upon each American to defend that right against the forces intent on destroying it, just as the Second Amendment was, itself, meant to defend the sanctity of each individual law-abiding American. The Second Amendment protects us so long as we protect 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.

NRA DIDN’T TAKE THE BAIT AT THE CNN “GUNS IN AMERICA” TOWN HALL MEETING “DE-BATE”

Once the CNN Town Hall meeting, that took place Thursday evening, January 7, 2016, primetime, had concluded, the liberal mainstream media, together with the hordes of sycophantic left-wing web blogs – including, “Forward Progressives,” “Liberals Unite,” “The Daily Beast,” “Addicting Info,” and “the Atlantic Broadband,” to name a few – went immediately to work, on behalf of President Obama, attacking both the Second Amendment and the NRA, chastising and belittling the NRA for having turned down the President’s invitation to take part in the give and take “debate” with the President, at the Town Hall meeting.Of course, had Obama not made mention of the NRA’s failure to attend the Town Hall, the mainstream media and left-wing web blogs would not have even brought the matter up. But, Obama doesn’t say anything unless his utterances have effect. And he meant to poke fun at the NRA for its failure to accept his “invitation” to join in on the conversation.These and other left-wing panderers to Obama and destroyers of our Bill of Rights either cannot understand or otherwise choose not to understand why the NRA has refused to take part in the CNN Town Hall meeting – why, in fact the NRA refused to “debate” Obama. The reason is plain. The CNN Town Hall presentation, featuring Obama was, contrary to the producers’ assertions, an orchestrated event. A handful of individuals stood up, said their piece, and listened intently, while the Commander in Chief of the night’s performance, Obama, lectured, as he is ever wont to do.This staged performance, this carnival, was not a debate and was never intended to be a debate. It was simply a vehicle through which the President might appeal to the American people, explaining why, as he sees it, he must take action because Congress, in Obama’s mind, won’t.The NRA knew, of course, that the entire event was staged and the NRA made the right decision – the only sensible decision it could make under the circumstances. The NRA wasn’t snubbing Obama; nor did the NRA feel any sense of apprehension, contrary to the remarks of the left-wing web blogs.The simple truth is that the NRA had nothing to gain by attending an event that merely served Obama’s political aims – an event where nothing the NRA happened to say would benefit its members – where anything the NRA might say would only be turned against it at an event that was nothing more than a theatrical performance with the President, Barack Obama, cast as the box office star, protagonist, and the NRA cast in the role as the villain, antagonist. But that didn’t stop Obama from poking fun at and attacking the NRA in absentia.Obama asserted at one point: “There’s a reason that the NRA isn’t here. They’re right down the street. You think they’d be prepared to have a debate with the President.” The President might have added – “if in fact I intended for this event to be a true debate. And, there’s the rub. The “Town Hall” event wasn’t a ‘debate’ in the true sense of the word.In this day and age, the word, ‘debate,’ has been so over-used and misused that the public can be forgiven for having forgotten what a real debate is. Obama surely knows what a true debate is and of what a true debate consists. And the NRA knows this as well, and that is why the NRA wasn’t about to take the bait that Obama dangled in front of it. For, the NRA would have been foolish indeed to have done so.A true debate has a highly structured format and takes place, not in a highly charged arena or amphitheater, but often enough in a smaller, and always neutral forum; and each party who takes part in a true debate stands on an equal footing with the other.The CNN Town Hall meeting that took place last Thursday had neither the physical structure associated with a true debate, nor a format that could, under even a loose definition of the term, be considered a true debate. And, the NRA definitely would not have stood on an equal footing with Obama since the NRA would, for its part, only be able to proffer questions to the President, as any other member of the audience would, and the President, Obama, for his part, would then commence to lecture NRA on the way things are and why they must be as Obama sees them.Even the phrase, “Guns in America,” – the identifying title for the night’s performance – carries negative connotations and makes clear to the viewing audience that the salient matter to be addressed that evening involves guns and Americans’ access to them, not the extent to which the Executive Branch of the United States Government seeks to extend its authority over the U.S. Congress and, by extension, over the American people – the more pressing issue, to be sure.The physical stage for the event that took place at George Mason University in Fairfax, Virginia was constructed to draw the viewer’s  attention to the President. Obama sat in the center of a seemingly circular theater, along with the CNN moderator, Anderson Cooper, around which sat one hundred people. If anyone should doubt that the event was to highlight the President – to place him prominently in the limelight of the night’s events – the very positioning of the President, as he sat on a stool, in the “center of the circle,” emphasized his singular importance and the weight that was to be given to anything he might happen to say that evening. The CNN spectacle was not a “debate” in the traditional, formal, sense or, for that matter, in any sense.In a traditional debate there is a policy issue to be resolved. The unstated policy issue here is abstruse, certainly, but of paramount concern to those who hold dear the Bill of Rights: whether the President’s unilateral firearms’ measures, that he intends to undertake through the use of executive directives, fall within and do not extend beyond the scope of existing Congressional legislation and therefore amount to the lawful use of the President’s executive authority or, on the other hand, whether the President’s unilateral firearms’ measures, that he intends to undertake through the use of executive directives, fall outside of and extend beyond the parameters of existing Congressional firearms’ legislation and therefore amount to a clear abuse of Presidential authority.Now, as it happened, the President did not remark on what he deemed to be his Constitutional authority to issue executive directives pertaining to firearms’ laws; and those questions posed to him by members of the audience simply reflected the questioner's personal feelings toward and concerns about guns, not about Obama’s use or abuse of executive authority. The questions did not even skirt the salient issue which goes directly to the power the Chief Executive, Barack Obama, would exert to contravene the clear import of the Second Amendment, ostensibly to curb gun violence, through the mechanism of executive directives.In a true debate one party, sitting center-stage, wouldn’t be fielding a set of questions, that were anything but impromptu, from a mere handful of audience members, who had been pre-selected. And, in a true debate, the public would not be compelled to sit through a fireside chat. Rather, in a true debate, there are two equal parties, each of whom takes a position, one pro, to advocate for the position, and one con, to refute the position. Each side presents its arguments according to a set format, during a set period of time. Through it all there are a stringent and clear and cogent set of protocols that each side must adhere to in a true debate.Had this been a real debate, the NRA would probably have agreed to take part in it, even welcomed it. The President and his team members would present their case, advocating for the lawfulness of the President’s executive directives, and the NRA spokespersons would present their case, refuting the lawfulness of the President’s executive directives. A judge, or an audience would thereafter decide who presented the most convincing argument. That, in essence, is the structure of a true debate. And, a true debate takes place in a fair, impartial, neutral forum. The audience would not be taking an active part in presenting argument but would dutifully listen to each side’s presentation of facts, logical arguments and, yes, emotional rhetoric. That would be something the American people deserve. That is something the American people might reasonably expect. Sadly, that is rarely how issues are ever presented to the public.President Obama, through the power of his Office, and through support from the mainstream media, is not really interested in hearing the views of those members of the public who believe strongly in the import and purport of the Bill of Rights, and who believe strongly in the Separation of Powers Doctrine, other than to discount such views out-of-hand or to belittle them, or, as was the case with the Town Hall meeting, to pretend that he, President Obama, understands and really cares what anyone who supports the right of the American people to keep and bear arms has to say. So, the NRA did well to avoid making an appearance at the staged CNN event. It would have been impossible for spokespersons for the NRA to be on an equal footing with President Obama at this non-debate, anyway.[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 DEMOCRATIC PARTY DEBATE THAT WASN’T

On December 19, 2015, on Saturday night, the week before Christmas, when vast numbers of Americans are out and about, the Democratic Party held its last “debate” of the year, hosted by ABC News. If you missed it, you weren’t alone. The Democratic Party bigwigs obviously don’t want Americans to see it – hence, the reason for holding it on a weekend night, and the New York Times didn’t even bother to report on it. Take a look at the Sunday, December 20, 2015, print edition of the NY Times; you will find nothing about it.The “debate,” which took place in what appeared to be a small lecture hall at St. Anselm College, in Manchester, New Hampshire, was filled with a handful of the Party faithful. Hillary Clinton, grinning, as always, but not smiling, looked as if she would rather be somewhere else. She did her best, as always, to avoid answering pointed questions. Her responses invariably carried the message: if I am elected your President, you can rely on me! Two of the salient issues covered during this debate concerned the continuing threat posed by Islamic extremism, and, one of the Democratic Party’s favorite subject: gun control.So, where does Clinton stand on threats to the Nation posed by Islamic extremists and on Americans’ right to keep and bear arms in their own defense? Since Clinton has a lock on the Democratic Party, her responses to last night’s debate, give some clue of what a Clinton Presidency would look like.The ABC news moderator, David Muir, established the setting for the first set of questions, directed to Clinton, Sanders, and O’Malley. They concerned the San Bernardino incident. As Muir pointed out, that incident, is deemed to be an act of terrorism, as acknowledged by Obama, who had said, dubiously, just before Thanksgiving, that there was no credible intelligence, indicating a plot on America. Muir pointed out that the couple who had committed the act of terrorism on U.S. soil had assembled an arsenal, were not on law enforcement’s radar, were completely undetected by intelligence and yet, for all that, just before Christmas, Obama is again telling the American people that no credible terrorist threat exists against America. That remark is inconsistent with the reality of the fact of an Islamic terrorist attack on our land. Therefore Obama’s remarks are altogether inexplicable.Muir asked Clinton to respond to how confident Americans should be, in spite of, or, perhaps, precisely, because of Obama’s remarks, that there aren’t other such couples in the U.S. who are as yet going undetected, and how Clinton would go about finding them. Clinton responded as she usually does, by evading the question and interjecting empty feel-good pronouncements. She said that her job is to keep America safe and to keep the families of America safe and that she has a plan to go after the Islamic State. That, of course, is all well and good. But, what would she actually do to keep Americans safe in this Country? She said only that she would work with Muslims in this Country who would be “our early warning system” and that she would rely on them to learn what they are doing about dealing with the radicalization of Muslims.Clinton intimated that technology companies must work with government. What she meant by that, as she clarified her remarks, later in the debate, is that technology companies must be willing to give up their encryption keys to government. This of course weakens our Fourth Amendment right to privacy and opens Americans’ computers to hackers both here in this Country and abroad.Martha Raddatz, the second ABC news moderator, pointed out to Clinton that, in the wake of the San Bernardino attack, Clinton has emphasized gun control but that in recent ABC poll most Americans now feel that arming themselves, rather than stricter gun laws is the best defense against acts of terrorism. Raddatz pointedly asked Clinton, “are they wrong?” Clinton responded, with her wry smile, that you have to look at the role that terrorism plays at home and abroad, “and the role that guns play in delivering the violence that stalks us.” Clinton then went off on a tangent talking about the need to build a coalition at home and abroad to take on the "Islamic State."Raddatz then brought Clinton back to the question at hand, asking Clinton, “can we stick to the question about gun control? Clinton responded: “Guns in and of themselves, in my opinion, will not make Americans safer. Arming more people . . . I think is not the appropriate response to terrorism.” Applause from the peanut gallery. “I think what is, is creating much deeper, closer relations, and, yes, coalitions, within our own Country. The first line of defense against radicalization, according to Clinton, is in the American Muslim community. People we should be welcoming and working with.” Clinton then goes into a diatribe against the Republican Party generally and Donald Trump in particular. Clinton begs the question when she says that the Republicans are sending the wrong message that there is a clash of civilizations. Perhaps, there is just that: a clash of civilizations. Certainly, from the standpoint of Islamic State, there is a clash of civilizations. And, we would do well to consider the problem posed by Islamic State as just that serious. Clinton ends her response, with this: “guns have to be looked at as their own problem, but we also have to look at how we are going to deal with radicalization here in the United States.”Guns, in the minds of both Clinton and Obama are seen as a broader problem that encapsulates terrorism. Thus, Clinton speaks of the San Bernardino attack on innocent Americans, not as an act of Islamic terrorism but, rather, as a gun issue. The killers are described as “shooters,” not “terrorists.” Thus, Clinton places emphasis on the weapon used in the attack, rather than emphasizing the reason for the attack. She therefore places Americans in danger of further attack by Islamic radicals, for she absolutely refuses to consider that more armed Americans would best forestall such attacks.  And, there you have it. Clinton says, not only that guns serve no purpose as tenable means of self-defense, but that they present their own “problem.” And, as for Islamist radicalization, her answer to lone-wolf acts of terrorism is that Americans should simply rely on the Muslim community, who harbor them, to turn them in to the authorities.What can Americans expect from a Clinton Presidency? Just this: one, further erosion of the Fourth Amendment right of Americans to be free from unreasonable searches and seizures; two, erosion of the First Amendment’s freedom of speech clause, out of fear of retribution from Islamic extremists and to spread the gospel of “political correctness;” and, three, destruction of the Second Amendment because ownership and possession of firearms in this Country is to be perceived not as a fundamental right but simply as a problem.We have a question for each of the candidates from either party: “If you were given carte blanc, to rewrite any one or more Amendments of the Bill of Rights of the U.S. Constitution, would you desire to do so? And, if so, how would each of the Amendments, that happen to remain, if any, read? We would especially like to see Clinton’s honest response to that[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.

OBAMA: JUMPING THE GUN!

