VOISINE: A SECOND AMENDMENT CASE THAT ISN'T?

JUSTICE THOMAS SPEAKS OUT IN THE VOISINE CASE

UNITED STATES VERSUS VOISINE

PART 1: PRELIMINARY REMARKS

This is the first of a multi-part series article on the most important Second Amendment case to come before the U.S. Supreme Court since the two seminal Second Amendment cases: District of Columbia vs. Heller, 554 U.S. 570, 128 S. Ct. 2783, 171 L. Ed. 2d 637 (2008) and McDonald vs. City of Chicago, 130 S. Ct. 320, 177 L. Ed.2d 894, 2010 U.S. LEXIS 5523 (2010).  Two points must be made apropos of this remark before we undertake a comprehensive analysis of the Voisine case, at this juncture, up through the legal argument that goes to the matter whether the present case is properly considered a Second Amendment case at all; and the other point goes to the matter concerning the extent to which lower courts, throughout the Country, whether State or Federal, and the extent to which State Legislatures throughout the Country adhere to the holdings and to the reasoning of the majority opinions in the two cases. The late Justice Antonin Scalia penned the majority oAnyone who keeps abreast of the U. S. Supreme Court knows that Justice Clarence Thomas broke a ten-year silence when he posed questions to counsel during oral argument on February 29, 2016 in the case United States vs. Voisine, No. 14-10154 (S. Ct. Dec. 17, 2015). The other seven Justices retained an austere demeanor. But they must surely have been surprised at Justice Thomas’ uncharacteristic lack of reticence. The Press, for its part, was noticeably, and understandably, thunderstruck.One may speculate why Justice Thomas chose to take part in the questioning of counsel in this case, at this time. Not improbably, Justice Thomas did so, in part, out of deep respect for the memory of Justice Antonin Scalia. Justice Scalia would have had much to say in Voisine as the case touches on two landmark Second Amendment cases: District of Columbia vs. Heller, 554 U.S. 570 (2008) and McDonald vs. Chicago, 561 U.S. 742 (2010). “Heller holds that a law banning the possession of handguns in the home (or making their use in the home infeasible) violates the individual right to keep and bear arms secured by the Second Amendment.”In the subsequent McDonald case, the U.S. Supreme Court held that, “the Second Amendment creates individual rights that can be asserted against state and local governments.” Together, the two cases strengthen the Second Amendment more so than any previous holding of the high Court. The two cases constrain local, State and federal governments from whittling away at Americans’ fundamental right of the people to keep and bear arms in their individual capacity.Justice Scalia wrote the Majority Opinion in Heller, joined by Chief Justice Roberts, and Justices Thomas, Alito, and Kennedy. Justice Samuel Alito wrote the Opinion for the Majority in McDonald, joined by Chief Justice Roberts, and Justices Scalia, Thomas and Kennedy. Not surprisingly, the liberal wing of the Court, comprising Justices Ginsburg, Sotomayor, Kagan, and Breyer dissented, and they did so strenuously.Now, contrary to common belief, the U.S. Supreme Court, does not have to accept and, indeed, does not accept every case that happens to come before it. No one can appeal an adverse decision to the U.S. Supreme Court as a matter of right. Indeed, the Supreme Court grants A Petitioner’s writ of certiorari in only a few cases in any given term. And, in the Court’s information sheet, presented to those who seek to have their case heard, the Court says clearly, even bluntly, that “review on writ of certiorari is not a matter of right but of judicial discretion.”Generally, the high Court will agree to hear a case where there is disagreement and conflict among the various federal Circuit Courts of Appeal. This often takes years to develop. Even so, many cases that the high Court does agree to hear often involve arcane legal issues, very narrow in scope, that are difficult for the non-lawyer to grasp, and, so, quite understandably, difficult for anyone but a lawyer to appreciate. The Voisine case may, at first glance, appear to be just such a case. It isn’t.To be sure there is a complex, arcane issue here, but there is also a straight-forward Second Amendment issue as well. The Second Amendment issue would have been given no consideration at all but for Justice Thomas’ interjection. Be thankful that Justice Thomas spoke up during oral argument. This is not theatrics as presented by the mainstream media. Justice Thomas' questions and remarks were precise, well-honed, to the point and surely took the U.S. Government off guard.In the Opinion to be handed down in another month or so it is unlikely that the Court will not give the Second Amendment issue at least some consideration and will do so precisely because of, one, Justice Thomas’ questions to counsel for Respondent, U.S. Government, two, counsel's responses to the Court, and, three, Justice Thomas' comments. If no other Justice mentions the Second Amendment in the Majority's Opinion, or in a concurring or dissenting Opinion, Justice Thomas most certainly will.Now, a salient issue in Voisine does involve the meaning to be given a word phrase in one particular section of a lengthy federal Statute. Nonetheless, as we heretofore explained, the Voisine case is the first Supreme Court case to be heard by the high Court that does impact the Second Amendment. In fact, Petitioners did timely and properly raise a Second Amendment claim in their Briefs to the United States Court of Appeals for the First Circuit. And that claim was preserved; and that issue was ripe for review by the U.S. Supreme Court when it granted Petitioners’ Writ of Certiorari. Moreover, while the Second Amendment issue was set forth with particularity as a salient issue in Petitioners’ Brief, the Second Amendment claim was not set forth as an issue in the Government’s own Brief in Opposition to the Brief of Petitioners. And the Government, in its Brief in Opposition to the Brief of Petitioners, addressed Petitioners’ Second Amendment claim only perfunctorily, giving little thought to it, seemingly in deference to and happily therefor to the United States Court of Appeals for the First Circuit's treatment of it, for the First Circuit dismissed Petitioners' Second Amendment claim outright.In fact during oral argument before the Supreme Court, the Second Amendment was only mentioned twice and that occurred toward the end of oral argument when Justice Thomas brought the issue up. Justice Thomas did so, in part, as we said earlier, because Justice Scalia certainly would have done so had he lived. And, Justice Scalia would have done so for a very good reason, quite apart from and notwithstanding the otherwise cursory treatment of the Second Amendment issue by the United States Court of Appeals for the First Circuit Court. For Voisine is the first case to come before the Supreme Court that implicates the Second Amendment, however obliquely or tangentially, or seemingly cursorily since the high Court decided the Heller case in 2008 and, subsequently, Heller's important progeny, the McDonald case in 2010, over one-half decade ago.Although the other Justices took great pains to avoid entertaining the Second Amendment issue in Voisine – preferring to address, alone, the meaning attached to a few words in one federal Statute – Justice Thomas would not let the matter rest, much to the satisfaction of Petitioners, who clearly sought to have their Second Amendment issue heard, and much to the chagrin of Respondent, the United States Government, that sought to keep the Second Amendment issue moot.Moreover, by querying Government’s counsel on Petitioners’ Second Amendment claim, Justice Thomas may have been initiating a not so subtle payback to other Justices for a snubbing that both he and Justice Scalia suffered at the hands of those other Justices. For, both Justices Scalia and Thomas were more than a trifle perturbed that the majority of the Justices of the Supreme Court denied certiorari in Friedman vs. City of Highland Park, Illinois, 784 F.3d 406 (7th Cir. 2015). The Seventh Circuit in Friedman clearly manifested its contempt for the high Court’s holdings in Heller and McDonald. Justices Scalia and Thomas clearly wanted, and had expected, the high Court to grant certiorari in Friedman and, by failing to do so, Justices Scalia and Thomas expressed their righteous indignation by drafting a dissenting opinion in Friedman -- an unusual occurrence.Very rarely do Justices explain their reason for refusing to grant a writ of certiorari in a case. Even more rarely will one find a dissenting opinion written by a Justice, expressing disfavor in the failure of the majority of Justices to grant the writ in a case.Surely, had the Supreme Court granted Petitioner’s writ of certiorari in Friedman, Justices Scalia and Thomas would have taken the Seventh Circuit to task for patently ignoring the Heller and McDonald holdings. The Arbalest Quarrel discusses the Friedman case at length in the article, titled, “A Court Of Law That Rejects U.S. Supreme Court Precedent Undermines The Rule Of Law And Undercuts The U.S. Constitution,” posted on December 14, 2015.  For our discussion of Friedman and its importance to the Heller and McDonald cases, readers are encouraged to read our article.In spirit Justice Scalia was certainly in attendance during oral argument in Voisine. Since the Supreme Court would not entertain the Friedman case which was a direct and audacious attack by a United States Circuit Court of Appeals on the clear and cogent holdings in Heller and McDonald, Justice Thomas, on behalf of Justice Scalia, clearly intended to raise and, so, did raise Petitioner’s Second Amendment issue in Voisine – a case that the U.S. Supreme Court did decide to entertain.From the get-go it had been clear that no other Justice would weigh in on the Second Amendment implications of Voisine, and take the Government to task. Justice Thomas made certain that Justice Scalia’s disdain for a federal Government that cares not one whit for the sanctity of the Second Amendment would dare not go unchallenged.Americans who understand and can appreciate the importance of our Bill of Rights as the foundation of a free Republic and who can, in particular, understand and appreciate the importance of the Second Amendment as a critical check on the accumulation of power by the Federal Government, and by improvident State governments as well, will do well to ponder the Nation's incredible loss. Justice Scalia, together with Justice Thomas, made adamantly clear that the right of the people to keep and bear arms is an individual right unconnected to a person’s participation in a militia. The Heller decision rankles several Justices on the Supreme Court and many Globalists, both in this Country and outside it, as well, who are working quietly but incessantly and inexorably in the shadows, intent on undercutting America’s Bill of Rights, generally, and undermining America’s Second Amendment, particularly.We know, without doubt, that President Obama – or her royal Majesty, Queen Hillary Rodham Clinton – seek to nominate to the highest Court of the Land, a person who would chomp at the bit to reverse Heller and McDonald on the ground that, for them, the cases are discordant. They are discordant to these judges and to powerful, ruthless individuals because they happen to strengthen rather than weaken America’s Bill of Rights.In Part 2 of this Article, we will deal in depth, with the legal issues in Voisine and you will come to understand, one, why the high Court, apart from Justice Thomas, does not wish to deal with the impact that a negative decision in Voisine would have on the Second Amendment and, two, how it is that a specific question posed by Justice Thomas to counsel for the U.S. Government elicited from counsel a most remarkable, illuminating, and, in fact, frightening comment. You will come to see why a negative holding in Voisine does have negative implications for our Second Amendment.So it is that the mainstream media would much rather keep the dire implications of Voisine in the shadows. We, on the other hand, intend to bring the implications out, for all to see, into the light of day. In so doing, we trust we will help keep the memory of Justice Scalia alive, and in keeping Justice Scalia’s memory alive, preserve, as well, the holdings in Heller and McDonald that bespeak Justice Scalia’s devotion to the import of the Second Amendment. Ever mindful, then, are we of those who are hell-bent in destroying it.[separator type="medium" style="normal" align="left"margin-bottom="25" margin_top="5"] Copyright © 2015 Roger J Katz (Towne Criour), Stephen L. D’Andrilli (Publius) All Rights Reserved.