Obama's Executive Action Not Only Unlawfully Expands Federal Law, But Operates To Convert Private Sellers Of Guns Into Gun Dealers

President Barack Obama claims that his executive action, using the mechanism of executive orders to expand gun background checks, falls within his lawful authority. But does it? For all his pontificating at the CNN Town Hall Meeting, televised on Thursday, primetime, that one remark, stated and reiterated during the Town Hall Meeting, is deserving of close consideration and dissection because, if Obama is wrong, then we can dispense with any further discussion of the purported merits of his antigun agenda.We begin with one incontrovertible fact. The very use of executive orders is fraught with peril because the President is essentially making law, not executing law. Article I, Section 1 of the U.S. Constitution makes clear that all legislative functions rest with Congress. The making of law does not rest with the President. The President’s duty is not to make law but to execute the laws that Congress makes.In accordance with Article II, Section 3 of the U.S. Constitution the President, “shall take Care that the Laws be faithfully executed.” This means that the Chief Executive has no authority to tell Congress what Congress must do. But that is precisely what the Chief Executive, Obama, does when he issues an executive decree. He is in fact saying to Congress: “you haven’t done what I want you to do, so I will take action myself.” Well, Congress doesn’t work for the President of the United States. Congress works for the American People. If Congress doesn’t legislate in the manner that the President wishes, or if Congress fails to legislate at all in an area that the President wants, that failure to legislate is not lawful grounds for the President to do so. But, that is precisely what the President is doing here.One of the four key features of the antigun executive orders President Barack Obama plans to issue in the coming days or weeks pertains to expansive gun background checks. President Obama has set forth his intentions in his “Fact Sheet” what he intends to do. Just a few of the significant ways in which Obama is taking aim at Congress and at the Second Amendment involves gun sales. Through his executive orders he intends to:“Clarify that it doesn’t matter where you conduct your business—from a store, at gun shows, or over the Internet: If you’re in the business of selling firearms, you must get a license and conduct background checks. Background checks have been shown to keep guns out of the wrong hands, but too many gun sales—particularly online and at gun shows—occur without basic background checks. Today, the Administration took action to ensure that anyone who is ‘engaged in the business’ of selling firearms is licensed and conducts background checks on their customers. Consistent with court rulings on this issue, the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) has clarified the following principles: A person can be engaged in the business of dealing in firearms regardless of the location in which firearm transactions are conducted. For example, a person can be engaged in the business of dealing in firearms even if the person only conducts firearm transactions at gun shows or through the Internet. Those engaged in the business of dealing in firearms who utilize the Internet or other technologies must obtain a license, just as a dealer whose business is run out of a traditional brick-and-mortar store.Quantity and frequency of sales are relevant indicators. There is no specific threshold number of firearms purchased or sold that triggers the licensure requirement. But it is important to note that even a few transactions, when combined with other evidence, can be sufficient to establish that a person is ‘engaged in the business.’ For example, courts have upheld convictions for dealing without a license when as few as two firearms were sold or when only one or two transactions took place, when other factors also were present.There are criminal penalties for failing to comply with these requirements. A person who willfully engages in the business of dealing in firearms without the required license is subject to criminal prosecution and can be sentenced up to five years in prison and fined up to $250,000. Dealers are also subject to penalties for failing to conduct background checks before completing a sale.”Is Obama saying that anyone who sells a firearm is ipso facto a ‘dealer of firearms’ and, therefore, according to Obama, 'in the business of selling firearms?' It would seem so. For, Obama has not clarified what it means to be in the business of selling firearms but, rather, has muddied the waters. Both in the above Fact Sheet and at the Town Hall meeting, Obama fails to clarify what it means to be a “gun dealer” and what it means for a person to be “in the business of selling firearms.” And, this is clearly intentional. Obama sees anyone, who sells or transfers a gun, is a “gun dealer” – that is to say, “a person who is in the business of selling firearms.” But, are these expressions truly nebulous? Not at all!Contrary to what Obama would have the American public believe, the phrases, ‘dealer in firearms,’ and, ‘in the business of selling firearms,’ are not subject to myriad definitions, dependent upon the personal whim of the President. They are legal terms of art, specifically defined in law by Congress. They are not subject to tweaking by the President.Under 18 U.S.C. § 921(a)(11), “The term ‘dealer’ means (A) any person engaged in the business of selling firearms at wholesale or retail, (B) any person engaged in the business of repairing firearms or of making or fitting special barrels, stocks, or trigger mechanisms to firearms, or (C) any person who is a pawnbroker. The term ‘licensed dealer’ means any dealer who is licensed under the provisions of this chapter [18 USCS §§ 921 et seq].”Case law further clarifies the meaning of ‘dealer in firearms’ and ‘in the business of selling firearms.’ In the annotated notes of the U.S. Code, there are several cases that clarify the meaning of these important expressions. See, e.g. United States vs. Fifty two Firearms, 362 F. Supp. 2d (MD Fla. 2005). A “person is ‘engaged in the business of selling firearms’ at wholesale or retail’ under 18 USCS § 921(a)(21)(C)  if that person devotes time, attention, and labor to dealing in firearms as regular course of trade or business with principal objective of livelihood and profit through repetitive purchase and resale of firearms, but such person does not include person who makes occasional sales, exchanges, or purchases of firearms for enhancement of personal collection or for hobby, or who sells all or part of that person's personal collection of firearms.” And, in United States vs. Masters (CA4 SC 1980), the fourth Circuit Court of Appeals, said, “For defendant to be ‘dealer’ within meaning of 18 USCS § 921, there must be willingness on defendant's part to deal, profit motive and greater degree of activity than occasional sales by hobbyist; defendant's primary business need not be dealing in firearms nor need he necessarily make profit from such dealings; showing that defendant had guns on hand or was ready and able to procure them and sell them to such persons as might accept them is sufficient to establish defendant as ‘dealer’.”Obama wishes to make anyone who sells a firearm into a “dealer of firearms.” In so doing, he would make it a crime for a person, even the occasional "hobbyist," to lawfully sell or, for that matter, even to give away a firearm to another person, if the transferee does not have an "FFL." And, in so doing, Obama wishes to do away with the very possibility of a "private sale" or, for that matter, even a "private transfer" of a firearm that does not amount to a sale or trade in and of firearms. He cannot lawfully do this because that amounts to an impermissible expansion of federal law.Now, Obama claims that his executive actions, directed to firearms, fall within existing federal law and that he is only proposing regulations to effectuate existing federal law and not creating new law. But, that is absolutely false because, in his executive actions, he is expanding the very concept of what it means to be a person who is “in the business of selling firearms.” When Obama attempts to transform anyone who sells or transfers a firearm into a person who is "in the business of selling firearms," he is attempting to make the transferee of a firearm, who is merely a “hobbyist,” into a criminal who is impermissibly selling or transferring a firearm, absent a federal license, in violation of 18 USCS Section 1922(a)(1) and 18 USCS Section 924(a). In effect Obama is attempting, unlawfully, to turn the occasional hobbyist into a "criminal arms dealer,” namely, someone who is, in fact, in the business of selling firearms, but is doing so, as a criminal, selling to other criminals, in clear contravention to federal law.For the federal government to prove that a person was operating unlawfully as a dealer in firearms – essentially, a criminal arms dealer – “the federal government must prove the status of the defendant as a ‘dealer in firearms.' In order to satisfy this burden the Government need not prove that the defendant's primary business was dealing in firearms or that he necessarily made a profit from such dealing; ‘it must (however) show a willingness (on the defendant's part) to deal, a profit motive, and a greater degree of activity than occasional sales by a hobbyist.’ United States v. Huffman, (4th Cir. 1975) 518 F.2d 80, 81, cert. denied, 423 U.S. 864, 96 S. Ct. 123, 46 L. Ed. 2d 92; United States v. Tarr, (1st Cir. 1978) 589 F.2d 55, 59."Thus, under federal statute and federal case law, in order for the government to prove that the person, who is selling a firearm to another person is doing so unlawfully, it is not enough for the government to prove that the seller of the firearm(s) is attempting to make a profit from the sale of a firearm or firearms. The government must also prove that the seller is not making an occasional sale of a firearm “as a hobbyist.” In other words, the federal government must prove, under existing law, that the person who is making a sale of a firearm or firearms is not a “criminal arms dealer” – a criminal who is selling firearms to make a profit.Obama is unlawfully expanding the notion of a “criminal arms dealer” to a law-abiding citizen, who is really only a “hobbyist,” under existing federal law. Such an attempt by Obama amounts to an impermissible expansion of federal law, not a theoretical permissible executive action, that amounts merely to regulation within existing federal law. When Obama expands federal law, he is entering into the purview of Congress, in contravention to the U.S. Constitution and in contravention of the Separation of Powers Doctrine because he is legislating – that is to say – he is making new law. He is not merely effectuating the intentions of Congress through the promulgation of rules within the framework of existing law.Obama begs the very question at issue by asserting that anyone who transfers firearms to another is, ipso facto, a “gun dealer” and “in the business of selling firearms” under federal law and is doing so illegally if that person does not have a federal firearm's license (FFL). Why does Obama want even private sellers of firearms -- "hobbyists" -- to obtain a federal firearm's license? He wants private sellers of firearms to obtain a federal firearm's license because, licensed dealers in firearms are required to perform a criminal background check under existing federal law, pursuant to the “Brady Handgun Violence Prevention Act of 1993,” 107 Stat. 1536; 103 P.L. 159; 1993 Enacted H.R. 1025; 103 Enacted H.R. 1025, as codified in 18 U.S.C. § 922. A person who is not “in the business of selling firearm,” is under no such legal mandate to conduct an national instant criminal background check. In fact, a “hobbyist” cannot even access that system precisely because that person doesn’t have an FFL!So, what is Obama doing? Just this: he is placing the “hobbyist” in an impossible position if that “hobbyist” wishes to sell, trade, gift to, or otherwise, in some manner, transfer his firearm to another person. Obama is saying to that person: “we are assuming that you are a gun dealer and, if you are a gun dealer, you must undertake a criminal background check on the transferee. But, in order to be able to have access to FBI NICS files, you must first obtain an FFL. If you do not have an FFL, you better get one, if you can. If you can’t obtain an FFL, do not attempt, under any circumstances to transfer a firearm to another because my Administration will assume that you are an unlawful arms dealer, and I will see to it that the Justice Department prosecutes you to the fullest extent of the law.”Do you understand what more Obama is attempting to do through his unlawful executive actions? He is using his Office to enact new gun laws. In effect he is precluding, under threat of federal criminal indictment, the transfer of any firearm by one private law-abiding gun owner to another private law-abiding gun owner. Obama is not attempting to close a so-called “gun loophole.” He is in effect precluding every individual from transferring firearms, regardless of venue. This amounts to the unlawful regulation of commerce by the Executive Branch to stifle legitimate trade in firearms between two law-abiding individuals who happen to be “hobbyists.” Moreover, Obama’s unlawful executive actions negatively impact the absolute and exclusive interest that a person has in his or her own private property.If Obama admits to this but argues that his executive directives are necessary to prevent a private person, who is not a gun dealer, from transferring a gun in interstate commerce, his executive directive is redundant because, under, 18 USCS § 922(a)(1)(A), “it shall be unlawful for any person except a licensed importer, licensed manufacturer, or licensed dealer, to engage in the business of importing, manufacturing, or dealing in firearms, or in the course of such business to ship, transport, or receive any firearm in interstate or foreign commerce.” Thus, if I, for example, as a "hobbyist," who is not, then, in the business of selling firearms, wish to sell a gun over the internet, and I am not a licensed dealer in firearms, I cannot lawfully do so in any event. I may, however, transfer a firearm to another through the mediation of a licensed dealer who will then be required to perform a necessary background check on the transferee. Thus, further regulation of firearms' sales on or over the internet aren't necessary. Such sales are already regulated!What about sales of guns at gun shows? Well, gun shows, too, do not present a problem. Most sellers of firearms at gun shows are licensed dealers in firearms and, so, must, under present federal law, perform a criminal background check on anyone whom the dealer is transferring the gun to. Now, if I am not a licensed dealer in firearms, and I, as a law-abiding American and gun owner, wish, as a private person -- a hobbyist, not a licensed dealer in firearms -- to sell a firearm to another person, at a gun show, I can make a transfer of a firearm to another, without performing a background check, but, that does not mean that I am permitted to sell a firearm to a person who is not permitted to possess a firearm. Under 18 USCS 922(d), it is unlawful for anyone – whether a licensed dealer in firearms or a private individual – to sell to individuals who are not permitted to own or possess a firearm. These include convicted felons, fugitives from justice, an individual who has been adjudicated a mental defective or who has been committed to a mental institution or who is an illegal alien. So, then, if I, as a private individual and law-abiding American citizen and gun owner and, as defined in law, a “hobbyist,” not a “licensed dealer in firearms,” offered a firearm for sale or trade, to a person, whom I did not know, and that person was a convicted felon who cannot lawfully own or possess a firearm, I have committed a crime in taking part in that sale, and I can and ought to be prosecuted. So, I, as a law-abiding citizen, have to be damn careful whom it is that I am transferring that firearm to.Now, will criminals sell firearms to other criminals? Of course they will. And they will do so in venues other than at gun shows which are likely to be carefully monitored by the State police. Obama’s executive orders, though, clearly are not directed to precluding firearms’ transactions among criminals. They are directed to further restricting gun transactions among law-abiding Americans. Obama’s goal, is -- as is the penultimate goal of all antigun groups -- just this: restricting the number and kinds of guns that a law-abiding citizen may own; and restricting the extent to which an individual may exercise control over his or her own property. What these executive actions of Obama won’t do – and, in fact are not designed to do – is curb criminal sales of firearms. They are specifically designed to curb what has, prior to Obama’s executive actions, amounted to the lawful transfer of firearms between and among law-abiding Americans, who do not fall, under the federal legal definition of ‘dealer in firearms,’  and 'in the business of selling firearms.'Obama intends to extend the scope of federal law beyond that which Congress has authorized. He cannot do so legally. Moreover, there is no need for further federal law. There are no loopholes. So, there is nothing that requires closing.Obama fails to appreciate and respect the fact that our federal statutes and federal case law are sufficiently broad to encapsulate all firearms’ transfers in every conceivable venue. Criminal transfers of firearms would be effective if existing federal law was enforced. They are not. But, that is not the fault of Congress. It is the fault of the Chief Executive. Obama, who fails to enforce federal law.Obama also fails to appreciate the sanctity of the Separation of Powers Doctrine upon which a Free Republic is able to survive and thrive. The very structure of the federal government as set forth in the Constitution establishes that no one Branch may subsume the duties of the other two within it.Obama’s executive actions are demonstrative of his disrespect for Congress, for the Constitution, and for the Separation of Powers Doctrine. Nothing he can assert or suggest, predicated on his personal notion of morality, and personal distaste for firearms ownership and firearms possession among law-abiding Americans can condone and justify his actions. But, then, Obama is not interested in the rule of law. He has a personal agenda: the very dismantling of the Bill of Rights, using, as singular pretext, his stated concern to curb firearms’ violence.Congress has, in the “Brady Handgun Violence Prevention Act of 1993,” 107 Stat. 1536; 103 P.L. 159; 1993 Enacted H.R. 1025; 103 Enacted H.R. 1025, as codified in 18 U.S.C. § 922, as cited supra, made it unlawful for a licensed importer, manufacturer, or dealer, to sell, deliver, or transfer a handgun to a person who is not licensed under 18 U.S.C. § 923 absent the appropriate background information on the individual as set forth in Statute. 18 U.S.C. § 923(a) says, in pertinent part, "No person shall engage in the business of importing, manufacturing, or dealing in firearms, or importing or manufacturing ammunition, until he has filed an application with and received a license to do so from the Attorney General. The application shall be in such form and contain only that information necessary to determine eligibility for licensing as the Attorney General shall by regulation prescribe and shall include a photograph and fingerprints of the applicant. Each applicant shall pay a fee for obtaining such a license, a separate fee being required for each place in which the applicant is to do business." Other federal law, cited supra, precludes anyone, whether a licensed dealer in firearms or not, to lawfully transfer a firearm to a person who is not permitted under federal law to own and possess firearm.Obama’s executive actions are unnecessary if he believes there are loopholes in the law – for there aren’t any. And, they are otherwise inscrutable. Obama is unlawfully attempting to preclude firearms’ transfers among law-abiding Americans and gun owners who are not licensed dealers in firearms and who would not wish to obtain a federal firearm's license and, more to the point, could not obtain a federal firearm’s license had they wish to do so precisely because they are not in the business of selling firearms.Obama's executive directives are a scarcely disguised attempt to hide his an intent to control the distribution of one's private property.Again, what President Obama is doing, surreptitiously, insidiously, and unlawfully, through his executive directives, is destroying the very concept of a “private sale” of a firearm, and he does this by unlawfully transforming, through Presidential edit, every individual, who wishes to sell a firearm, into a person who is in the business of selling firearms and who must therefore obtain a federal license to sell firearms. Federal firearms’ licenses are expensive. Even to attempt to obtain one is a time-consuming process, administered through the BATF. It is difficult to acquire – impossible, really, for a person who simply owns one or two or a few firearms and who wishes to transfer them to another law-abiding American and who cannot legitimately make the case that he or she is anything other than a "hobbyist." Obama's executive directives are not necessary because they are not directed to curbing transfer of firearms among criminals.  These executive directives are directed to revising what it means to be a person who is in the business of selling firearms and who is a licensed dealer in firearms. Obama's executive directives are inconsistent with current federal law; they impermissibly expand federal law; and, lastly, they are inconsistent with current BATF regulations, promulgated on what federal law actually says about who is a dealer in firearms and not on what the President would like the definition of ‘dealer in firearms’ to mean. Obama cannot lawfully prevent private sales of firearms; he cannot require a private seller, who is not in the business of selling firearms, to obtain a federal license – which is impossible for a private individual to obtain anyway; and he cannot require a private seller of a firearms to perform a federal background check. But, Obama doesn’t care. He doesn’t care about limitations on executive authority. He doesn’t care that he is placing law-abiding gun owners, who are not gun dealers, and who may wish to transfer a firearm to another law-abiding American, in a precarious, impossible position. He doesn’t care about any of this. He intends to press ahead with the antigun agenda: destruction of the fundamental right of the American people to keep and bear arms.[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.

CONSIDERATION OF THE LEGALITY OF EXECUTIVE ACTIONS MUST PRECEDE DISCUSSION OF THE REASONS BEHIND THEM

With the usual fanfare and the usual props standing in front of him and behind him, President Barack Obama told the public, on January 5, 2015, at 1230 hours, EST, on a NBC special news report, that he, in his infinite wisdom, will take unilateral action to expand gun background checks – in effect, turning private individuals, who may wish to sell a firearm, into gun dealers, who must comply with federal laws, governing gun background checks. But how Obama intends to effectuate this in the absence of funding by Congress, having now offended Congress, and without violating the Second, Fourth, and Fifth Amendments to the United States Constitution, and without violating the Ninth and Tenth Amendments to the United States Constitution, presents a most pressing question – and a deep conundrum for anyone who cares deeply about preserving the sanctity of the U.S. Constitution and yet would wish, at one and the same time, to give this devil his due.But, there is a preliminary question. It is one that goes to the presumed authority upon which Obama works his legerdemain on the American people. Now, it is all well and good for Obama to be concerned about curbing gun violence on the part of criminals, lunatics, and, of late, Islamic terrorists; and we have a plethora of laws to contend with this problem if only the laws we presently have were duly enforced by the Obama Administration. That would go a long way in effectively curbing the very violence Obama says he is so keen on curbing. Moreover, with millions of law-abiding Americans properly armed, that, too, would go a long way in effectively dealing with the problem of those, who, under present law, should not have access to firearms anyway. But, like all good stage magicians, Obama is not interested in any of that. His interest is the same as those of all antigun zealots: de facto repeal of the Second Amendment. And, in that singular pursuit he attempts to distract his audience with intricate sleight-of-hand.The sleight-of-hand here has to do with the failure of Obama to point to anything in the Constitution or in Statute that might seemingly give him the authority to act behind the back of Congress, essentially operating as both Chief Executive and, Consummate Legislator. But as we have seen, Obama would rather talk about his reasons for acting unilaterally, then he would to address the legal footing upon which those reasons might rest. For, given even the best of reasons that ground a President’s actions, if those actions are illegal, the reasons he relates for those actions are of no count. Clearly, Obama is on thin ice here and he knows it. Thus, he avoids broaching the salient, critical legal issue in favor of pontificating upon the superficial, rhetorical one.So it is that Obama, in typical rhetorical mode, doesn’t talk about the authority that presumably permits him, legally, to circumvent Congress, but, rather, argues that, because Congress has not acted as Obama wishes Congress to act, he, Obama, President and “Boss,” can and will do so, himself. Doing so, the Boss makes it so, and making it so, makes it right – this, coming from a Harvard Law School graduate, and one-time Constitutional Law professor.What Obama doesn’t talk about is a matter that the public must become cognizant of and knowledgeable about: the issue of executive directives. The Arbalest Quarrel touched upon this in its previous article. The issue of lawful use of executive directives is of the utmost importance to the sanctity of the U.S. Constitution and to the preservation of a Free Republic, for a Free Republic is a State that is ruled and governed by law, not by men. Now the authority to make laws rests solely with Congress. Article I, Section 1 of the United States Constitution sets forth, clearly and categorically: “All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.” The very notion of executive directives directly confronts and challenges the singular authority of Congress to make laws.The Arbalest Quarrel is not naïve to think that executive directives have not been used – often routinely so – by past Presidents, and a few have definitely abused their use. Past U.S. President Bill Clinton is one Chief Executive who has abused the use of executive directives. But President Obama’s use of executive directives is surely the most audacious. Let us explain.We may start with a study by one legal scholar, Todd F. Gaziano, Senior Fellow in Legal Studies and Director of the Center for Legal Judicial Studies at The Heritage Foundation. Gaziano has done substantial research on executive orders, and, in an aptly titled law review article, “The Use and Abuse of Executive Orders and Other Executive Directives,” 5 Tex. Rev. Law & Pol. 267 (Spring 2001), he has written a cogent and comprehensive essay on the nature of executive directives.The author discusses the authority upon which executive directives rest, and the circumstances under which they may be deemed lawful or not. Gaziano makes poignantly clear that, “Ultimately the authority for all presidential orders or directives must come from either the Constitution or from statutory delegations” (at page 276). But, there is nothing in the U.S. Constitution that expressly provides for the use of executive directives by the President. So, can lawful use of executive directives be implied from an “express grant of power?” Gaziano says that the authority to issue executive directives can be implied or even be inherent in the substantive power of the President “. . . in the exercise of his constitutional and statutorily delegated powers: [as] Commander in Chief, Head of State, Chief Law Enforcement Officer, and Head of the Executive Branch” (at page 277). Gaziano adds, “When the President is exercising powers inherent in Article II of the Constitution, Congress has much less ability to regulate or circumscribe the President's use of written directives” (at page 281).The paramount question is, then, how do we know when a U.S. President is abusing executive directives? Gaziano says, “A legal framework of analysis is required in order to separate legitimate presidential directives from those that are abusive or improper. Unfortunately, a dearth of governing law and prudential guidelines in the area of executive orders makes the articulation of that framework difficult. Reference to history, therefore, is essential when seeking to uncover the necessary analytical structure" at page 281). Gaziano adds, importantly, “The President's authority, to act or issue an executive order, is at its apex when his action is based on an express grant of power in the Constitution, in a statute, or both. His action is the most questionable when there is no grant of constitutional authority, either express or inherent, and his action is contrary to a lawful statute or provision of the Constitution” (at page 284).Gaziano mentions wartime crises as one example of use of executive directives that can, plausibly, albeit, controversially, be employed by the Chief Executive. But, in the case at hand, Obama has neither expressly stated nor intimated that his use of executive authority to infringe the Second Amendment and supersede Congressional authority proceeds from a wartime crisis. Is there, then, a statutory basis upon which Obama might rely that can feasibly support his use of executive directives to expand gun background checks? If so, Obama has not pointed to any, nor can he. His unilateral action to expand gun background checks is, on its face, statutorily illegal because Congress has clearly established the parameters of permissible gun background checks in the Brady Handgun Violence Prevention Act of 1994. If Congress sought to expand upon gun background checks as promulgated in the Brady Act, it would have done so. It has not. So, Obama has no statutory basis upon which to argue independent authority to act to expand background checks statutorily.Moreover, at the moment, at least, Obama has not indicated that he has obtained legal support for use of executive directives to expand gun background checks, in the form of an opinion from the Office of Legal Counsel (“OLC”). The New York Times has previously reported that Obama has contacted the Attorney General, ostensibly to ask the Office of Legal Counsel for an opinion that might, perhaps, provide a legal foundation, however implausible that might be, upon which Obama’s executive directives, expanding gun background checks, may meet with Justice Department approval. As Gaziano says, “For over one hundred years, the President has asked the Attorney General or another senior official in the Department of Justice to review draft executive orders and proclamations with regard to their form and legality” (at page 292). If Obama obtains such an legal opinion here, the public should be permitted to see it. If he fails to secure a legal opinion from OLC, this would strongly suggest that the OLC does not believe Obama’s unilateral executive directives are legally defensible.The last paragraph of Article II, Section 1 of the U.S. Constitution sets forth, “Before he enter on the Execution of his Office, he shall take the following Oath or Affirmation:— “I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States.”Regardless of what one thinks about the morality and aesthetics of guns generally and gun ownership and gun possession particularly, each American should ask of him or herself and then be prepared, honestly, to answer the following question: “Shall I deign to honor this man, the President of the United States, who, having subscribed to the oath he has taken, would dare become a law unto himself?”[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.

PRESIDENT OBAMA SEEKS TO UNDERCUT SECOND AMENDMENT THROUGH EXECUTIVE ACTION

President Barack Obama, as we have seen, demonstrates little restraint using the power of his Office to obtain what he wants. The most powerful tool in a Chief Executive’s arsenal falls under the umbrella “executive directives.” These take the form of orders and proclamations, memoranda and signing statements. But, in the absence of a legal source explaining distinctions among them, one may presume they are, in essence, the  same.When a U.S. President issues an executive directive, he is asserting, “this is what I want to do; this is what I intend to do; this is what I have done, why I have done it, and how and when it shall be carried out, and what Congress and the American People must do to recognize or to comply with it; so accept it!Presidential directives are then essentially declarations – much like edicts of a despot, such as a dictator, or a king, or other such autocratic ruling authority. Presidential directives are not subject to debate by the public or even by Congress, and they are not subject to Legislative veto. Moreover, there is nothing in law that tells us how they may be used, when the President may use them, or how narrow or broad in scope they may be. There are no procedural safeguards that might otherwise impact the legality of them. Neither the U.S. Constitution, nor case law, defines what they are or how they may be properly used. But the danger that executive directives present to a free republic and to the foundation of that free republic, namely, the U.S. Constitution, is very real and ever present. In fact the only safeguard against executive directives – if you can call it a safeguard – is an opinion rendered by the Office of Legal Counsel. But, as we have seen, when a Chief Executive wishes to issue a directive, that Chief Executive calls upon the Office of Legal Counsel for the purpose not to tell the Chief Executive what he cannot do under the law but, rather, to give its imprimatur on what the Chief Executive has already decided to do; and the Office of Legal Counsel will almost invariably do whatever the Chief Executive wants. The Office of Legal Counsel of the Justice Department “licenses” the Chief Executive’s unilateral executive actions in the form of a legal opinion. We have seen this before. Recall how Obama asked for and obtained, from the Office of Legal Counsel, “legal license” to usurp Congressional authority to regulate naturalization, allowing Mexicans, who came to this Country illegally, to remain in the Country indefinitely. Thus, the Office of legal Counsel, in the Department of Justice, wrote a lengthy opinion that demonstrably licenses Obama to circumvent Article 1, Section 1 of the U.S. Constitution that sets forth clearly, concisely and categorically: “all legislative Powers . . . shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives,” and Article 1, Section 8 of the Constitution says that  “the Congress shall have Power to establish . . . a uniform rule of Naturalization.”Now, there is nothing in the Constitution that tells us under what circumstances use of an executive directive happens to cohere with the U.S. Constitution. But, this does not mean that a President may use executive directives haphazardly. There are guidelines, even if they are informal. The salient guideline is that embraced in the Separation of Powers Doctrine. Under Article 1, Section 1 of the Constitution, the duty to legislate the Laws of the Land rests solely with Congress. And, Article 2, Section 3 of the Constitution mandates that the President “shall take Care that the Laws be faithfully executed. . . .” The President doesn’t take care to faithfully execute the laws of the Land when he makes law by executive fiat. For his actions then amount to  subsuming the Legislative Branch into the Executive Branch. Moreover, reliance on a legal opinion of the Justice Department’s Office of Legal Counsel that simply rubber stamps what a President seeks to do does not constitute binding legal authority. But, then, the Justice Department, as a “rubber stamp” for the President operates, unfortunately, as one would expect. The Justice Department, after all, is not an independent organ of Government. It operates within the Executive Branch and will almost invariably do whatever “the Boss” wants it to do, even, and especially, as here, when the President uses the power of his Office with impunity, without regard to the legality of his actions.Similarly, when a President says that he will take action when Congress doesn’t act, he is taunting Congress and threatening Congress. The Boss is telling Congress what Congress must do. Congress, though, doesn’t work for the President. Congress works on behalf of the American people and is answerable to the American people, not to the President. We see that Obama told Congress to reform immigration law and, when Congress failed to do so, Obama placed himself in the shoes of Congress and created immigration law himself. Hillary Clinton, too, has already strongly suggested that she will – if she, in a worst case scenario, became President of the United States – use executive directives with impunity to accomplish her goals, if Congress doesn’t act at her behest.But, nothing in the annals of executive directive history, can possibly serve as preparation for Obama’s desired new escapade. On January 2, 2016, in an article titled, “Obama and Attorney General to Discuss How to Curb Gun Violence” – tellingly, retitled in the digital version of the story as “Obama to Consider Executive Actions on Gun Violence” –  the New York Times reported that Obama plans to meet with the Attorney General to discuss use of the Office of the Chief Executive to legislate new restrictive gun laws. The NY Times article sets forth that, “facing the reality that lawmakers are unlikely to strengthen the country’s gun laws anytime soon, the administration has been looking at ways Mr. Obama can tighten gun sales unilaterally. . . .” Once again, Obama is calling on the Office of Legal Counsel to render a legal opinion that will serve as a plausible, if not legally sound, basis for upholding an executive directive on his behalf. But, understand that a legal directive that impinges on and infringes the Second Amendment to the U.S. Constitution is not something to be dismissed as inconsequential to the continued existence of a free republic. It is one thing for Congress to enact restrictive gun laws – and Congressional Democrats have successfully done so in the past and are attempting to do so now – but it is quite another thing for the President to create antigun laws by executive fiat. Those laws enacted by Congress are always subject to challenge in the U.S. Supreme Court. Executive directives, though, are not, which makes an executive antigun directive a preferred fallback position by which a Chief Executive might seek to “make law” he wants since that directive cannot be readily challenged in Court, even under the due process clause of the Fifth Amendment to the U.S. Constitution. But, then, if Obama dares to attack the Second Amendment, through the vehicle of a Presidential directive, such illegal action is of an order of magnitude beyond anything a sitting President has done before. In fact, an executive directive that directly impacts a fundamental right amounts to nothing less than a takeover of Government. We must repeat that. If Obama uses the Office of the Presidency to undermine the Second Amendment to the U.S. Constitution, any such executive action amounts to a coup d’état of Government. Whatever impact globalization has on economic and military policy of this Nation, such globalization issues have absolutely no bearing on the efficacy and supremacy of U.S. jurisprudence and on the efficacy and supremacy of the U.S. Constitution. For, anything that negatively impacts the very structure of our Republic is immediately suspect.The very thought that a U.S. President might dare to undercut the Bill of Rights compels one to consider whether the Executive Branch of this Government has been compromised and is working on behalf of forces both inside this Country and outside it that are actively, ruthlessly, and, heretofore, silently working for the dissolution of our Constitution and for the dismantling of our Nation State. If so, such forces must be doing so in preparation for this Country’s entry into a new international, globalist, socialist world order. What the American people have learned from and continue to learn from Barack Obama’s “reign” should, hopefully, do much to forestall the coronation of Hillary Clinton.[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.