ARBALEST QUARREL LETTER DIRECTED TO SENATOR CHARLES GRASSLEY, CHAIRMAN OF THE SENATE JUDICIARY COMMITTEE

April 26, 2016[ADDRESSED TO THE HONORABLE CHARLES E. GRASSLEY] Re: President Obama’s Nominee for Justice of the U.S. Supreme Court, Merrick GarlandDear Senator Grassley:I am an attorney who specializes in Constitutional law. Together with my colleagues we publish the Arbalest Quarrel, a unique, informative website, specializing in formal analyses of State and federal firearms’ legislation and court decisions. Our articles are published throughout the Nation, in major magazines that are read by millions of people.This is a rebuttal to an open letter, dated March 31, 2016, you received from several academicians urging you to allow a confirmation hearing and vote on Judge Merrick Garland, President Obama’s third short list nomination to the U.S. Supreme Court. We have serious misgivings as to Judge Garland’s suitability to serve as a Justice on the U.S. Supreme Court to fill the vacant seat.The analysis of Judge Garland’s qualifications is critically important to the Bill of Rights of the U.S. Constitution, to the Second Amendment that is defined therein, and to the preservation of a free Republic.The professors, who co-authored the letter, claim expertise on Second Amendment matters. They attempt to allay concerns over Judge Garland’s jurisprudential approach to the Second Amendment, but their comments raise questions about the Judge’s suitability to sit on the high Court.In their defense of Judge Garland the academicians cite to two cases that have been the focus of attention. One of the cases is Parker vs. District of Columbia. Parker deals directly with the Second Amendment. The second case is National Rifle Association of America, Inc. vs. Reno. The Reno case deals tangentially with the import of the Second Amendment but definitely impacts the Second Amendment right of the people to keep and bear arms.The authors attack NRA’s stance, asserting: “[t]he NRA claims that Judge Garland is hostile to the Second Amendment, but there is nothing in his record that supports such an attack.” An analysis of the facts proves them wrong. There is much in the cited cases that would spark debate in the U.S. Senate that Judge Garland has little regard for the fundamental right of the people to keep and bear arms. In Parker the lower District Court ruled in favor of the District of Columbia’s law that bans civilian possession of handguns. On appeal the U.S. Court of Appeals for the D.C. Circuit reversed the decision of the lower District Court. The Defendant, District of Columbia, requested a rehearing of the adverse decision, en banc. Judge Garland voted in favor of an en banc hearing of the case.The authors of the March 31 letter argue that Judge Garland’s vote tells us nothing about his position on the Second Amendment. They assert: “[i]t is well established that such procedural votes say nothing about a judge’s views on the substance of the case, or how he or she would have voted on the merits. Yet, Judge Garland’s critics assert that his vote for en banc review “proves” his hostility to the Second Amendment.”From a legal perspective the assertion is correct. But, from a logical standpoint Judge Garland’s vote for an en banc review of the Parker case reveals the essence of Garland’s lack of regard for the Second Amendment. An en banc review of Parker means the full complement of Judges – all ten – could conceivably reverse the decision of the three Judge panel that ruled in favor of the Plaintiff handgun owners, against the District of Columbia.Failure of the Court to review the case en banc keeps the decision, against the District of Columbia, intact. Judge Garland’s vote in the Parker case clearly illustrates a position that, if not overtly “hostile” to the Second Amendment, is one certainly inconsistent with the import and purport of it; for, if Judge Garland were a proponent of the Second Amendment, his vote for an en banc review of the case would be strategically senseless.Through an en banc hearing there would exist a real possibility that the full complement of Judges would reverse the original ruling of the three-member panel. Obviously, Judge Garland was hoping to overturn the decision of the three Judge panel, realizing there was much to be gained and nothing to lose were the full contingency of Judges empaneled to rehear the case.Only three U.S. Court of Appeals Judges for the D.C. Circuit voted in favor of an en banc hearing in Parker: Randolph, Tatel, and Garland. Of note: two of the three Judges, Tatel and Garland, decided the Reno case, ruling in favor of the Attorney General, Janet Reno, against NRA. The decision, however, wasn’t unanimous. Judge Sentelle disagreed with the ruling and did so in a strong dissenting opinion.Judge Tatel wrote the majority opinion in Reno. Judge Garland joined Tatel. Garland did not write his own concurring opinion. That point is notable. It means Judge Garland agreed not only with the erroneous judgment but with Judge Tatel’s faulty reasoning.Yet, the authors of the March 31 letter do not address the reasoning of the Court’s majority in Reno. They don’t present formal argument in support of the majority opinion. They simply make statements, and the statements are misguided and meritless. The legal scholars assert the decision of the majority was correct because Attorney General, John Ashcroft, “defended the opinion,” saying, “[t]he court of appeals’ decision is correct.” But that tells us nothing illuminating. It merely begs the central question at issue: is the decision correct?The legal scholars also assert the decision of the majority was correct because the high Court denied NRA’s writ of certiorari. But, the authors of the letter know full well that no party may impose on the high Court as a matter of right. The granting of a writ of certiorari is discretionary and the Court will take up a case when it is consistent with the interests of a majority of the Justices at that particular time to do so, regardless of the merits of a case. The interests of the parties need not and often do not factor in the equation.But, there is another problem with the legal scholars’ pronouncements. Concerning Parker, they assert, “[a]ny argument that a purely procedural vote reflecting no substantive judgment on the merits of the underlying case is proof that Judge Garland would vote to overturn Heller is specious and dishonest, and unworthy of acceptance by the Committee or the Senate as a whole.”The point of the remark is that no one can reasonably discern Judge Garland’s views on the Second Amendment on the basis of a purely procedural vote. But, then, concerning Reno, these same scholars assert, inconsistently, that the failure of the U.S. Supreme Court to grant review means, “[t]he Supreme Court agreed [with the decision] and declined to hear the N.R.A.’s appeal.”Where lies the difference between the procedural vote cast by the U.S. Supreme Court Justices denying the writ in Reno, and the procedural vote cast by the full complement of U.S. Court of Appeals Judges for the D.C. Circuit, denying an en banc hearing in Parker?  If these legal scholars are telling the Senate that no inference can be drawn regarding Judge Garland’s Second Amendment stance in Parker, what is their legal or logical rationale for drawing an inference regarding a U.S. Supreme Court stance on the Second Amendment in Reno? The professors do not explain the discrepancy in their logic.The authors of the letter suggest the Senate should accept on faith that Judge Garland’s position on the Second Amendment is – if one must speculate – indeterminate. We disagree. His philosophy on the Second Amendment, on the basis of an analysis of Parker and Reno, is clear. It is one not supportive of a strong Second Amendment. It is one not at all in the same vein as Justice Scalia’s.The Judge’s jurisprudential approach to the law and the methodology he employs are substantially different from that of Justice Scalia. We discuss this on the Arbalest Quarrel website. We recently posted a comprehensive analysis of the Reno case in a series of articles.We welcome you to take a look at our analysis and encourage you to take a tour of our site. The link is: www.arbalestquarrel.com.We trust that you appreciate our concern for the continued preservation of our sacred Second Amendment. We implore you to deny Judge Merrick Garland a hearing and a vote on his confirmation. The danger his confirmation poses to our free Republic and to the preservation of the Bill of Rights our founders gave us rests in the balance.The Arbalest Quarrel weblog recently posted a comprehensive analysis of the Reno case in a series of articles. We welcome you to take a look at our analysis and encourage you to take a tour of our site. Once again, the link is: www.arbalestquarrel.com.We trust that you appreciate our concern for the continued preservation of our sacred Second Amendment. We implore you to deny Judge Merrick Garland a hearing and a vote on his confirmation. The danger his confirmation poses to our free Republic and to the preservation of the Bill of Rights our founders gave us rests in the balance.Sincerely,/s/Roger KatzRoger J. Katz, Attorney at LawCo-founder, Arbalest Group, LLC.[separator type="medium" style="normal" align="left"margin-bottom="25" margin_top="5"] Copyright © 2015 Roger J Katz (Towne Criour) All Rights Reserved.

READ THE FINE PRINT: GARLAND’S CONFIRMATION UNDER THE MICROSCOPE

READ THE FINE PRINT: GARLAND’S CONFIRMATION UNDER THE MICROSCOPE

Liberal Law Professors Send Open Letter to Chairman of  Judiciary Committee, Senator Charles Grassley, Urging the Senator to Hold a Hearing and Vote on Obama’s Nominee to the U.S. Supreme Court, Judge Merrick Garland.

The Arbalest Quarrel Responds, Sending its Own Letter to Senator Grassley, Rebutting Claims and Assertions of Law Professors.

“For it is a truth, which the experience of ages has attested, that the people are always most in danger when the means of injuring their rights are in the possession of those of whom they entertain the least suspicion.” Alexander Hamilton, Federalist No. 25, 12/21/1787For the moment the stars seem aligned in Mr. Obama’s favor. So much so, he will suffer no one confounding his ambitions to subvert the U.S. Constitution, in order to weaken our Sovereign Nation, thus paving the way for an EU style North American Union. The universe does not bend backwards to President Obama’s beck and call, of course, but that does not stop him from using the power of the U.S. Presidency to obtain what he wants.Before leaving Office, Obama intends to fill the ninth seat on the U.S. Supreme Court. The Senate has confirmed Obama’s previous two short-list candidates to the Supreme Court, Sonia Sotomayor and Elena Kagan, and he is obsessed with and adamant about confirming his third short-list candidate to the high Court before he leaves Office: Judge Merrick Garland. That possibility conveniently materialized with the passing of Justice Scalia. Obama intends to stack the deck, 5 to 4, in favor of the liberal wing of the high Court.The mainstream media has obsequiously acted on Obama’s behalf, bombarding the American public incessantly with articles and editorials, extolling Garland’s many presumed virtues. Public Officials got into the act as well. Vice President Joe Biden heralded Garland’s candidacy in a speech he gave to law students at Georgetown Law School. That speech was followed by one Obama, himself, gave to Chicago Law School Students, where, ironically enough, the President had, at one time, taught “Constitutional law” – with emphasis, since he became President, more on the “CON” and less on the “LAW.” Harry Reid, Senate Minority Leader, added his two-cents on the Floor of the Senate, as well.The cacophony of gushing praise continues unabated through endless iterations. Most disheartening, several liberal law scholars have added their own voice to the mix. They claimed, in a letter sent by email, on March 31, addressed to Senators Grassley and Leahy, that no inference can be drawn from Garland’s judicial record to suggest that Garland would pose a threat to the preservation of the Second Amendment were he to gain a seat on the high Court.The central theme of the scholars’ letter to Senators Grassley and Leahy is that Garland’s actions in the Parker and Reno cases do not illustrate anything that might hint of the Judge’s legal and philosophical views toward the Second Amendment. We, at the Arbalest Quarrel, however, vehemently disagree with that assertion. Parker and Reno tell the public much about Garland’s jurisprudence and methodological approach to Second Amendment legal and logical analysis. The Scholars’ letter is cagey because they hesitate to assert that Garland would be an avid defender of the Second Amendment – which in definitive contrast, as we know, Justice Scalia definitely was.The Arbalest Quarrel therefore felt compelled to send out its own letter to Senator Grassley, in rebuttal to the March 31 letter the Senator received from the liberal legal scholars. We have posted our letter for your review, in an accompanying post on this site. Please see the Professors' March 31 letter sent by email to Senators Grassley and Leahy, for a side-by-side comparison.We feel it important to respond to the letter from academia for another reason. The academicians’ letter marks the first instance, we are aware of, that provides for public consumption something transcending empty praise – insofar as the letter actually discusses the Judge’s decisional law.There are two things Americans must keep uppermost in mind, concerning Obama’s most recent nomination to the U.S. Supreme Court.One, Garland’s jurisprudential philosophy toward the Second Amendment and the methodology he uses to decide legal cases are in perfect sync with those of Justices Kagan and Sotomayor. So, don’t for a second think that Judge Garland is a “centrist” – a word invented by the news media to describe him. As applied to Garland, the word is inappropriate, even deceptive. What is our justification for saying this?Consider the jurisprudential philosophy of Justices Kagan and Sotomayor, Obama’s first two short-list nominees to sit on the U.S. Supreme Court. Their view of the Second Amendment and the methodology they employ to decide cases are now well known. Their attitude toward the Second Amendment, in particular, is not one of deference. It is one diametrically opposed to that of the late Justice Scalia.It would stretch credulity to believe that Obama would nominate a person to the high Court who did not share his own views toward the Bill of Rights in general and toward the Second Amendment in particular. Justices Kagan and Sotomayor clearly share Obama’s views. Judge Merrick Garland is no different. The three Judges, Kagan, Sotomayor, and Garland, think alike, act alike, and operate as one. Together, they comprise three arms of a “Judicial Equilateral Triangle,” by which and through which Obama intends to defeat the Second Amendment.Two, if the Senate acquiesces to the shrill, belligerent cries for a hearing and vote on Garland’s nomination to a seat on the U.S. Supreme Court, Garland likely will be confirmed. How do we know this? Senator Lindsey Graham, Republican South Carolina, who met with Judge Garland, briefly discussed that meeting with Kate Bolduan, broadcast journalist for CNN, on Thursday, April 21, 2016.Yes, Senator Graham did assert there is less than a “snowball’s chance” that the Senate will relent and give Garland a hearing while Obama remains in Office. But, he added a chilling prognostication. He made poignantly clear that, if the next President were to nominate Garland and if the Senate, at that time, proceeds to a hearing and vote, Garland will be confirmed.By the way, Senator Graham, voted to confirm Obama’s previous two nominees to the Supreme Court: Sotomayor and Kagan. He made clear enough, during the CNN interview, he would vote to confirm Garland too were the Senate to hold a hearing on the nomination.During the interview on CNN, Senator Graham referred to Garland, as “a good man,” “a fine man.” The Senator added: “not one blemish on [Garland’s] record.” We must ask: is Senator Graham familiar with the Judge’s decisional law? If so, the Senator does not, apparently, see that Garland’s antagonism toward the Second Amendment constitutes “a blemish.” How many other Republicans would vote to confirm Judge Garland’s nomination to a seat on the U.S. Supreme Court?Of course if Hillary Clinton – who is virtually assured of the Democratic Party nomination for U.S. President – becomes the next President of the United States, assuming she doesn’t face criminal indictment, the Second Amendment will be under incessant attack by the three Branches of Government. It will be under attack in the Halls of Congress; it will be under attack in the Executive Office; and it will be under attack in the highest Court of the Land. The public will witness the liberal wing of the Court systematically out-voting the conservative wing, 5 to 4, on matters directly impacting the Bill of Rights, at every turn. Justice Scalia’s legacy on the high Court will be undone.The bottom line: The U.S. Senate should not and better not accede to a hearing on Obama’s nomination of Garland on the U.S. Supreme Court. We cannot let Obama stack the deck with another liberal Justice who will destroy our sacred Bill of Rights by judicial fiat. Hopefully, a Republican President will succeed Obama and nominate a Jurist to the high Court whose jurisprudential philosophy and methodology for reviewing cases is in the same vein as that of Justice Scalia. But God help the American people if Hillary Clinton becomes the 45^th President of the United States. We all know what that portends for the Nation, its citizenry, and for the Bill of Rights. It won’t be pleasant.[separator type="medium" style="normal" align="left"margin-bottom="25" margin_top="5"] Copyright © 2015 Roger J Katz (Towne Criour), Stephen L. D’Andrilli (Publius) All Rights Reserved.