ANTIGUN FORCES LEAP OUT OF THE STARTING GATE FOR THE NEW YEAR WITH A RENEWED ASSAULT ON THE SECOND AMENDMENT

Gun Seizure Law

A law that just took effect in California raises the ante in the antigun movement’s continued assault on the right of the people to keep and bear arms. A British newspaper, the guardian, said, in a December 31, 2015 article titled, “Landmark California gun seizure law takes effect 1 January but amid concerns,” that the “gun statute going into effect on 1 January gives the police or family members the option to petition the courts to seize the guns and ammunition of someone they think poses a threat, the first law of its kind in the country.”A California, antigun proponent and assemblywoman, Nancy Skinner, sponsored the antigun legislation. But, how does this new restrictive California antigun bill, that just became law, actually operate? Not trusting the guardian – a liberal newspaper with a profound antigun bias, based in the antigun United Kingdom – to adequately provide the American public with the details, the Arbalest Quarrel decided to take a look at what this law really says and the manner in which it actually operates.The bill, CA A.B. 1014, that took effect on January 1, 2016, both amends existing California State Statutes and creates a substantial number of new California Penal Code Sections. Let’s take a close look at just a few of the pertinent changes that CA A.B. 1014 makes to California law.Cal Pen Code § 1524 sets forth the general grounds under which a search warrant, primarily pertaining to investigations of felonies in California, can be lawfully issued. A new paragraph in Cal Pen Code § 1524, establishes an unusual condition under which a court can issue a warrant. The new paragraph, which has nothing to do with investigations of felonies, says that, “A search warrant may be issued upon any of the following grounds. . . (14)Beginning January 1, 2016, the property or things to be seized are firearms or ammunition or both that are owned by, in the possession of, or in the custody or control of a person who is the subject of a gun violence restraining order that has been issued pursuant to Division 3.2 (commencing with Section 18100) of Title 2 of Part 6, if a prohibited firearm or ammunition or both is possessed, owned, in the custody of, or controlled by a person against whom a gun violence restraining order has been issued, the person has been lawfully served with that order, and the person has failed to relinquish the firearm as required by law."To understand the import of the changes that CA A.B. 1014 brings to California’s Statutes, we must zero in on the phrase, “gun violence restraining order.” This is something entirely new to California gun laws and to the laws governing the operation of injunctions in California. And, it is something that, at present, exists in no other State.Prior to enactment of CA A.B. 1014, a California peace officer, when responding to a domestic disturbance, was required to take temporary custody of a firearm at the scene of the domestic disturbance but only if the firearm is in plain sight. The officer was not authorized to hunt around for a firearm. The emphasis, then, in California law, prior to enactment of CA A.B. 1014, was on the domestic disturbance, not on one’s firearms, where one has a personal property interest in those firearms. Now, Cal Pen Code § 18250 is California’s domestic violence Statute. It authorizes a peace officer to take temporary custody of a firearm at the scene of a domestic violence. The amended version of this Statute sets forth in pertinent part, “If any of the following persons is at the scene of a domestic violence incident involving a threat to human life or a physical assault, is serving a protective order as defined in Section 6218 of the Family Code or is serving a gun violence restraining order issued pursuant to Division 3.2 (commencing with Section 18100), that person shall take temporary custody of any firearm or other deadly weapon in plain sight or discovered pursuant to a consensual or other lawful search as necessary for the protection of the peace officer or other persons present. . . .”What CA A.B. 1014 does is to create, presumptively, a nexus, that is to say, a connection, between domestic disturbance or violence and firearms. CA A.B. 1014  is, then, aimed directly at gun confiscation. It operates through the mechanism of a ‘temporary restraining order.’Attorneys use a shorthand phrase for a ‘temporary restraining order.’ They refer to it as a “TRO,” (where each letter is pronounced, separately). What is a TRO? A TRO is an extraordinary writ. It is an extreme form of legal injunction. And it is one that courts traditionally are loathe to issue. Why is that?Our system of laws is grounded on the idea that a person has a right to his or her day in court. Court proceedings, whether in criminal matters or civil matters, almost invariably commence with a formal written complaint. No action is taken against the named defendant in a complaint until that defendant has had an opportunity to respond. This means that two parties are involved in the legal process: a plaintiff and a defendant. And a court of competent jurisdiction hears what both parties have to say before entering judgment for one or the other party. But, a person requesting a court to issue a TRO is essentially declaring: “I can’t wait for a hearing. The risk of harm is imminent unless the court takes immediate action on my behalf.” The petitioner is asking a court to render a decision, ex parte. That means the court is asked to render a decision on the basis of one party’s allegations alone – something a court of law is, understandably, in our adversarial system of law and justice, wary of doing.Cal Pen Code § 18150 is the specific mechanism for issuance of this singularly bizarre TRO: a gun violence restraining order.Cal Pen Code § 18150 sets forth, inter alia: “An immediate family member of a person or a law enforcement officer may file a petition requesting that the court issue an ex parte gun violence restraining order enjoining the subject of the petition from having in his or her custody or control, owning, purchasing, possessing, or receiving a firearm or ammunition.” [Furthermore] A court may issue an ex parte gun violence restraining order if the petition, supported by an affidavit made in writing and signed by the petitioner under oath, or an oral statement taken pursuant to subdivision (a) of Section 18155, and any additional information provided to the court shows that there is a substantial likelihood that both of the following are true: The subject of the petition poses a significant danger, in the near future, of causing personal injury to himself, herself, or another by having in his or her custody or control, owning, purchasing, possessing, or receiving a firearm as determined by considering the factors listed in Section 18155 [and] An ex parte gun violence restraining order is necessary to prevent personal injury to the subject of the petition or another because less restrictive alternatives either have been tried and found to be ineffective, or are inadequate or inappropriate for the circumstances of the subject of the petition.”How long does the gun violence restraining order remain in effect? Cal Pen Code § 18155(c) says, “If the court determines that the grounds to issue an ex parte gun violence restraining order exist, it shall issue an ex parte gun violence restraining order that prohibits the subject of the petition from having in his or her custody or control, owning, purchasing, possessing, or receiving, or attempting to purchase or receive, a firearm or ammunition, and expires no later than 21 days from the date of the order.”Now, California Assembly woman Nancy Skinner, might argue, if asked to explain whether the purpose of her bill is not, after all, to restrict gun rights, that her bill, CA A.B. 1014, is not aimed at suppression of gun rights but only aimed at protecting a person from harming himself or others with guns through the legal procedural device of a temporary restraining order. But, then, one might sensibly respond to Nancy Skinner's remark by mentioning that California already has a full panoply of injunction laws that one may draw upon in a pinch, and, so, the State certainly doesn’t need another one. In fact, drilling down through the California Civil Code –  under Title 7, “Other Provisional Remedies in Civil Actions,” of Part 2, “Of Civil Actions,” in the California Code of Civil Procedure, Chapter 3, “Injunction,” Cal Code Civ Proc § 527.6, “Temporary restraining order and order after hearing prohibiting harassment,” – California has in place a mechanism for granting exceptional relief, that is to say, a TRO. So, again, it would be appropriate to ask Assemblywoman Nancy Skinner, once again, whether her bill is not a backdoor attempt to further restrict gun rights, albeit under the guise of purportedly preventing violence with guns.Indeed, why did the California State Legislature deem it necessary to establish a whole new TRO law scheme, giving it a unique descriptor, “gun violence restraining order,” if not to further erode gun ownership and gun possession in California? And, if that is the true purpose behind CA A.B. 1014, then why not add a “knife violence restraining order,” and a “baseball bat violence restraining order?” But, then, they are all equally absurd because each is aimed at addressing an inanimate, non-conscious object, and none of them are aimed at the cause of perceived violence, namely, the person. Injunctions, including TROs, are, after all, historically, and sensibly, directed toward individuals – sentient beings – not objects.The very placement of the “gun violence restraining order,” in the Penal Code, in lieu of the Civil Code, where TROs traditionally fall – since TROs pertain to civil remedies – is demonstrative of a clever new way in which California antigun legislators seek to regulate firearm ownership and possession. The “gun violence restraining order” is a legal artifice through which one’s firearms can be confiscated, immediately, without hearing, and, indeed, without formal legal notice, simply upon the affidavit of a police officer or immediate family member – and eventually, perhaps, even upon affidavit of a neighbor – any one of whom may have an ulterior motive for taking action against this or that person, which has nothing to do with the matter of imminent harm. Understandably, then, the laws codifying the gun violence restraining order are found, not in the aforesaid, Civil Code of California, but, rather, in a new and extremely broad category of laws in Part 6 of the California Penal Code, including Division 3.2, Gun Violence Restraining Orders,” Chapters 1 through 6.The “gun violence restraining order” directly infringes the Second Amendment right to keep and bear arms. But it also infringes the Fourth Amendment. What does the Fourth Amendment to the U.S. Constitution say? Just this: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” Cal Pen Code §18250 and Cal Pen Code §1524(14) turns the Fourth Amendment on its head. Why is that? For this reason, there is no precedent in the law of California – or in any other State for that matter – for anything like a “gun violence restraining order,” where a person’s firearms – his or her private property – could be confiscated without legal notice to that person.CA A.B. 1014 is, ultimately, less about protecting people through TROs and more about suppressing the inalienable right of Americans to own and possess firearms – treating the very ownership and possession of firearms as inevitably criminal, and, therefore, a proper subject – in the eyes of antigun zealots – of the most draconian antigun measures that can be devised, however irrational those measures may happen to be.The antigun forces in the California Legislature will, no doubt, in time, create ever more novel antigun laws, restricting ever more kinds of guns that a Californian may own, and scrutinizing ever more closely the lives of those Americans who reside in California, who wish to exercise their Second Amendment right to keep and bear arms. Antigun States such as New York and New Jersey will likely follow suit – each State borrowing from the other, the same draconian laws.One thing is certain. The right of the American people to keep and bear arms will grow ever more tenuous and ephemeral if the antigun forces continue to have their say and their way.[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.

A COURT OF LAW THAT REJECTS U.S. SUPREME COURT PRECEDENT UNDERMINES THE RULE OF LAW AND UNDERCUTS THE U.S. CONSTITUTION

CITY OF HIGHLAND PARK, ILLINOIS DEFIES U.S. SUPREME COURT HOLDINGS IN HELLER AND MCDONALD AND SEVENTH CIRCUIT COURT OF APPEALS BOWS TO THE WILL OF GOVERNMENT IN FRIEDMAN CASE

State governments and local governments that enact or establish antigun laws, ordinances, rules, and regulations must comply with the U.S. Supreme Court's rulings in District of Columbia vs. Heller, 554 U.S. 570 (2008) and McDonald vs. Chicago, 561 U.S. 742 (2010). State and local governments are not allowed to take the rulings of the U.S. Supreme Court lightly; and they are certainly not permitted to ignore the rulings of the High Court in the Heller and McDonald cases out-of-hand. This is not an option. It may therefore come as a shock to some people and an unpleasant surprise to many that State and local governments often do just that. Many State and local governments, not only ignore, but openly defy the U.S. Supreme Court’s holdings in Heller and McDonald. Worse, some federal and State courts, when called upon in lawsuits filed by plaintiffs -- individuals and groups -- to review plaintiffs' challenges to governmental actions, directly and negatively impacting the Second Amendment right of the people to keep and bear arms, often give legitimacy to unconstitutional laws enacted by State legislatures and to unconstitutional ordinances, rules, and regulations adopted by local governments, rather than striking them down as an unconstitutional restraint on the exercise of a fundamental right. Antigun proponents zealots, unsurprisingly and unremarkably, don’t see -- never see -- a problem with this. Indeed, Michael Bloomberg’s antigun group, “Everytown for Gun Safety,” for one -- the antigun political group that Bloomberg created upon leaving office as Mayor of New York City, after serving as its Mayor for twelve years -- is ecstatic over an April, 2015 decision of the Seventh Circuit Court of Appeals in Friedman vs. City of Highland Park, Illinois, 784 F.3d 406 (7th Cir. 2015). Just read the report by the left-wing news commentary site, “AlterNet,” on this. The article, which was posted on December 12, 2015, is titled, “Aggressive Pushback at Evil NRA Is Working; Lives Will Be Saved as a Result.”While the antigun crowd sees reason to applaud any attack on Americans’ Second Amendment right of the people to keep and bear arms, even, and especially, those negative decisions, impacting the Second Amendment, handed down by courts of law -- the institution of last resort, called upon to defend Americans' rights and liberties -- an institution that reasonably would be expected to preserve and defend, assiduously, the fundamental rights and liberties of Americans -- no American, regardless of personal sentiment, or ethical view or political persuasion, should be pleased when the Second Amendment is in fact denigrated. No one should be pleased when the Second Amendment is attacked and denigrated because an attack on the sanctity of any one Amendment of our sacred Bill of Rights is, in essence, an attack on the sanctity of all of them. Political rhetoric should not be given equal weight with – much less lord over -- our system of laws, and political rhetoric should not be used as a wedge to divide the public on matters directly impacting our fundamental rights and liberties, guaranteed to all Americans in our Bill of Rights.Steven Rosenfeld, the author of the aforesaid “Alternet” article obviously disagrees. He argues that curtailment of Americans’ Second Amendment right to keep and bear arms, politically motivated, is politically warranted, even if not legally warranted, consistent with antigun rhetoric, spawned in the political world. And, Rosenfeld laments that our Second Amendment right is “bogged-down” in the legal world. So it is that Steven Rosenfeld waxes poetic and exclaims, exuberantly, how wonderful it is when the Second Amendment of our Bill of Rights is denigrated,  and when unconscionable, abhorrent and unconstitutional laws, ordinances, rules, and regulations of States and Cities, that negatively impact our Second Amendment right to keep and bear arms, are allowed to flourish -- with the assistance of and, indeed, blessing of those courts of law that write decisions, giving credence to and that sanctify those State and local laws, ordinances, rules, and regulations; and that advance no compelling governmental purpose; and that, in fact, are specifically designed to undermine and defeat Americans’ fundamental rights.Courts that give credence to and that, in effect, sanctify such restrictive and oppressive and unconstitutional "edicts" of government are to be singled out for condemnation. In lieu of rendering decisions that defend and preserve Americans' fundamental rights, such courts of law are to be seen as operating subordinate to, subservient to and merely as an extension of government, rather than as a component of a legitimate, independent institution in its own right, whose singular purpose is as overseer of government and protector of our laws and of our fundamental rights and liberties under the U.S. Constitution.  Case in point: the aforesaid Friedman vs. City of Highland Park, Illinois, 784 F.3d 406 (7th Cir. 2015), decided in April of 2015.In the Friedman case the Plaintiff Appellants, including an individual, Ari Friedman, and a group, the Illinois State Rifle Association, brought suit against Defendant Appellee, City of Highland Park, in the State of Illinois. Highland Park had passed an ordinance, prohibiting the possession of “assault weapons” and “large capacity magazines,” namely ammunition magazines that can accept more than ten rounds. The ordinance defines an ‘assault weapon’ as any semiautomatic gun that can accept a ‘large capacity magazine’ and has at least one of five banned features, including, inter alia, a pistol grip without stock; a folding, telescoping stock; a grip for the non-trigger hand; or a barrel shroud. Moreover, the ordinance prohibits the ownership and possession of some firearms by name, such as AR-15s and AK47s.Plaintiff Appellant Friedman lawfully owned a banned rifle and several large capacity magazines, before the ban took effect. The prohibited firearm and magazines are not "grandfathered in" by the ordinance. In that respect, the Highland Park ordinance goes well beyond the highly restrictive and oppressive New York Safe Act, insofar as and particularly as those residents of New York who lawfully owned and possessed firearms defined as 'assault weapons' prior to the effective date of the NY Safe Act, on January 15, 2013, are permitted to retain their weapons so long as they are timely registered in accordance with New York law. In Illinois, though, under the unconscionable City of Highland Park ordinance, Plaintiff Appellant Friedman was forced to surrender his banned weapon and banned ammunition magazines to the government. And had he failed to do so, he would be criminally prosecuted for possessing the very items that were perfectly legal for him to own prior to implementation of the ordinance. Friedman, as a law-abiding citizen dutifully, albeit certainly not happily, surrendered his "assault weapon" in order to avoid certain prosecution, and he wants to own these weapons back.To have any chance of regaining possession of his weapons -- his personal property -- Friedman had no recourse but to file an action in the United States District Court for the Northern District of Illinois, challenging the oppressive ordinance and hoping that the federal court would strike down the restrictive gun ordinance as an unconstitutional infringement on the exercise of a fundamental right. Friedman, along with the Illinois State Rifle Association, that joined him in the lawsuit, argued that the City of Highland Park ordinance was inconsistent with the right of the people to keep and bear arms, guaranteed to all Americans, as an individual right under the Second Amendment of the U.S. Constitution and inconsistent, too, with Supreme Court holdings in Heller and McDonald. The District Court, nonetheless, found in favor of the Defendant Appellee, City of Highland Park, and Plaintiffs thereupon appealed the adverse decision to the Seventh Circuit Court of Appeals.The Seventh Circuit Court of Appeals, citing Heller, at the outset of its Opinion, acknowledged that “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.” The Seventh Circuit also pointed to the holding of the high Court in the subsequent McDonald case, decided in 2010, where the U.S. Supreme Court held that, “the Second Amendment creates individual rights that can be asserted against state and local governments.” McDonald essentially took the holding of Heller -- which applies to unconstitutional actions of the federal Government impacting the Second Amendment, under the due process clause of the Fifth Amendment -- to  unconstitutional actions of State and local governments, impacting the Second Amendment under the due process clause of the Fourteenth Amendment.Given the clear, cogent, unambiguous, and comprehensive import of these two holdings in Heller and McDonald, the salient issue before the Seventh Circuit Court of Appeals was certainly easy to promulgate and should have been: whether the Highland Park ordinance, that proscribes certain weapons, operates as an unconstitutional constraint on a person’s right to keep and bear arms and, if not, then, whether the ordinance is the least restrictive means available to the City for advancing a compelling governmental purpose. Had the legal issue been set forth in this way, in accordance with the actual holdings of the U.S. Supreme Court in Heller and McDonald, utilizing the appropriate standard of review, namely the stringent strict scrutiny standard, to test the constitutionality of the Highland Park ordinance, the Seventh Circuit Court would have struck down the ordinance as an impermissible constraint on an Americans’ right to keep and bear arms under the Second Amendment, consistent with the holdings of the U.S. Supreme Court in the Heller and McDonald cases. For, under the strict scrutiny test there is no logical, coherent reason for the City of Highland Park to adopt an ordinance, negatively impinging upon and infringing a fundamental right that mandates a wholesale ban on an entire category of firearms, firearms that had been, prior to adoption of the ordinance, perfectly legal for law-abiding residents of the City to own and possess -- namely and specifically firearms that the City arbitrarily defines as impermissible “assault weapons" and on ammunition magazines that happen to hold more than ten rounds. And, the government proffered no empirically and legally sound reason for the ban. Yet, the Seventh Circuit refused to apply the strict scrutiny test to the Highland Park ordinance even though, the City ordinance, on its face, impinged upon and infringed a fundamental right, and, indeed, the ordinance was specifically designed to do so.*In its decision the Seventh Circuit also dismissed, inexplicably, the holdings of the U.S. Supreme Court in Heller and McDonald, giving nothing but lip-service to them, through the mere act of reciting the holdings in the Court’s opinion, but failing, utterly, in adhering to them. In fact, not only did the Seventh Circuit Court of Appeals fail to apply – as it should have done – a strict scrutiny standard of review to an ordinance impacting a fundamental right, the Court really failed to apply any standard of review in assessing the constitutionality of the Highland Park ordinance. Instead, notwithstanding the clear import and purport of the High Court’s holdings in Heller and McDonald and, notwithstanding that the Seventh Court of Appeals had before it, for its review, an ordinance directly, and emphatically, and categorically impacting a fundamental right, under the Second Amendment to the U.S. Constitution, the Seventh Circuit upheld the City of Highland Park ordinance. In permitting an unconstitutional local ordinance to stand, rather than striking it down, the Court of Appeals relied not on actual holdings of the high Court in Heller and McDonald, but on dicta in those cases, arguing that, because the high Court did not – according to the Seventh Circuit’s faulty reasoning – define the scope of the Second Amendment in its entirety, the Seventh Circuit was free to read into Heller and McDonald essentially whatever it wanted to.Curiously, the Seventh Circuit Court of Appeals applied a “political” rationale to its decision, foregoing, altogether, application of the appropriate legal standard of review, and this becomes evident in the issue that the Court framed for itself and thereupon sought to resolve, namely: “whether the ordinance leaves residents of Highland Park ample means to exercise the ‘inherent right of self-defense’ that the Second Amendment protects.” The legal issue, that the Court framed for itself in this odd way, totally ignores the fact that many of Highland Park residents desire to hold onto an entire category of weapons and magazines that were and are perfectly legal to own and possess under the Second Amendment, consistent with the holdings in Heller and McDonald, where the U.S. Supreme Court made absolutely clear that government laws and ordinances that ban, wholesale, entire categories of weapons, are patently illegal.By constructing the legal issue in the way that it did, the Seventh Circuit not only took away the freedom of the people to own and possess firearms that they previously had lawful access to but deliberately and defiantly refused to consider the constitutionality of the City ordinance at all in light of the Second Amendment and in light of the holdings of the U.S. Supreme Court in Heller and McDonald. In the issue that the Seventh Circuit Court of Appeals devised for itself, the Court insinuated politics into the issue, and in the resolution of the issue that the Seventh Circuit constructed for itself, the Court begged in the question the very answer it sought.The Seventh Circuit surmised that, because the City of Highland Park did not prohibit all weapons, the City could prohibit some of them – including an entire category of weapons that had been perfectly lawful to own and possess prior to adoption of the City ordinance – and that the City could, in fact, prohibit, perfunctorily, without cause, those weapons and weapons' paraphernalia, such as – what the City deemed to be – high capacity ammunition magazines, as it wished. In the issue that the Court devised for itself to resolve, the Seventh Circuit didn't even need to listen to and consider the absurd arguments that the City put forth ostensibly in support of its wholesale gun ban. The Court included the rationale of the City government in its Opinion, to give seeming weight to its decision. But it was all empty "effect," for the Court had ipso facto decided that, so long as the City of Highland Park left its residents with the means to own and possess at least one kind of firearm -- whatever firearm the City deigned to allow its law-abiding citizens to possess -- say an antique Blunderbuss -- virtually all other firearms could lawfully be, and eventually would be, banned. In fact the Court's reasoning leaves the door open for just that result: eventual adoption of yet further gun bans.The Seventh Circuit Court of Appeal's decision is grounded not only on faulty legal reasoning, but on faulty logical  reasoning -- reasoning truly at odds with the principles of sound logic and reasoning that is, at once, at odds with the holding in Heller. The Heller holding entails, by logical implication, that bans on entire categories of weapons are impermissible absent a clear and compelling reason for government to do so and this means that a government is not permitted to ban entire categories of weapons unless the court of review satisfies itself that a particular governmental law, or ordinance, or rule, or regulation is the least restrictive means available for advancing a compelling governmental interest.Moreover, The Heller holding that constrains the federal government from enacting laws that constitutionally impinge upon and infringe the Second Amendment right of the people to keep and bear arms applies to the States and local governments through the due process clause of the Fourteenth Amendment, in accordance with the holding in McDonald. Thus, neither the federal Government, nor State and local governments, are permitted to infringe the Second Amendment’s right of the people to keep and bear arms absent extremely stringent scrutiny of the laws, ordinances, rules, and regulations by a reviewing court of competent jurisdiction. The Seventh Circuit failed, utterly, in performing its legal duties. Let's take a closer look at the Seventh Circuit's reasoning in Friedman to see more precisely where faults in the Court's legal and logical reasoning rest.The Seventh Circuit’s reasoning in Friedman is faulty, first, because the holdings of Heller and McDonald make abundantly clear that choice of weapons – those that have been available to Americans in the past – should continue to be available to Americans in the present, and into the future, absent a compelling reason set forth by government, to the satisfaction of the reviewing court, that establishes a lawful need to preclude ownership and possession of those weapons. In that regard, it is not for government to decide which firearms to permit Americans to continue to own and possess and which ones must be surrendered, based on mere personal predilections of government. That the City of Highland Park would do so – that it would dare to do so – amounts to an unconstitutional taking of property and serves at once to denigrate the import and purport of the holdings in Heller and McDonald because the ordinance amounts to a ban on an entire category of firearms and ammunition magazines absent any showing by the City of Highland Park that the City has in fact a compelling reason to do adopt such bans and absent any showing on the part of the City that the language of the ordinance as adopted is the least restrictive means available to the City  to advance a compelling local governmental interest -- which is to say that the compelling governmental interest is so critical that the government is justified in infringing a fundamental right – the right of the people to keep and bear arms. This is the strict scrutiny test.