JUDGE MERRICK GARLAND DOES NOT ADHERE TO THE METHODOLOGY THAT JUSTICE ANTONIN SCALIA EMPLOYED WHEN DECIDING CASES.

JUDGE MERRICK GARLAND DOES NOT ADHERE TO THE METHODOLOGY THAT JUSTICE ANTONIN SCALIA EMPLOYED WHEN DECIDING CASES.

AN ANALYSIS OF THE CASE NRA VERSUS JANET RENO

PART 7

U.S. Supreme Court Justice Antonin Scalia always adhered to the principle that, when interpreting a Statute, a Judge should look first and foremost to the language of the Statute itself and not attempt to go beyond the language of a Statute in order to decipher its meaning or to force a particular meaning onto a Statute. This is the principle referred to as ‘textualism,’and Justice Scalia was a fervent proponent of it. He was, as well, instrumental in its development during his own tenure as Judge on the United States Court of Appeals for the District of Columbia Circuit. He further developed and refined its use when he was nominated by President Ronald Reagan to serve as an Associate Justice on the U.S. Supreme Court and confirmed by the United States Senate in 1986. He served brilliantly on the Court until his death on February 13, 2016. Other Justices began to employ the methodology of 'textualism' in their own reasoning.Justice Scalia saw, in the utilization of ‘textualism,’ a tool that guards against a Judge inadvertently, or, for that matter, deliberately thrusting that Judge’s personal judicial predilections on a case in order to force through a conclusion and a decision that a Judge wants, rather than a conclusion and decision that is founded on good law and upon sound logic. The judicial theory of ‘textualism’ means that, when a Judge seeks to discern the meaning of a Statute, the Judge looks to what the Statute actually says. That is to say, one looks to the “plain meaning” of a Statute. Textualism also requires a Judge to look only to the plain meaning of a Statute as enacted. One should not and need not go to extraneous sources for information on what a Statute might mean. To do so leads to embellishment and is an anathema to sound legal reasoning.During his tenure as a United States Supreme Court Justice, Justice Scalia had a tremendous impact, not only on the decisions handed down in numerous U.S. Supreme Court cases, but on suggesting how Justices ought to look at cases – that is to say -- the manner in which Justices ought to tackle a case -- applying sound legal and logical reasoning to a case so as to come to a sound legal and logical decision and, just as importantly, what a Justice should avoid doing when deciding a case. The methodology of textualism became incorporated in the legal reasoning of many of the Justices.The Reno case is a textbook example of poor legal and logical reasoning by the Court's majority and aptly illustrates the dangers a Jurist runs into when that Jurist goes beyond the plain meaning of a Statute as enacted. The Reno case would have been decided much differently had Justice Scalia, sitting as Judge Scalia on the United States Court of Appeals for the District of Columbia Circuit, actually heard the case. Justice Scalia would have undoubtedly taken Judges Tatel and Garland to task for looking beyond the plain meaning of 18 U.S.C. § 922(t)(2)(c)(C). For having done so, Judges Tatel and Garland came to the wrong decision in the case. And, they did, so because they looked deep into and took into account the Legislative history of the Statute in question, in order, as they argue, to decipher the meaning of the Statute. They did this when it was unnecessary to do so. They did so because they wished to come to the decision they did. This amounts to intellectual dishonesty, and, indeed, to legal and logical heresy.Judges Tatel and Garland did so, clearly enough, not to derive the correct decision, but, rather, to justify an erroneous decision that might come across as a plausibly correct one. In so doing, they relinquished judicial honesty in order to promote their own brand of legal philosophy and ideology – one that is detrimental to the sanctity of the Second Amendment of the Bill of Rights.

THE CHEVRON CASE

The decision of the Court’s majority – Judges Tatel and Garland – in the Reno case, is also grounded on a misapplication of the U.S. Supreme Court case, Chevron U.S.A. Inc. vs. Natural Resources Defense Council, Inc., 467 U.S. 837, 81 L. Ed. 2d 694, 104 S. Ct. 2778 (1984). Judges Tatel and Garland pointed out that, because NRA had challenged the legality of a federal Statute, administered by a government agency, the Court must employ the two-part Chevron test. That is true enough, and the first part of the test requires a Court to determine whether Congress has directly spoken to the precise issue. In this case, the precise issue is whether the meaning of the phrase, “destroy all records,”  of a gun transaction, as the phrase  “destroy all records,”  appears in the Statute subsection, 18 U.S.C. § 922(t)(2)(c)(C),  is clear and unambiguous. If so, that ends the matter. If not, then a Court must go to the second part of the Chevron test and ask whether the agency’s answer -- as exemplified in the rules that an agency promulgates to effectuate the intent of Congress as expressed in a Congressional enactment -- is based on a permissible construction of the statute. In the instant case the Justice Department has promulgated a rule creating an “audit log,” allowing for retention of information concerning a gun transaction within a six-month period.Judges Tatel and Garland decided, erroneously, that Congress did not intend that gun transaction records must be destroyed immediately because, as the Court said, Congress would have drafted the Brady Act legislation to include the word, ‘immediately.’ But, this really begs the question at issue: whether the Statute in question, 18 U.S.C. § 922(t)(2)(c), and, specifically, subsection, 18 U.S.C. § 922(t)(2)(c)(C), is inherently, intrinsically ambiguous because the word, 'immediately,' does not happen to follow the word, 'records,' in the phrase, 'destroy all records.' But, the Court's majority inferred that 18 U.S.C. § 922(t)(2)(c)(C) is inherently ambiguous because the Court's majority, Judges Tatel and Garland, decided that it must look to Legislative history to resolve the presumed ambiguity – when there was no sound legal or logical reason to do so. Having found, in Legislative history, that the House version of 18 U.S.C. § 922(t)(2)(c)(C) contained the word, 'immediately,' but that the Statutory subsection, as redrafted in the Senate version, and as ultimately enacted, did not include the word, 'immediately,' the Court's majority inferred that the omission of the word, 'immediately,' in the final version of the Brady Act, as enacted, was ambiguous as to retention of NICS records.Is this to say that the Statutory subsection as enacted is inherently ambiguous? That is unlikely. For, if that were true, one would have to surmise that Congress had decided, for some bizarre reason, to craft a Statute that Congress knew would be ambiguous. What kind of guidance would that have provided for the Second Branch of Government -- the Executive Branch -- the Branch of Government charged with executing the laws of Congress, under Article 2, Section 3 of the U.S. Constitution. Article 2, Section 3 of the U.S. Constitution  requires that the Executive "shall take care that the laws be faithfully executed." More likely, Congress realized that inclusion of a qualifier, in the phrase, "destroy all records," is unnecessary because inclusion  of the adverb, 'immediately,' to the phrase, 'destroy all records,' simply creates redundancy. Moreover, had Judges Tatel and Garland not bothered to look at the Legislative history of the Statute, 18 U.S.C. § 922(t)(2)(c), they would not have come across the House version of the Statute in the first place. The Judges simply used a House version of a bill -- that was never enacted -- to argue, after the fact, that the version of the Statute as enacted must be ambiguous, when it never was ambiguous.In looking improperly to Legislative history, Judges Tatel and Garland provided, to their minds at least, a plausible argument to buttress the result they wanted, namely that the Justice Department “audit log” and “retention rule” were consistent with the intent of Congress when Congress enacted the Brady Act, notwithstanding that law and logic dictate another result entirely: that the “audit log” and “retention rule” -- for individuals who are under no disability and, therefore,  are lawfully permitted to possess firearms and ammunition -- is not authorized and is patently illegal. Had Judges Tatel and Garland employed the sound jurisprudential methodology developed by Justice Scalia, textualism, they would have avoided the tortuous path that led them to the wrong decision. The Judges would have been compelled to find in favor of NRA, reversing the decision of the United States District Court for the District of Columbia. In that event the decision in favor of NRA would have been unanimous. All three Federal Circuit Court of Appeals Judges, Tatel, Sentelle, and Garland would be in full agreement. Judges Tatel and Garland might not have liked the result deriving from sound legal and logical reasoning, but they would have been intellectually honest about it and their judicial integrity would have be intact. The Separation of Powers Doctrine would have been adhered to, and the American People would not be faced with the prospect of an illegal Government intrusion into the exercise of the fundamental right of the people to keep and bear arms. It is not the Government's business to keep records on law-abiding citizens lawful firearms and ammunition transactions, and it was never the intent of Congress to give the federal Government authorization under the Brady Act, or under any other federal Act, for that matter, to keep tabs on firearms and ammunition that law-abiding American citizens own and possess; nor does the Brady Act, or any other Act of Congress authorize Government to keep records on the mere fact that a firearms' or ammunition transaction has taken place.That Judges Tatel and Garland allowed personal sentiment to override judicial integrity and intellectual honesty – even going so far as to canvass Congressional history to buttress a horribly wrong decision – now allows the Justice Department to maintain an illegal “audit log,” of gun transaction records, that lends itself to the creation of an illicit federal gun registry if such does not already exist. Having found 18 U.S.C. § 922(t)(2)(c)(C) to be inherently ambiguous, the Judges compounded their error by proceeding to Step 2 of the Chevron test which, "affords substantial deference to the agency's interpretation of statutory language." That may be, but it need not be, and would not be had Judges Tatel and Garland refrained from proceeding to Step 2 of the Chevron case in the first instance.The decision of Judges Tatel and Garland tells us that the Janet Reno’s rules for implementing the NICS criminal background check system is all perfectly consistent with Congressional intent in having enacted the Brady Act when the Justice Department’s actions amount to illegal usurpation of the power and authority of Congress, the First Branch of Government. The duties of the Second Branch of Government, the Executive, of which the Justice Department is a part, is limited to executing the laws that Congress creates – not creating law of its own accord. The Justice Department has done so, converting the Brady Act’s NICS instant criminal background check system into an illegal federal gun registry or, at least – in the rules that the Justice Department has promulgated – certainly paving the way for creation of an illicit federal gun registry. And, the Court's erroneous ruling in Reno gives the Justice Department's illicit actions legitimacy.In finding ambiguity in a Statute when no ambiguity exists Judges Tatel and Garland open up a door to grandiose interpretation of Congressional enactments on the part of the Executive Branch. So, if the President -- which includes the entirety of the Executive Branch departments, agencies, and bureaus under the President's control -- takes exception to restrictions in Congressional enactments, the Executive can simply ignore the restrictions and go its own way. This is what happened with the instant criminal background check as applied to individuals who seek to acquire firearms or ammunition. Judges Tatel and Garland have allowed for the creation of a hidden federal gun and ammunition registry, irrespective of and, in fact, in clear defiance of Congressional intent. The decision of the majority in the Reno case is an example, as well, of heinous Judicial activism and is an omen of things to come if Judge Garland succeeds to a seat on the U.S. Supreme Court -- giving the liberal wing of the high Court a critical fifth vote, a clear majority, and an unparalleled opportunity to pursue a Socialist agenda, inconsistent with our core values as exemplified by and preserved in our Nation's Bill of Rights. The liberal wing the high Court will, hereafter, be able to operate unimpeded by the conservative wing of the high Court.

CONCLUSION

Judge Tatel has not been nominated by President Obama to replace Justice Scalia; and, so, the damage that he might inflict on the Bill of Rights, although certainly harmful to the preservation of the Second Amendment is probably not catastrophic. But, Judge Garland has been nominated by Obama to serve as Justice Scalia’s replacement.Judge Garland, sitting on the high Court, as Justice Garland, will be in the strongest possible position not merely to subvert Justice Scalia’s decisional history; Judge Garland will be in a position to subvert Justice Scalia’s jurisprudential philosophy that also includes Justice Scalia’s legisprudential approach to statutory construction – all of which lend to the ultimate demise of the Second Amendment and much of the rest of the Bill of Rights along with it. Understandably, President Barack Obama would like to keep these facts well hidden.[separator type="medium" style="normal" align="left"margin-bottom="25" margin_top="5"] Copyright © 2015 Roger J Katz (Towne Criour), Stephen L. D’Andrilli (Publius) All Rights Reserved.

JUDGE GARLAND’S REASONING IS MARKED BY UNSOUND LEGAL REASONING AND FAULTY LOGIC

JUDGE GARLAND’S REASONING IS MARKED BY UNSOUND LEGAL REASONING AND FAULTY LOGIC

AN ANALYSIS OF THE CASE NRA VERSUS. JANET RENO

PART 6

MISUSE OF LEGISLATIVE HISTORY WHEN ATTEMPTING TO DECIPHER THE PLAIN MEANING OF A STATUTE

We have discussed a major flaw in the reasoning of Judges Tatel and Garland in Part 5 of this multi-series article. There is a second, equally serious flaw in the reasoning of Judge Tatel and Judge Garland, when they ruled in favor of Janet Reno, against NRA and, therefore, against the right of the people to keep and bear arms, in the Reno case. The Judges relied on Legislative history to buttress the conclusion they sought, namely, that the Justice Department was not required to destroy NICS records immediately. In the misuse of Legislative history, the Judges committed a cardinal fallacy of logic. They assumed what they needed to prove, namely that failure of Congress to add the word, ‘immediately,’ before the word ‘destroy,’ in 18 U.S.C. § 922(t)(2)(c)(C), means that Janet Reno could unilaterally decide to keep NICS records for 6 months, or 6 years, or for any length of time – even indefinitely, for that matter – because no specific time limit, relating to the destruction of the NICS records, is set forth in the Statute. The idea manifests as a ludicrous idea assumed to be true rather than a conclusion to be derived. And the assumption is predicated on a specific piece of legislative history. They said, “Our conclusion that section 922(t)(2)(C) does not unambiguously require immediate destruction of NICS records finds support in the Act's legislative history. As reported to the House by the Judiciary Committee, the Brady bill contained no destruction requirement at all. See H.R. Rep. No. 103-344 (1993), reprinted in 1993 U.S.C.C.A.N. 1984. The obligation to destroy NICS records was added during floor debate. As passed by the House, the bill stated that the system shall ‘immediately destroy all records’ of allowed transactions. See 139 Cong. Rec. H9098, 9123, 9144 (daily ed. Nov. 10, 1993). The Conference Committee, however, adopted the Senate's version of the destruction requirement, which did not contain ‘immediately.’ Compare 139 Cong. Rec. H9123 (daily ed. Nov. 10, 1993) (House version), with 139 Cong. Rec. S16506 (daily ed. Nov. 19, 1993) (Senate version). It was this version that both houses approved and the President signed.” Judges Tatel and Garland presume that, because inclusion of the word, ‘immediately,’ appeared in the House version of the Bill but not in the final Senate version, the Justice Department could maintain records for some unspecified period of time. This is faulty logical reasoning because the Senate may just as reasonably have assumed that the addition of the adverb, ‘immediately,’ would be redundant, rather than necessary. In fact, inclusion of the word, ‘immediately,’ in the phrase, ‘destroy all records,’ is redundant. Moreover, effective legislative draftsmanship eschews use of adverbs and adjectives. If language in a Statute would seem to require inclusion of such qualifiers in order to avoid ambiguity or vagueness, this would suggest, in many instances, that the drafters did a poor job in drafting a statute in the first place. The use of adverbs and adjectives may be useful in works of fiction, but they are generally to be avoided in legal documents and in legislation.Consider our own Bill of Rights. For example, would the drafters of the Second Amendment have gained anything through the use of adjectives or adverbs, apart from the adjectives, ‘free’ and ‘necessary,’ through the assertion that: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” In the context of the Second Amendment, the adjectives ‘free’ and ‘necessary’ provide context and emphasis for elucidating the idea that only through an armed citizenry shall the American people ever hope to prevent tyranny. This is the reason we have the dependent clause in the Second Amendment at all – a point that even Republican members of Congress and supporters of the Second Amendment will not, to our knowledge, openly admit, preferring to refer only to the right of each individual to provide for his or her self-defense. This is an implication behind the Second Amendment to be sure. But, the true purpose of the Second Amendment is to check the power of the federal Government and its standing army: keeping the federal Government and its standing army “in its place,” that is to say, reminding the federal Government that it serves at the behest and pleasure of the American people and not the other way around. Moreover, in looking to Legislative history of a Statute at all, we find in this legal and logical reasoning of Judges Tatel and Garland something markedly different in their approach to judicial reasoning when compared with the approach employed by Justice Scalia. What we need ask is whether a judge ought to be considering legislative history at all when determining the meaning of a statute. Judges Garland and Tatel obviously say, “yes.” Justice Scalia virtually invariably said, “no.”Although, there is some Supreme Court precedent for looking to the Legislative history of a statute in order to explicate a statute’s meaning, one must use Legislative history gingerly, if at all. Judge Scalia took a very dim view of looking to Legislative history to discern the meaning of a Statute because he felt it is unnecessary to do so, can become a crutch for those who generally look to Legislative history, where, as here, a Judge is attempting to force through a particular outcome and looks to Legislative history simply to buttress that outcome, and, lastly, when relying on Legislative history, a judge is prone to errors in legal reasoning and, this, in turn, more often than not, leads to erroneous legal decisions. Judges Tatel and Garland use Legislative history, erroneously and in fact egregiously. They assumed the Statute in question, 18 U.S.C. § 922(t)(2)(c)(C), was ambiguous precisely because Legislative history refers to an alternate rendering of the Statute that happened to include the word, ‘immediately,’ in the House version that was never adopted by the Senate and never made it to the final enacted version of the Statute. The Judges don’t say this, but that is clear enough from an elucidation of their analysis.The Judges argue that the Statute, 18 U.S.C. § 922(t)(2)(c)(C), is ambiguous, not because a plain reading of the Statute alludes to any instance of ambiguity or vagueness in meaning – it doesn’t – but because Judges Tatel and Garland sought to render a decision in favor of Janet Reno and the Justice Department in order to undermine the Second Amendment; and the use of and reliance on Legislative history gave the Judges the ammunition they needed to make a plausible argument in support of a decision (the conclusion) they wanted – not a decision that happened to follow from legal precedent and sound logic – in other words – a decision that they sought to avoid.The Reno case is one prime example of misuse of Legislative history. The case stands as an object lesson of bad legal reasoning and serves well to explain why Justice Scalia was himself loathe to rely on Legislative history except where ambiguity or vagueness is clear, and demonstrable, and unequivocal on the face of the language of a Statute under review. But that is not at all true in the Reno case. The Statute, 18 U.S.C. § 922(t)(2)(c)(C) is clear and unambiguous on its face – both in the language of the specific clause and in the context of the rest of the Statute, 18 U.S.C. § 922(t)(2)(c). The decision of the Court’s majority in the Reno case, rests on faulty logic and is predicated on the two Judges’ antipathy toward the Second Amendment.In Part 7, the final segment of this multi-part series, we look at a legal methodology known as “textualism.” Justice Scalia was a strong proponent of this methodology for a very important reason. Adherence to the methodology promotes judicial honesty and integrity. Something altogether lacking in the majority’s opinion in the Reno case.[separator type="medium" style="normal" align="left"margin-bottom="25" margin_top="5"] Copyright © 2015 Roger J Katz (Towne Criour), Stephen L. D’Andrilli (Publius) All Rights Reserved.

THE FLAWS IN JUDGE GARLAND’S REASONING

THE FLAWS IN JUDGE GARLAND’S REASONING

AN ANALYSIS OF THE CASE NRA VERSUS JANET RENO

PART 5

RECAP

We have been taking a close look at the case, National Rifle Association of America, Inc. vs. Reno, 216 F.3d 122, 2000 U.S. App. LEXIS 15906, 342 U.S. App. D.C. 231 (D.C. 2000). We have done so because an analysis of this Second Amendment case provides us with the clearest barometer of what the American people can expect if President Obama were to successfully position Judge Merrick Garland on the United States Supreme Court as a replacement for the late Justice Antonin Scalia. Judge Garland did not write the opinion. Judge Tatel did. But, Judge Garland agreed with both the decision and the reasoning of Judge Tatel. This means that Judge Garland could have penned the opinion himself. It is clear that Judge Garland does not have a high regard for the sanctity of the Second Amendment to the U.S. Constitution. In fact, coming away from an analysis of the Reno case, it becomes apparent to the perceptive reader that Judge Garland does not have any regard for the sanctity of the Second Amendment. So, if he were to gain a seat on the U.S. Supreme Court, the American people can begin ticking off the minutes of a clock. For, it would be merely a matter of time before Judge Garland, as the fifth critical vote on the liberal wing of the Court undermines and reverses the Justice Scalia not just on the seminal Second Amendment case, District of Columbia vs. Heller, 554 U.S. 570; 128 S. Ct. 2783; 171 L. Ed. 2d 637; 2008 U.S. LEXIS 5268 (2008), but on Justice Scalia’s vast jurisprudence. That should provide conscientious Americans with some necessary food for thought. But, let’s get back to the Reno case.In Part 4 of this multi-part series we began drilling down into the guts of the reasoning of Judges Tatel and Garland. A critical part of the analysis of this case has to do with the meaning of the phrase, ‘destroy all records’ in reference to gun transactions as that phrase appears in a U.S. Code Section, 18 U.S.C. § 922(t)(2)(c)(C) of the Brady Act. What does that phrase mean in the context of the Statute?