*The Seventh Circuit did not consider strict scrutiny criteria at all when rendering its decision, and it should have done so. It simply allowed the City of Highland Park to assert an ad hoc assortment and array of non-empirical declarations of the usual sort developed by and utilized by antigun proponents to further a personal social and political agenda: de facto repeal of the Second Amendment to the U.S. Constitution, to force our unique Constitution toe the line with those of other Western nations -- nations whose history and culture are markedly different from our own.The Supreme Court, in Heller, made abundantly clear that the District of Columbia could not ban an entire category of firearms. In Heller, the District of Columbia attempted, unlawfully, to ban all handguns from the hands of the District of Columbia populace. The Supreme Court struck down the ordinance as unconscionably broad and an unconstitutional infringement of the Second amendment right of the people to keep and bear arms. Similarly, and by logical implication, then, the City of Highland Park could not constitutionally mandate a wholesale ban on so-called “assault weapons” and on magazines that happen to hold more than ten rounds of ammunition. Certainly the Seventh Circuit Court of Appeals could not allow the Highland Park ordinance to stand without first applying strict scrutiny to the City’s infringement of a fundamental right. The Seventh Circuit devised a makeshift standard of review, relying on political considerations to arrive at the "political" decision it wanted. The Court  failed to apply the appropriate standard of review – or any recognized legal standard of review, for that matter. This amounts to prejudicial error, subjecting its decision to remand for further consideration, requiring application of the appropriate standard of review. The Seventh Circuit devised a makeshift standard to arrive at the "political" decision it wanted.Second, in affirming the decision of the lower, District Court, the Seventh Circuit made the dubious assertion that, “the best way to evaluate the relation between assault weapons, crime, and self-defense is through the political process and scholarly debate, not by parsing ambiguous passages in the Supreme Court’s opinions.” But, there is nothing in the holdings of the U.S. Supreme Court in the Heller and McDonald cases that are ambiguous, and there is nothing in those decisions that suggest that a court of review can or should consider political matters when rendering a legal decision, impacting a fundamental right. Certainly, the Seventh Circuit did not point to any ambiguities in the Justices’ text, and there is nothing in the Supreme Court holdings that so much as intimate that political considerations are merited when testing the constitutionality of a governmental law, ordinance, rule or regulation. The Seventh Circuit simply made a bald and bold pronouncement.The best way for a court of review – in fact the only lawful way for a court of review – to review a governmental law, or ordinance, or rule, or regulation that impinges on and infringes a fundamental right is for that court of review to demand that the government that enacts or adopts such a law, or ordinance, or rule, or regulation, sets forth, in the first instance and to the complete satisfaction of the reviewing court, the government's legal argument, supporting the government's  contention that a given law, ordinance, rule, or regulation is, in that government's contention is constitutional. The government necessarily has a heavy legal burden to carry for a court of law must assume that any such law, ordinance, rule, or regulation that negatively impacts a fundamental right is unconstitutional. A court of law, reviewing such governmental law, ordinance, rule, or regulation, negatively impacting an American's fundamental right, has no discretion in the matter. The reviewing court must apply the strict scrutiny standard to test whether the governmental action can stand or be struck down. Moreover, and importantly, judicial deference to the political process is not a legally tenable basis or mechanism through which to test whether a law, or ordinance, or rule, or regulation that is clearly directed to and impacts a fundamental right is permitted to stand. The matter before the court is a purely legal one, and it is one that goes directly to the constitutionality of the law or ordinance. Political concerns are of no moment, or consequence in the reviewing court’s determination.The issue of the constitutionality of a law, or ordinance, or rule, or regulation that impinges upon and infringes a fundamental right is solely and precisely and absolutely a legal issue, not a political one. Deference to political concerns has no place, where, as here, in the Friedman case, an ordinance directly impacts a fundamental right, and the Seventh Circuit Court of Appeals was wrong in opining that there is one.Furthermore, and it bears repeating, where fundamental rights are at stake, government is under a heavy burden to justify any restriction on an American’s exercise of a fundamental right. That means, once again, that a governmental law, or ordinance, or rule, or regulation  is presumed, from the get-go, to be unconstitutional, when a court of review begins its analysis of the impact of a law or ordinance on a fundamental right, such as the right of the people to keep and bear arms, and the burden of proof is on the government to demonstrate that a given law or ordinance is in fact constitutional. If a court of review finds that the government has failed to meet its burden, which is to say, that the court of review finds that the law or ordinance is, prima facie, unconstitutional, then that court of review must strike down the offending statute or ordinance. It has no choice in the matter, regardless of what it may otherwise wish to do. But suppose the court of review finds that the government has met its burden of proof and that the court finds the offending statute or ordinance to be facially constitutional. That doesn’t end the matter under the standard of strict scrutiny. That doesn't mean that the governmental law, ordinance, rule, or regulation is permitted to stand. For, even if the government, in the first instance, is able to carry the heavy burden of proof and demonstrates to the satisfaction of the court that the law or ordinance is not facially unconstitutional, the matter doesn’t end there. Strict scrutiny embraces a two-part test. The court of review must then decide whether a given law or ordinance that is ostensibly constitutional is, for all that, still, in the government’s adoption of that statute or ordinance, or rule, or regulation, the least restrictive means available to the government by which to advance a compelling governmental purpose. If so and only if the court  of review finds to its satisfaction that an oppressive law or ordinance that impacts a fundamental right is the least restrictive means available to that government to enable it to advance a compelling governmental purpose, can the court of review then and only then allow the oppressive law or ordinance to stand. Otherwise the court must strike down the offending law, or ordinance, or rule, or regulation. In that judicial review of a State law or local governmental ordinance, rule, or regulation impacting a fundamental right, no deference is to be given to the political process. When a court of competent jurisdiction is called upon to review the constitutionality of laws, ordinances, rules, or regulations that impact fundamental rights, consideration of political issues, social issues and the political process are wholly inappropriate. Governmental laws and ordinances and rules and regulations impacting fundamental rights are most serious. An analysis of them involves the application of law, not politics, and courts of review are called upon to make a legal assessment  of them. Matters impacting fundamental rights are never to be left to the wishes or to the wants or to the will of government. And, the Seventh Circuit Court of Appeals is absolutely wrong to assert that they can be and, for that matter, ought to be, left to government. And, by failing to apply the legal standard of strict scrutiny to an ordinance that directly impinges upon and infringes a fundamental right, the Seventh Circuit reduced itself to a servile vessel of government, giving deference to government action, where it should never have done so.Third, in its deferential, even obsequious regard for government, the Seventh Circuit Court of Appeals added that, “the central role of representative democracy is no less part of the Constitution than is the Second Amendment: when there is no definitive constitutional rule, matters are left to the legislative process.” This is patently false. The matter before the Seventh Circuit has nothing to do here with public policy any more than it has to do with the political process. The matter before the Court in the Friedman case has everything to do with the City government’s creation of  and adoption of an ordinance directly and negatively impacting a fundamental right. And, a definitive constitutional rule, established by the U.S. Supreme Court in Heller, does exist, contrary to the Seventh Circuit's assertion that there is none. The Seventh Circuit simply decided to ignore the Supreme Court’s clear and categorical and cogent holding. The Seventh Circuit’s argument in the Friedman case is not a direct and perceptive and critical review of a governmental ordinance, directly impinging upon and infringing the fundamental right of the people to keep and bear arms, but an unconscionable digression from its duty to review, critically, the constitutionality of the Highland Park ordinance. The Seventh Circuit altogether ignores its duty, a that duty rests squarely on testing the constitutionality of the Highland Park ordinance in light of the holdings in Heller and McDonald.Fourth, the Seventh Circuit said, “another constitutional principle is relevant: The Constitution establishes a federal republic where local differences are cherished as elements of liberty, rather than eliminated in search for national uniformity.” Even so, where, as here, the exercise of a fundamental right is at stake, the assertion of such a principle in this instance amounts to nothing more than rhetorical flourish, not sound legal reasoning. The Court’s assertion is not sound and has absolutely no relevance here because, once again, where a fundamental right is at stake, the application of that right – the right of the people to keep and bear arms – applies “across the board,” that is to say, nationally – and the holdings of the U.S. Supreme Court in the Heller and McDonald cases make this point poignant, clear, categorical, and unequivocal. “Local differences” are absolutely beside the point where fundamental rights, as set forth in our Bill of Rights, are at stake.The Seventh Circuit simply and erroneously sets up a peripheral straw man issue and ignores the salient one which goes to the very heart of the import of the Second Amendment: whether the City of Highland Park Ordinance is unconstitutional on its face and, were it not so, then, whether that ordinance is, nonetheless, the least restrictive means available to the City of Highland Park for advancing a compelling governmental interest. By failing to consider the impact of the City of Highland Park ordinance on the fundamental right of the people to keep and bear arms, the Seventh Circuit improperly reduced a serious constitutional issue before it to one of mere public policy, political process, and local political and social concerns. Such analysis by a court of review might be adequate to address some minimal social concern or political matter, but not one that goes to the heart of our rights and liberties under the U.S. Constitution, namely and specifically, the right of the people to keep and bear arms, under the Second Amendment of the U.S. Constitution.In his lengthy dissent, Judge Manion asserted, in his opening remarks, that “by prohibiting a class of weapons commonly used throughout the country, Highland Park’s ordinance infringes upon the rights of its citizens to keep weapons in their homes for the purpose of defending themselves, their families, and their property. Both the ordinance and this court’s opinion upholding it are directly at odds with the central holdings of Heller and McDonald: that the Second Amendment protects a personal right to keep arms for lawful purposes, most notably for self-defense within the home.” The dissenting Judge also noted that Plaintiff Appellant Friedman did, in fact, lawfully keep in his home, for self-defense, the weapons and ammunition magazines that the ordinance now bans, and that Friedman was compelled to surrender them to the authorities or face a misdemeanor conviction that is punishable by up to six months in jail and a fine of between $500.00 and $1,000.00. The City of Highland Park ordinance thus forces a law-abiding citizen either to forsake his Second Amendment right to keep and bear arms or to become a misdemeanant, end up in jail, pay a fine, and probably never again be able to own or possess any firearm.Once the Seventh Circuit Court of Appeals affirmed the decision of the U.S. District Court for the Northern District of Illinois, Eastern Division, finding for the Defendant Appellee, City of Highland Park, against Plaintiff Appellants, Friedman and the Illinois State Rifle Association, the Appellants petitioned for a writ of certiorari to the U.S. Supreme Court. Justices Roberts, Scalia, Thomas, Kennedy, Ginsburg, Breyer, Alito, Sotomayor, Kagan all were in attendance to consider the writ of certiorari. A majority of Justices denied the writ. Justices Thomas and Scalia were so incensed at the refusal to grant the petition for writ that Justice Thomas, joined by Justice Scalia, admonished their brethren in a dissent.In his opening remarks, Justice Thomas wrote, “‘[O]ur central holding in’ District of Columbia v. Heller, 554 U. S. 570 (2008), was ‘that the Second Amendment protects a personal right to keep and bear arms for lawful purposes, most notably for self-defense within the home.’ And in McDonald, we recognized that the Sec­ond Amendment applies fully against the States as well as the Federal Government. Id., at 750; id., at 805 (THOMAS, J., concurring in part and concurring in judgment). Despite these holdings, several Courts of Appeals including the Court of Appeals for the Seventh Circuit in the decision below—have upheld categorical bans on firearms that millions of Americans commonly own for lawful purposes. See 784 F. 3d 406, 410–412 (2015). Because noncompliance with our Second Amendment precedents warrants this Court’s attention as much as any of our precedents, I would grant certiorari in this case.” It is abundantly clear that the Seventh Circuit Court of Appeals has failed in its duty to carefully review a governmental ordinance that, on its face, amounts to a deliberate, audacious, callous, caustic, and defiant attack, not only on the Second Amendment to the U.S. Constitution, but on clear and unambiguous holdings of the U.S. Supreme Court in Heller and McDonald that directly apply to the Friedman case and inform the Court how to review an ordinance that impacts the fundamental right of the people to keep and bear arms. By failing to consider the import and purport of the U.S. Supreme Court’s holdings in Heller and McDonald, the Seventh Circuit Court of Appeals in its holding in Friedman improperly and defiantly ignored the holdings of the U.S. Supreme Court in Heller and McDonald.The Seventh Circuit has capitulated to local government; ignored the directives of the U.S. Supreme Court; failed to apply the appropriate legal standard when testing the constitutionality of a law or ordinance, infringing a fundamental right; reduced a serious constitutional issue to a mere administrative one; saw fit to prostate itself before a mere local government, raising that government to the level of potentate; made itself, wittingly or not, into a subservient ally of antigun groups; and allowed its status as an independent trier of law and fact to play a subordinate role to political forces. In ceding its own, critical judicial role, the Seventh Circuit Court of Appeals has demonstrated a callous disregard of its duties and joined with government in undermining the Second Amendment to the U.S. Constitution. It is most unfortunate that the majority of the U.S. Supreme Court Justices paid no heed to the remonstrations of Justices Thomas and Scalia. In denying the Friedman Appellants' petition for writ of certiorari, the majority of Justices allowed a clearly unsound and deeply offensive ruling of the Seventh Circuit to stand, unchallenged.The adverse and legally and logically unsound decision of the Seventh Circuit Court of Appeals in Friedman, coupled with the failure of the U.S. Supreme Court to grant Appellants' petition for writ sets a bad precedent. Had the Justices, instead, granted the petition and determined to review the decision of the Seventh Circuit, then, thereafter, federal, State, and local governments and, too, federal and State courts would be placed on notice that the holdings of Heller and McDonald are not to be taken lightly. What has transpired in the Friedman case will only embolden antigun groups and their allies in government and in courts friendly to their political objectives to take further steps and ever more daring and outrageous steps to undercut the fundamental right of the people to keep and bear arms. Erosion of our remaining rights and liberties, as set forth in our Bill of Rights will, as well, follow suit.Indeed, when one takes the time to pause and consider what has, of late, been occurring in our Nation, one becomes immediately aware that the destruction of our Bill of Rights -- most prominently, our First, Fourth, and Fifth Amendments, along with our sacred Second Amendment -- is already well underway.____________________________________