DESTROY ALL RECORDS OF THE SYSTEM MEANS JUST THAT: DESTROY THOSE RECORDS AT ONCE!

NRA argues that, in the context 18 U.S.C. § 922(t)(2)(c)(C), inclusion of the adverb, ‘immediately,’ to the phrase, ‘destroy all records,’  is redundant; that it is clear enough in the language of the Statute that Congress intended the NICS to function as a database of information to be supplied to the gun dealer immediately – which it was meant to do – and that, since the execution mandate is immediate – either to allow the transaction to proceed or not to proceed – it stands to reason that, after “the call,” destruction of the records must proceed immediately as well.The Justice Department, though, argues that, nothing in the Federal Statute constrains the Department from holding onto gun transaction records for a period of time. In other words, the Justice Department says that the language of the Brady Act, specifically, the language of the Act, set forth in subsection 18 U.S.C. § 922(t)(2)(c)(C), does not require the Justice Department to destroy the records of the gun transaction immediately.Judges Tatel and Garland agreed with the reasoning of the Justice Department. The Judges opined that the clause, “destroy all records of the system with respect to the call (other than the identifying number and the date the number was assigned) and all records of the system relating to the person or the transfer,” is ambiguous as to whether the Justice Department must destroy the records of the gun transaction immediately precisely because Congress could have added the word, ‘immediately,’ in 18 U.S.C. § 922(t)(2)(c)(C), and refrained from doing so. But is that reasoning sound? Definitely not!The dissenting Judge, on the three Judge panel, Judge Sentelle, agreed with NRA, opining that Congress gave no inherent power to the Justice Department to exceed the power of Congress and that the Justice Department has done just that by promulgating a rule that the Department shall hold onto the records – if necessary, six months – after the date of transfer. Judge Sentelle correctly pointed out that: the Justice Department cannot seize for itself additional powers to decide how long it decides to retain records of a gun transfer. Let’s take dissenting Judge Sentelle’s very reasonable point a step further. Suppose that, instead of use of the words, ‘destroy all records,’ 18 U.S.C. § 922(t)(2)(c)(C) read: “keep all records of the system with respect to the call (other than the identifying number and the date the number was assigned) and all records of the system relating to the person or the transfer.” Now, suppose Janet Reno promulgated a rule allowing the Justice Department to keep all records for six months, or, for six weeks, or for six years, or, for that matter, for sixty years after which the Department would destroy all gun transaction records.Would it be reasonable to infer that, because Congress did not add the word, ‘indefinitely,’ or the word, 'forever,' to the phrase, ‘keep all records,’ the Justice Department would be correct to devise a rule, mandating that the Department shall keep records for a specified period of time, however long or short that period of time might be because Congress did not set forth in the Statute that NICS records must be kept forever, that is to say, ‘indefinitely'? In other words, would it be reasonable to construe the phrase, ‘keep all records,’ as inherently ambiguous or vague because Congress excluded the adjective, ‘forever,’ or the adverb, ‘indefinitely,’ from the phrase, ‘keep all records’? Would the addition of the adjective word, ‘forever,’ or the adverb, ‘indefinitely,’ to the phrase ‘keep all records’ add something, indeed anything, necessary to the meaning of the phrase, ‘keep all records,’ in the context of the Statute, 18 U.S.C. § 922(t)(2)(c)? Does the phrase, ‘keep all records’ so much as suggest that Congress is leaving it up to the Justice Department to decide whether, in the promulgation of rules to give efficacy to the Statute, that the phrase, ‘keep all records’ is straightforward on its face without need for further explication through the addition of the word, ‘forever,’ or ‘indefinitely,’ to the phrase, ‘keep all records;’ and, further, that the Justice Department would be perfectly correct in interpreting Congressional intent, if the Justice Department promulgated a rule that required the Department to keep NICS records for some definite period – whatever that period of time is – but still a period of time that is less than “forever” or “indefinitely” if the language of 18 U.S.C. § 922(t)(2)(c)(C) read, ‘keep all records’ (sans addition of the word, ‘forever,’ or addition of the word, ‘indefinitely’ to the Statute)? Is it not clear enough that the phrase, ‘keep all records’ means nothing more nor less than keep all records forever (or keep all records indefinitely)? If not, what more is to be gained through inclusion of the word, ‘forever,’ or the word, ‘indefinitely’ in the phrase, ‘keep all records?’ But, consistent with the reasoning of Judge Tatel and Judge Garland, it would be perfectly reasonable for the Justice Department to decide to keep NICS records for a specific period of time, less than indefinitely or forever, precisely because the Statute does not include the adverb, ‘indefinitely’ or the adjective, ‘forever,’ in the phrase, ‘keep all records.’ That is to say, the failure of Congress to add the word, ‘forever,’ or the word, ‘indefinitely,’ to the phrase, ‘keep all records,’ manifests ambiguity or vagueness. But, that idea is nonsensical. Moreover, it would be odd, to say the least, were Judges Tatel and Garland to insist that Janet Reno and her Justice Department, in their discretion, could decide to keep all NICS records for a limited period of time simply because Congress failed to assert, in the Statute, ‘keep all records forever’ or ‘keep all records indefinitely.’Yet, for two Judges who obviously have reservations about the sanctity of the Second Amendment it is difficult to believe that they would interpret the Statute as permitting the Justice Department to hold onto firearms’ transaction records for a period of time, but not necessarily indefinitely, were Congress to draft 18 U.S.C. § 922(t)(2)(c)(C) to read, ‘keep all records’ because, on the face of the Statute, ‘keep all records’ means that the Justice Department may ‘keep all records’ for howsoever long the Department wished to keep the records. But, consistent with the Court’s reasoning in the actual case, we would expect the Court to give to the Department of Justice the discretion to decide to keep NICS records for some period of time, less than forever, simply because Congress failed to include the obligatory word, ‘forever,’ or the word, ‘indefinitely,’ in the language of the Statute as ultimately enacted.Had the Statutory section in question been drafted to read, ‘keep all records,’ instead of ‘destroy all records,’ Judges Tatel and Garland, would be compelled to argue – consistent with their reasoning in the actual decision – that inclusion of the word, ‘indefinitely,’ or inclusion of the word, ‘forever,’ in the phrase, ‘keep all records,’ is necessary to the meaning of the phrase in the context of the overall Statute because, without a qualifier, the Statute is inherently ambiguous. Thus, in the absence of inclusion of one or the other word, the Justice Department can in its judgment, reasonably, sensibly keep NICS records for a period of time, namely, a period of time however long or short, relatively speaking, but not, in any event, necessarily indefinitely or forever. This reasoning is patently absurd, and the conclusion drawn from such reasoning would certainly be reprehensible to the sensibilities of Judges Tatel. But the illogical reasoning and resultant outcome both follow from the reasoning of Judges Tatel and Garland in the Reno case, as actually decided.Clearly, the addition of the adjective, ‘forever,’ or the addition of the  adverb, ‘indefinitely,’ is unnecessary verbiage precisely because addition of the adverb or adjective to the phrase, ‘keep all records,’ adds nothing critical to the phrase’s meaning whether considered alone or in the context of the overall Statute. Thus, were Congress to have drafted legislation, requiring the Justice Department ‘to keep all records,’ that phrase can rationally, logically mean nothing more nor less than “keep all records (forever) or (indefinitely).” The addition of a qualifier is not necessary for an English speaker and for a rational thinker to have a perfectly clear understanding of the phrase’s meaning.By the same token, adding the adverb, ‘immediately,’ to the verb, ‘destroy all records’ to the Statute, as the Statute was actually drafted, does not add anything critical to the meaning of it. Inclusion of the adverb, ‘immediately,’ is simply redundant. Therefore – and quite sensibly – Congress omitted the word from the final, Senate version of the Statute, 18 U.S.C. § 922(t)(2)(c). But, the reasoning of Judges Tatel and Garland require inclusion of the word, and that is bizarre logic.Perhaps Judge Garland, who has latched onto Judge Tatel’s decision and reasoning in the Reno case, is not such a keen, critical, methodical, meticulous, and logical thinker as Obama and the mainstream media would have the U.S. Senate and the American public believe him to be. Or, on the other hand, perhaps Judge Garland knows exactly what he is doing, and he manipulates both law and logic in a legal case to suit his needs as dictated by and consistent with his philosophy pertaining to the U.S. Constitution and, particularly, pertaining to the Bill of Rights.In Part 6 of this multi-series article we look to further flaws in the reasoning of Judges Tatel and Garland, when the two United States Court of Appeals Judges for the District of Columbia Circuit as can be gleaned from an analysis of the majority opinion the Reno case – a case decision at odds with the import and purport of the Second Amendment to the United States Constitution.[separator type="medium" style="normal" align="left"margin-bottom="25" margin_top="5"] Copyright © 2015 Roger J Katz (Towne Criour), Stephen L. D’Andrilli (Publius) All Rights Reserved.

THE FLAWS IN JUDGE GARLAND’S REASONING

THE FLAWS IN JUDGE GARLAND’S REASONING

AN ANALYSIS OF THE CASE NRA VERSUS JANET RENO

PART 4

RECAP

In the last few segments of this multi-series article we have provided you with a deep analysis of the case National Rifle Association of America, Inc. vs. Reno, 216 F.3d 122, 2000 U.S. App. LEXIS 15906, 342 U.S. App. D.C. 231 (D.C. Cir. 2000). A thorough analysis of the case provides the U.S. Senate and the American people with a detailed look into the mind of Judge Merrick Garland, providing the U.S. Senate and the American public with a clear account of Judge Garland’s view of the Second Amendment.A deep analysis of the Reno case demonstrates Judge Garland’s lack of sympathy for and lack of deference to the Second Amendment. This conclusion is clear, categorical, and irrefutable. Importantly, an analysis of the Reno case also highlight’s flaws in the Judge’s reasoning as he obtains the result he wants through obvious intentional misapplication of the law. The case is, then, a harbinger of things to come. A comprehensive analysis of the Reno case illustrates, for both the U.S. Senate and the American public, what they may expect of U.S. Court of Appeals Judge for the District of Columbia Circuit, Merrick Garland, were he to step into Justice Antonin Scalia’s shoes, becoming the newest member of the smallest and certainly one of the most elite government institutions in America, as Associate Justice of the U.S. Supreme Court.The American people can expect that, at some point, were Justice Garland to serve on the U.S. Supreme Court, the decisions in District of Columbia vs. Heller, 554 U.S. 570; 128 S. Ct. 2783; 171 L. Ed. 2d 637; 2008 U.S. LEXIS 5268 (2008) and McDonald vs. City of Chicago, 561 U.S. 742; 130 S. Ct. 3020; 177 L. Ed. 2d 894; 2010 U.S. LEXIS 5523 (2010) would be systematically eroded and ultimately overturned, as Justice Garland would join the liberal wing of the Court – a group of Justices that dissented from the decisions in both cases. As the ninth Justice on the high Court, Justice Garland would constitute the fifth critical vote of the liberal wing, giving the liberal wing a decisive majority. Had Justice Garland served on the high Court in lieu of Justice Scalia at the time the Heller and McDonald cases were decided, the outcome of those two seminal Second Amendment cases would have been decidedly and decisively different.President Obama intends for Justice Garland to serve on the high Court and if Obama’s nominee succeeds to the high Court, Obama’s socialist agenda will be secured and assured for generations of Americans to come. The argument given that Judge Garland is a “centrist” means nothing in a vacuum, and that is how it is used. In fact, if anything, the expression as employed, as a one-word descriptor for Judge Garland, is patently misleading and is meant to misguide the U.S. Senate and the American people. Indeed, if, in the worst of all possible worlds, Hillary Clinton were to become President of the United States, she could renominate and probably would renominate Judge Garland to the high Court if President Obama is unable to persuade the U.S. Senate to hold a hearing on Garland’s nomination. Hillary Clinton would be very pleased with Judge Garland, sitting as Justice Garland on the high Court.It is childish and disingenuous of the mainstream media, on behalf of Obama, to threaten the U.S. Senate by suggesting that, if the Senate fails to hold a hearing and fails to confirm Judge Garland as U.S. Supreme Court Justice Merrick Garland, a President, such as Hillary Clinton, will nominate a person who is “more” liberal than Judge Garland.Keep uppermost in mind: Judge Garland was always on Obama’s short list of nominees. Judge Garland is, then, a Judge in the same vein as Justices Sotomayor and Kagan. Judge Garland is of the same bent and temperament and shares the same legal and social philosophies of Justices Sotomayor and Kagan. Were that not so, President Obama would not have nominated Judge Garland to sit on the high Court in the first place. Never forget that!