*UPDATE AND CLARIFICATION:

Reviewing this post, we must clarify the points made in our analysis of strict scrutiny as a standard of review in Second Amendment cases. In our jurisprudence, where fundamental rights are at stake, such as exercise of one's Second Amendment right of the people to keep and bear arms, governments must apply the least restrictive means to accomplish their goals. And, Courts will use strict scrutiny to assess the constitutionality of laws, impacting fundamental rights, when a challenge is made as to the constitutionality of them.The U.S. Supreme Court in Heller did not, though, articulate a specific standard of review a court must use when assessing the constitutionality of a law when a constitutional challenge to a law impacting the Second Amendment is raised, apart from stating that the most liberal standard of judicial review, rational basis as a means test, is altogether inappropriate for means testing. It is not clear that the Highland Park Court used any standard of review but merely and essentially rubber stamped government edit. If the Seventh Circuit Court of Appeals applied any standard of review, in Friedman vs. Highland Park, then, tacitly, the Court applied "rational basis," the lowest most deferential standard of review. But, The U.S. Supreme Court in Heller pointedly remarked that rational basis was never the correct standard of review in Second Amendment cases and can never be appropriately applied in any Second Amendment case.That the  high Court did not apply a standard of review in Heller though was probably due to the fact that the Court found the District of Columbia's total ban on handguns to be facially, per se, invalid. The law was designed to destroy the core value of the Second Amendment and therefore had to be struck down as a blatant example of a law that was unconstitutional. So, the high Court found it unnecessary to apply strict scrutiny.For those laws, infringing the Second Amendment right that do not, on their face, appear to be invalid, then, arguably, consistent with Heller, heightened scrutiny of such law must be invoked and applied by a court of review.Strict scrutiny, as a means test, is, traditionally, the most durable and most stringent standard of heightened security a court or judicial review can apply, when deciding the constitutionality of a law. Yet, some Courts--those obviously antithetical to the Second Amendment-- have, through the failure of the Heller Court to articulate a definitive standard of review, tended to apply an intermediate scrutiny test or, as in the Friedman vs. Highland Park case, a rational basis, if a standard of review was applied by a Court at all, if only tacitly. Again, rational basis is not an appropriate standard for means testing a law infringing upon the Second Amendment in any circumstance. Curiously, rational basis is used by New York Courts and is used by those Courts with regularity to justify the NY Safe Act and to justify any other restrictive gun law that the New York State Legislature and other governmental bodies in New York implement. Under strict scrutiny or even under intermediate scrutiny, it is unlikely that New York's draconian gun laws would stand. New York Courts know this, and that may explain why they rigidly adhere to application of an incorrect, liberal standard of review at all.[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 NEW YORK TIMES’ CALL FOR NATIONAL GUN CONFISCATION IS LEGALLY INSUPPORTABLE AND MORALLY INSUFFERABLE