JUDGE GARLAND’S ANTIPATHY TOWARD THE SECOND AMENDMENT IS ON FULL AND EXTRAVAGANT DISPLAY IN THE RENO CASE.

The Reno case deals with an arcane and narrow issue of law: the meaning of the words ‘destroy all records’ as set forth in the Brady Handgun Violence Prevention Act of 1993, as codified in the U.S. Code, 18 U.S.C. § 922(t)(2)(c). The Brady Act is part of, and subsumed in the broader and vaster Gun Control Act of 1968. As the Gun Control Act of 1968 becomes ever broader and vaster, it whittles away at the import, purport and, indeed, power and authority of the Second Amendment. Eventually, antigun Congressional Legislators intend, through enactment of a continuous stream of antigun Statutes, to undermine the Second Amendment to the point of de facto repeal of it. So, don’t be misled: the Reno case has a major impact on the Second Amendment despite or, perhaps, in spite of the seeming arcane, narrow legal issue that the Court dealt with in the case.

CONGRESS PROHIBITS THE CREATION OF EITHER A FEDERAL OR STATE GUN REGISTRY BUT JUDGE GARLAND SAYS THAT CREATION OF A GUN REGISTRY IS ACCEPTABLE

The Brady Act requires each and every federally licensed firearms dealer to undertake an instant criminal background check of all prospective purchasers of guns and ammunition. The Justice Department, the antigun enforcement arm of the federal Government is charged with creating the rules that implement the Brady Act. So, whenever an individual seeks to purchase a firearm or ammunition for a firearm, the federally licensed firearms’ dealer must perform a criminal background check of that individual and the firearms' dealer does this by tapping into the Justice Department’s NICS database. Once the licensed gun dealer completes “the call” and finds the prospective buyer to be under no disability, the firearms transaction and/or ammunition transaction can be completed. But, what becomes of the records of the transaction? That is the nub of the Reno case; for, Congress says that the records of the transaction are to be destroyed.  The United States Code, 18 U.S.C. § 922(t)(2)(c)(C), says, “destroy all records of the system with respect to the call (other than the identifying number and the date the number was assigned) and all records of the system relating to the person or the transfer.” Why? Congress says the NICS records must be destroyed so as to prevent the federal government or any State government from creating a gun registry. Congress said in no uncertain terms, “no department, agency, officer, or employee of the United States may require that any record or portion thereof generated by the system [NICS] established under this section be recorded at or transferred to a facility owned, managed, or controlled by the United States or any State or political subdivision thereof.” Pub. L. No. 103-159, § 103(i), 107 Stat. at 1542. Did Janet Reno’s Justice Department comply with these clear Statutory prohibitions? In a word, “no!” Under the rules the Justice Department promulgated, as codified in the Code of Federal Regulations, 28 C.F.R. § 25.9(b), the Department establishes and maintains an “audit log” of all firearms’ and ammunition transactions. It is in the very creation of an “audit log” that the Justice Department  sets in motion the steps allowing for implementation of an illegal backdoor gun registry. Two Judges of the United States Court of Appeals for the District of Columbia Circuit, who decided the Reno case,  saw no problem with this. United States Circuit Court of Appeals Judge Tatel wrote the opinion for the majority. Judge Garland agreed with both the decision and the reasoning of the Court and, so, adopted the opinion as his own. It is as if he had written the opinion himself. In the majority opinion the Judges go so far as to admit that the Justice Department’s “audit log” could indeed function as a gun registration system, but, then, upon that admission, the Judges attempt, bizarrely, and unsuccessfully, to dismiss the import of it. Judge Tatel says: “It does not follow, of course, that the Audit Log could never function as a firearm registry. But the Log’s deficiencies as a system for registering firearms make, it unlikely that it would be used for that purpose.” Judge Garland agreed with Judge Tatel's assertion since he did not write a concurring opinion where he might have, at the very least, reasonably concluded that if the Justice Department's Audit Log could function as a firearms' registry -- whether it has deficiencies in that regard or not -- the very creation of an "Audit Log" is inconsistent with Pub. L. No. 103-159, § 103(i), 107 Stat. at 1542, as correctly pointed out by Judge Sentelle, in the Judge's dissenting opinion.But, Judge Garland did not disagree with Judge Tatel's very odd remark, grounded, as it is, on very shaky reasoning. Moreover, the assertion also logically implies that the Justice Department has created a rule that amounts to a clear intrusion upon on the First Branch of Government, Congress. Thus, the Justice Department's rule amounts to an  transgression of the Separation of Powers Doctrine. And it is of no avail for Judges Tatel and Garland to attempt to backpedal from the dire implication of the remark by saying that the “Audit Log” is a poor example of a gun registration scheme. Whether a fine example of a registration scheme or not, the “Audit Log” does function as a gun registration scheme or can be used as such. And that is enough to find 28 C.F.R. § 25.9(b) illegal on its face. For, in enacting the Brady Act, Congress made clear that neither State governments, nor the Second Branch of the Federal Government – the Executive Branch – is permitted to create a gun registry or to create something that, if not intended to be a gun registry scheme, can certainly function as one. The Justice Department has done just that. And, Judges Tatel and Garland have stamped their judicial imprimatur upon it.It does little for Judges Tatel and Garland to wiggle out from under the implication of their remark to say that, because the Audit Log has deficiencies as a firearm registry, we don’t have to worry that it may one day become one or that if it is at the present time in fact one, it is a bad one, so there is no need for the public to be concerned about it. Even so, if we go that far, are not Judges Garland and Tatel saying that the Justice Department could certainly remove the deficiencies and create a first-class gun registry?In the next article, Part 5 of this multi-part series, we take a close look at the meaning of the phrase, “destroy all records of the system,” in the context of the Statute.[separator type="medium" style="normal" align="left"margin-bottom="25" margin_top="5"] Copyright © 2015 Roger J Katz (Towne Criour), Stephen L. D’Andrilli (Publius) All Rights Reserved.

THE GUN CONTROL ACT OF 1968 AND THE BRADY ACT OF 1993

THE GUN CONTROL ACT OF 1968 AND THE BRADY ACT OF 1993

AN ANALYSIS OF THE CASE NRA VERSUS JANET RENO

PART 3

THE LANGUAGE OF THE GUN CONTROL ACT OF 1968

To understand the impetus behind the Attorney General’s actions that led to NRA’s action against the Attorney General and the Department of Justice, we need to take a look at the Gun Control Act of 1968. What does it say? The Gun Control Act of 1968, as set forth in the United States Code, 18 USCS § 922(g) or (n), provides that certain individuals, including, inter alia, convicted felons; fugitives from justice; aliens who are in this Country illegally; persons who have been adjudicated mentally defectives or who have been committed to a mental institution; members of the military who had received dishonorable discharges; individuals who have been convicted of a misdemeanor of domestic violence; or those Americans who have renounced their citizenship; shall not be permitted to possess a firearm or ammunition or to transfer or otherwise transport firearms or ammunition in interstate commerce. Ostensibly, in order to assist a federally licensed dealer in firearms in ascertaining whether an individual, who seeks to own and possess a firearm and/or ammunition, is permitted under State law or under the laws of the United States to do so, Congress enacted the Brady Handgun Violence Prevention Act of 1993. The Brady Act was subsumed into the broader Gun Control Act of 1968, becoming a critical component of the original Act, for antigun groups. The Brady Handgun Violence Prevention Act requires the Attorney General to establish a “national instant criminal background check system,” better known by the acronym, “NICS.” Three provisions of the Brady Handgun Violence Prevention Act, as set forth in 18 U.S.C. § 922(t)(2)(c), require the Justice Department to destroy records of those individuals – those American citizens – who are lawfully permitted, to possess firearms and ammunition under applicable federal law. The Brady Act, 18 U.S.C. § 922(t)(2)(c), does not, however, say anything about destruction of records of those individuals who are not permitted, under 18 U.S.C. § 922(g) or 18 U.S.C. § 922(n), or under State law, to possess firearms or ammunition.The instant background check system is presented by the proponents of the Brady Handgun Violence Prevention Act of 1993, and, as mentioned by the Court in the Reno case, to be a mechanism to assist a lawful, federally licensed dealer in firearms in determining, essentially instantaneously, whether a prospective purchaser of a firearm or firearms and/or ammunition is lawfully permitted, under federal and/or State law, to possess firearms and ammunition. If so, the transfer of one or more firearms and/or ammunition for a firearm is to proceed. Otherwise, the transaction cannot lawfully proceed. But, the Brady Act, as enacted, does not permit the Justice Department to create a backdoor gun registry program. Yet, this is precisely what the Justice Department would be doing if the Justice Department were to maintain NICS records on a firearms or ammunition transaction of a person who is lawfully permitted to own firearms and ammunition, after an NICS check of the prospective buyer of firearms or ammunition demonstrates that the purchaser is under no disability that would otherwise forbid the transaction from proceeding.But, what does 18 U.S.C. § 922(t)(2)(c) actually say about the retention or the destruction of NICS records as to those citizens who are lawfully permitted to possess a firearm. In pertinent part, the Statute says just this:“If receipt of a firearm would not violate section 18 USCS § 922(g) or (n) or State law, the system shall – (A) assign a unique identification number to the transfer;(B) provide the licensee with the number; and(C) destroy all records of the system with respect to the call (other than the identifying number and the date the number was assigned) and all records of the system relating to the person or the transfer.”

THE LEGAL ISSUE

The paramount legal issue in the Reno case is directed to the meaning of the third requirement of 18 U.S.C. § 922(t)(2)(c) as set forth in 18 U.S.C. § 922(t)(2)(c)(C): namely, whether the Statutory section in question, paragraph “C,” prohibits the temporary retention of NICS records after the seller has conducted the NICS gun background check and has determined that the prospective buyer of a firearm and/or ammunition is not under disability that would otherwise preclude the transfer of the firearm or ammunition from going forward. Specifically, the question is whether the clause, “destroy all records of the system with respect to the call (other than the identifying number and the date the number was assigned) and all records of the system relating to the person or the transfer,” means “destroy immediately.”NRA argues that, in the context of the Statute, the defining clause, “destroy all records of the system with respect to the call” means “destroy immediately.” What NRA is saying is that the meaning of the Statute is simple, straightforward and unambiguous; that the unambiguous meaning of the Statute, as enacted, reflects the clear, categorical, and unequivocal intention of Congress; and, lastly, that since the meaning of the Statute is unambiguous on its face, there is no need to investigate the intention of Congress further.But, the Justice Department disagreed with NRA’s interpretation of the phrase, ‘destroy all records.’ And the Justice Department’s disagreement is exemplified in the rule the Department promulgated to effectuate what the Department understood to be the intention of Congress when Congress enacted the Brady Handgun Violence Prevention Act of 1993. That is to say, the Justice Department created an “audit log.” This audit log contains details of gun purchases. Specific information relating to gun purchases and the manner for retention and the length of time of retention of specific information related to all prospective sales of guns or ammunition is codified in the Code of Federal Regulations, namely, 28 C.F.R. § 25.9. Understandably, NRA is very concerned about the Justice Department’s creation of an audit log. For, the Statute, 18 U.S.C. § 922(t)(2)(c), does not speak of an “audit log.” It does not exist in the Congressional Act itself. It is, rather, a creature of the administrative regulations promulgated by the Justice Department to give efficacy to Congressional Legislation -- as the Justice Department happens to interpret that legislation. The creation of an “audit log” originated with the Justice Department. And therein is the rub. Was this necessary? Does the creation of an audit log and rules for retention of firearms' and ammunition transactions a reasonable interpretation of Federal Statute? That is to say, is the creation of an audit log and rules for retention of firearms and ammunition transactions by the Justice Department consistent with Congressional intention?The Justice Department believes so. But NRA argues, understandably, that the existence of an audit log amounts to a backdoor registry – something the Justice Department insists that the audit log isn’t. The Brady Handgun Violence Prevention Act specifically prohibits the creation of a firearms’ registry. As dissenting Judge Sentelle said, “The Brady Act contains an express provision headed ‘Prohibition Relating to Establishment of Registration Systems with Respect to Firearms.’ Pub. L. No. 103-159, Sec. 103(i), 107 Stat. at 1542.” The Section provides that “No Department, agency, officer, or employee of the United States may require that any record or portion thereof generated by the system established under this section be recorded at or transferred to a facility owned, managed, or controlled by the United States or any State or political subdivision thereof.” Presumably, Senate and House Republicans would not have voted for the Brady Act had the Act specifically included or even allowed for the creation of such a federal firearms' registry.

WHAT IS THE JUSTICE DEPARTMENT’S AUDIT LOG?

As a Department of Government, the Justice Department is tasked with promulgating rules to implement NICS. The Justice Department’s rules for NICS are set forth in the Code of Federal Regulations, 28 C.F.R. § 25.6. This rule establishes the “Audit Log.” NRA contends, quite reasonably, that the “Audit Log” is itself a form of registration because the Justice Department is retaining records of a request to purchase a firearm and/or ammunition even if the information that the Justice Department is retaining does not specify the type or kind of weapon and/or ammunition purchased or, for that matter, whether the sales transaction was even completed. In particular the Justice Department creates a tracking number assigned to all firearms’ transactions. This tracking number is referred to as an “NTN.” 28 C.F.R. § 25.2 says this about the NTN: “NTN (NICS Transaction Number) means the unique number that will be assigned to each valid background check inquiry received by the NICS. Its primary purpose will be to provide a means of associating inquiries to the NICS with the responses provided by the NICS to the FFLs.” The audit log also includes a list of names of individuals who are approved to purchase firearms.Judges Tatel and Garland, arguing for the majority of the Court, curiously admit that the Justice Department’s Audit Log could in fact “function as a firearm registry,” which is patently illegal, but then dismiss the very point they make, by asserting that the Audit Log would not be a useful registry because of deficiencies in the system. Are the Judges then implying that the audit log is a firearms’ registry but that, as a registry, Congress and the American people should accept it, and not be concerned about it, because the audit log is not a very good registry? Does this not demonstrate a flaw in the Judges’ reasoning – bad enough for Judge Tatel, but altogether unacceptable for Judge Garland who would, if President Obama had his way, be headed for a seat on the high Court?Judges Tatel and Garland also assert that, even if the Justice Department does keep specific information of firearms’ transactions of those citizens who are permitted lawfully to possess firearms, the audit log data of permitted firearms’ transactions is purged after six months; the data isn't retained indefinitely. So, the question comes down to whether the language of the Brady Act authorizes the Justice Department to keep data, for any length of time, on individuals who are lawfully permitted to possess firearms. Once again, Judges Tatel and Garland are suggesting that keeping records for six months is no big deal. But is it a big deal? It certainly is a big deal if the intention of Congress when it enacted 18 U.S.C. § 922(t)(2)(c) of the Brady Act intended for the Justice Department never to retain records of gun or ammunition transactions that are authorized to go through which means, as NRA rationally argues that the Justice Department is required to destroy those transaction records immediately.The NRA contends, justifiably, that the Justice Department’s audit log rule is patently illegal and that the Brady Act does not permit the Justice Department to keep records for any length of time. Dissenting Judge Sentelle agreed, pointing out that for the Justice Department to promulgate rules specifying retention of records for any length of time amounts to a gross misuse of executive power.Judge Garland, though, agreeing with both the decision and reasoning of Judge Tatel who wrote the opinion for the majority in the Reno case does not see a problem, arising to Constitutional dimensions with the Executive Branch's Justice Department intruding upon the exclusive province of the Legislative Branch of Government. This requires us to ask whether Judge Garland, sitting on the United States Supreme Court, as Justice Garland, would himself utilize the third Branch of Government, the Judicial Branch, not merely to interpret the law but to make law, and, hence, actively use the power of the Judiciary not to preserve and strengthen the Bill of Rights but to weaken, allowing the Executive Branch of Government to usurp ever more powers unto itself at the expense of the People.In the next few articles we will continue our criticism of the majority opinion in the Reno case pointing to further flaws in the reasoning of Judges Tatel and Garland.[separator type="medium" style="normal" align="left"margin-bottom="25" margin_top="5"] Copyright © 2015 Roger J Katz (Towne Criour), Stephen L. D’Andrilli (Publius) All Rights Reserved.

JUDGE GARLAND SPURNS NRA OBJECTIONS TO JUSTICE DEPARTMENT COLLECTION OF GUN OWNER INFORMATION UNDER BRADY ACT

JUDGE GARLAND SPURNS NRA OBJECTIONS TO JUSTICE DEPARTMENT COLLECTION OF GUN OWNER INFORMATION UNDER BRADY ACT

PART 2

AN ANALYSIS OF THE CASE NRA VERSUS JANET RENO

INTRODUCTION

President Barack Obama and those who support the nomination of Judge Merrick Garland to the U.S. Supreme Court wax poetic about Judge Garland’s many positive traits, naming among these: great intelligence, perceptive analytical ability, meticulous, methodical attention to detail when deciding a case, personal integrity, collegiality, even modesty – and so forth and so on. But, it is most remarkable that, for all of this effulgent, indeed effusive praise, little, if anything is said by the Judge’s proponents and benefactors about the cases Judge Merrick Garland has actually decided and, too, the reasoning Judge Garland employs when deciding a case.So, to fill in that gap, we look at a critical Second Amendment case that Judge Merrick decided as Judge on the United States Court of Appeals for the District of Columbia Circuit. A close look at that case will give both the U.S. Senate and the American public a nice snapshot of how Judge Merrick Garland, sitting on the U.S. Supreme Court as Justice Associate Justice Garland, would likely decide Second Amendment cases that come before the high Court. The U.S. Court of Appeals case that we will be looking at was decided in the first year of the twenty-first century. It is titled, National Rifle Association of America, Inc. vs. Reno, 216 F.3d 122, 2000 U.S. App. LEXIS 15906, 342 U.S. App. D.C. 231 (D.C. Cir. 2000).Our analysis of this case illustrates that, while Judge Garland may be a meticulous, methodical thinker, this does not mean he is not prone to committing errors in both law and logic; and an analysis of the Reno case illustrates many such errors. These errors are compounded by or, perhaps, due precisely to Judge Garland’s evident antipathy toward the Second Amendment. One’s ideological and philosophical bent toward the Bill of Rights does follow one – all the way to the U.S. Supreme Court.

THE IMPORT OF THE RENO CASE

The Reno case involves the proper meaning to be given to one clause in one paragraph of one section of the Gun Control Act of 1968. The case involves, what, at first glance, may seem to be an uninteresting, arcane issue of pertaining to statutory construction. Yet, the central theme of the case should be of concern to any American who expresses even a modicum of interest in the preserving the Second Amendment. The case pertains to criminal background checks on persons who wish to purchase firearms or ammunition.The use of the criminal background check system devised by the Justice Department operates as an end-run around the Second Amendment because it serves to weaken the Second Amendment of the United States Constitution. The argument evinced by antigun groups and by their proponents in State Legislatures, in the U.S. Congress, and in the White House is that criminal background checks simply help keep guns out of the wrong hands and do nothing to preclude the law-abiding citizen from possessing firearms.What is left unsaid, though, is that gun background checks are often backdoor gun registration schemes or, at least, mechanisms that can evolve into gun registration schemes. This is a decidedly bad thing to countenance in a free Republic. It is just this sort of backdoor scheme that the Justice Department created when it promulgated rules to effectuate the instant background check program enacted by Congress in 1993. The Justice Department had no authority, though, to create what amounts to or, at least, may eventually evolve into, a hidden federal firearms’ registration program. The rules that Reno’s Justice Department created to implement Congressional legislation is cause for alarm. The NRA thereupon brought action against Janet Reno, Attorney General, challenging the legality of the Justice Department’s criminal background check rules related to gun transactions. The United States District Court for the District of Columbia dismissed NRA’s Complaint against the Attorney General. NRA then appealed the adverse decision of the lower United States District Court to the United States Court of Appeals for the District of Columbia Circuit. The case was heard by a panel of three Judges, namely, Judges, Tatel, Garland, and Sentelle. Two of the three Judges, Tatel and Garland, ruled in favor of the Attorney General, against NRA, thereby affirming the decision of the lower Court, against NRA. Judge Tatel wrote the opinion for the majority. Judge Garland, Obama’s nominee to replace Justice Antonin Scalia on the United States Supreme Court agreed with both the decision and the reasoning of Judge Tatel, thereby making Judge Tatel’s opinion essentially his own as well. Judge Sentelle wrote a scathing dissenting opinion.The dissenting Judge agreed with NRA and chastised the Attorney General, Janet Reno, asserting that the national instant criminal background check system “statute establishes that Congress has unambiguously told the Attorney General that she shall not do what she is doing in the regulations.” Judges Garland and Tatel, however, disagreed with NRA's arguments, striking a blow to the Second Amendment. Since two Judges out of three ruled in favor of Janet Reno, we are stuck with bad law.To understand why the Justice Department’s actions do cause and should cause alarm to Americans who hold the Second Amendment sacrosanct and inviolate we need to take a look, briefly, at the Gun Control Act of 1968 and to the Brady Handgun Violence Prevention Act of 1993 that amends the Gun Control Act of 1968. We do so in Part 3 of this multi-series article.[separator type="medium" style="normal" align="left"margin-bottom="25" margin_top="5"] Copyright © 2015 Roger J Katz (Towne Criour), Stephen L. D’Andrilli (Publius) All Rights Reserved.