THE NEW YORK TIMES RESURRECTS FEINSTEIN'S MONSTER

The antigun groups have now made clear beyond any doubt their singular goal: remove firearms from the hands of Americans, nationally. In a rare editorial, appearing on the front page of the Saturday, December 5, 2015 edition of The New York Times, titled, “The Gun Epidemic,” the Times editorial staff presents its arguments for massive gun confiscation, at the national level. The New York Times – a vehicle of international socialist and globalist interests – is intent on divesting Americans of their sacred right to keep and bear arms. Simultaneously, the Times is clearly and unconscionably setting the stage for a Clinton Presidency in 2016.The San Bernardino shooting incident, carried out by Islamic extremists – foreign invaders, whose allegiance, as the Times reports, are to the Islamic State – should be a clarion call to arms to all Americans. Instead, the Times uses this despicable attack by the Islamic State on innocent American citizens as a pretext for disarming all Americans. Treating this invasion on our shores as simply one more mass shooting, without regard to the motivation behind it, the Times calls for a massive, gun confiscation program at the national level. The rationale given for this unprecedented call for gun confiscation is reduction of gun violence – the same platitude voiced over and over by those individuals and groups intent on divesting Americans of their natural birthright and denying to Americans the right of self-defense, notwithstanding that the Federal Government either cannot adequately protect Americans from mass shootings -- whether or not these attacks are random or carefully planned and organized -- or the Government simply will not do so, despite constant assertions and assertions to the contrary.Since President Barack Obama refuses, incongruously, to seal our borders despite clear evidence of an attack in our Country by Islamic radicals, and since he continues to allow into our Country those of the Islamic faith, who are impossible to vet, one must wonder whether Obama is intentionally jeopardizing the security of the American people, to keep the American public off-guard, consistent with international globalist and international socialist interests and objectives, in preparation for America’s integration into a unified Socialist State at some point in the not too distant future. If so, the salient reason for the NY Times’ call for a program of massive gun confiscation has little, if anything, to do with reducing gun violence in this Country -- from whatever source -- and has everything to do with destruction of America’s sovereignty and subjugation of its citizenry. A massive gun confiscation program on the national stage would certainly hasten the accomplishment of that goal, paving the way for repeal of America’s Constitution, and, therefore, repeal of a critical portion of the Constitution -- America's Bill of Rights. Thus, would we see the international globalists and socialists smoothing the transition for the Nation's incorporation into a unified mega-international Socialist Order. And, the American people would be given a new constitution sans any mention of a right, existent in the people, to keep and bear arms.To Americans who see the United States as an independent sovereign Nation, beholding to and dependent on no other nation, and who place their faith in their Bill of Rights and, particularly, on the strength of the Second Amendment within the Bill of Rights, such acts of gun violence, committed by criminals, lunatics, and, of late, by Islamic jihadists, there bespeaks a need for a strong citizenry, and that means an armed citizenry, not a disarmed, weakened one. But, a disarmed, weakened citizenry is clearly and specifically what the federal government has in mind for Americans. President Barack Obama has made that point many times and more incessantly -- with an air of urgency in recent days. Lest there be any doubt about this -- about the intention of wealthy, powerful, ruthless interests behind this effort to disarm the American citizenry, who use the mainstream news media to confound Americans and who proclaim that the only answer to this onslaught of gun violence in America is for American citizens to place their blind faith in and allegiance to the federal government, rather than to place faith in themselves and to take personal responsibility for defense of self and family -- suggesting, then, that the federal government -- and only the federal government can and, more to the point, is  warranted and permitted to protect them -- one ought to stop and consider the import of the following two remarks, appearing in the sixth paragraph of the NY Times front page, editorial: “It is not necessary to debate the peculiar wording of the Second Amendment. No right is unlimited and immune from reasonable regulation.”  The average person may not be quick to catch this, but there is an oblique message in these two assertions – both of which are utterly damning to American sensibilities, to the autonomy of the individual, to the sanctity of Americans’ Second Amendment, and certainly divisive, as the editorial can and is probably meant to tear the public apart, for The New York Times' assertions do most assuredly play to the sentiments of antigun proponents and zealots, even as those same sentiments will anger, and rightly so, every other American. So let us parse those assertions.The NY Times says the language of the Second Amendment is “peculiar.” Yet, the Times’ use of the word, ‘peculiar,’ to describe the language of the Second Amendment, is itself peculiar. The meaning of the independent clause in the Second Amendment – “the right of the people to keep and bear arms shall not be infringed” – is straightforward, cogent, clear, and certainly not “peculiar” to the American people. Indeed, that The New York Times would use the word, ‘peculiar,’ to describe the Second Amendment at all, suggests that the newspaper does not reflect America’s interests but, rather, the interests of the international socialists and globalists, intent on dismantling the Second Amendment in particular and dismantling the nine other Amendments, generally, which depend on the Second Amendment, ultimately, for their preservation. For, only to foreign governments whose history is unlike ours and whose constitutions are devoid of any mention of an inalienable right of the people to keep and bear arms would America's Second Amendment possibly look "peculiar." But for an American newspaper to use that adjective to describe the Second Amendment, that should give the public pause.Take a look at the constitution of any other Western nation. Even if a constitution talks about firearms in the hands of the citizenry at all -- and very few constitutions do -- no constitution but that of the United States places that right squarely in the hands of the citizenry itself. In no other nation on this Earth does the right to keep and bear arms reside in the People. Rather, that right resides exclusively in the State. In those Western Countries that the New York Times clearly emulates, namely, France, England, and Norway, which the Times mentions in its editorial, the constitutions of those Countries do not respect the inalienable right of their citizens to keep and bear weapons in their own defense and as a means to secure their individual rights and liberties. Therefore, Countries such as France, England, and Norway, unlike the United States, clearly do not recognize that the citizens, themselves, are the ultimate guardians of their own rights and liberties, and so their citizens do not have the inalienable right to defend themselves with the most effective means available for doing so – that provided by a firearm; nor do those Countries recognize, in their people, the right of their people to secure their own rights and liberties through firearms, if the need should ever arise.Indeed, the Times admits, “that determined killers obtained weapons illegally in places like France, England, and Norway that have strict gun laws. Yes they did.” But, in that very admission, the Times follows up with the singularly bizarre assertion, “But at least those Countries are trying.” Really, “trying?” What are those Countries trying to do through strict gun laws? The Times' assertion is incoherent. If those Countries are trying to provide safe havens for Islamic foreign invaders, and convert their citizenry into a flock of defenseless sheep, then those Countries are certainly succeeding! Must the U.S. follow the lead of those Countries? The New York Times says, unequivocally, “yes.” The language of our Second Amendment, however, manifestly counters the Times’ assertion with an emphatic, “no!”The New York Times also says, “No right is unlimited and immune from reasonable regulation.” This, too, is a particularly odd and outrageous remark as it denigrates our jurisprudence.First, the right of the people to keep and bear arms is a fundamental right, expressly set forth in the language of our Country’s Bill of Rights. The New York Times cannot reasonably deny the truth of that assertion. And, as a fundamental right, the right of the people to keep and bear arms is deserving of something more than some protection. As a fundamental right, the right of the people to keep and bear arms is deserving of the strongest possible protection. Second, to say that a fundamental right is not unlimited, namely, absolute, is merely a legal platitude. The Times is incorrect to suggest, as it does, that the Government can employ whatever regulation of the right it wants, whenever it wants, simply because no right, even a fundamental right, is not absolute.Second, the Times says that the right of the people to keep and bear arms is subject to “reasonable regulation.” Understand, the New York Times is making a legal pronouncement, here, not merely – as most readers are inclined to see it – a colorful, somewhat innocuous, editorial remark. The Times is tacitly invoking a criterion of judicial review that many State courts use in order to determine whether a State law – regulating gun possession and gun ownership, say -- can withstand judicial scrutiny. The Times is asserting, albeit cryptically, that this standard of judicial review, ‘reasonable regulation,’ should apply, across the board, without exception, to each and every legal challenge a complainant may bring to the constitutionality of a federal or state gun law restriction. But, there is a serious problem with this. The problem is that the criterion of  ‘reasonable regulation’ is a very weak standard, virtually indistinguishable from the ‘rational basis test’ which many State courts, such as those in New York, the home of the New York Times, routinely use to test the constitutionality of their State's own draconian gun laws.Under both the ‘reasonable regulation’ standard and ‘rational basis test,’ State courts simply look to see whether a particular law is rationally related to a particular governmental purpose. In effect, this weak standard of review hamstrings Courts and allows States to impose draconian gun laws on the public. The New York Safe Act, which is one of the most restrictive gun measures in the Nation, when compared to the gun measures of any other jurisdiction in the United States, passes judicial scrutiny in New York precisely because the New York State Government need only assert – and need not argue – that the NY Safe Act is rationally directed to a legitimate government purpose – say, reduction in gun violence. If the New York Safe Act were challenged in a court of competent jurisdiction in New York – and of course various provisions of the Act, as well as the Act in its entirety, have been challenged in New York courts since enactment of the NY Safe Act – that court of competent jurisdiction is only permitted to decide whether the  Safe Act is rationally related to a legitimate government purpose. In applying that standard of judicial review -- rational basis -- a court must give considerable deference to a legislative action. So, unless the law is clearly arbitrary on its face or clearly has no relationship at all to the matter for which it ostensibly was enacted, which is to say, that the government cannot demonstrate that the law is rationally related to a legitimate government purpose, the law will be upheld. So, under either the rational basis test or the reasonable regulation standard, the latter of which the Times makes specific reference to in its front page editorial, a court of competent jurisdiction is prohibited from going further in its scrutiny of the constitutionality of the law or governmental regulation. So, under the rational basis test a law can be very broad in scope and overreach its stated objective. That is of no consequence to the basic question of the constitutionality of it under either the rational basis test or under the essentially identical reasonable regulation standard. And the result is – as the NY Safe Act clearly demonstrates – that extraordinarily draconian gun laws pass constitutional muster. This is perverse. And, in light of the U.S. Supreme Court’s decision in District of Columbia vs. Heller (2008), the NY Safe Act flies in the face of the high Court’s holding because New York courts continue to use a relaxed standard of review in testing the constitutionality of the NY Safe Act, notwithstanding that the Act has a highly corrosive effect on a fundamental right: the right of the people to keep and bear arms.Gun ownership and gun possession is a fundamental right. Even antigun proponents and zealots cannot reasonably deny the legal certainty of that fact. Legislation that impacts the fundamental right of the people to keep and bear arms demands extraordinary judicial scrutiny, not weakened, relaxed scrutiny. State courts and federal courts are, under our jurisprudence, expected to utilize the strict scrutiny test where fundamental rights are impacted. Can the New York Safe Act withstand judicial scrutiny under a strict scrutiny criterion? The answer is clearly, “no.” Under a strict scrutiny criterion, the State Government has the burden of showing that the NY Safe Act, which places inordinate restrictions on a citizen’s fundamental right to keep and bear arms, is nonetheless necessary to satisfy a compelling State interest – in this case: the compelling interest of the State to reduce gun violence. But, importantly, under the strict scrutiny test, the constitutionality of the law or governmental regulation under review is not presumed, unlike the constitutionality of a law or governmental regulation would be presumed under the rational basis test, or under that test's functional equivalent, the reasonable regulation standard. Therefore, the burden of proof for the State of New York is a difficult one under strict scrutiny would be exceedingly difficult to overcome. Under either the rational basis test or “reasonable regulation” standard, on the other hand, a court of review in New York is legally required to presume, in the first instance, that a law or regulation is constitutional, hence valid. So, under the rational basis test or “reasonable regulation” standard, the New York State Government is able, very easily, to enact draconian gun laws that, just as easily, pass constitutional muster. This explains why challenges to various provisions of the Safe Act – except in one or two instances – fail, and this explains why challenges to the Safe Act in its entirety have, to date, also failed. And, this explains why draconian gun laws, such as the New York Safe Act, are able to exist and continue to exist at all. And, critically, this also clearly explains why The New York Times expresses a desire for courts of competent jurisdiction to use a relaxed standard of judicial review when testing the constitutionality of a draconian State or federal gun law or governmental regulation.Through application of the rational basis test or reasonable regulation standard, New York, and any other State, and, for that matter, Congress itself, can enact gun laws that infringe the fundamental right of the people to keep and bear arms, and such laws will still, almost invariably, pass a constitutional challenge. And that is why, traditionally at least, our jurisprudence respects challenges to laws that impact fundamental rights such as the right of the people  to keep and bear arms, requiring State and federal governments to overcome an extremely difficult standard of judicial review if their restrictive gun laws are to be held constitutional and, therefore, to survive challenges to their constitutionality. This means that the burden of proof is on the government to prove that a law or regulation is constitutional. But, under either the rational basis test or "reasonable regulation" standard that the NY Times refers to in its editorial, the burden rests with the challenger, in the first instance, to show that a particular law or governmental regulation is, in fact, unconstitutional. Under strict scrutiny, the burden rests squarely on the government to prove to the satisfaction of the court that the law or regulation is, in fact, constitutional. That is a crucial difference and explains why the New York Times not only asks for enactment of extremely restrictive gun laws on the national stage but, as well, explains why the Times would mandate use of a relaxed standard of review once the laws were challenged in federal court, and the constitutionality of those laws would be challenged. Under a relaxed standard of judicial review, such draconian gun laws would very likely survive a court challenge, testing the laws' constitutionality. Thus, the Times calls for use of the "reasonable regulation" standard of judicial review.But, if a New York State or New York federal court of competent jurisdiction applies strict scrutiny, say, to the New York Safe Act, for example, as it should, in lieu of the rational basis test, the New York State Government must prove to the Court’s satisfaction that the NY Safe Act furthers a compelling government interest. But that doesn’t end the inquiry. Strict scrutiny embraces a two-part test. Assuming the Government can prove to the satisfaction of the court that the New York Safe Act does serve a compelling State interest, the State Government must then show that the NY Safe Act is narrowly tailored to meet that objective – say, reduction of gun violence. That means the Government must prove to the satisfaction of the court, that the NY Safe Act is the least restrictive means available to the Government for reducing gun violence in the State even if the State  can show that the Act is directed to satisfying a compelling State interest. If and only if the reviewing court is satisfied that the NY Safe Act amounts to the least restrictive means available to the Government for reducing gun violence will that court of review hold the Act constitutional. Otherwise, it will not do so, and cannot legally do so. Application of strict scrutiny to a law or governmental regulation is very difficult for a government to overcome. Application of the standard of strict scrutiny is meant to be difficult to overcome when a restriction on the exercise of a fundamental right is at stake.Challenges to fundamental rights are meant to fail precisely because preservation of the fundamental rights of the American people is itself fundamental to preservation of a free Republic. And a free Republic cannot long endure if State and federal governments can, virtually at will, enact laws that tend to undercut and negate the Bill of Rights. Hence, it is highly unlikely that the New York Safe Act would survive judicial review under a strict scrutiny test. Since the NY Safe Act directly impacts a fundamental right it is presumed from the get-go, that the Act is constitutionally invalid. Thus the burden on a State government or on the federal government to show that a draconian gun law is legally required is considerable, and necessarily so. A reviewing court is likely to see the NY Safe Act as the charade and subterfuge it really is: an underhanded attempt to undercut and negate the efficacy of the Second Amendment to the U.S. Constitution, under the guise of protecting the public from gun violence.Clearly, for the New York State Government to argue that denying to thousands of law-abiding New York residents access to large categories of firearms is the least restrictive means available to it for reducing gun violence is neither logically sound nor legally defensible. It is therefore highly unlikely that the NY Safe Act could withstand judicial scrutiny under a strict scrutiny standard. Thus, to say that no right – even a fundamental right – is not absolute, is not to suggest that a government can essentially regulate the right away whenever it so wishes. And, The New York Times is wrong in suggesting that it can.Now it is one thing for courts in New York to apply a weak standard of judicial review that allows for the existence of draconian gun laws, negatively impacting the fundamental right of the people to keep and bear arms; it is quite another to suggest that such a weak judicial standard should be applied across the board. Yet, this is precisely what the NY Times is asking for: that Congress should enact laws denying to tens of millions of law-abiding Americans the right to own and possess entire categories of firearms and that, if anyone should challenge the constitutionality of such a law, then a court of competent jurisdiction should be required to apply a relaxed standard of review, namely ‘reasonable regulation,’ which would virtually guarantee that an unconstitutional law would pass constitutional muster when it should not and would not if challenged under the strict scrutiny test.As you may recall, Democrats attempted, essentially, to expand the NY Safe Act nationally in 2013. The "illustrious," Dianne Feinstein, Democratic Party Senator from California, introduced a bill, in 2013, in the Senate, to ban so-called “assault weapons” and so-called “high capacity ammunition magazines.” Her bill, “The Assault Weapons Ban of 2013,” included 157 kinds of firearms that the American public would no longer be able to lawfully own and possess. And Americans could no longer own and possess ammunition magazines that held more than 10 cartridges, if that bill became law. Feinstein's “Assault Weapons Ban of 2013" was meant to resurrect the earlier “Assault Weapons Ban of 1994,” which banned 19 weapons and, in fact, to expand upon “The Assault Weapons of 1994,” which expired in accordance with its sunset provision in 2004. Fortunately, attempts by antigun Senators to renew the law, failed. And, Feinstein’s new 2013 bill could never gain traction. It failed by a vote of the Senate, 40 to 60, in April of 2013. Now, through despicable hubris and subterfuge on the part of a newspaper, The New York Times, that newspaper is attempting to resurrect Feinstein’s own dead antigun bill, using “fear," together with sleight-of-hand, to encourage the American public to take action against its own best self-interest – in effect calling upon the public to contact Congress to bring Feinstein’s Monster, “The Assault Weapons Ban of 2013,” back to life in the form of an “Assault Weapons Ban of 2016.”If there is any doubt about the New York Times’ deplorable intentions actions, attacking the right of the people to keep and bear arms, the Times makes the point that: “certain kinds of weapons . . . and certain kinds of ammunition must be outlawed for civilian ownership. It is possible to define those guns in a clear and effective way and, yes, it would require Americans who own those kinds of weapons to give them up. . . .” This is essentially Feinstein’s: “Assault Weapons Ban of 2013.” Now, under a strict scrutiny standard of review, Feinstein’s resurrected antigun bill, as a draconian antigun law – essentially the New York Safe Act, applied nationally (assuming for purpose of argument that  an assault weapons ban could succeed, at all, in 2016, when the Act failed in 2013) -- would almost certainly be struck down by federal courts, once challenged, and it would be challenged. But, under a relaxed “reasonable regulation” standard or under its functional equivalent, the “rational basis” test, such a law would more easily pass judicial scrutiny. This is why the New York Times presses for both an assault weapons ban and, at once, deviously, insists upon a relaxed legal standard of review, so that the Government can legally require Americans who own “certain kinds of weapons” – and one can fill in the blank as to what those weapons are, although the list would probably and eventually be extended to encompass all of them – to surrender them to government authorities and if such overreaching law were challenged in federal court, such challenge would almost certainly fail.The Times adds, piously, that Americans must give up their weapons "for the good of their fellow citizens.” In other words, the Times is saying that, for the “good” of the Collective, as defined by the puppet masters of Government, the sanctity and autonomy of each individual American must be forfeited. Of course, this will not make Americans safer. In fact it will make Americans substantially less safe as American citizens will be more prone to gun violence by sociopathic Islamic jihadists, psychopathic criminals and criminal gangs, and assorted lunatics. No doubt, the Times had substantial assistance from a phalanx of antigun lawyers to assist it when drafting its front page editorial.And, keep in mind that, if the New York Times is suggesting that, in the very act of dispossessing Americans of their firearms, thereby dismantling the Second Amendment, the Government is in some bizarre manner doing something beneficial for Americans, it is abundantly clear the Times is actually doing something quite contrary to the seemingly benign act of disarming Americans. The New York Times is actually targeting all Americans – hence, resurrection of Feinstein’s Monster. Clearly, the desire of the Times editorial staff is to target the millions of  law-abiding, sane, rational American gun owners – not simply Islamic jihadists, criminals and lunatics. For, in this same front page editorial, the Times asserts, that any American who wants those weapons, which the Times calls “weapons of war,”  must be corralled and considered criminally suspect. The Times asserts in the flamboyant, typically pious manner of the antigun zealot: “It is a moral outrage and a national disgrace that people can legally purchase weapons designed specifically to kill with brutal speed and efficiency. These are weapons of war, barely modified and deliberately marketed as tools of macho vigilantism and even insurrection.” Ergo, if an American would want such a weapon, much less insist on owning and possessing such a weapon, there must be something seriously wrong with that individual. Thus, The New York Times is targeting essentially all Americans. This is a frontal assault on the Second Amendment itself – a frontal assault on the exercise of a fundamental right of every law-abiding American. The only outrage and national disgrace here is The New York Times itself that would undercut our Free Republic and undermine the Bill of Rights that is the bedrock of our Free Republic.If the Second Amendment is frontally assaulted by the very Government -- the federal Government that is supposed to defend and preserve it, since it is a component of our Constitution – indeed a fundamental part of it -- then the People must defend it because  a quiet coup d’etat of the federal government is already underway. Thus, The New York Times isn’t preventing insurrection, it is fomenting it, inviting it, daring Americans to take arms against the very federal Government that was created to serve the People, as that same federal Government  now boldly asserts its dominion over the People – with the devout blessing of, and encouragement of, a member of the “Fourth Estate,” that the founders had themselves blessed with protection through the language of the First Amendment, guaranteeing the freedom of the Press. That same Press is now working with the federal  Government -- not as a check against it but as a tool of it -- against the American people.The New York Times has, in its front page editorial, insidiously suggested, through a very thin veil, that any American who would fight to preserve that “peculiar” Second Amendment is an American who must be treated no differently than a lunatic, criminal, or Islamic jihadist. And, as if the incendiary nature of that front page editorial were not enough, the Times continues feeding the American public with copious amounts of nonsensical fodder inside that same Saturday, December 5, 2015 edition.In another article, appearing on page 5 of the Saturday edition of the New York Times, the newspaper cites to Hillary Clinton and President Barack Obama’s emulation of Australia’s gun laws. The New York times says, “President Obama has cited the country’s gun laws as a model for the United States, calling Australia a nation ‘like ours.’” The newspaper also mentions Clinton’s statement that “the Australian approach is ‘worth considering.’” Actually, Australia is anything but a nation like ours. In our article posted on December 1, 2015, in the Arbalest Quarrel, and which was also posted in Ammoland Shooting Sports News in condensed summary, we emphasized that Clinton’s support for a national gun confiscation program, if actually implemented, would be patently illegal. The mainstream news media did not, at that time, give wide coverage of her remarks at last month’s Town Hall Meeting in Keene, New Hampshire, as Clinton’s remarks were seen as too farfetched even for the mainstream news media, as her remarks show a callous disregard and disrespect for the U.S. Constitution – this coming from a person with legal training who was educated at an elite university – and most Americans would clearly take serious exception with those remark if they were subject to widespread coverage and her chances of securing the U.S. Presidency in 2016 would be jeopardized. The mainstream news media did not, apparently, wish to ruin Clinton’s chances. Apparently, the New York Times, as one mainstream news media source, has, almost two months since that Town Hall meeting, reconsidered and decided to fully support Clinton’s position on gun ownership and possession, extreme as it is and trust that, by adopting that extreme position, itself, make it appear less extreme to the American people. Of course, The Times is well aware that it is actively creating dissension in the American populace, but it is betting that most Americans will side with Clinton on Second Amendment issues. Supposedly, public addresses by the current U.S. President will also serve to make assaults on the Second Amendment less “off-putting” to most Americans. At least that is the grand design of the international globalists and socialists, who control the mainstream media and who pull the strings of many Government Officials, including those of the present U.S. President, Barack Obama.The Times newspaper is clearly setting the stage for a Clinton Presidency. But that Presidency will pave the way for the dismantling of the U.S. Constitution by way of a full frontal assault on the Second Amendment. A Republican Congress would never allow the Second Amendment to be defeated. But, assuming arguendo, Congress were to enact a law requiring confiscation of guns on an unprecedented scale, the law would not withstand judicial review under a strict scrutiny standard. The U.S. Supreme Court would be the last Branch of Government called upon to protect the U.S. Constitution. For, if federal courts applied a lesser standard of scrutiny to a massive national gun confiscation law, such as ‘reasonable regulation,’ that the New York Times is asking for, Congress would be defying the U.S. Supreme Court which has the last word on the constitutionality of a Congressional Act. For a massive gun confiscation scheme would effectively nullify the U.S. Supreme Court’s holding in the 2008 Heller case and, so, would be unconstitutional on its face. That, the majority of the U.S. Supreme Court would not allow.For this reason, in yet a third article appearing in the Saturday edition of the NY Times, there is posed the possibility of the U.S. President defying both Congress and the U.S. Supreme Court by imposing a massive gun confiscation scheme through executive order. Of course the NY Times would like to see this but even the Times recognizes that such an action by a U.S. President would be patently illegal. Still, if Barack Obama dared to do that – attack the Second Amendment head-on – such unilateral action by the Chief  Executive, who is not reluctant to use executive orders would, in this instance, amount to an impeachable offense. But, if the Democrats take control of Congress and if Clinton secures the “Oval Office,” then Americans have much to worry about. For Clinton would certainly make several federal district court and appellate court appointments and U.S. Supreme Court nominations and such people, whom she would appoint to the federal courts and nominate to the highest Court of the Land would generally support unconstitutional executive orders, designed to weaken the Second Amendment. Ultimately, a Clinton Presidency could very well pave the way for de facto, revocation of the Second Amendment, if not outright repeal of it. Other rights under the Bill of Rights would fall like dominos.If the New York Times would manifest a concern over an assault on the First Amendment’s Freedom of the Press, it is disheartening that it would demonstrate such a callous disregard for the Second. The Bill of Rights is not to be thought of like so many flavors of ice cream. One doesn’t pick and choose which ones to approve of and which ones to disapprove of. Thus, one must ask the publishers and editors of the New York Times, who, in this front page editorial, have attacked the Second Amendment without even a semblance of restraint: "have you lost your minds?" They may think that the American public is behind them on this. The Times is clearly directing its attention to the frightened and ignorant among us, who see in a Clinton Presidency what the Times says the public needs: protection that only Big Government can provide. What the Times fails to see, though, is that, if most Americans perceive a threat to their sacred rights and liberties, they will defend those rights and liberties at whatever cost, not merely from lunatics, criminals, and foreign invaders, but from an overreaching government itself. Indeed, the threat to the rights and liberties of the American People posed by the federal government itself is significantly more dangerous – infinitely more dangerous – than acts of gun violence perpetrated by lunatics, criminals and, of late, from radicalized Islamic sociopaths. The New York Times is hoping and trusting that most Americans do not -- and will not -- realize what it is they are being asked to sacrifice in the name of feigned security.So it is that the real threat to America is becoming increasingly plain to most Americans. That threat is posed by powerful, ruthless individuals and groups – the international globalists and socialists – both inside this Country and abroad, who seek to take control of the federal government from the American People, to pave the way for an International Socialist State, and they are using, through the New York Times newspaper, the bugaboo of Islamic jihadists to frighten the American public into forsaking its sacred rights and liberties. The New York Times is obviously the sounding board that gives voice to the propaganda such powerful, ruthless individuals and groups seek to use against the American People – that the People will give up their rights and liberties, unknowingly, through subterfuge, possibly, and, if that fails, then through coercion. As these un-American interests so dare to bring America to its knees, there will be a day of reckoning. And that day of reckoning is fast approaching.[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.