JUDGE GARLAND AND THE SECOND AMENDMENT: HOW DOES JUDGE MERRICK GARLAND FARE AGAINST JUSTICE ANTONIN SCALIA

JUDGE GARLAND AND THE SECOND AMENDMENT: HOW DOES JUDGE MERRICK GARLAND FARE AGAINST JUSTICE ANTONIN SCALIA

PART 1

PREFACE TO ANALYSIS OF THE CASE NRA VERSUS JANET RENO

To test the caliber of a person who would serve as a Justice of the United States Supreme Court – the one Court constituting the Supreme Judicial power in the Land and constituting, as well, the third essential Branch of Government, as established by Article 3, Section 1 of the United States Constitution – which says, in pertinent part, “[t]he judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish” – we do look to that person’s intelligence certainly. But great intelligence, while certainly a necessary characteristic of a Justice, does not, of itself, a great Justice make.Much has been made and, undoubtedly, will continue to be made of Judge Garland’s formidable intellectual prowess. A litany of Judge Garland’s intellectual gifts is a continuous refrain we hear from the Judge’s benefactors and proponents. But, when recited in a vacuum, as it invariably is, such praise amounts to little more than empty rhetoric.Of course a person who is gifted with great intelligence – when such intelligence is also coupled with and tempered by collegiality – another quality often attributed to Judge Garland – would seem to be a most suitable candidate to serve on the U.S. Supreme Court. But, is such a person really suitable to serve as Justice on the highest Court of the Land? If a person is indifferent to or contemptuous of our Nation’s Bill of Rights ought that person serve on the highest Court of the Land if, on balance, that person has so many strong qualities, skills, and attributes to be brought to the high Court? We do not believe so.For, such a person, who is indifferent to, places minimal emphasis on, or is altogether contemptuous of our sacred Bill of Rights, is a person who is capable of doing incredible damage to the well-being of a free Republic if confirmed by the U. S. Senate to sit on the highest Court of the Land. For the decisions of the U.S. Supreme Court Justice – even those of a dissenting Justice on the high Court – can have a decided and decisive impact – for good or ill – on our Nation’s institutions, on the continued presence of our Nation’s core values, on the nature of the education of our children, and in the well-being of every American citizen.Thus, we must look to other aspects of a person to ascertain whether, for the good of the Country and for its citizens, that person is best suited to be ensconced as a Justice in our third Branch of Government and therein do service on behalf of the American People – for life or until that Justice otherwise decides, as did Justice Sandra Day O’Connor and Justice David Souter, to retire from the high Court. The work of a Justice becomes so much more important when the other Two Branches fall short – all too often, far short – of their duty to the Nation, to its People, and to the Bill of Rights of the U.S. Constitution. So, we must ask: while character and integrity of a person are certainly critical factors for consideration, along with a perceptive mind and keen intelligence, to what does that person’s character and integrity, perceptiveness and intelligence, as a Jurist extend? Does that person exhibit reverence to and uncompromising devotion toward our Bill of Rights? Or, does that person consider our Bill of Rights dispensable?The first Ten Amendments that comprise our Bill of Rights are, together, the one critical component of the U.S. Constitution that operates as the ultimate restraint on the power of the federal Government and on its standing army to suppress the Nation’s citizenry. The Bill of Rights establishes, in no uncertain terms, that such power and authority the federal government exercises is limited and is granted to the government by the American people in whom absolute power resides and for such period of time that the federal government and its standing army do not forget in whom ultimate and absolute power resides. Thus, a person’s character and integrity, perceptiveness and intelligence are critical factors for consideration but they must be tied to a Jurist’s philosophical attitude toward the American citizenry’s Bill of Rights.So, how does Judge Merrick Garland fare, apropos of one clear and unequivocal right of the people – the Right of the People to keep and bear arms. The case, National Rifle Association of America, Inc. vs. Reno, 216 F.3d 122, 2000 U.S. App. LEXIS 15906, 342 U.S. App. D.C. 231 (D.C. Cir. 2000) offers a clear, unmistakable, and disturbing clue. The case was decided by a three Court panel that consisted of Judges, Sentelle, Tatel, and Judge Garland, the last of whom is President Barack Obama’s nominee, whom the President has nominated to replace the late Justice, Antonin Scalia, on the high Court.The decision in the Reno case wasn’t unanimous. Judge Tatel wrote the opinion of the Court and Judge Garland agreed with it. Judge Sentelle was the lone Judge, of the three who decided the case, who dissented from the majority opinion. The two member majority, consisting of Judges Tatel and Garland, affirmed the decision of the District Court, for Defendant Appellee, Justice Department Attorney General Janet Reno, against Plaintiff Appellant, NRA, dismissing NRA’s complaint.Keep in mind that, even though Judge Garland did not write the opinion of the Court, the fact that he signed on to it means he agreed with both the decision of Judge Tatel and with Judge Tatel’s reasoning in it. What does that mean? Just this: Had Judge Garland agreed with the decision but disagreed in whole or in part with Judge Tatel’s reasoning, Judge Garland would have written his own concurring opinion; and had Judge Garland disagreed with the decision, then the decision of the District Court would have been reversed and Judge Tatel’s majority opinion would have been a minority dissenting opinion. The two members, Sentelle and Garland, would then have decided in favor of Plaintiff Appellant, NRA, against Defendant Appellee, Janet Reno, thereby reversing the decision of the lower District Court. But that did not happen! The NRA lost and so did those Americans who live in the District of Columbia, and by extension, so did Americans who live throughout the United States because of the impact that a decision of the U.S. Court of Appeals for the District of Columbia Circuit often has on the rest of the Country. The decision in the Reno case has general application beyond the District of Columbia. Moreover, other United States Circuit Courts of Appeal give deference to a decision of the United States Court of Appeals for the District of Columbia Circuit. The U.S. Court of Appeals for the District of Columbia Circuit is considered the most influential Court in our Federal and State Court System second only to the United States Supreme Court itself.In the next article we look at the particulars of the Reno case. You will come to see that, although, President Obama, argues, as do others who support the President’s nomination, that Judge Garland is a brilliant, thoughtful, meticulous jurist, Judge Garland’s reasoning, as an extension of Judge Tatel who wrote the opinion, is both legally and logically suspect in the Reno case. The reasoning is fraught with legal and logical errors.Of late, we have heard from Vice President Joe Biden, Senate Minority Leader, Harry Reid. Even a few – very few – Republican Senators have chimed in on behalf of Judge Garland. But the U.S. Senate should hold fast, and deny a confirmation hearing. Why do we say this? We say this because Judge Garland, sitting on the high Court as Justice Garland, would change the composition of the Court, and we are not talking here of the obvious change in numerical composition – back to the seeming “magic number, nine.” We are talking here of  substantive and substantial compositional changes in the temperament of the high Court; a quantum change in the manner in which the new majority of Justices – Ginsberg, Breyer, Sotomayor, Kagan, and Garland – would decide cases; the rationale the new majority would use; the peculiar legal and logical tests the new majority would employ; the upheavals to Justice Scalia’s legacy on the high Court the new majority would make; of the cases that the new majority would overturn; and a reduction in the emphasis on our National Sovereignty and on the U.S. Constitution in favor of a new international perspective the new majority would introduce. How do we know this?Analysis of actual case law always elicits the truth – the proof of the pudding. So it is that those who trumpet the greatness of Judge Garland do so without bothering to look at the cases he decided during the Judge’s tenure on the U.S. Court of Appeals for the District of Columbia Circuit. It is what Judge Garland’s supporters don’t say about Judge Garland that is worrisome. They don’t discuss the cases he decided and the legal and logical tests he employed in rendering those decisions. For what a person does as a Judge -- that Jurist's ideology and philosophy and methodology of reasoning -- goes with him when that Judge sits as a Justice on the U.S. Supreme Court.Truth always trumps rhetoric. Rhetoric is often eloquent, even effusive. Truth is often blunt; not pretty; it goes down hard. In the ultimate analysis, though, truth always trumps rhetoric. A pity that truth, unlike rhetoric, is something in consistently short supply in the realm of politics.[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 U.S. SENATE MUST HOLD FIRM: OBAMA’S DARLING CHILD, JUDGE MERRICK GARLAND, MUST NOT GAIN JUSTICE SCALIA’S SEAT ON THE U.S. SUPREME COURT

THE U.S. SENATE MUST HOLD FIRM: OBAMA’S DARLING CHILD, JUDGE MERRICK GARLAND, MUST NOT GAIN JUSTICE SCALIA’S SEAT ON THE U.S. SUPREME COURT

Obama is tenacious. His intention to make Judge Merrick Garland a Justice of the U.S. Supreme Court will not let up. If anything, Obama’s efforts to place Judge Garland on the high Court are gathering steam. Obama is continuously thrusting Judge Garland into the limelight.Obama is well aware that, if the Senate relents and allows a hearing on Judge Garland’s confirmation, Judge Garland is very likely to become a U.S. Supreme Court Justice, replacing the late Justice Antonin Scalia. If that should occur, Obama’s goal of control over the Judiciary will be complete. Obama will be three for three on his Judicial nominees, and the liberal wing of the Judiciary will have a clear majority. The Democrats would love to see this. That is bad enough. What is worse, two Republican Senators, Mark Kirk of Illinois, and Susan Collins of Maine, have called for a hearing and vote on Obama's nominee, in defiance of Senate Mitch McConnel’s clear orders to Republican Senators that they hold firm: no hearing on Obama’s nominee, Judge Garland!Senator Kirk isn't listening to Senate Majority Leader Mitch McConnel. But, then, Senator Kirk is a virulent opponent of the Second amendment. That, we know; and Senator Susan Collins views on the Second Amendment are suspect now in light of her support for a hearing and vote on Garland’s nomination to the Supreme Court, in defiance of Senate Majority Leader, Mitch McConnel’s call to Senate Republicans to hold firm.Hardly a day goes by without Obama thrusting Judge Garland like a dart into the Senate’s eye. And the mainstream media is doing its part as a puppet of the Obama Administration to keep Garland’s name and photo before the public. The New York Times reported, Tuesday, April 12, 2015, in a news article titled, "Senator Grassley and Judge Garland Meet and Rehash the Obvious," that Judge Garland had an informal meeting over breakfast in the Senate dining room.Although several other Republican Senators have previously met with Judge Garland and have talked informally with him – and more Republican Senators will likely meet with Judge Garland in the near future – a meeting between Senator Grassley and Judge Garland is especially ominous because Senator Grassley is Chairman of the powerful Senate Judiciary Committee.Senator Charles Grassley ultimately decides whether a hearing on Obama’s nominee will take place.For all the fanfare over the finer points of Judge Garland’s intelligence, character, and seemingly benign, pleasant nature, precious little information, if any at all, is available from the mainstream media about Judge Garland’s judicial decisional history. Why is that.The New York Times reports, in the same April 12, 2016 article, that Judge Garland met with U.S. Senator Patrick J. Toomey, Republican of Pennsylvania. The Senator made this cryptic comment about Garland: “Based on a number of decisions and my conversation with Judge Garland, I’m not convinced that he would be willing to play the role of a sufficiently aggressive check on an administration.”The “decisions” Senator Toomey is referring to are case law decisions. Senator Toomey did not, unfortunately, elaborate on the point.How does Judge Garland view the Bill of Rights in light of the decisions he has handed down as United States Court of Appeals Judge for the District of Columbia Circuit? What, specifically, is Judge Garland’s position on the Second Amendment? The President isn’t saying; nor is the Vice President; nor is any Congressman; nor is the mainstream media. We, however, at the Arbalest Quarrel, will do so, as we must.To address the chasm in reporting on Garland’s decisional case law history the Arbalest Quarrel has taken a look at one particular case that provides a very clear indicator of Judge Garland’s position on the Second Amendment.In a multi-part series we peer closely at one particular case. The case is National Rifle Association of America, Inc. vs. Reno, 216 F.3d 122, 2000 U.S. App. LEXIS 15906, 342 U.S. App. D.C. 231 (D.C. Cir. 2000).While the case has been mentioned on several websites, not least of which is Ammoland Shooting Sports News, where the Arbalest Quarrel often posts, there has not been, to our knowledge, a thorough analysis of the case. The Arbalest Quarrel plunges deeply into the mind of Judge Garland. You can see for yourself what we have found. It isn’t pretty.Make no mistake, if a hearing is held on Obama’s nominee, and votes are cast, and Judge Garland is confirmed as a U.S. Supreme Court Justice, Justice Scalia’s legacy, as a staunch defender of the Second Amendment, will be systematically eroded. The two seminal Second Amendment cases, District of Columbia vs. Heller, 554 U.S. 570; 128 S. Ct. 2783; 171 L. Ed. 2d 637; 2008 U.S. LEXIS 5268 (2008) and McDonald vs. City of Chicago, 561 U.S. 742; 130 S. Ct. 3020; 177 L. Ed. 2d 894; 2010 U.S. LEXIS 5523 (2010), will either be overturned outright or whittled away to the point they cease to have legal significance. That means that four lone Justices, who comprise the conservative wing of the Court, will be unable to stop the coming onslaught wrought by the antigun establishment. The endgame – complete destruction of the Second Amendment – would be, then, just a matter of time.[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.

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.